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Police v Faamoe [2017] WSSC 53 (24 April 2017)

THE SUPREME COURT OF SAMOA
Police v FAAMOE [2017] WSSC 53

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FAAMOE male of Faleatiu and Fagamalo Savaii
Accused

Counsel:
L. Sio for Prosecution
Defendant self-represented

Sentence: 24 April 2017

S E N T E N C E

1. The accused appears for sentencing on one count of indecent assault that at Matafele on the 26^th December 2016, he indecently assaulted a young person in breach of section 59(3) of the Crimes Act 2013. The offence carries a maximum penalty of 7 years imprisonment.
2. The accused entered a guilty plea to the charge on the hearing date after the completion of the evidence by the accused. The reason for the late change of plea was that the particulars of the charge stated that the accused had ‘sexual connection’ with the young person. The correct particulars is having committed ‘an act of indecency’. On amendment of the particulars, the accused changed his plea. Prosecution has appropriately conceded that the accused entered an early guilty plea for the purposes of sentencing.

The Offending

3. According to the Prosecution Summary of Facts accepted by the accused, on the 26^th December 2016, the victim had come to Apia. At the Development Bank Building, the accused spoke to the victim and asked him where he was going. He replied that he was going to meet his sister. Later that day, the accused was at the government building where he is employed as a security guard. As the victim was walking past the government building at the Ele’ele Fou, the accused whistled to him and signaled for him to come to where the accused was. As he approached the accused, the accused invited him into his office. The victim was reluctant and stood at the doorway. Asked again where he was going, the victim said to meet his sister. The accused then walked to the victim, groped his genitals and asked the victim if he was circumcised to which the victim responded no. The accused again invited the victim into the room. However, the victim ran away and called to a police officer for assistance.

The Accused

4. The accused is a 45 year old male from the villages of Fagamalo and Faleatiu. He is single and employed as a security guard at the government building at the Ele’ele Fou.
5. In his Pre-Sentence Report, the accused says he is the 3^rd of 6 children to his parents, both of whom have passed away. He first was employed for a private security company. In 2011, he commenced employment with the Ministry of Finance as a Security Guard earning $6,000.00 per annum.
6. A reference provided by Fa’aolatane Tupailelei Leota, an ACEO for the Ministry of Finance speaks very highly of the accused and the accused “has demonstrated great leadership and maturity”. There is no reference by the ACEO to the offending. It seems likely that the ACEO is unaware that the accused indecently assaulted the victim at the government building where he is employed while he was apparently working.
7. The accused has positive references from his Pulenu’u, Church Minister and employer. He also told the Court that he had been fined $100.00, 10 pusa apa and an ie toga by the village.

The Victim

8. The victim is a 14 year old male school student. In the Victim Impact Report, the victim speaks of being scared of the accused and running to a police officer. The accused has apologized to the victim’s guardian which was accepted.

Aggravating features of your offending

9. The aggravating features of this matter are as follows:
   • the age difference between the accused and the victim of 31 years;
   • the victim’s young age and vulnerability; and
   • the offending was premeditated and planned.
     

The mitigating features

10. There are no mitigating features in respect of the offending. Personal to the accused is his early guilty plea on the amendment of the particulars, prior good character, remorse, apology and the village penalty imposed on him.

Discussion

11. The Samoan Courts have long recognized the prevalence of sexual offending in our community and have very clearly enunciated the need for deterrence in sentencing (see: Police v Leiataua [2015] WSSC 211 (17 December 2015)) Sentences for indecent assault have also varied between non-custodial (see: Police v Vaela’a Iloa [2016] WSSC 40) and custodial sentences (see: Police v Graham Koria [2013] WSSC 52 (2 July 2013)).
12. Prosecution in its written submissions sought a custodial sentence with a start point of 12 months. The Probation Service has recommended a non-custodial sentence. Having had regard to the Pre-Sentence Report and that the indecent assault involved touching of the victim’s genital area outside of his clothing, prosecution accepted that a non-custodial sentence may also be appropriate.
13. The accused’s offending was premeditated against the victim, a stranger to him. The accused purposely sought him out in a public place and spoke with him for no reason at the DBS Building. As the victim then walked past the accused’s place of work along Beach Road shortly after, he whistled to the victim to get his attention with the purpose of carrying out the offending for which he now appears.
14. While the accused’s offending was premeditated, the offending does not fall within the most serious of sexual offending that comes before the Courts. The indecent assault was serious in that the accused touched the victim’s genital area, it was however over the victim’s clothing and it was one-off. It is not of the same level of seriousness as the circumstances in Police v Vaela’a Iloa (supra) for example.
15. For the accused, you must understand that what you did on the 26^th December 2016 was a criminal act. You indecently assaulted a vulnerable 14 year old boy who was in fear of you. You touched his genital area and you asked him whether he was circumcised or not. You did this at your place of work, the government building. This is not acceptable behavior at all in our community and no doubt, to your employer whose building you were supposed to be guarding instead of using for your personal gratification with a child victim.
    
16. You must reflect on your actions on the 26^th December. While an imprisonment term will not be imposed today, you must clearly understand that should you re-appear before the Court for similar offending, you should come prepared for imprisonment.

The penalty

17. The accused is accordingly convicted and sentenced to 12 months supervision with the following special conditions:

(iv) you are to complete 100 hours of community work;
(v) you are to attend not less than an 8 week spiritual counseling program plus any further programs as directed by the Probation Service; and
(vi) you are not to re-offend during your supervision period.

18. As the accused appears to be a Public Servant, prosecution is to provide a copy of this sentencing decision to the Chairman of the Public Service Commission and the Chief Executive Officer of the Ministry of Finance so that any disciplinary matters under the Public Service Act 2004 maybe undertaken, if not already.
    

JUSTICE LEIATAUALESA DARYL CLARKE