Attorney-General v Faamata [1995] WSCA 9; 06 1995 (18 August 1995)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 6/95
BETWEEN

ATTORNEY-GENERAL

Appellant
AND

TAUTIAGA PAIUTU FAAMATA

Respondent

Coram: The Rt Hon. Sir Maurice Casey, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Puni

Hearing: 15 August 1995

Counsel: T.K. Enari for Appellant
Potoae Taneilu for Respondent

Judgment: 18 August 1995

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

The Attorney-General appeals against a sentence of two years probation with an order to perform 100 hours of community service imposed on the respondent in the Supreme Court on 5 June 1995 after he had pleaded guilty to indecently assaulting a 3 year old girl on the night of Saturday 1 April 1995.

He is 17, single, and a farmer by occupation. On the night in question he was returning from shopping and met the victim and her mother who asked if he could escort her daughter while she went to see her aunty who was attending a function next door to the respondent's house. He agreed and walked towards the house with her, but on the way he took her under some trees, laid her down and undressed her, and then moved on top of her and attempted to put his penis into her mouth. He could not do so because of her crying and struggles, and then he rubbed his penis against her cheeks and mouth. She continued crying and screamed for her mother, which caused him to stop. He dressed her and carried her to his house, where he told her to go to her aunty next door. She ran across as he watched her. We have no information about the effect of such grossly indecent conduct on this little girl, but it does not take much imagination to appreciate how frightening it must have been and how long it might take for her to recover from it.

The respondent received a sympathetic probation report. This was his first court appearance and his family were surprised at his offending, since he was regarded as responsible, well-mannered, and a good worker on the family property. It was noted, however, that he needed parental supervision because he was a weak child with a "low mentality". According to the report, an apology by his parents has been accepted by the victim's parents, and his family was heavily fined by the village council. The value of the goods and animals concerned is estimated at $5000 - a substantial figure indeed.

The offence carries a maximum penalty of 7 years' imprisonment. The Chief Justice took into account as mitigating circumstances the remorse felt by the respondent, together with statements by the matai of the victim's family and the representative of the village council. He also mentioned the formal apology and the fine. These matters were appropriate to take into account in mitigation, along with the plea of guilty and the respondent's age and previous good conduct.

However, the Chief Justice also criticised the action of the girl's mother in allowing the respondent to accompany her daughter at night, thereby giving him the opportunity to commit this offence. This could have no relevance as a mitigating factor. The respondent must be regarded as solely responsible for his own misconduct. At 17 he was old enough to understand that the girl was being placed in his care and that he was expected to look after her. Her mother could never have suspected that this young man who was known to her would abuse her trust in such a way.

Weighing up the factors in the respondent's favour, the Chief Justice concluded that a term of imprisonment should not be imposed, notwithstanding the seriousness of the offence. The Attorney-General contended that the sentence was manifestly inadequate and that the Judge had placed too much weight on the fact that the respondent's family had been severely punished by the village council. Undoubtedly he did see this as significant. It occupied a large part of his sentencing remarks, and it was certainly appropriate that he should pay regard to it. Nevertheless, the fact that such a substantial fine was levied must not deflect the Court's attention from the seriousness of the offending; it was an outrageous indecency committed on a defenceless little girl. There was a clear need for the Court to impose a sentence which would not only punish the respondent and mark the wider community's abhorrence of such conduct (his village has already expressed its own condemnation); it must also serve as a strong deterrent to others.

With respect we do not think that the Chief Justice paid sufficient regard to these wider considerations in arriving at his decision to treat the respondent with the leniency reflected in the sentence. We are satisfied that the appeal must be allowed and a prison term imposed. Ordinarily it should be well in excess of 12 months. However we must have regard to the mitigating factors mentioned above, and to the substantial fine imposed on the family. We also respect the Judge's wish to show mercy to this young man. Taking all these matters into account, we conclude that a term of 9 months would be appropriate. Accordingly the Attorney-General's appeal is allowed; the sentence and order are quashed and in their place the respondent is sentenced to 9 months imprisonment.

Solicitors:
Attorney-General's Office, Apia, for Appellant
Apa and Enari, Apia, for Respondent