Police v Fagalele [2008] WSSC 45 (15 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LAVETALA FAGALELE
male of Safa’i Savaii.
Accused

Counsel: R Titi for prosecution
L Va’a-Tamati for accused

Sentence: 15 July 2008

SENTENCE BY SAPOLU CJ

The charges

1. The accused was originally charged with one count of rape and five counts of having sexual intercourse with a girl between the age of 12 and 16 years. To the count of rape he pleaded not guilty but to the five counts of having sexual intercourse with a girl between the age of 12 and 16 years, he pleaded guilty at the first available opportunity.
   
2. At the trial held on the count of rape, that count was dismissed. So the accused is appearing for sentence only on the five counts to which he had pleaded guilty.
   

The offending

3. According to the prosecution’s summary of facts, as amended upon suggestions from counsel for the accused, sometime in March 2007, the victim went to the store in the village of Safa’i in Savaii to buy some goods. On her way back to her home she walked past the home of the accused.
   
4. The accused who was sitting in front of his family’s house, called out to the victim to come to him. When the victim came near the accused, the latter pulled her into his house. The accused then asked the victim to remove her clothes and she did. The accused then proceeded to have sexual intercourse with the victim.
   
5. On four subsequent occasions between 1 March 2007 and 31 August 2007, the accused had sexual intercourse with the victim.
   

The accused

6. The accused is now 17 years old and is the eldest of his parents five children. He is from the village of Safa’i. He was born on 23 November 1990. At the times these offences were committed, he was 16 years old. He is also a student and is still attending school.
   
7. The accused comes from a low income family which relies on their plantation for their livelihood.
   
8. Following the discovery of these offences, the parents of the accused apologized to the parents of the victim who forgave the accused. Apparently the two families are related and the accused and the victim are cousins.
   
9. The family of the accused also made a formal apology to the village council of Safa’i. As penalty for the accused’s acts, his family presented two cattle beasts, ten boxes of tinned fish, one large fine mat and $200 to the village council. In addition, the accused was banished from the village until this case has been dealt with by the Court. In consequence, the accused has been living away from his village.
   
10. As it appears from what the accused’s father told the probation service and the testimonial from the pastor of the accused’s village, the accused had been a person of good character until the commission of these offences.
    
11. The accused is a first offender.
    

The victim

12. The victim is also from the village of Safa’i. She and the accused are cousins as earlier mentioned.
    
13. The victim is now 16 years old. At the times of the present offences she was 15 years old and attending the same school as the accused.
    
14. As a result of these offences, the victim became pregnant and has given birth to a child. It appears that the sexual relationship between the accused and the victim only became known to the victim’s family after she became pregnant.
    
15. As it appears from the victim impact report, the victim’s life has changed dramatically since she became pregnant and given birth to a child. She no longer attends school as she has to stay home and look after her baby. She becomes embarrassed when people talk about her situation. And she hardly sees her friends again.
    
16. As it appears from the pre-sentence report, the victim told the probation service that she and the accused were madly in love with one another. However, when the victim appeared upon being called by the Court, she denied having said that to the probation service.
    
17. I find it difficult to accept that the probation service would attribute something to the victim and put it down in the pre-sentence report unless the victim had said it. It is to be noted that the intimate relationship between the accused and the victim lasted for six months from March 2007 to August 2007 and it only seems to have ceased when the victim’s pregnancy became known to her family. Counsel for the accused in her submissions also says that it was not the victim but her mother who complained to the police.
    

Aggravating features

18. The aggravating features in this case are, firstly, the fact that as a result of the intimate relationship between the accused and the victim the latter became pregnant and has given birth to a child, secondly, that the accused and the victim are cousins, and, thirdly, the number of occasions that sexual intercourse took place between the accused and the victim.
    

