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Police v Sika [2010] WSSC 41 (16 April 2010)

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FUAMAI SIKA
male of Siumu
Defendant

Presiding Judge: Justice Slicer

Counsel: G Patu for the Prosecution
A Roma for the Defendant

Hearing: 26 February and 12 April 2010
Sentencing: 16 April 2010

Charge: Indecent Assault

SENTENCE

The defendant has been found guilty of 2 crimes of indecent assault on a girl aged 5 years contrary to the Crimes Ordinance s.52 1 (a). The circumstances of the commission of the criminal acts are stated in my reasons for decision given on 13 April and require no repetition. The acts of indecent assault were the laying down of the complainant, removal of clothing, touching, digital penetration of the vagina and penetration of the mouth with the penis.

Penetration of the body in some jurisdictions has been classified by the more serious crime of aggravated sexual assault (See Generally Professor Warner on Sentencing 2nd Ed. 11.420-11.426). Irrespective of legislative provisions penetration of the body ought be regarded as an aggravating circumstance. There is a significant difference between touching or fondling and invasion of a woman's or girl's body for sexual gratification.

The victim was harmed both physically and psychologically. The act was predatory. A young girl was sent by her mother to the shop. The taking of a child sent on an errand is the worst nightmare for a caring mother. Here the mother was entitled to trust the safety of her village. The offender, from the next village invaded what should have been a safe place. The girl remains fearful of others and despite the healing power of youth will suffer ongoing harm.

The offender is aged 24 years and lives in a relationship with a woman who is bearing his child. They will be harmed by his conduct. He has no previous conviction and for the purpose of sentence the Court accepts that he is otherwise of good character and has been a responsible member of his family.

He has shown remorse by offering, through custom, an apology to the girl's grandmother as representative of the family. He was entitled to maintain his plea and put the prosecution to proof. But he is not entitled to the mitigating effect of sparing a child from the ordeal of giving evidence and publicly reliving the event. It is not known whether his village will impose its own form of punishment for his conduct, a matter considered relevant in the case of Kome [2008] WSSC 32.

Fuamai has had limited education and probably acted on impulse. He resides with his extended family and works as a labourer. But his act was willful and that of a predator.

A case which provides a basis for consistency in sentencing is that of Faiga [2008] WSSC 98 but which contained the mitigating factor of banishment. Here there is the additional aggravating element of penetration. The limited capacity and education of the offender permits some allowance in the sentence. The appropriate penalty is that of four years imprisonment.

ORDERS

(1) Fuamai Sika is convicted of the crime of Indecent Assault.

(2) Fuamai Sika is sentenced to a term of imprisonment for a period of four years such sentence to commence as and from 13 April 2010.

(3) That the names of the complainant and her village be suppressed.

JUSTICE SLICER