Police v Niko [2010] WSSC 11 (1 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

FAIMANIFO NIKO NIKO,
male of Gagaifo Lefaga.
Defendant

Counsels: Mr M. Lemisio for the prosecution
Mr. R. Faaiuaso for the defendant

Sentence: 1 March 2010

SENTENCE

The defendant appears for sentence on two counts of carnal knowledge that is said to have occurred between the 31st October 2008 and 17th November 2008. The defendant was at the time a 26 year old male of Gagaifo Lefaga while the complainant was then 15 years old and still at school. A suppression order has already been issued in respect of the complainants name and any details that may serve to identify her and that order remains in full force.

It is clear from the documents that have been submitted to the court that the defendant well knew the complainant was still at school when this matter occurred. The defendant was also at that time in a relationship with a wife. They were living at the wifes village where this offence occurred. Unknown to the wife the defendant began an affair with the school girl resulting in the intercourses that have led to the charges facing him and lead to the complainant becoming pregnant.

I am advised by the defendants counsel that the couple then lived together for some four months but the complainant miscarried her pregnancy resulting in her being taken back by her family where she currently resides. As counsel acknowledged, the courts sentencing policy for this sort of offending because it is very common is to impose imprisonment sentences in the hope that it deters potential offenders. Many young men have thus been sent to prison by the court for having sex with under aged girls but there are cases where the court departs from that policy if there are special circumstances requiring it to. Counsel for the defendant has urged that this case is one such exceptional case because of the unique relationship that was formed between the complainant and the defendant which if no miscarriage had occurred may have led to a permanent husband and wife situation between the parties.

The court accepts that that is an unusual feature but it cannot accept that feature is sufficient to therefore depart from the courts normal policy. However in saying that, an imprisonment penalty more than is normal for these sort of cases is not required. But imprisonment is required nevertheless.

The aggravating factors are summarized in the prosecutions written submission namely the age difference between the parties of 11 years, the fact that the defendant was in a relationship already with someone else and that the complainant was a school girl plus the fact that the relationship led to the girl becoming pregnant which no doubt caused other results including her to have to leave school. Prosecution have advanced isolationist offending as also another aggravating factor but there is insufficient evidence to support this, certainly no mention is made of this in the prosecution summary of facts.

It appears from the other documents before the court that the customary faaleleiga and apology have been carried out and that should count in the defendants favour. The sort of penalty that applies in this case ranges from 12 months to 2 years where a defendant like this defendant has pleaded guilty and is a first offender. I will take the lesser of those periods and impose the minimum period of twelve months imprisonment. The defendant is convicted and sentenced to 12 months on each count but the terms are to be served concurrently. Remand in custody time of 1 month to be deducted.

JUSTICE NELSON