Police v Avia [2007] WSSC 37 (27 April 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TIA AVIA,
male of Vaivase-uta and Iva Savaii.
Defendant

Counsels: A.Lesa & L. Su’a for prosecution
Defendant unrepresented

Decision: 27 April 2007

SENTENCING REMARKS

Defendant appears for sentence on a charge of carnal knowledge that occurred at Vaivase-uta on the 22nd day of December 2006. After enquiring into the matter and hearing evidence, the court found the defendant guilty on that charge. A more detailed report of the facts of the case can be found in the courts written decision dated 30th March 2007.

The facts are essentially that the defendant and the victim are related by marriage in that the victim is the step-daughter of the defendants uncle, his mothers brother. Probation office report also indicates that at the time of this offence the victim and her family were staying on land of the defendant and his family and that they were accordingly neighbours.

According to the evidence of the victim given at the trial, she and the defendant had a "faiga-uo" type of relationship for approximately two months before this incident occurred. This incidence of sexual intercourse occurred at the house of the defendant and it is clear the victim was a willing party to the act. At that time the victim was 14 years of age and the defendant was 32 years of age. It is also clear from the facts heard by the court that the defendant invited the victim over to his house and that she had gone there willingly.

The aggravating factors of this case are as follows:

Firstly, the fact that this young girl was a relative of the defendant. Secondly, the age difference of 18 years between the defendant and the victim. As counsel for the prosecution has rightfully pointed out, the purpose of the law is to protect young girls from older men and to protect young girls from themselves until they are old enough to make informed choices. This is often stated by the courts, most recently in the case handed up by counsel for the prosecution of Police v Faasavalu [2007] WSSC 24.

A seven year penalty has been prescribed by Parliament for this offence. The Courts policy in offences of this nature is generally to impose terms of imprisonment and I as sentencing judge am not free without good reason to depart from that policy. However the length of the imprisonment term in each case depends on its circumstances. Generally penalties range from 1 to 2 years imprisonment and counsel for the prosecution in this case has submitted a one (1) year penalty is appropriate for your offence. It is certainly rare for the courts to impose a sentence beyond two years or less than half a year. The basis of the courts sentences are so that a message is sent to the community that sex with under-aged females will be dealt with sternly. Counsel for the prosecution is correct in pointing out that this is a serious charge and it is a prevalent offence in our community.

In this particular case, this offending has had an impact on the victim because the victim impact report states that it has affected her school work and and she will always be depressed about the whole incident especially because you are related. No physical injuries were caused to the victim but there was obviously mental trauma inflicted on this young girl.

On the plus side there are factors in your favour Tia. This is your first appearance before any court. I have read the testimonials from your faifeau and from your employer and they show you to be a young man of good character, honest, reliable and hard working. Those are all in your favour and they do make a difference to the penalty of the court. I have also recorded that appearing before the court today was a representative of the family who has confirmed that a formal apology in accordance with our tu and aganuu faa-samoa had been made and this matter has been fully settled. That matter also operates greatly in your favour. Also in your favour Tia is the fact that the girl in this case consented to the intercourse that occurred. She willingly went to your house and was a willing participant in the act. I also note there is only one count of carnal knowledge indicating that this is an isolated act of intercourse. Taking all those matters into consideration, and the other matters contained in the probation office report, the court will not impose the 12 months imprisonment sought by the prosecution, instead the penalty is reduced to 6 months imprisonment.

The defendant is convicted and sentenced to six (6) months imprisonment.

NELSON J.