Police v Ioane [2007] WSSC 74 (1 October 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SAILIMALO LEMAMEA IOANE
male of Lefaga and Tulaele.
Accused

Counsel: L M Su’a and G Patu for prosecution
R T Faaiuaso for accused

Sentence: 01 October 2007

SENTENCE

The charge

The accused is charged with one count of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years pursuant to s.53(1) of the Crimes Ordinance 1961 which caries a maximum penalty of seven years imprisonment. Initially the accused pleaded not guilty to the charge on 5 March 2007 and the case was adjourned to the week commencing 6 August 2007 for hearing. At the call over on 2 August, the case was further adjourned for re-mention on 20 August for the prosecution to reconsider its position. This was presumably in relation to the summary of facts. On 20 August the accused changed his plea to the charge from not guilty to one of guilty. Vaai J then further adjourned proceedings to 24 September for a probation report and sentencing. An amended summary of facts dated 9 September 2007 was subsequently filed by the prosecution.

The offending

As it appears from the amended summary of facts, on Thursday 28 November 2006 around 11am, the accused and the victim met in front of the Molesi Supermarket in Apia and the accused urged the victim to accompany him to Saleufi where he was to catch a bus to go home. When they arrived in front of the Dick Smith store they sat there for a while before the accused told the victim to go with him into an abandoned building where they could kiss.

When the accused and the victim arrived at the said building, the accused lifted the victim’s shirt up and kissed her neck, breast and stomach. The accused then took off the victim’s pants, fondled her vagina and lifted her onto a counter. He also took off the victim’s panty and his pants before he got on top of her and inserted his penis into her vagina. As he inserted his penis into her vagina and have sexual intercourse with her, the victim writhed in pain. This was the first time the victim had sexual intercourse.

In her letter dated 4 September 2007 to the Court, the victim says that it was because of her and her wish that had caused the accused to commit this offence. She also says that it was her family who complained to the police. This is consistent with what is said in the pre-sentence report that it was not the victim but her family who lodged a complaint with the police when they learnt of what had happened between the accused and the victim.

The accused

The accused is a 23 year old male of Lefaga and Tulaele. As it appears from the pre-sentence report, the accused finished school at Form 6 and then attended the University of Le Amosa a Savavau. He is single and employed at a travel agent.

After this incident, the accused’s family performed a ifoga to the victim’s family and presented a large fine mat and $200. Subsequently, the accused and his sister with whom he stays in the Apia area presented foodstuff’s to the victim’s family. These presentations were accepted by the victim’s family so that this matter has been settled between the two families.

The accused is a first offender. As it appears from the pre-sentence report, the parents of the accused depend heavily on the accused for support and catering for their daily needs. The pre-sentence report also shows the accused as a regulator churchgoer and is a dedicated person not only to his family but to his church. A letter from the Divine Mercy Ministry of the Catholic Church of which the accused is now an apostle states that the accused is a much reformed christian and his work for the Ministry includes visiting sick people and helping those who are suffering and in need of help. It also appears from the pre-sentence report that when the accused was interviewed by the probation service, he expressed great remorse.

Counsel for the accused told the Court in his plea in mitigation that the accused and the victim were boyfriend and girlfriend at the time of this incident. This is confirmed by what is said by the victim in her letter dated 4 September 2007 to the Court. The victim says that the accused is a boy I have chosen to be my boyfriend as I love him. I had known for a along time that he is older than me but I had chosen him to be my beloved boyfriend.

Counsel for the accused also told the Court in his plea in mitigation that there has been talks of marriage and this is confirmed by the victim in her letter to the Court where she says that she will marry the accused when she completes school.

There is nothing before me to contradict what the victim says in her letter.

The victim

The victim is now more than 16 years old but was 15 years and 7 months old at the time this offence was committed on 28 November 2006. She is still attending school and this incident was the first time she had sexual intercourse.

As it appears from the victim’s letter to the Court, the victim says that the accused is her chosen and beloved boyfriend and she loves him. She also says she had known for a long time that the accused is older than her. She further says that every month (apparently since this incident occurred) she accompanies the accused to give his "asiga" (presentation of food) to the nuns at the monastery and he is a loving, gentle, and humble person.

Mitigating features

There are a number of mitigating features in this case. The accused is a first offender and appears to have been a person of good character prior to the commission of this offence. His family has performed a ifoga which included the presentation of a large fine mat and $200 cash. The accused and his sister later made a presentation of foodstuffs to the victim’s family. All of these were accepted by the victim’s family so that the matter has been settled in accordance with Samoan custom.

I would also accept that the accused is remorseful. This is apparent from his expression of remorse to the probation service, his appointment as an apostle of the Divine Mercy Ministry of the Catholic Church, as well as his other actions since this incident occurred.

It is also clear that the accused and the victim were boyfriend and girlfriend even with an age difference of seven years between them. In R v Taylor and Others [1977] 3 A11 ER 527, Lawton LJ in the English Court of Appeal laid down the guidelines for sentencing in this type of case. His Lordship mentioned the wide spectrum of guilt covered by the offence of having sexual intercourse with a girl under the age of 16. At one end of the spectrum is the youth of 16, 17 or 18 years of age who has had a virtuous friendship with a girl under the age of 16. At the other end of the spectrum is a man in a supervising capacity who sets out deliberately to seduce a girl under the age of 16. In between there are many degrees of guilt. In the first type of case custodial sentences are not appropriate whereas in the second type of case sentences somewhere near the maximum of two years imprisonment would be appropriate. His Lordship went on to say that the case of a youth who picks up a girl of loose morals at a dance, takes her behind the bushes, and have sexual intercourse with her would normally be dealt with by a fine. An older man in his twenties, or older, who goes off to a dance and picks up a young girl can expect a stiffer fine, and if the girl is under 15, he can expect to go to prison for a short time.

Another significant mitigating feature is what the victim says in her letter to the Court that it was because of her and her wish that this offence occurred.

Aggravating features

The age difference of seven years between the accused who is now 23 years and the victim who is now 16 years may be described as the only aggravating feature in this case.

The decision

Having regard to the maximum penalty of 7 years imprisonment for this offence, the mitigating and aggravating features in this case, and the sentencing guidelines laid down in R v Taylor and Others [1977] 3 A111 ER 527 by Lawton LJ, I am of the view that a non-custodial sentence is appropriate in this case. I also bear in mind that the prosecution in their sentencing memorandum had initially sought a custodial sentence but withdrew that part of their sentencing memorandum when the letter by the victim to the Court came to their notice.

The accused is fined $500.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
R T Faaiuaso Law Firm