Police v Tavita [2007] WSSC 71 (31 August 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FOAGA TAVITA
male of Taga and Samalaeulu, Savai’i.
Accused

Counsel: L Afamasaga for prosecution
J Stowers for accused

Sentence: 31 August 2007

SENTENCE

The charge

The accused appears for sentence on the charge of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years pursuant to s.53 of the Crimes Ordinance 1961 and which carries a maximum penalty of 7 years imprisonment. The accused pleaded guilty to the charge at the earliest opportunity after the more serious charge of rape with which he had also been charged was withdrawn by the prosecution.

The offending

As it appears from the summary of facts which was admitted by the accused, on Thursday, 26 January 2006, the victim was sent by her mother to buy a tin of herring from the village shop. This was at the village of Taga in Savai’i as it appears from the pre-sentence report. To get to the shop the victim had to pass a bush area. On her way to the shop, the victim met the accused who was on his way inland to collect coconuts. A few words were exchanged between the victim and the accused before they continued their separate ways. After buying a tin of herring and the victim made her way home, she met the accused and together they walked into a bush area away from the road. The accused then took off the victim’s pants and panties. He also took off his pants. He then had sexual intercourse with the victim.

The accused

The accused is a 25 year old male from the village of Taga. He is single and unemployed. He is a first offender.

As it appears from the pre-sentence report the accused was an average student at school and left school at Year 10. As a consequence of this offence, the accused was banished from his village so that he now resides in Upolu. His family performed a ifoga to the victim and her family and paid a penalty consisting of two cattle beasts, 20 boxes of herring and $2,500 to their village council.

It also appears from the pre-sentence report and the testimonial from the pulenu’u of Taga that the accused was a person of good character prior to his commission of the present offence. The pre-sentence report also states that the accused showed signs of genuine remorse when he was interviewed by the probation service. It further states that at the time of this offence the accused had had a relationship with the victim for two months and that the accused told the probation service that the victim had been sexually active with other boys. Counsel for the accused in her plea in mitigation also told the Court that the accused had been going around with the victim on the day the present incident occurred.

The victim

The victim is a 14 year old female from the village of Taga. Counsel for the prosecution informed the Court that a victim impact report has not been provided as the victim has told the Attorney General’s Office that this matter has not affected her in any way. There is no other information about the victim.

Aggravating features

Apart from the age difference of 11 years between the victim and the accused, there is no other aggravating feature in this case.

Mitigating features

There are several mitigating features in this case. These are: (a) the accused’s plea of guilty at the earliest opportunity, (b) the fact that the accused is a first offender and appears to have been previously a person of good character, (c) punishment has already been inflicted upon the accused by being banished from his village, (d) the victim was apparently a willing and consenting party to what occurred, (e) the ifoga by the accused’s family to the victim’s family, and (f) the substantial penalty paid by the accused’s family to the village council. The accused’s expression of remorse to the probation service and what he told the probation service about the character of the victim, namely, that she had been sexually active with other boys are also to be noted here.

The decision

This case involves only one count of having sexual intercourse with a girl between the age of 12 and the age of 16 years. There are also several mitigating features. On the other hand I have to take into consideration the purpose behind s.53 which is not only to protect underage girls from sexual abuse or exploitation by members of the opposite sex, but also to protect them from themselves because of their sexual immaturity and naivety. Consideration should also be given to the high rate of this type of offending.

Taking into account all the circumstances, the accused is convicted and sentenced to six months imprisonment. The period of time for which the accused was remanded in custody while he was charged with rape is to be deducted from this sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Brunt Keli Law Firm