Man sentenced to 22 months for sexual assault

joyetter@samoanews.com

Apia, SAMOA — A man who sexually assaulted his wife’s 10-year-old niece has been sentenced to 22 months in jail. To protect the identity of the victim, Samoa News has opted to withhold the name of the defendant in this case that was before the court earlier this week. The uncle was charged with one count of sexual connection and the offending is said to have taken place at Tanumapu’a on or between January 2014 and April 23, 2015. According to the police report the charge carries the maximum penalty of life imprisonment.

The defendant is married to the victim’s mother’s sister and they live on the same land but in different households. The victim was 10-years-old at the time of the incident. According to the police summary of facts, the defendant pulled the victim to him and undressed her. He then pulled down his pants and placed his penis on the victim’s vagina and the defendant covered the victim’s mouth with his hand. Supreme Court Justice Mata Tuatagaloa pointed out that the age disparity of 12 years between the defendant who was 22 years’ old reflects the vulnerability of the victim. “The bigger the age difference the more serious the offending is and the more culpable the defendant is. The relationship between the defendant and the victim of uncle and niece indicates the existence of a ‘trust’, which was breached by the defendant.

According to court documents, there was violence associated with the offending. The defendant pulling the victim to him and undressing her is an act of violence. The defendant placing or covering the victim’s mouth with his hand is an act of violence.  Justice Tuatagalo pointed out that counsel for the defendant submitted that the offending was opportunistic. Tuatagaloa quoted a case R v AM 35 “...offenders who show predatory sexual behavior may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.”

The Supreme Court Justice pointed out that the victim’s mother confirmed to probation that the matter has been reconciled and settled within their family and they have asked for the matter to be withdrawn. The defendant did not plead guilty earlier nevertheless changed his plea to ‘guilty’ on the day of the hearing when prosecution withdrew two other charges against the defendant. This has saved the victim who is very young from giving evidence. The victim impact report says there were no injuries sustained by the victim. The victim appeared normal and well mannered which suggests that the victim was not psychologically affected.

“The defendant is a first offender.  This suggests that the defendant is of previous good character prior to the offending. There are no reports by the prosecution that the defendant is other than of being a good obedient citizen prior to the offending.”

Justice Tuatagaloa also quoted another court case Key vs Police 84 “the fact that a convicted person is a first offender is not a mitigating factor. At most it is neutral. Previous convictions are aggravating factors. Previous good behavior is, of course, a relevant factor.” The Supreme Court Justice noted the law is designed to protect young girls from such predatory behavior.

“Most of the sexual offending against young girls happens in the environment where it is supposedly a safe haven for them. The offenders are usually someone they know very well if not related to.” Justice Tuatagaloa noted that given the circumstances of the offending four years is the starting sentencing point. She removed 12 months for being a first offender; six months for reconciliation and for the change of plea another eight months, which leaves 22 months for the defendant to serve.

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