IN THE DISTRICT COURT OF SAMOA
Police v Auvae [2020] WSDC 5

Case name: 	Police v Auvae	
		
Citation: 	[2019] WSDC 5	
		
Decision date: 	11 March 2020	
		
Parties: 	POLICE v NIUTI TUAOIMAALII AUVAE, male of Fagalii and Malie	
		
Hearing date(s): 	02 March 2020	
		
File number(s): 	D2434/18	
		
Jurisdiction: 	DISTRICT	
		
Place of delivery: 	Mulinuu	
		
Judge(s): 	JUDGE ATOA SAAGA	
		
On appeal from:		
		
Order:	-	The Defendant is hereby convicted and sentenced to 5 months imprisonment.	
		
Representation: 	V Afoa for Prosecution	
	P Tuisa for Defendant
	
Catchwords: 	aggravating features of the offending – aggravating features as an offender – sexual violation – starting point for sentence – sentence 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s53(2); s59(3); s59(6)	
		
Cases cited:	Police v Ah Kuoi [2016] WSDC 21
Police v Aleki [2013] (unreported)
Police v Savaiinaea [2017] (unreported)
Police v Tuvale [2017] (unreported)

Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

NIUTI TUAOIMAALII AUVAE,
male of Fagalii, Malie and Tufulele
Defendant

Counsels:		V Afoa for Prosecution
			P Tuisa for Defendant

Hearing:		02 March 2020	
Decision:		11 March 2020

SETENCING DECISION OF JUDGE SAAGA
THE CHARGES
1. 	Niuti, you were initially charged under Section 53(2) of the Crimes Act 2013 for assault with intent to sexually violate EM but was reduced on an application by Prosecution to a charge under Section 59(3) of the Crimes Act 2013.
2. 	Section 59(3) of the Crimes Act 2013 stipulates that, “A person who does an indecent act with or on a young person is liable to imprisonment for a term not exceeding 7 years.”
3. 	The particulars of the charge are that, On the 22nd of May 2017 at Faala Palauli, you indecently assaulted EM female of Faala Palauli.
4. 	At the conclusion of the hearing, the Court was satisfied beyond reasonable doubt that you had indecently assault the victim by pulling her behind the hedge, hugging her and attempted to kiss her on her left cheek.
5. 	The alternative charge of assault was dismissed against you.
Aggravating features of the offending:
6. 	The age of the victim. She was only 14 years of age. She was distressed and upset and it is an experience that she should not have been exposed to at such a young age.
7. 	You were a stranger. An adult person. You tried to force her to commit an indecent act against her consent. She was fortunate to have escaped and seek help from Asovale soon after the incident.
8. 	You took advantage of a young child who was on the road by herself that evening. 
9. 	What is disconcerting is that your wife and step daughter were in the house at the time. 
Mitigating features of the offending
10. 	There are no mitigating features of the offending. There is nothing that will justify an indecent act on a young child.
Aggravating feature as an offender
11. 	You are a missionary. You are a servant of God who is called to minister to the people yet your actions belied your calling. It brings the work of ministers into disrepute.
12. 	You have continued to deny that you had committed the offence for which you have been found guilty and have expressed no remorse for your actions. You still maintain that it is either another person or a demon committed this offence.
13. 	In the Pre-Sentence Report, it is stipulated that you did not want to make amends as you still maintain that you did not commit any offence nor have you broken the law.
Mitigating features as an offender
14. 	 You are a first offender.
15. 	In your Affidavit in support of your pleas for leniency in sentencing, you have advised the Court that you had tried to contact the family three times but they have not responded. It is contrary to what you have stipulated in the Pre-sentence report. You have met with the victim’s uncle but not her family. The outcome of that meeting is not stated. 
16. 	This is the first time that you have stood in Court for an offence. 
17. 	You have been a church minister since 1994.
18. 	You have suffered tremendously in the past two and half years from the pressure of this court case and for signing at the police station for the past two and half years. Your family has suffered alongside you.
19. 	You are no longer receiving an income from your church. Your daughter has also distanced herself from you.
20. 	You have petitioned the Court also for a non-custodial sentence and to consider the inconvenience, embarrassment, humiliation and loss of income and opportunity to continue your work as a missionary as punishment that you have undergone already after being found guilty of the offence.
