Police v Faafiaula [2000] WSSC 31 (12 September 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

MEAALOFA FAAFIAULA
aka FETAIA’I FAAFIAULA,
of Vailele, Vaimoso and Safune
Defendant

Counsel: Ms K. Atoa for the Prosecution
Ms T. Leavai for the Defendant

Date of Sentencing: 12 September 2000

SENTENCING REMARKS OF JUSTICE VAAI

Defendant, you pleaded guilty to five (5) counts of rape committed by you on a 14 year old school girl in January and February of this year.

The victim is the daughter of your wife’s sister and you were all living in the same household.

These offences were committed at home at night when the victim was asleep. On each occasion you raped her, you threatened to assault her if she speaks to any one.

I am told by your counsel that these offences took place in an open fale where the victim and her mother, as well as you and your wife were asleep. The fact that you were able to rape the victim in such circumstances clearly indicates that there were threats of violence at the time you raped her. The court is also mindful that you were assisted by your wife in carrying out such rapes.

You are 33 years of age with a wife and 8 month old child. In mitigation I take into account that you have pleaded guilty thus saving the victim the embarrassment of having to give evidence and to recount the ordeal she suffered. You have also saved the state the expense and I must give you credit for your guilty pleas.

I also take into account that you have been in custody since April of this year. I have listened carefully to what your counsel has told the court. She has done all she could do, she can do no more. I have read the pre-sentence report prepared by the Probation Service, I note you told the Probation Service that the victim was quite willing and she liked what you were doing to her.

You also told the Probation Service that she consented to have sex with you. But you have pleaded guilty to the charges of rape, and you are represented by counsel. She did not consent. Mere submissions through fear of threats of violent does not amount to consent. It was recognised in the Court of Appeal decision in the Attorney General and Tamalemai Fereti recorded in CA.5/93 delivered on the 31^st April 1994, that true consent can only be given by a person in a position freely able to make a rational decision with a full understanding of the situation.

And this 14 year old school girl who was set upon five times while she was asleep could not on the facts have consented. I note also that you related to the Probation Service that you are remorseful and you want the court to give you another chance, you have not seen your eight month old son for a while, and you are concerned for your parents welfare.

In my view, you are only saying that because you fear what this court will now do to you.

Your wife who aided you in the commission of these offences had admitted her guilt and is currently serving a lengthy term of imprisonment. But it was you who did both the physical damage and the psychological blow-out to the victim.

This sickly affair could have been avoided had your common sense and good reason prevail over your warped sexual desires. The circumstances in which these offences were committed clearly involved force and threat of violence.

The victim related to the Probation Service that she feared for her life as well as for the life of her aunty, (that is your wife), and she, (the victim) did not like what was being done to her but she was helpless.

My attention has been drawn to your previous conviction but that was in 1987 for a relatively minor offence and for the purpose of this sentence, I will treat you as a first offender.

The purpose of the sentence I intend to impose on you today is to impress upon you and to send out a strong message to like minded people like you that offences of this nature would be met with a sentence of imprisonment, to convey societies denunciation of such conduct. It is inevitable that this 14 year old victim had suffered mental trauma and she had been denied being brought up in an atmosphere of happiness, love and understanding.

You have denied her that right as well as denying your own eight month old son the parental and loving care that he deserves. Your son will have to live for some times without his mother and his father. He is the silent sufferer for what you have done. Unquestionably a deterrence sentence is called for.

The aggravating features of these crimes supersedes the mitigation factors that I have referred to. The notion of rehabilitation must take second place behind deterrence.

For each of these five offences, you are sentenced to seven years imprisonment and they are to be served concurrently. To protect the identity of the young victim, I make the order for the suppression of the publication of the name of the defendant.

JUSTICE VAAI