Police v Fualau [2010] WSSC 12 (1 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

POTOAE @ JOSEPH AVAAVAGA FUALAU,
male of Vini-fou and Toamua.
Defendant

Counsels: Mr M. Lemisio for the prosecution
Defendant unrepresented

Sentence: 1 March 2010

SENTENCE

In this case the defendant appears for sentence charged with on 3 December 2009 indecently assaulting a girl under the age of 12 years. The girl in this matter in fact was only 4 years old at the time of the offence. A suppression order has been issued and remains in force in respect of the details concerning this young girl.

The documents before the court indicate the defendant is a 32 year old male who was at the time in a de facto relationship with a wife and at the time was working as a casual labourer for the victims father. It appears that after work on 3 December 2009 the defendant saw the victim playing outside one of her familys houses by herself. He then called out to her and took the young girl inside another family house which was still under construction. He told her not to make any noise, took her to one of the corners in the rear part of the house where he pulled down her panties and then began rubbing his penis against the girls vagina.

The summary of facts which the defendant has confirms goes on to say that moments later the victims mother started calling out the victims name and that was when the defendant stopped what he was doing and pulled up the victims panties. The victims mother found where they were and she saw the defendant straightening his overalls as if he was putting his clothes back on. The mother became suspicious and asker her daughter whether the defendant had touched her in any way and that was when the victim told her mother that the defendant had put his penis on her pipi. The matter was accordingly reported to the police and has led to the charge against the defendant today. A charge to which the defendant pleaded guilty..

It appears from the documents before the court that the victim remembers what happened because during her victim interview it is reported that she became very reserved when the defendants name and the incident was mentioned. The incident also appears to have traumatized the parents who have become very paranoid of leaving the victim alone and they do not allow her to go anywhere by herself anymore. That is probably a very good paranoia and a very good practice for all parents to follow in relation to young girls.

The offence of indecent assault carries a 7 year maximum penalty. The courts sentencing policy in relation to offences by older males on young females is well publicized and is one of normally imprisonment. Such degrading behaviour is thus punished in order to deter the offender himself and also others who may be tempted to do this sort of thing. Prosecution summary refers to the aggravating factors namely the nature of the act that was carried out by the defendant; the young age of the victim; the age difference between the two of some 28 years; prosecution say that the offending was pre-meditated but I consider that this is more a case of opportunistic offending rather than premeditation; the breach of trust occasioned because the defendant was then working for the victims father plus the fact that if the defendant had not been interrupted by the victims mother, who knows where the offending could have led to.

I take into account the defendants guilty plea which has saved the courts time and saved the necessity of a trial. That is in the defendants favour as well as the fact that this is his first offence. An apology has been placed before the court in mitigation of penalty but I do not take it in the defendants favour because the apology came from his father and not from the defendant personally.

Taking all these factors into consideration I will accept the prosecutions submission, defendant is convicted and sentenced to 3 years imprisonment. Remand in custody time awaiting sentence to be deducted.

JUSTICE NELSON