Police v Tavita [2002] WSSC 19 (20 August 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE

Informant
AND:

KALOLO TAVITA,

male of Mulifanua
Defendant

Counsel: Ms F. Vaai-Hoglund & Ms A. Faasau for prosecution
Mr J. Brunt for the defendant

Hearing: 20 August 2002
Judgment: 20 August 2002

JUDGMENT OF JUSTICE COOPER

In this case the defendant Kalolo Tavita seeks bail pending sentence. This case has some unusual features.

The defendant faced charges of unlawful carnal knowledge and charges of rape. He pleaded guilty to the charges of unlawful carnal knowledge and his trial on the rape charges was to have taken place yesterday. The defendant did not appear in court for his trial and a warrant was issued for his arrest. He has now been arrested and appears in court today.

What had happened was that the defendant and the victim had arranged to run away together. After the defendant was arrested the victim was spoken to again by the prosecution. As a result of that the rape charges against the defendant were withdrawn.

I am told that the defendant and the victim are in love and that their running away together was a joint decision.

The defendant was granted bail on the condition that he refrains from contact with the victim. He has breached that order of the court.

That order of the court was there for the protection of the victim.

Sometimes young people need to be protected from their own feelings. It is no excuse for the defendant to say that he breached the court order because the victim consented to that. Although the charges of unlawful sexual intercourse are not as serious as rape, it is still likely that the defendant will be going to prison. This is because of the difference in the ages between him and the victim. He is 21 years of age and the victim was only 13 years of age when this offending occurred.

My concern is that if he was granted bail he would not turn up to court as happened this week or worse that he would be unable to resist further contact with the victim.

For these reasons, bail will be refused and the defendant will be remanded in custody for sentence at 9.30am on the 9^th of September. A probation report is required to assist the court at that time.

JUSTICE COOPER