Police v Sipa [2007] WSSC 87 (26 November 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

SU’A AUKUSITINO SIPA aka FAALAVELAVE AUKUSITINO SIPA
male of Matatufu and Lotofaga.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: M T Lui for prosecution
A Roma for accused

Sentence: 26 November 2007

SENTENCE

The charge

The accused appears for sentence on the charge of having sexual intercourse with a young related girl pursuant to s.50(1) of the Crimes Ordinance 1961 which carries a maximum penalty of seven years imprisonment. To the charge the accused has pleaded guilty.

The offending

As it appears from the brief summary of facts admitted by the accused, the accused is a 49 year old male of Matatufu while the victim, who was 14 years of age at the time of the present offence, was a foster daughter of the accused. The victim is a biological granddaughter of the accused’s wife from a different union. She was brought up by the accused and his wife since she was born.

One night in October 2005 while the victim was sleeping, she was woken up by the accused touching her leg. The accused then lay on top of the victim and told her not to make any noise. The accused then took off the victim’s panties, inserted his penis inside her vagina, and had sexual intercourse with her.

The accused

The accused is a matai of his village of Matatufu. He is married to the victim’s biological grandmother and has eight children. He used to be employed as a security officer but is presently unemployed. He seems to have had an above average education having attended the Trades Training Institute in 1972 where he completed a certificate.

The testimonial from the wife of the accused shows that he is a very supportive husband but his drinking habits caused disputes between the two of them. When the present offence was committed the accused was under the influence of alcohol. The testimonial from matais of the accused’s family shows the accused to be a reliable, trustworthy and honest member of his family. He is also one of the main orators of his village.

The accused has also expressed great remorse to the probation service and to the Court through his counsel. He is a first offender.

The victim

The victim was brought up and cared for by her mother and the accused. She looked upon the accused as her father. As a consequence of this offence, the victim fears and loathes the accused even though she told the probation service that she has forgiven the accused. The victim is also deeply embarrassed as she knows that people have known about what the accused did to her. The prosecution’s sentencing memorandum states that the victim also suffered physically because she lost her virginity during the present incident and was bleeding heavily for some time. According to the pre-sentence report, the victim is now married.

Aggravating features

There are several aggravating features in this case. These are: (a) the breach by the accused of the trust of the victim who was in a particularly vulnerable position, (b) the age difference of about 35 years between the accused and the victim, (c) the victim lost her virginity as a woman because of this incident, and (d) the physical and psychological impact of the offending on the victim.

Mitigating features

The accused’s plea of guilty, the fact that he is a first offender and was a person of good character prior to the commission of this offence, the ifoga performed by the accused’s family to the victim’s family which was accepted, and the monetary fine paid by the accused to the village council are all mitigating features.

The decision

The prosecution has sought from the Court custodial sentence of not less than 2½ years imprisonment. Given the gravity of the offending a custodial sentence is appropriate. Having regard to the aggravating and mitigating features as well as the maximum penalty of seven years, the accused is convicted and sentenced to 2 years and 8 months imprisonment. Any time the accused has already spent in custody is to be deducted.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Roma’s Law Office