Mitigating features

19. The mitigating features are the accused’s guilty plea to the charges at the first available opportunity, the fact that the accused is a first offender, his young age, the apology made by the accused’s parents to the victim’s parents which was accepted, the formal apology made by the accused’s family to the village, the hefty penalty paid by the accused’s family to the village council, and the fact that the accused has already undergone punishment by being banished from the village.
    

Young Offenders Act 2007

20. Counsel for the accused in her submissions describes this case as one of hopeless love between two young lovers, both very young and naive. She also refers to certain provisions of the newly enacted Young Offenders Act 2007 which came into force on 29 October 2007.
    
21. In terms of s. 2 of the Act, a "Young Person" means any person of or over the age of 10 years and under the age of 17 years. Once a person is over 17 years he is deemed to be an "adult" for the purpose of the Act.
    
22. Under s. 5 of the Act, every criminal charge, except for a charge of murder, brought against a Young Person shall be dealt with in the "Youth Court" which is a division of the District Court established under s. 4 of the Act. Certain procedures then follow as provided in ss. 6-9.
    
23. What had happened in this case is that the offences with which the accused has been charged were committed from March 2007 to August 2007 when the accused was under 17 years. When the Young Offenders Act 2007 came into force on 29 October 2007 the accused was still under 17 years and therefore a Young Person in terms of the Act. If the accused had then been charged with the present offences, those charges would have been brought in the Youth Court and therefore dealt with under the provisions of the Act.
    
24. However, when the accused became 17 years old on 23 November 2007 he had not been charged. This was probably because no complaint had been made to the police at that time. The result of this is that once the accused reached the age of 17 years on 23 November 2007, he ceased to be a Young Person for the purpose of the Act and became an adult. This must be why when the police brought the charges against the accused on 10 December 2007, those charges were laid in this Court and not in the Youth Court.
    
25. It seems that what counsel for the accused is saying is that even if the provisions of the Young Offenders Act 2007 are not applicable to the accused because he was 17 years and therefore an adult in terms of the Act at the time he was charged, this Court should still have regard to the spirit of those provisions of the Act. The reasons are that when the present offences were committed, the accused was 16 years old and therefore a Young Person in terms of the Act. Because of circumstances beyond the accused’s control, he was not charged whilst he was still under 17 years but on 10 December 2007 when he was 17 years and 12 days old and had ceased to be a Young Person.
    
26. Counsel for the accused then refers in her submissions to ss.15 and 16 of the Act. Section 15 (1) provides sentencing options which the Youth Court may impose without entering a conviction where a Young Person admits a charge (s. 6(4)) or is found guilty of a charge.
    
27. Where the Youth Court decides to enter a conviction against a Young Person, s.16 (1) (a) – (e) provides a series of non-custodial sentences which the Court may impose. These non-custodial sentences are aimed at rehabilitation or giving the young offender the opportunity to redeem himself.
    
28. Section 16 (1) (f) then provides that the Youth Court must only impose a custodial sentence as a last resort and in circumstances where there is no reasonable alternative.
    

The decision

29. Having regard to the mitigating and aggravating features, I am of the view that a non-custodial sentence should be imposed in this case. The sexual relationship that occurred between the accused and the victim was consensual. They were 16 and 15 years old respectively at the material times. It was very unfortunate that the victim became pregnant and as a result has stopped going to school. On the other hand, the accused has been banished from his village and his family which is of low income has suffered a lot as a result of what he did.
    
30. If it was not for the youth of the accused, the sentence in this would have been imprisonment. I hope the accused has learnt a lesson from this experience and does not re-offend again.
    
31. The accused is convicted and sentenced on all charges to 2 years probation and is ordered to perform 250 hours of community service during the term of his probation.
    
32. In my view, there is nothing in the sentence I have imposed which is inconsistent with any of the provisions of the Young Offenders Act 2007 which would have applied if, in the circumstances, the charges had been brought in the Youth Court.
    

Solicitors
Attorney-General’s Office, Apia, for prosecution
Tamati and Atoa Law firm, Apia, for accused