Police v Tofa [1999] WSSC 2 (14 May 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

LIKI FAAALIGA TOFA
of Sitafao Saipipi
Defendant

Counsels: Mata Tuatagaloa for the Informant
Solomona Toailoa for the Defendant

Date of Hearing: 18 April 1999
Date of Sentencing: 14 May 1999

SENTENCING REMARKS OF WILSON J.

Liki Faaaliga Tofa, of Saipipi Savaii. You are 16 years of age. You have pleaded guilty to one count of indecent assault and you now stand convicted of that crime.

On the 3^rd March 1999, at Sitafao Saipipi, you indecently assaulted Lita Salaula. She is a girl under 12 years of age; you licked and sucked her genitals. Besides the fact that the victim of your crime was so young (only 7 years old at the time), an aggravating circumstance exists. You led her to a secluded place; she was not a wholly willing and consenting party to the sexual conduct which occurred; you had sexual intercourse on your mind at the time. Fortunately for the girl (and for you), it was a responsible Samoan man who, being concerned about what might be happening, interrupted you in what you were doing to the girl. Because you were detected at that stage, nothing more serious occurred.

I have considered whether this conduct was that of a socially and emotionally immature and mistaken young man, or the conduct of a person unable to control his sexual instincts. I am satisfied beyond reasonable doubt that your conduct was in the first of these two categories; you were a socially and emotionally immature and mistaken boy.

I have read the Pre-Sentence report prepared by the Probation Service. I have read the references and other papers attached to that report. I want to read some extracts from the letter signed by the mayor of your village. He said:

“.... We do not interfere with any decision for the investigation of this matter by your Honour, but, according to our village’s investigations in this same matter, we punished him with 10 sows, under the powers of our village Fono Act.” [I interrupt my reading to say that, I think that was a big punishment]. “Regardless whether a family reports a matter to police, it is the duty of the Village Council to control the criminal behaviour of our youth, especially in maintaining peace and harmonious relationships of everyone in the village to avoid offences.”

“Your Honour, he has already paid his penalty to the village of 10 sows. The village has already conducted the reconciliation between Liki Faaaliga and the family of the girl. With the reconciliation already done, there have been no further incidents.”

“Therefore, we respectfully seek your Honour’s leniency and have mercy on this boy, who has been affected by this offence while he is studying in school. We plea as thus:-

(1) Liki’s family has already paid a penalty of 10 sows to the village.

(2) The two families have already reconciled.

(3) The village has already laid down conditions that, if anything further happens, he will be banished from the village.”

“As we already stated, we do not interfere with your decision. We can only seek your leniency on this young man.”

[That’s all I want to read from that letter. What the mayor has said to me is important, and I take a lot of notice of what he said.]

In passing sentence, I take into account the fact that you pleaded guilty and are remorseful for what happened. You brought shame on yourself and your family. I take into account the fact that you are a very young man (you are a boy of 16 years of age). There has been a traditional apology and, as I have already indicated, you have been seriously dealt with by the Village Council.

You are a first offender; you have never been in trouble before. I can show mercy to you for that. I remember that this was one episode (one single incident) and, fortunately, there appears to be no lasting harm or injury to the girl.

In sentencing you, I should emphasise rehabilitation but not forget deterrence. This is also a case in which the notion of restorative justice can re recognised.

I exercise in your favour the discretion that I have under s.7 of the Offenders Probation Act. You will be released on probation for a period of 2 years. That means that you will need to be of good behaviour for 2 years, to be under the supervision of the Probation Service, and to obey the lawful directions of your Probation Officer. There are other obligations laid down under the Offenders Probation Act. In addition to what I have just said, there will be a condition that you undertake 120 hours of community service work within the period of the bond, viz. 2 years. In addition, there will be a condition that you undertake such medical treatment and undertake such counselling as should become available and be deemed to be desirable as directed by your Probation Officer.

I have ordered probation. I had the power to send you to prison, and, if I had decided to send you to prison, it would have been for 18 months, but I have decided not to exercise that power.

Imprisonment is the normal order for an offence of this kind. Little girls, like the girl you sexually abused, need protection. But, for you to go to prison, that would do you no good, and it would not do the community (the people of Samoa) any good. It is better that you change your ways and, with the help of a Probation Officer, lead a good life; it is better that you go back to school and give your parents reason to be proud of you instead of being ashamed.

JUSTICE WILSON