Police v Faatafa [2005] WSSC 21 (10 November 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SAMUELU SEUULA FAATAFA,
aka Mataese Seuula Faatafa male of Samata-i-uta.
Accused

Counsel: K Koria and P Chang for prosecution
M C Leung Wai for accused

Sentence: 10 November 2005

SENTENCE

The Charge

The accused is charged under s.53 (2)(a) of the Crimes Ordinance 1961 with the offence of indecent assault of a girl between the age of twelve (12) years and sixteen (16) years which carries a maximum penalty of seven (7) years imprisonment. To the charge the accused pleaded guilty at the earliest opportunity.

The offending

On Saturday night around 8pm 3 September 2005, the Sunday school teachers' fellowship of the Methodist Church at the village of Samata-i-uta in Savaii which was attended by the accused dispersed. While the accused was walking along the road on his way home, the victim, a female cousin and a boy who later turned out to be a boyfriend of the victim’s female cousin called out to the accused to accompany them to the house of the secretary of the Sunday school teachers association. According to what the accused told the probation service, while they were walking together he observed that the victim’s cousin and the other boy were engaged in a boyfriend – girlfriend relationship. At that time the victim was joking cheekily around with the accused telling him that she had lost her virginity to another boy. The accused further told the probation service that he then interrupted the victim by saying to her that what she said can only be proven if they have sex. It was dark at the time as it was night time.

As it appears from the prosecution’s summary of facts, the accused then hugged the victim and forcefully kissed her on the lips. He then lifted up her shirt and sucked her breasts. He also lifter her lavalava and began to fondle her vagina with his finger. This according to the victim caused pain to her. The accused then stopped. He told the Court during the hearing of evidence in relation to his objections to certain parts of the prosecution’s summary of facts, that he stopped because he felt that what he was doing was wrong. The victim told the Court that the accused then told her not to tell anyone about what had happened.

The victim

Apart from the age of the victim which is thirteen (13) years and perhaps what the accused said that the victim had told him that she had lost her virginity, there is nothing else about her.

The accused

The accused is thirty eight (38) years of age with five young children ranging from the age of eight months to the age of ten years. He has a plantation and is the sole provider for his family. The accused is also an active member of his church, the Methodist Church at Samata-i-uta. He is a lay preacher, a Sunday school teacher, and secretary of his church choir. He also has no previous convictions. All of this suggest that the accused has been a person of good character.

Following this incident the accused was fined by his village and he presented ten pigs to the village for his fine. He also apologised to the grandparents of the victim and his apology was accepted. As it appears from the pre-sentence report prepared by the probation service, when the accused was interviewed by the probation service he was in tears and vowed that he will not appear in Court again in the future.

Mitigating factors

The accused’s plea of guilty to the charge at the first opportunity and the fact that he is a first offender are factors to be taken into account in mitigation of penalty. There was also no pre-meditation. The accused was on his way home from a fellowship of Sunday school teachers of his church when the victim, her female cousin and a boyfriend called out to him to accompany them to the home of the secretary of the Sunday school association. What the victim said to the accused that she had lost her virginity to another boy appears to have tempted the accused to do what he did. The accused has also been fined by his village and he has paid that fine with a presentation of ten pigs. The accused has also apologised to the victim’s grandparents and his apology was accepted. I also accept from the plea in mitigation by counsel for the accused and the accused’s expression of remorsefulness to the probation service that the accused is truly remorseful. It would also appear from the positions held by the accused in his church and the fact that he is a first offender that he has been a person of good character. I would not, however, place significant weight on the factor that the accused has a young family to provide for.

Aggravating factors

The age difference of twenty five (25) years between the victim who is thirteen (13) years of age and the accused who is thirty eight (38) years of age is the only aggravating factor I can see in this case. The question of whether or not the victim consented was not in issue.

Perhaps I would also mention that I take into account the need for deterrence in this type of case given the purpose of the offence which is the protection of young girls and the number of cases of this kind that are brought before the Courts.

The decision

Passing sentence in indecent assault cases has not been easy due to their varying circumstances. Whilst the Court does take due notice of decisions in other indecent assault cases, in the final analysis the sentence for each case must be tailored to suit the circumstances of the case at hand.

There are circumstances which are not present in this case but which the Court has considered to be aggravating circumstances in other cases. These include breach of trust by the accused, repeated acts of indecent assault by the accused on the victim, and pre-meditation on the part of the accused. The only factor which may be said to be aggravating in this case is the age difference of twenty five (25) years between the victim and the accused.

Having regard to the maximum penalty of seven (7) years imprisonment together with the mitigating and aggravating circumstances, the accused is convicted and sentenced to twelve (12) months imprisonment. This sentence is to commence from 3 October 2005 when the accused was first remanded in custody.

CHIEF JUSTICE