Police v Filipo [2007] WSSC 69 (31 August 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SOLO PARK FILIPO
male of Siumu.
Accused

Counsel: L M Su’a for prosecution
R Papali’i for accused

Sentence: 31 August 2007

SENTENCE

The charges

The accused appears for sentence on four counts of having sexual intercourse with a girl between the age of 12 years and 16 years pursuant to s.53(1) of the Crimes Ordinance 1961. Each count carries a maximum penalty of seven years imprisonment. To all counts the accused pleaded not guilty on 6 November 2006. The case was then set down for hearing in the week commencing on 30 July 2007. On 01 August 2007, the accused vacated his not guilty plea and entered a guilty plea to all counts.

The offending

As it appears from the summary of facts prepared by the prosecution, the accused had sexual intercourse with the victim on four different occasions in 2006 in the months of April, May, June and July. Apparently the accused and the victim were neighbours. All these incidents of sexual intercourse took place in the house of the accused at the village of Siumu. The last incident took place at about 10pm at night inside the accused’s bedroom. The victim was then 15 years old.

As it appears from the pre-sentence report, the accused told the probation service that the victim would come to his house uninvited and he would get aroused when the victim showed up. They would then have sexual intercourse. In the circumstances, the accused must have welcomed those visits by the victim because he did not chase her away but had sex with her instead. The victim’s mother who appeared before the Court and pleaded for leniency on the accused said that her daughter was being cheeky and that her daughter had consented to having sexual intercourse with the accused. The victim’s mother also said that the family of the accused has performed a ifoga which she and her husband accepted so that this matter has been settled in accordance with Samoan custom.

The accused

The accused is a 28 year old male from the village of Siumu. According to the pre-sentence report he is married with one child. He studied engineering at the Don Bosco Technical School and was employed in the engineering field for some time but he now stays at home and works on his family’s plantation selling crops from which he derives income to support his family. The accused’s parents, wife and child depend on the accused for their sustenance.

The accused is also a first offender. The testimonial from the accused’s church shows that the accused is a person of good character and is a dependable member of his church. He is a Sunday school teacher and is involved in a number of church activities. The testimonial from the mayor of the accused’s village also shows that the accused is a good person and is an obedient and dependable member of his village. So the accused was a person of good character prior to the commission of these offences.

The pre-sentence report also states that when the accused was interviewed by the probation service, he showed regret and remorse for his actions.

The victim

The victim is now 16 years old by was 15 at the times of the present offences. The victim told the Attorney-General’s Office that this matter has not affected her in any way. There is, therefore, no victim impact report. However, the victim has been relocated from her village of Siumu and is now living in the Apia area as a consequence of this offending.

Aggravating features

This is not a case of one but four separate incidents of having sexual intercourse with an underage girl. The age difference between the accused and the victim is about 12 years. The accused also knew that what he did was wrong because it appears from the pre-sentence report that he told the probation service that he knew he had done wrong and is now embarrassed and ashamed of himself.

Mitigating features

The mitigating features in this case are: (a) the accused’s plea of guilty though it was late, (b) the fact the accused is a first offender and was previously a person of good character, (c) the ifoga preferred by the accused’s family which was accepted by the victim’s parents so that this matter has been settled in accordance with Samoan custom, (d) the plea for leniency on the accused made by the mother of the victim, and (e) the accused’s remorsefulness as shown by his expression of regret and remorse to the probation service.

Counsel for the accused submitted that the acts of sexual intercourse in this case were consensual and that consent is a mitigating factor. In my view, consent which is readily and willingly given is to be viewed differently from consent which is given reluctantly or after persistent persuasion for the purposes of sentencing in this context. The material before the Court shows that the victim consented and that the acts of sexual intercourse between the accused and the victim occurred when the victim went to the accused’s house.

The decision

Apart from the aggravating and mitigating features, I must also bear in mind the purpose of s.53 of the Crimes Ordinance 1961. The underlying purpose of s.53 is not only to protect underage girls from sexual abuse by members of the opposite sex, but also to protect underage girls from themselves, that is to say, from their own inexperience and immaturity. I would also have to bear in mind the totality of the offending as this is a case of four different incidents of having sexual intercourse with an underage girl.

Taking into account all the matters I have referred to, including the aggravating and mitigating features, the accused is sentenced to 12 months imprisonment on each count. All sentences are to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Toa Law for accused