[the names of the complainant, her family and her village are suppressed]

supreme court of samoa
Police v Pita [2012] WSSC 116

Case name: Police v Siaki Pita
Citation: [2012] WSSC 116
Decision date: 3 August 2012  
Parties: police (prosecution) and siaki pita male of Fasitoo-uta and Siusega
Hearing date(s): 27 July 2012
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
P Valoia for prosecution
Defendant in person
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961 s.53(2)(a)
Community Justice Act 2008 s.16
Cases cited:
Police v Sakarata (29 June 2006)
Police v Iosia (8 April 2010)
Police v Sika (16 April 2008)
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
siaki pita male of Fasitoo-uta and Siusega
Defendant

Counsel:	P Valoia for prosecution
Defendant in person
Hearing:	27 July 2012
Sentence:	3 August 2012
Charge:	Indecent Assault

sentence OF slicer J
1.	Siaki Pita has pleaded guilty to the crime of Indecent Assault, contrary to the Crimes Ordinance 1961 section 53(2)(a) namely, on a girl under the age of 16 but over the age of 12.
2.	The assault occurred at the complainant’s home on 10 April 2011.  The girl is the cousin of the defendant, and was 15 years of age at the time of the offence.
3.	On the evening of 10 April, the defendant entered the girl’s bedroom whilst she was asleep.  He touched her between her legs and thighs, and backside.  The complainant woke up and the defendant fled.  The girl told her mother and the police were notified.  Police arrested him on the following day and he admitted his guilt, telling police that he had used his fingers to touch her.
4.	He entered a not guilty plea on 5 May 2011, but did not alter the plea until shortly before trial.  He is entitled to the benefit of his plea but not an early plea.  He was held in custody between 11 April and 2 May; a period of 3 weeks.  He was remanded in custody on 27 July and those periods will be taken into account.
5.	The defendant is married and his wife is due to give birth to their child.  Siaki Pita has relocated from his village and now lives with his wife at her family’s village.
6.	The Victim Impact Report records that the victim feels hatred and shame as a result of the defendant’s conduct.  She says that she does not feel like a part of her community and no longer trusts male members of her family.  The Court trusts that the relocation of the offender and the fact that he now lives away from the village will help her recover.  The absence of the defendant should help in that recovery.
7.	The defendant and his father performed ifoga with fine mats in 2011 and the complainant’s family have accepted the ifoga.  In addition, he has personally apologised to his aunty at one of the court appearances.
8.	The pre-sentence report states that he was an only child but has five siblings from his mother’s second relationship.  He has been a good member of his family and a good worker.  He has been in employment since 2010 and, at present, is employed with a trading company with an income of approximately $100 per week.  He has only one child aged 1 and a second due within 3 months.  He is the sole breadwinner for his wife and children.  The pre-sentence report was favourable.
9.	The commencing point suggested by the prosecution was originally 3 years imprisonment.  At the sentencing hearing, this was reduced to one year imprisonment.  The cases relied upon by the prosecution: Police v Sakarata (29 June 2006), Iosia (8 April 2010) and Sika (16 April 2008) deal with more serious acts and different circumstances and do not support the prosecution’s first suggestion of 3 years as a commencing point.  The Court accepts one year imprisonment as a commencing point.
10.	The defendant is a first offender.  He has now served one month’s period in custody.
11.	The defendant’s wife Moli told the Court that he was a good husband and father.  She impressed the Court and spoke eloquently on his behalf.
12.	The assault itself did not involve penetration and the offender left as soon as the girl awoke.  It is at the lower end of culpability.  However, he did attempt to take advantage of a young girl in her sleep.
13.	The Court will use as a commencing point of one year imprisonment.
14.	There are significant mitigating circumstances as stated above.  There is good reason for the Court to have regard to the provisions of the Community Justice Act 2008, especially sections 5, 6 and 7.  There is good reason to permit him to continue to provide for his family and be with his wife at the time of her impending delivery of their baby.  Imprisonment would lead to loss of employment and income for his family.
ORDERS:
(1)	Siaki Pita is convicted of the crime of Indecent Assault.
(2)	Siaki Pita is sentenced to a term of imprisonment for a period of one month; such sentence to have already been served.  He will not be returned to prison.
(3)	Siaki Pita is to be subject to supervision for a period of 12 months as provided for by the Community Justice Act 2008 section 16.  He is required to report to a probation office within seven (7) days of the date of these orders.
(4)	The name of the complainant and her village are suppressed. 

…………………………
    (JUSTICE SLICER)