Police v Faasavalu [2007] WSSC 24 (10 April 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LAUINA LAUINA FAASAVALU
male of Tulaele and Samata-uta.
Accused

Counsel: LS Petaia and M I Toma for prosecution
Accused in person

Sentence: 10 April 2007

SENTENCE

Sapolu CJ

The charges

The accused was originally charged with one count of rape which carries a maximum penalty of life imprisonment and three counts of having sexual intercourse with a girl between the age of 12 years and 16 years each of which carries the maximum penalty of seven years imprisonment. To those counts the accused pleaded not guilty. When the charge of rape was withdrawn by the prosecution the accused changed his plea to the three counts of having sexual intercourse with a girl between the age of 12 years and 16 years to one of guilty. It is on those three counts that the accused to now appearing for sentence.

The offending

As it appears from the summary of facts prepared by the prosecution, the accused on three separate occasions between 1 January 2006 and 30 January 2006, 31 January 2006 and 12 March 2006, and 1 March 2006 and 31 March 2006, had sexual intercourse with the victim. These acts of sexual intercourse took place while the accused was staying with the family of the victim in Tulaele.

As it appears from the pre-sentence report, when these offences were committed, the accused was staying in a small shack on the property of the victim’s family at the front while the family of the victim occupied a house at the back. The accused told the probation service that on the first occasion he had sexual intercourse with the victim, he was sleeping in the small shack at the front when the victim came about 10pm at night lied down next to him and started hugging him. This woke him up. He tried to get away from the victim but she kept on begging him to have sexual intercourse with her. He rejected her the first time but the close proximity of her body aroused him sexually. They then had sexual intercourse. The accused also told the probation service that on the next three nights he and the victim had sexual intercourse; the victim came to his shack around 1:00am in the morning and left at about 4:00am.

I put those parts of the pre-sentence report to the accused and he confirmed them as true. I then asked the prosecution about the same parts of the pre-sentence report but leading counsel for the prosecution indicated that the Court may proceed with the sentence. Apparently, the prosecution has had difficulties in getting the victim to come to the Office of the Attorney-General for the preparation of a full victim impact report. I must say that it is not unusual in cases of this type for an accused to tell the probation service and/or the Court that it was the under-aged victim who initiated the commission of the offences.

The victim

The victim who is now 16 years, was 15 years old at the time of the commission of these offences. She is a partial mute from birth and was attending a school for the handicapped at the time these offences were committed. As a consequence of these offences, the victim became pregnant and has given birth to a baby.

The accused

The accused is a 27 year old male from the village of Samata-i-uta in Savaii. At the time of the commission of these offences he was staying with the family of the victim at Tulaele and going to work at the Supercool Refrigeration company at Vaitele. The accused is no longer staying with the family of the victim.

The mother of the victim is the adopted sister of the father of the accused. So the victim and the accused are first cousins. The mother of the accused has already apologised to the victim’s father for what had happened.

The accused is also a first offender. From the testimonials given by his employer and the pulenu’u of his village, it is clear that the accused was a person of good character prior to the commission of these offences.

Mitigating features

The mitigating features in this case are: (a) the acused’s plea of guilty, (b) the fact that it was the victim who initiated the first act of sexual intercourse and was a consenting party to the subsequent acts of sexual intercourse, (c) the fact that the accused is a first offender and was a person of good character prior to the commission of this offence, and (d) the fact that the mother of the accused had apologised to the father of the victim.

Aggravating features

The aggravating circumstances in this case are: (a) the fact that the victim is a partial mute and therefore handicapped, (b) the fact that the accused and the victim are first cousins (which in Samoan custom is regarded by some people as that they were brother and sister) and that at the relevant times the accused was staying with the family of the victim, (c) the age difference of 11 years between the accused and the victim, and (d) the fact that the victim had become pregnant and given birth to a baby.

The decision

Cases of this type arise from a wide range of circumstances with varying degrees of culpability on the part of the accused person. In consequence, the sentences passed over the years in this type of case have generally ranged from a non-custodial sentence to 2 years imprisonment. There have been cases where the Court has passed custodial sentences outside that range, but that appears to be the exception rather than the norm. It provides testimony to the fact that the sentence passed in a particular case depends primarily on the circumstances of that case.

In this case, it was the victim who initiated the first act of sexual intercourse. She was also a willing and consenting party to the subsequent acts of sexual intercourse. On the other hand, the accused, even though he offered some resistance to the initial approaches by the victim, became a willing party to all acts of sexual intercourse. There is nothing to show that he offered any further resistance or discouragement on the subsequent occasions he committed sexual intercourse with the victim. The accused must also have been aware that the victim was a partial mute and therefore handicapped as the victim is his first cousin and he was staying in the victim’s family. The accused is also eleven years older than the victim.

The offence of having sexual intercourse with an under-aged girl is designed not only to protect young girls from members of the opposite sex but also from themselves. Young girls by reason of their immaturity and inexperience are usually in a vulnerable position as they are not in a position, due to their young age, to make mature decisions for themselves.

Taking into consideration those matters just referred to, together with the other mitigating and aggravating circumstances earlier set out, the accused is convicted and sentenced to 12 months imprisonment on each of the charges against him. These sentences are to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution