Police v Autagavaia [2010] WSSC 16 (29 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ERIC AUTAGAVAIA
male of Faleula
Defendant

Presiding Judge: Justice Vaai

Counsel: M Lemisio for the prosecution
Unrepresented

Sentence: 29 March 2010

SENTENCE

1. The defendant was found guilty after a defended hearing of having sexual intercourse on three occasions with a girl under 16 years but over 12 years. The offences took place on the night of the 13th April 2009 and on the morning of 14th April 2009. For each these offences the defendant is liable to 7 years imprisonment.

2. The girl was about 14 years old at the time of the offending; the defendant is now 23 years of age. The defendant was unrepresented at the defended hearing; he had no defence but what he attempted to expose and successfully exposed at the trial was that the young girl who was his girlfriend at the time had sexual intercourse with at least four other previous boyfriends. Those four boys have not been charged.

3. On the evening of the 14th April 2009 the young girl took a taxi from her home at Vaitele and travelled to Faleula where the defendant lived. Her departure from her home was unknown to her family. She told the defendant she was assaulted by her brother a friend of the defendant. The brother was angry with the young girl when he discovered that the defendant was a boyfriend of his sister.

4. Her brother did not realise at the time that one of his other close friends was also a boyfriend of his sister. This friend called Risati had sexual intercourse with the young girl two days before she went to Faleula to see the defendant.

5. Not long after her arrival at the defendant’s home at Faleula, the young girl and the defendant went to a deserted house nearby and had their first sexual intercourse. Later that night they went to the defendant’s aunt at Puipaa village and spent the night. They had sexual intercourse twice there in the early hours of the morning. The same morning the police came. The defendant was taken to the police station and remained in custody until the 4th May 2009 when he was remanded on bail.

6. The defendant who works the family plantation, is a first offender otherwise he is not employed. The court has the benefit of four testimonials submitted on behalf of the defendant through the Probation Service. I also accept from the probation report that the defendant is truly remorseful.

7. The prevalence however of sexual offence of carnal knowledge has been noted on many occasions. Unless there are exceptional circumstances which justify the imposition of a non custodial sentence, the court has consistently imposed imprisonment sentence as deterrence and to protect our young girls from their own immaturity and inexperience.

8. The defendant cannot be excused from his criminal acts on the basis that the young girl came to his house intending to spend the night with him and they did spend the night together during which they engaged in sexual intercourse on three occasions.

9. At the same time it is my view that despite the established policy of the court to impose imprisonment sentence for sexual offences the circumstances here justify a departure from the normal custodial sentences imposed by the court.

10. In the first place, the defendant and the young girl have been friends for quite sometimes and during that time she was engaged in sexual intercourse with her other boyfriends. Due to her past sexual behaviour she cannot be claimed to be a victim of the defendant’s offending.

11. Secondly the defendant would not have offended if the young girl had not gone to his house. He did not invite or suggested to her to come to his house.

12. His not guilty plea cannot be counted against him as an aggravating factor as suggested by the prosecution. Indeed if a trial had not taken place the court would have been ignorant of the young girl’s sexual conduct as well as the events which led to the defendant’s offending.

13. I will accept the suggestion by the probation service and sentence the defendant to 2 years probation for all the three offences; with special conditions of probation, that he is to attend Toe Tomanatu Programme and you do 50 hours community work.

JUSTICE VAAI