Police v Vaa [2006] WSSC 5 (24 January 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TIOLE VAIFALE VAA
male of Samalaeulu.
Accused

Counsel: P Chang for prosecution
Accused in person

Sentence: 24 January 2006

SENTENCE

The charge

The accused is charged under s.52 (a) of the Crimes Ordinance 1961 with the offence of having indecently assaulted a girl under the age of 12 years which carries a maximum penalty of seven years imprisonment. To the charge the accused pleaded guilty at the first available opportunity.

The offending

The facts of this matter are to be taken from the summary of facts prepared by the prosecution and which was translated into Samoan to the accused and confirmed by him. According to the summary of facts, on Tuesday night, 15 November 2005, at about 7.30pm, the victim and a young female relative were walking towards the store at their village of Samalaeulu in Savaii to buy some food when they saw the accused. The victim’s relative then called out to the accused for some money to buy ice cakes for her and the victim. The accused then offered to buy the ice cakes for the victim and her relative but they would have to go first to the street light where he had buried his money. All three then walked to the street light where the accused pretended to search for his money.

The victim was surprised when the accused suddenly grabbed her and covered her mouth with his hand. The accused then lay the victim down while the victim’s young female relative ran away. The accused then removed the victim’s pants, her underwear, and proceeded to rub his penis against the victim’s vagina. He then inserted his finger in her vagina and the victim cried. However, the accused continued to move his finger in her vagina until a torch shone towards them. The accused then stood up and ran away.

Subsequently, the accused and his family performed a ifoga (traditional formal apology) to the family of the victim and it was accepted. The village council of Samalaeulu also imposed a heavy fine of 50 sows on the accused and his family. As the accused and his family provided only 20 sows and $200 for their fine, the village council banished them from the village. According to the pre-sentence report prepared by the probation service, the accused’s family have been allowed by the village council of Samalaeulu to return to the village. So they were banished for a short duration as this offence occurred on 15 November 2005. The accused on the other hand has been remanded in custody since 17 November 2005 and he is still in custody.

The accused

The accused is a 33 year old male from the village of Samalaeulu. He is single and works on his own plantation upon which his family depends in part for subsistence.

The testimonials for the accused provided by the catechist of the accused’s church and the pulenu’u of his village show the accused to be a pleasant, humble, and respectful person. They also show the accused to be a hardworking person who serves his church and village well. The testimonial from the pulenu’u also shows that this is the first time that the accused has been fined by the village council of Samalaeulu for any offence. The accused is also a first criminal offender. The accused’s father also told the probation service that the accused is a frequent churchgoer and is a responsible and hardworking person upon whom his family depends. Thus it appears that the accused had been a person of good character prior to the commission of the present offence.

The victim

The victim is 11 years old and attends school at the Samalaeulu Primary School. There is no victim impact report so that it is not known what impact, if any, the present offence has had on the victim.

Aggravating factors

The aggravating factors in this case are that the victim did not consent. The accused also used his superior strength and applied some degree of force to overbear the victim in order to achieve his purpose. Even though the victim cried when the accused inserted his finger in her vagina, he did not desist but continued to move his finger in her vagina. The victim must also have been under great fear and emotional distress.

The age difference of 22 years between the accused who is 33 years old and the victim who is 11 years old is also an aggravating factor.

Mitigating factors

The accused’s plea of guilty to the charge at the first available opportunity, the fact that he is a first offender and a person of good character prior to the commission of this offence, and the ifoga that was performed by the accused and his family to the family of the victim which was accepted are all relevant as mitigating circumstances. Likewise are the substantial presentation by way of fine made by the accused and his family to the village council of Samalaeulu and the punishment by way of banishment that was imposed by the village council on the accused and his family even though for a short duration.

Credit should also be given to the accused for the time he has been in custody since 17 November 2005.

The decision

In view of the maximum penalty of seven years imprisonment for the present offence and the aggravating circumstances, the appropriate starting point for sentence in this case is 3 years imprisonment.

I give the accused a 1/3 discount off the sentence of 3 years imprisonment which would otherwise be appropriate for his plea of guilty to the charge at the first available opportunity. That leaves a sentence of 2 years imprisonment. I give a further 20% reduction to the sentence for the ifoga that was performed by the accused and his family, the substantial fine presented by the accused and his family to the village council, their banishment from the village, and the fact that the accused is a first offender. That further reduces the sentence to one year and seven months imprisonment.

The accused is therefore sentenced to one year and seven months imprisonment. That sentence is to take effect from 17 November 2005 which is the date on which the accused was first remanded in custody.

CHIEF JUSTICE