DISCUSSIONS
21. 	Section 6 of the Sentencing Act 2016 stipulates each of the principles of sentencing which the Court must consider. I must consider the gravity of the offending, culpability of the defendant and seriousness of this type of offence as indicated by the maximum penalties prescribed for this offence. In deciding what the appropriate sentence is, I must take into account the general desirability of consistency with appropriate sentencing level and other means of dealing with defendants in respect of similar circumstances, any information concerning the effect of the offending on the victim and the particular circumstances of the defendant that means that a sentence or other means of dealing with the defendant would be otherwise be appropriate would, in particular instance, be disproportionately severe.
22. 	Section 5 provides the purposes for sentencing or dealing with the Defendant and the Court can consider one or more of these principles. These principles are:
(a) 	To hold the defendant accountable for harm done to the victim and the community by the offending;
(b) 	To promote in the defendant a sense of responsibility for, and an acknowledgment of, that harm;
(c) 	To provide for the interests of the victim of the offence;
(d) 	To denounce the conduct in which the defendant was involved
(e) 	To deter the defendant or other persons from committing the same or a similar offence
(f) 	To protect the community from the defendant
(g) 	To assist in the defendant’s rehabilitation and reintegration
23. 	Prosecution has asked the Court to consider the imposition of a custodial sentence and recommends a starting point of twelve months’ imprisonment. Prosecution relies on Police v Tuvale (2017, unreported decision of Judge Roma) where it imposed a starting point of 12 months’ imprisonment and a sentence of 7 months imprisonment, Police v Savaiinaea (2017, unreported sentencing decision of Judge Roma) of which the Court imposed a non-custodial sentence and fine the defendant $100.00, Police v Ah Kuoi (2016) WSDC 21 where the Court imposed a starting point of 18 months and convicted the Defendant to 9 months imprisonment. Police v Aleki (2013, unreported decision of Justice Nelson) where the Defendant was convicted and placed on 12 months supervision Police v Matuiala Matuiala (2019, unreported decision of Judge Schuster) with a starting point of 12 months and whereby the defendant was convicted and sentenced to 8 months imprisonment. There is reference also to Police v Iosia (unknown year, Judge not stipulated) where the Court imposed an imprisonment term of 2 years and 6 months.
24. 	Defence Counsel has asked the Court to distinguishes the cases of Police v Ah See (supra) and Police v Savaiinaea (supra) on the basis that the victims are adults. To distinguish also the matter of Police v Iosia, that the Defendant in that matter is a re offender and in Police v Matuaiala (supra) in that there is domestic relationship between the defendant and the victim. 
25. 	The only relevant cases are Police v Aleki (supra) where the Court imposed a non custodial sentence and Police v Ah Kuoi (supra) in which the Court imposed a custodial sentence. Having read the sentencing memorandum, I am of the view that both cases can be further distinguished. There is a higher age disparity in this matter than Police v Aleki (supra) of 6 years. The Defendant in that matter also pleaded guilty.
26. 	In respect of Police v Ah Kuoi (supra) there is a higher and significant element of pre meditation accompanied by threat of violence in that matter.
27. 	 To hold you accountable and to deter you from the commission of any offences against young children justifies the imposition of a custodial sentence. 
28. 	The young children of this nation must be free from people who prey on them unsuspectingly. Even though the facts in Police Matuiala can be construed as more serious, the terrifying experience that children go through should not be measured nor compared or placed on a scale. We must see the commission of the crime from the eyes of each child. This child was visibly upset. Her anguish and distress was witnessed by Asovale, the Defendant and her uncle and aunty minutes later. 
CONCLUSION
29. 	I will impose a starting point of 9 months and 1 month for your lack of remorse and for aggravating features. I will deduct 5 months for your status as a first offender and other mitigating factors.
30. 	The Defendant is hereby convicted and sentenced to 5 months imprisonment.

JUDGE ATOA-SAAGA