Police v Finau [2006] WSSC 33 (24 May 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ENOSA SIFALEMOA FINAU
male of Siusega.
Accused

Counsel: P Chang for prosecution
Accused in person

Sentence: 24 May 2006

SENTENCE

The charge

The accused was initially charged under s.48 of the Crimes Ordinance 1961 with the offence of attempted rape which carries a maximum penalty of 10 years imprisonment. Subsequently the prosecution withdrew the attempted rape charge and filed a substituted charge under s.54 (a) of the Crimes Ordinance 1961 of indecent assault which carries a maximum penalty of 7 years imprisonment. To the substituted charge the accused has made an immediate plea of guilty.

The offending

The victim works as a house-girl for a couple at Siusega. She stays with her employer during the week and only goes to her family during the weekends. The accused who lives next door to the victim’s employer works as a lawnmower. At times he would mow the lawn for the victim’s employer. That was how he came to know and became acquainted with the victim.

At the early hours of Friday, 24 March 2006, the accused climbed onto a rubbish shelf, jumped over his neighbours fence and thereby entered his neighbours land. He then entered his neighbours house and found the victim sleeping on a couch. He then laid himself on top of the victim and started kissing her. He then touched the victim’s breasts and tried to touch her private part. The victim who had woken up resisted the accused’s attempt. The accused then begged the victim to have sexual intercourse with him but the victim strongly refused. She then lied to the accused that he should come back the following night for them to have sexual intercourse. The accused then left the house through the front gate.

When the accused was arrested by the police, he told the police that he went to his neighbours house because he wanted the victim to be his wife. The accused pleaded guilty to the initial charge of attempted rape at the earliest opportunity. However, the prosecution quite properly reviewed that charge and made application to have it withdrawn and be substituted with the lesser charge of indecent assault to which the accused immediately pleaded guilty.

The victim

The victim is a 20 year old female. She is a house-girl by occupation. At the time of this offence, she and the accused had become acquainted because the accused at times mowed her employer’s lawn.

The accused

The accused is a 31 year old male from Siusega. He works as a lawnmower. According to the pre-sentence report prepared by the probation service, the accused’s wife has left him and their children for quite a while so that it is the accused who is now caring for their children by himself.

The accused has two previous convictions in the District Court in 2005. One is for wilful damage for which he was placed under probation for 15 months and ordered to perform eighty hours of community service. The other previous conviction is for being found by night for which he was convicted and ordered to pay a fine. At the time of the present offence, the accused was still serving his term of probation. According to the pre-sentence report, the accused has been responding positively to his term of probation and he has completed his eighty hours of community service. It therefore came as a shock to the probation service when the accused re-offended.

Mitigating circumstances

The accused pleaded guilty at the earliest opportunity to the initial charge of attempted rape and then to the substituted lesser charge of indecent assault which suggests remorse. When the accused was arrested, he readily told the police that he went to his neighbours house because he wanted the victim to be his wife. The accused and the victim were also not strangers to one another but had come to know each other before this incident occurred.

Aggravating circumstances

The aggravating factors I find in this case are that at the time of this offence the accused was serving a term of probation for another offence and he has a previous conviction last year for the offence of being found by night. The circumstances of what happened in this case also amount to the offence known in Samoa custom as 'moetolo.'

Sentences in some of the recent indecent assault cases

In some of the recent indecent assault cases which involved female victims the following sentences of imprisonment were imposed –

(1) In Police v Lafaele Paulo [2002] WSSC 1, the accused pleaded not guilty to the charge. There was a gross breach of trust involved in that the accused, a cartelist, indecently assaulted the victim who was a 12 year old female member of his congregation. The victim, on instructions from the accused, had gone to the accused to practise prayers of confession when the offence was committed. Vaai J imposed a sentence of 2 years imprisonment.

(2) In Police v Soalefai Taivale [2002] WSSC 33, the accused pleaded not guilty to the charge. There was also a gross breach of trust involved. The victim was an 11 year old girl and the accused was her own father who was 39 years old. Vaai J imposed a sentence of 3 years imprisonment.

(3) In Police v Samuelu Seu’ula Fa’atafa [2005] WSSC 21, the accused pleaded guilty to the charge. The accused was 38 years old and the victim 13 years old at the material time. There was no relationship of trust involved. The victim through her cheeky and provocative behaviour was partly responsible for what happened Sapolu CJ imposed a sentence of 12 months imprisonment.

(4) In Police v Lapuna Paletaau Isopo [2006] WSSC 24, the accused pleaded guilty to the charge. The accused was 38 years and the victim was 13 years. There was no relationship of trust involved. The accused entered the house of the victim’s family at night while the victim was sleeping and indecently assaulted her by fondling and sucking her breasts. Sapolu CJ imposed a sentence of 16 months imprisonment.

The circumstances of the present case are quite different from the circumstances of the first three of the above cases, particularly the first two cases. They are similar to the circumstances of the fourth case.

The decision

Having regard to the mitigating and aggravating circumstances as well as the maximum penalty provided for this offence and the need for deterrence, the accused is convicted and sentenced to 15 months imprisonment. The period of time during which the accused has been remanded in custody from 28 March 2006 until now is to be deducted from his sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for the prosecution