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Police v Solia [2013] WSSC 148 (9 December 2013)

SUPREME COURT OF SAMOA

Police v Solia [2013] WSSC 148

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

AND:

VAIOA SOLIA, male of Solosolo and Lalovaea.
Defendant

Counsel: O Tagaloa and G Nelson for prosecution
Defendant unrepresented
Sentence: 09 December 2013

SENTENCE

1. This defendant appears for sentence on two charges. One of possession of one marijuana cigarette and secondly sexual connection with a child under 12 years of age. In this case the victim was a 7 year old boy. There will issue the usual suppression order regarding the victims name and details including his village of residence.
2. The police summary of facts which the defendant admits says he is a 22 year old male of Solosolo and Lalovaea unmarried and is engaged in fatuaiga or tausi aiga. In particular he lives at his mothers village. This is also the village of residence of the victim. The police summary says on Monday 9 September this year the victim was walking home about 1:00 pm in the afternoon after school. The victim attends Year Two at the local primary school. The defendant was standing near a light post at the front of the road that goes back to the victims house. The defendant said he had been drinking most of the day and was intoxicated.
3. He called out to the victim to come closer and the boy did so. The defendant told him to come and help him lift his pusa pia. Then led the victim off the side of the road to a deserted spot. There was of course no pusa pia. When they got there the defendant instructed the victim to take off his clothes. The victim refused. The defendant reached over and undressed the boy took off his shorts and his underwear lay him down on the ground face down. He laid on top of the victim spread his legs inserted his penis into the victims anus and had sexual intercourse with him. The victims struggles attracted the attention of a neighbour who lives nearby who saw through the bushes the defendant lying on top of someone and moving his bottom up and down. This person filmed what the defendant was doing on his mobile phone. After this he went inside his house and looked again at the recording and noticed that it may have been a young boy involved. He promptly alerted the police and when the police arrived they found the defendant zipping up his trousers.
4. The victim was taken to the hospital at Moto’otua and examined by a doctor and he found that the victim was walking with a limp and was complaining of anal pain; had bruising around his anal sphincter; had abrasions peri-anally which is the part between the anus and the genitalia. The doctor concluded the injuries were consistent with blunt trauma as per a sexual assault.
5. When the defendant was arrested by the police they discovered in his possession the one marijuana cigarette. The defendant is well-known to the police. He has a number of previous convictions including in 2012 for carnal knowledge. It appears he committed this offence when he was released from prison for doing time for that offence.
6. It is disturbing to see that the victims pattern of offending is increasing to more serious offences. Which only reinforces the need for rehabilitation programs to be applied to prisoners such as this defendant to try and divert them from continuing a life of criminal brehaviour. This defendant has gone from committing carnal knowledge to raping a 7 year old boy. I have seen the video that the neighbour took. It last for about 2 minutes 45 seconds which is only part of what occurred. This was no quickie assault. This was a sustained and prolonged sexual assault by a 22 year old on a 7 year old boy who would have been in terror throughout the whole ordeal. A deterrent sentence of imprisonment is appropriate and justified. And the sentence must be lengthy enough to deter this defendant from doing this again and to send a message to any perverse likeminded men out there. The defendants sentence must also be an expression of societys condemnation of this kind of behaviour.
7. The applicable sentencing bands for the offence of rape was discussed by our Court of Appeal in the recent case of Key v Police [2013] WSCA 3 Where it set out the sentencing bands for the offence. Bands which are applied to reach a start point for sentence. The circumstances of this case fit into the B-3 category or a period of 14 to 20 years in prison. I will take the upper limit because of the following factors: I believe this offence was planned and pre-meditated by the defendant. He told the court this morning he was at the time of this offence living and working at his mothers family in the victims village. He therefore would have had knowledge of the victims movements. I do not accept that he randomly selected this little boy or that coincidently he was present on the road leading to the young boys house after school hours. I think this defendant stalked his prey.
8. The boy was alone and vulnerable. The defendant lured him to go and help lift an imaginary box of beer and thereby lured the boy to a deserted area. This trusting 7 year old complied and he was most cruelly violated by the defendant. The harm that has resulted to that little boys trust of people is probably irreparable. The court has before it a detailed three page victim impact report about how this young boys life has been considerably affected by this incident.
9. Considering that most of the aggravating factors are present in the matter an 18 years start point for sentence will be applied by the court. I will uplift that to 20 years to reflect your recent previous conviction for sexual offending. And a further 2 years to reflect the significant aggravating factor that the victim in this case was only 7 years of age. To reflect the grossness of the offending I will add a further year. That is a start sentence of 23 years in prison.
10. The only mitigating factor in your favour Vaioa is your guilty plea. Because it has saved the courts limited resources and time and it is some indication of remorse. Most importantly this spared the 7 year old the further ordeal of testifying in court. I will therefore make a deduction of 5 years from your start sentence reducing the balance to 18 years in prison. The defendant has told the court he did this because he was drunk. That is no excuse for anything, no deduction Vaioa is available for that. There was been no customary reconciliation in this matter you will therefore receive no deduction for that either.
11. On the offence of sexual connection with a child under 12 years of age you will be convicted and sentenced to 18 years in prison. Your time spent in custody awaiting sentence is to be deducted from that.
12. As to the drug charge possession of one cigarette I note you have no prior drug convictions. That cigarette probably contributed to the above offending and your state of mind on the day in question when you committed this offence. On the drug charge Vaioa you will be convicted and sentenced to 2 weeks in prison but that term is to be served concurrent to your other term.
    

JUSTICE NELSON