IN THE SUPREME COURT OF SAMOA
Police v Petelo [2015] WSSC 158

Case name: 	Police v Petelo	
		
Citation: 	[2015] WSSC 158	
		
Decision date: 	17 July 2015	
		
Parties: 	The Police (Prosecution)
Avau Laupa Petelo, male of Faleula and Moataa (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S4387/14, S4384/14, S162/15, S163/15	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	For the charge of indecent assault convicted and sentenced to 7½ months in prison.  
On the other charges the second charge of showing your buttocks I think we know what the expression ‘sino’ means.  You will be convicted and ordered to come up for sentence within a period of 2 years on condition no reoffending and remain in good behaviour.  That 2 years to run from today.  
The third and fourth charges of exposing your genitals to these young girls are far more serious with psychological implications.  Those are punishable Avau by a maximum penalty of 5 years.  However considering all the circumstances of the matter a 6 month prison term is appropriate.  I reduce that to 3 months because of your guilty plea and other mitigation factors.  On each of those two charges convicted and sentenced to 3 months in prison.  Because those are separate charges involving separate complainants, cumulative to your original term.  
O lona uiga o le aofaiga o le taimi lea e te nofo sala ai i le toese mo mataupu uma nei Avau e 13½ masina.  Ae a faapea sa iai se taimi sa e nofo taofia ai e faatalitali le faaiuga e tatau ona toese mai le 13½ masina lena o le faaiuga.	
		
Representation: 	O Tagaloa for prosecution
Defendant unrepresented	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
THE POLICE
Prosecution

AND:

	AVAU LAUPA PETELO, male of Faleula and Moataa.
Defendant

Counsel:	O Tagaloa for prosecution
Defendant unrepresented

Sentence:	17 July 2015

SENTENCE
1.	There are five (5) charges against the defendant to which he has pleaded guilty.  They concern four separate incidents involving three different complainants.  The defendant did different things to each of the three complainant girls.  Usual suppression order will issue regarding prohibiting publication of the details of the complainants.  
2.	Police summary of facts which the defendant has admitted says he is a 43 year old married male of Faleula and Moataa stays at home and take care of his family.  Of the three girls the first victim is a 16 year old female.  At the time of the offending she was visiting her aunty and her cousins the second and third victim at Faleula where the offending occurred.  The defendant was at the time residing at Faleula.  The second victim is an 18 year old female and is a relative by marriage of the defendant.  The third victim is a 13 year old girl of the family and is the younger sister of the second victim.  
3.	The first incident is the subject of information S4388/14 and S163/15.  The summary says that on the 3rd of November last year the first victim was in the shower at their auntys home.  While inside the shower the defendant entered and asked if he could touch her private part.  She protested and told him to go away.  But he reached out and touched her vagina nevertheless.  The defendant then left the shower.  
4.	The second incident which is the subject of information S162/15 occurred on the 03rd of December also last year.  On that day the second victim was in the kitchen preparing food. The defendant called to her to fetch a broom for the rubbish.  They had a discussion after which the defendant walked away, stopped and pulled his pants down showing his buttocks to the second victim.  The second victim called out to the defendant but the defendant continued to walk away.  
5.	The third incident relates to information S4387/14 and says that on the same day the 03rd of December 2014 in the evening the second victim and her sisters were playing volleyball behind the house when the defendant came up to them.  The summary says the defendant came and played with the second victims little nephews and was told off for acting inappropriately.  His response was to pull down his pants and expose his penis to the girl.  One of the older girls called out to the defendant “aua e te le mafaufau” and the defendant laughed and walked away.  
6.	The fourth incident occurred between 01 and 31 November 2014, this time at night.  Again this time the third victim was outside of the house and the defendant exposed his penis to her as he passed by.  
7.	It seems from this history the defendant has issues with exposing himself to young girls and perhaps with young girls generally.  He may have regarded it as amusing but the girls obviously did not.  In their victim impact reports they indicate how they felt repulsed by the defendants behaviour towards them.  
8.	I will deal with the most serious of the charges that being the first incident the indecent assault on the 16 year old victim inside the shower.  The defendant told the probation office he went to the shower to take the victim a towel.  And the sight of the naked girl aroused him.  He asked to touch her private part but she refused.  He touched her anyway.  This is a gross invasion of a young girls privacy.  When a girl says “no” it means “no.”  There is also the disturbing aspect of the defendant taking the girls towel to her knowing she was naked in the shower.  
9.	For this charge the prosecution are seeking a substantial imprisonment term because of the seriousness of your offending.  Offending on a young girl who was a relative of your wife.  I am sure I do not have to talk to you about how older males of a family should behave around younger females Avau, you are 43 years old.  I agree with the prosecution an imprisonment term is appropriate for your indecent assault on the 16 year old girl in the shower.  Necessary to deter you in the future from such behaviour and also as a general deterrent to all young men that such behaviour is not tolerated by our customs and tradition or by our law.  
10.	The maximum for this offending Avau is 7 years in prison.  Prosecution have asked that sentencing start at 4 years.  I think that is too high considering all the circumstances I start sentencing at 18 months. You are eligible for certain deductions which I will now make.  Firstly for your guilty plea one-quarter of your sentence that is 4½ months leaves 13½months.  That deduction is made because your guilty plea has saved the time of the court and shows some remorse on your part.  
11.	You have a good pre-sentence report about your background of tautua to your aiga, nuu and ekalesia.  There are references from your faifeau as well as the pulenuu attached to that report.  I also note Avau you are a first offender.  To recognize those factors I deduct 6 months, leaves 7½ months.  Had there been a formal apology or ifoga I would have made a further deduction but the documents before me indicate that has not been done.  
12.	For the charge of indecent assault convicted and sentenced to 7½ months in prison.  
13.	On the other charges the second charge of showing your buttocks I think we know what the expression ‘sino’ means.  You will be convicted and ordered to come up for sentence within a period of 2 years on condition no reoffending and remain in good behaviour.  That 2 years to run from today.  
14.	The third and fourth charges of exposing your genitals to these young girls are far more serious with psychological implications.  Those are punishable Avau by a maximum penalty of 5 years.  However considering all the circumstances of the matter a 6 month prison term is appropriate.  I reduce that to 3 months because of your guilty plea and other mitigation factors.  On each of those two charges convicted and sentenced to 3 months in prison.  Because those are separate charges involving separate complainants, cumulative to your original term.  
15.	O lona uiga o le aofaiga o le taimi lea e te nofo sala ai i le toese mo mataupu uma nei Avau e 13½ masina.  Ae a faapea sa iai se taimi sa e nofo taofia ai e faatalitali le faaiuga e tatau ona toese mai le 13½ masina lena o le faaiuga. 

JUSTICE NELSON