Police v Mauga [2007] WSSC 42 (23 May 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

PAPA MAUGA
male of Utualii.
Accused

Counsel: M Sua for prosecution
T K Enari for accused

Sentence: 23 May 2007

Sapolu, CJ

SENTENCE

The charge

The accused had been charged under s.53 of the Crimes Ordinance 1961 that at on the 25th day of December 2004, he had sexual intercourse with the complainant, a girl over the age of 12 years and under the age of 16 years. To the charge the accused pleaded not guilty and the case went to trial. The offence charged carries a maximum penalty of 7 years imprisonment.

The offending

The complainant was 13 years old at the time of this offence having been born in 1991 according to the evidence of her father. The accused was then 20 years old.

At the trial, the complainant testified that on Christmas Day, 25 December 2004, she went to hang out at the place of one Pauloko at Faleasiu where a volleyball game was played. The accused was playing in that volleyball game. It seems from the complainant’s testimony that she was a spectator at that volleyball game.

When the volleyball game was finished in the late afternoon the complainant returned home. Whilst she was walking along the road, the accused came up to her, embraced her, and pulled her to the bushes near the side of the road. The accused then removed the complainant’s clothe and had sexual intercourse with her. The complainant testified that she felt pain in her private part and she was also bleeding from her private part.

The complainant also testified that she knows the accused as she used to see him at the pastor’s house. She further testified that she knows the accused as she used to come to Utualii, the village of the accused, for bingo.

The father of the complainant who was also called as a witness by the prosecution testified that the complainant was born in 1991. He produced the birth-certificate of the complainant which shows her date of birth to be 1 July 1991.

The prosecution then informed the Court that they could not call the police officer who had interviewed and obtained a cautioned statement from the accused as that police officer was overseas. The prosecution then closed its case.

At the close of the case for the prosecution, defence counsel informed the Court that the defence wanted to raise alibi as a defence and wished to call alibi witnesses. Even though the defence of alibi was only raised at that late stage, I decided to allow the accused to call alibi witnesses. This necessitated an adjournment of the trial part heard to give the accused the opportunity to call alibi witnesses and to give due notice of particulars of his alleged alibi to the prosecution.

When the trial resumed after several adjournments, the accused admitted under cross-examination that he did have sexual intercourse with the complainant. When it was put to the accused that in his cautioned statement given to the police he had admitted to having sexual intercourse with the complainant, he confirmed that he did say that to the police. The defence of alibi was therefore rejected.

The complainant

It appears from the victim impact report prepared by the Office of the Attorney General that the complainant did not suffer any physical injuries. However, she did feel pain in her private part.

It also appears from the victim impact report that the complainant is now very scared of the accused and feels anger towards him. She is also afraid to go out in public places. So the complainant has been psychologically affected.

The accused

The pre-sentence report shows the accused to be a dependable member of his family and he is jointly responsible with his younger brother for looking after their elderly grandmother. The pre-sentence report and the testimonial from the pastor of the accused’s church at Utualii also show the accused to have been a person of good character prior to the commission of this offence. The accused is also a first offender.

Mitigating feature

The only mitigating feature in favour of the accused is the fact that he is a first offender and that he had been a person of good character prior to the commission of this offence.

Aggravating features

The trauma suffered by the complainant when she was unexpectedly embraced by the accused and pulled to the bushes near the side of the road where the accused had sexual intercourse with her is an aggravating feature. Even though the complainant testified that she knows the accused, it is clear that they were not friends or acquaintances. The psychological impact of this offence upon the complainant as explained in the victim impact report is also to be taken into account.

The decision

Even though the accused was 20 years old at the time of this offence, I am of the view that given the circumstances of the offence a custodial sentence will be justified. There was also no plea of guilty. In my respectful view, a sentence of community service requested by counsel for the accused will be too lenient. The starting point for sentencing should be 3 years and 3 months imprisonment. I will deduct 3 months for the only mitigating feature already mentioned. That leaves 3 years.

The accused is convicted and sentenced to 3 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Kruse Enari & Barlow Law Firm for accused