Police v Mailata [2009] WSSC 74 (29 June 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TAUMAOE MAILATA, male of Vailele, Talimatau & Avao Savaii
Defendant

Counsels: Ms L. Taimalelagi for the prosecution
Mr LR Schuster for the defendant

Sentence: 29 June 2009

SENTENCE

The defendant appears for sentence on 11 counts of carnal knowledge which is the popular name for the offence of having sexual intercourse with a girl between 12 and 16 years of age. The defendant was at the time of the offending according to the information 26 years of age and the complainant 15 years of age. The offences occurred on consecutive days over the 2 November 2008 to 11 November 2008 period. On some days there were more than one instance of sexual intercourse between the parties. It also appears from the facts of this matter that the complainant is the defendant's first cousin and accordingly a suppression order has already been issued by the court suppressing publication of the names and details of both the complainant and the defendant. Each count of carnal knowledge carries a maximum penalty of 7 years imprisonment meaning the defendant potentially faces 77 years in prison.

The summary of facts shows that the complainant eloped with the defendant and that all instances of intercourse that occurred were done with her consent. It also shows that the defendant moved the complainant around from place to place staying with his relatives in order to avoid being found by the mothers of the complainant and the defendant who are sisters. It appears the mothers were searching for the complainant and the defendant and that the parties live next door to one another.

The aggravating facts of this matter are summarized in the prosecution submission and they point firstly to the young age of the complainant. She was 15 years old and they quite correctly have pointed out that she is not in a position to make an informed choice as to sexual partners. The purpose of the law is to protect young girls not only from older men but from themselves. I accept that is a factor but not a significant factor because I note the complainant's date of birth is 14 November 1992 which means had the defendant waited a little longer the complainant would have been 16 years old at the end of November. What is more significant is the fact that the two of them are first cousins and in our custom we all know what that means. It is also significant that the complainant fell pregnant as a result of this relationship and the fact that the defendant faces not one or two counts but 11 counts.

A victim impact report has been submitted by the prosecution and that speaks of the consequences of the offending on the complainant. It relates that she does not want to remember and see the defendant again and talks about her sadness and the regret about this whole matter. It also relates that she had to leave school because she fell pregnant and how the family in particular the complainant's mother is unsure as to what will happen after the baby is born. It is clear from the history of the matter on the papers before me that the parties had eloped when these offences were committed and that subsequently, the two of them eloped again.

General sentencing principles of sex cases involving young girls is well known and has been stated by the courts many times. And that is this is a serious offence and will often lead to imprisonment terms, terms that in previous cases range from 3 months up to 2½ years or more depending on the circumstances of the particular case. A similar case to this is Police v Filipo [2007] WSSC 69 where a 28 year old defendant had sexual intercourse four times with a 15 year old complainant; the term there was 12 months imprisonment.

There is no question that the court must impose a sentence of imprisonment given the seriousness of the circumstances of this case because the message must continue to be sent out that older men having sex with under-aged girls will not be tolerated or condoned by the law or by our society especially when the two parties are related and especially when as a result a pregnancy is occasioned. I take into account what your counsel has said in particular your guilty plea to this matter, the fact this is your first offence and the other matters contained in the Probation Office pre-sentence report. On each of these charges you are convicted and sentenced to 12 months imprisonment but all terms to be served concurrently.

JUSTICE NELSON