Police v Faiga [2008] WSSC 96 (19 November 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

EFUTUPOU PULEMAGAFA FAIGA
male of Fagalii-tai.
Defendant

Counsels: Mr F. Lagaaia for the prosecution
Mr K. Ainuu for the defendant

Sentence: 19 November 2008

SENTENCING REMARKS OF NELSON, J.

The defendant in this case appears for sentence on one count of indecent assault committed on an 8 year old girl. The offence carries a maximum penalty of 7 years imprisonment. The defendant contested the charge but after a hearing he was found guilty by the court for the reasons given in its decision in writing dated 3 October 2008.

The facts essentially were that just before White Sunday in October 2006 the defendant was working on their family property adjacent to the victims house and property. The victim was behind their house playing under an ulu tree and the victims stepfather was asleep in the house, the victims mother was weeding on another part of the familys land. The defendant called the victim over and she went to him. He asked her to accompany him to a neighboring property not far away. They went and the two of them entered a vacant faleo’o on that property. The property was unoccupied. The defendant undressed the victim, laid her on a mat and took off his clothes. The victims evidence was he then used his index finger to fondle her genitals and buttocks. It is not clear what other actions the defendant indulged in but the evidence indicates some length of time elapsed while the two were in the faleo’o. It was when the two of them returned to the young girls property and found that her family had been looking for her. She was afraid to tell her parents what had happened but after intense questioning and being smacked on the head by her stepfather she related what had happened. A medical examination of the victim the following day showed no damage to her genitalia except for redness of the skin in the perineum region according to the doctor possibly caused by rubbing by a blunt object.

The defendant is a 31 year old male of Fagalii-tai but now resides according to the pre-sentence report of the probation office at his partners family at Malie. He was banished from Fagalii as a result of this offending and he now works the wifes family plantation selling their produce at the market. He supports his partner and a young child and the report further indicates that he had schooling up to Year 11.

The victim at the time of the offending was 8 years old. The victim impact report submitted relates how what the defendant did caused her pain and how she had post-incident difficulty in walking, sitting and going to the toilet. There was also evidence that at some stage during the offending the victim had urinated on herself wetting the pants that she was wearing. The report also relates that when she saw the defendant in court she was frightened and did not want to look at him. Under ‘consequences of offending’ the report says the following:

"Since the incident the victims mother has noticed a change in her behaviour. The victim refuses to go anywhere alone and prefers to stay at home. She is even afraid to go alone to the bathroom which is detached from the main house and this is particularly so at night. After the incident the victim would not even go to their neighboring property alone. Prior to the incident she would happily play alone or in the company of friends and was comfortable to venture out to neighboring properties. This is no longer so. The victims mother explained that the victim is afraid of male figures and she has noticed that the victim is even fearful of her fathers presence."

That is what is in the victim impact report and if this case is going to be reported I remind the media that a suppression order has already been made and continues in force in respect of the victims name, village or other identifying details.

Aggravating factors:

Samoa is signatory to and has ratified with an immaterial exception the United Nations Convention on the Rights of the Child ("CRC") adopted by the United Nations General Assembly in 1989. The preamble to that Convention recognizes that the child for the full and harmonious development of his or her personality should grow up in a family environment in an atmosphere of happiness, love and understanding bearing in mind that the child by reason of his or her physical and mental immaturity needs special safe-guards, protection and care including appropriate legal protections. The Convention relevantly provides in Article 19(1):

"State Parties shall take all appropriate legislative administrative social and educational measures to protect the child from all forms of physical or mental abuse including sexual abuse."

Article 34 of the Convention goes on:

"State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes state parties shall in particular take all appropriate national measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity."

The Court of Appeal as the highest court of the land decreed in Attorney General v Maumasi [1999] WSCA 1 that all Samoan Courts should have regard to the articles of the Convention on the Rights of the Child in cases within its scope i.e. in relevant cases. No less a personage than Lord Cooke of Thorndon who was for many years the president of the Samoa Court of Appeal has stated that the following of the principles of the CRC should not be mere window dressing. See further the observations of the Court of Appeal in Police v Kum [2000] WSCA 6.

