Police v Pesamino [2006] WSSC 8 (17 February 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

POSI ATONIO FAAMATA’U PESAMINO
male of Faatoia and Solosolo.
Accused

Counsel: A Lesa for prosecution
Accused in person

Sentence: 17 February 2006

SENTENCE

The charge

The accused is charged under s.53 (1) of the Crimes Ordinance 1961 with the offence of having sexual intercourse with a girl between the age of 12 and 16 years which carries a maximum penalty of 7 years imprisonment. To the charge the accused entered a plea of guilty at the first available opportunity.

The offending

On Wednesday morning, 30 November 2005, the accused met the complainant who is 14 years of age on the bus from Faatoia to Apia. They then spent the day in town and in the evening they went to Faleula to the house of the accused’s aunty. It is there that they had sexual intercourse the same night.

According to the pre-sentence report prepared by the probation service, the accused told the probation service that on the day in question, he stopped the bus from Faatoia to Apia to go to the Matautu wharf and he sat on the second seat from the back while the complainant was sitting on the seat behind him. The complainant then grabbed his packet of cigarettes from his pocket and when he reached for it, the complainant asked him if she could have a smoke. He gave the complainant a cigarette. While they were still on their way to Apia, the complainant started to talk to him as if they had known each other for a long time. She asked the accused if he wants to have a drink but the accused said no as he did not have any money. The complainant then said she could buy drinks for them. So when they got off the bus in Apia, they went to a supermarket where the complainant bought eight cans of beer for them. They then went around town drinking their beers. According to the accused, at about 4pm in the afternoon, he told the complainant she should leave as he was going to visit his father at Faleula. The complainant then urged the accused to take her with him. It was at Faleula that they had sexual intercourse. The accused also told the probation service that when he questioned the complainant about her age she replied she was 18 years old.

The accused

The accused is from Faatoia and Faleula. He is 28 years old. He has a de-facto wife with four children ranging in age from two weeks to six years. He is a planter and is the sole provider for the basic needs of his family. He earns a minimum of $100 per week from selling peanuts.

The accused also told the probation service that he has not seen the complainant again since the incident for which he is now appearing in Court.

The accused is also a first offender.

The victim

The victim is 14 years old. There is no other information about her.

Aggravating circumstances

There appears to be no aggravating circumstances.

Mitigating circumstances

The accused’s plea of guilty to the charge against him at the first available opportunity and the fact that he is a first offender are mitigating circumstances in this case. It also appears from what the accused told the probation service that it was the complainant who instigated this incident.

Relevant sentencing guidelines

For guidance as to the type of sentence to be imposed in cases of having unlawful sexual intercourse with a girl between the age of 12 and 16 years, it would be very helpful to refer to R v Taylor and Others [1997] 3 A11 ER 527 where Lawton L J in the English Court of Appeal said at p. 529:

“The Court now has the task of deciding how the law should be administered. It is clear from what the learned trial Judge said that there is doubt amongst many at the present time, as to what is the proper way of dealing with these cases. What does not appear to have been appreciated by the public is the wide spectrum of guilt which is covered by the offence known as having sexual intercourse with a girl under the age of 16. At one end of that spectrum is the youth who stands in the dock, may be 16, 17 or 18 years of age, who has had what started off as a virtuous friendship with a girl under the age of 16. That virtuous friendship has ended with them having sexual intercourse with one another. At the other end of the spectrum is the man in a supervisory capacity, a schoolmaster or social worker, who sets out deliberately to seduce a girl under the age of 16 who is in his charge. The penalties appropriate for the two types of cases to which I have just referred are very different indeed. Nowadays, most Judges would take the view, and rightly take the view, that when there is a virtuous friendship which ends in unlawful sexual intercourse, it is inappropriate to pass sentence of a punitive nature. What is required is a warning to the youth to mend his ways. At the other end, a man in a supervisory capacity who abuses his position of trust for his sexual gratification, ought to get a sentence somewhere near the maximum allowed by law, which is two years imprisonment. In between there come many degrees of guilt. A common type of offender is the youth who picks up a girl of loose morals at a dance, takes her out into the local park and behind the bushes, has sexual intercourse with her. That is the kind of offence which normally is dealt with by a fine. When an older man in his twenties, or older, goes off to a dance and picks up a young girl, he can expect to get a much stiffer fine, and if the girl is under 15 he can expect to go to prison for a short time. A young man who deliberately sets out to seduce a girl under the age of 16 can expect to go to detention. The older man who deliberately so sets out can expect to go to prison. Such is the wide variety of penalties which can be applied in this class case.”

R v Taylor and Other provides very helpful guidelines for sentencing in cases of having unlawful sexual intercourse with a girl under 16. It was applied by the Samoan Court of Appeal in Attorney General v Paopaoalii Sagato Ioane [1994] WSSC 16 in a judgment delivered by Sir Gordon Bisson. One matter to be noted is that since R v Taylor and Others, the maximum penalty of 2 years imprisonment in England has been increased.

The decision

In passing sentence, I take into account all the circumstances of the case including the mitigating circumstances and in particular the accused’s plea of guilty at the first available opportunity. I also take into account the sentencing guidelines as earlier set out as well as the maximum penalty of 7 years imprisonment for the present offence. I have therefore come to the view that a short term of imprisonment should be imposed.

The accused is convicted and sentenced to 3 months imprisonment.

CHIEF JUSTICE