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Police v Mali'o [2014] WSSC 112 (17 February 2014)

IN THE SUPREME COURT OF SAMOA
Police v Mali’o [2014] WSSC 112

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ENELE also known as HENRY MALI’O, male of Malie.
Defendant

Counsel: G Nelson for prosecution
Defendant unrepresented

Sentence: 17 February 2014

SENTENCE

3. Enele appears for sentence on a charge that he committed an unlawful sexual connection on the complainant and causing actual bodily harm to her father. I just remind our ladies of the press there remains in force a suppression order in relation to the details concerning the young girl and her father.
4. The police summary of facts which the defendant admitted this morning says he is 30 years old single male of Malie and is unemployed. The complainant on the sexual charge is a 5 year old female and as mentioned the complainant on the assault matter is her father a 38 year old male. The summary says that on Christmas day 2013 the defendant went to the house of this family because he knows one of the young girls uncles. He usually hangs out with him. When he arrived at the family house they were preparing Christmas lunch and were about to have lunch when they realized that the young 5 year old was missing. A search then began.
5. Some time later the young girl came to the house and ran straight to her grandmother and told her what had happened. She said that some time in the afternoon the defendant had told her to go and wait for him at the cocoa plantation inland. He would bring her something from the shop. The young girl did as she was told and waited for the defendant inland at the cocoa plantation. The defendant arrived and removed her shorts and panty and performed oral sex on her. The defendants actions were interrupted by the family looking for the young girl. When the young girl was telling her grandmother what had happened, her father heard what she was saying.
6. Naturally the father went searching for the defendant. He found him at a neighbouring cocoa plantation. He approached him and tackled him and dragged him back to the family house. En-route the defendant grabbed a rock and hit the father across the head. This obviously angered the father further and he grabbed the rock off the defendant and assaulted the defendant. The defendant is perhaps fortunate that this assault did not carry on to a fatal extent.
7. Sexual offending by older males on young females is unfortunately far too common in our country. This is yet another example. Here the defendant was a friend of the victims uncle and thus would have been known to the young girl. He lured her to the cocoa plantation with the promise of bringing something from the shop. The girl trusted him and complied. When he arrived at the plantation he then committed a gross indecency on her.
8. The defendant should understand that there is a sentencing policy of this court in relation to such offending. Invariably imprisonment is the penalty imposed to tell the defendant and others who may be thinking like him that such behaviour is simply not acceptable. And to deter the defendant from doing this sort of thing again.
9. The maximum penalty under the old Crimes Legislation for this sort of offence was 7 years. Under the new Crimes Act 2013 it is now life imprisonment. This should show the defendant and everyone the seriousness with which the law now regards this sort of behaviour. But considering all the appropriate factors in this case a start point for sentence should be around 8 years in prison.
10. From that start point you are entitled to certain deductions by law which I will now make. Firstly for your guilty plea which has saved the courts time and more especially saved the girl having to come to court and relive publicly such an experience. For your guilty plea I will deduct one-third of your sentence a period of 2½ years. Leaves a balance of 5½ years. For your previous good character and clean record as outlined in the probation office pre-sentence report I deduct 6 months from that balance leaves 5 years in prison. There are no other legal deductions you qualify for Enele. But in my view there is one factor that needs to be taken into account. This factor is peculiar to your case. And it relates to your physical impairment. You mentioned to the probation office you suffer from a form of meningitis which has caused a partial paralysis of the right side of the body. While there has been no medical report filed on your behalf I have noticed that this morning. In recognition of that unusual factor which means prison will be harder on you than a normal person I will deduct as a special leniency in your case one (1) year from your sentence.
11. On the charge of unlawful sexual connection you will accordingly be convicted and sentenced to 4 years in prison. But your time in custody awaiting sentence is to be deducted from that period.
12. In relation to the assault charge against you. It is apparent from the police summary of facts that you delivered one blow with a rock to the head of the young girls father. The summary says that the father then turned around, took the rock off you and in turn hit you across the head with the rock three times. It then says he used the rock to further deliver blows to your knees and ankles to stop you running away. As I said you are lucky he did not kill you.
13. In respect of that assault charge I consider the retaliation is sufficient penalty. You are convicted and discharged without penalty on that offence.
    

JUSTICE NELSON