This is a clear mandate to the courts of this country to have regard to the provisions of the Convention in appropriate cases. The list of appropriate cases undoubtedly includes cases involving the sexual abuse of children. A child has the inalienable right to be protected from such behaviour. More than lip service must be paid to the provisions of the Convention. This is one of the reasons why the courts view offending against young and vulnerable children as serious and deserving of stern sentences.

Another reason is the increasing prevalence of sexual offending involving young children. Terms of imprisonment have been imposed in the past and will continue to be imposed in the hope of deterring not only the particular offender involved but also others who may be like minded to give in to such lustful urges. The sentence of the Court must also convey as prosecution counsel has rightly submitted societys intolerance of this type of offending.

The sentences imposed for this type of offence have been many and varied reflecting the differences of each case but invariably in all cases they have for the reasons outlined all been imprisonment sentences. Which is why I am particularly surprised at the recommendation for a non-custodial penalty in the pre-sentence report of the probation office. There is certainly no reason for me in this case to depart from the normal sentencing policy and practice that prevails in this court.

Mitigating factors:

The court however does take into account the mitigating factors in favour of the defendant and these have been referred to by defence counsel in his plea in mitigation as well as in the pre-sentence report. These include the fact that the defendant is supporting a young family and that his offending is out of character. It is sympathetic to the young family that will suffer because of the custodial penalty the court proposes to impose, they have become the innocent debris of the defendants criminal offending.

I also take into account the fact the defendant has been banished from his home village because of this matter and the apology that was made by the defendants mother to the victims aunt. Although it did not involve the defendant personally it is of some value to the overall merits of the case but of course would have carried greater weight if the defendant had made it in person. But it is clear from the probation office pre-sentence report the defendant expresses no remorse for his behaviour and continues to maintain his innocence.

As defendants counsel has rightly pointed out the defendant has freely admitted to the probation office a previous conviction for narcotic offending in 2004. But that offending was of a different nature and for the purposes of todays sentencing I ignore it and treat the defendant as a first offender.

Reform:

The maximum penalty for this offence which involves young children under the age of 12 is seven years in prison. I am bound to observe that given the current social climate in relation to sexual offending against young children the question should be asked as to whether this maximum penalty set forty five or so years ago should not be re-visited by Parliament. Indeed the newly established Law Reform Commission may see it fit to undertake a review of all penalties for sexual offending against young children given Samoas obligations under the aforesaid articles 19 and 34 of the Convention.

The sentence:

In my view as these sort of cases go this is a serious example of such offending. The facts show the offending was against an 8 year old girl by a mature and experienced 31 year old man. The 8 year old was playing alone and unsupervised under a tree. She was young unsuspecting and vulnerable. She was lured away by the defendant to a deserted neighboring property where he proceeded to indulge in unsavory acts that caused pain to the young victim and no doubt from the victim impact report, physical and mental trauma. Furthermore this young victim may probably never heal for there is no indication on the documents that I have seen that she received or will receive in the immediate future any form of post-incident counselling or treatment.

The defendants not guilty plea necessitated the victim coming to court and reliving the experience in a courtroom closed to the public but nevertheless a courtroom full of strangers. In the recent case of Police v Kome [2008] WSSC 32 a 17 year old defendant was sentenced to 2½ years imprisonment for indecently assaulting a 7 year old victim. There however the defendant was a remorseful young offender who had pleaded guilty and accepted responsibility for his offending. This case does not have the mitigating factors that case had.

In this matter I consider 4½ years imprisonment the appropriate starting point. As Justice Vaai did in Police v Kome I deduct 6 months for the defendants banishment from his home village and 6 months for his previous good record. I deduct a further 6 months for general leniency and the factors that have been raised by defendants counsel in the defendants favour. You will consequently be convicted and sentenced to 3 years imprisonment.

JUSTICE NELSON