Police v Iosia [2010] WSSC 37 (8 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

FUIVAI IOSIA,
male of Sapunaoa-Falealili
Defendant

Presiding Judge: Justice Slicer

Counsel: Mr. F Lagaaia for the Prosecution
Ms. L Tamati for the Defendant

Hearing: 30, 31 March 2010
Sentencing: 08 April 2010

Charge: Indecent Assault

SENTENCE

1. Fuivai Iosia has pleaded guilty to the crime of indecent assault contrary to the Crimes Ordinance Act 1961, section 53 (2)(a). The assaults occurred on more than two occasions between 31 December 2005 and 1 January 2007. The complainant, the niece of the offender was aged 13 at the relevant time while the defendant was in his mid-30's. The assaults were committed in the family home when Iosia was on weekend home visits permitted by the prison authorities. He had been sentenced to 3 years imprisonment for the commission of the crime of grievous bodily harm on 20 January 2006 and allowed some weekend parole. The crime of grievous bodily harm was committed on a man whom the offender believed had some sexual designs on or involvement with his sister.
   
2. The sexual acts were the touching of the complainant's breasts and stomach and requests for sexual intercourse. The complainant had been approached whilst sleeping at her family home. The offender stopped his actions when the complainant resisted but repeated his attempts on further occasions. His conduct, committed in the family home was a breach of trust. The family unit has been damaged, and the complainant has left her village and does not wish to return. She remains afraid of her uncle and although she has forgiven her uncle believes that 'she would never forget it in her mind.'
   
3. Iosia has 2 previous convictions for acts of violence committed in 2001 and 2005. He is a baker and had received a favourable probation report in 2006. He has received a favourable reference from his pastor and the Court accepts that he has shown remorse for his conduct. He has been banished from his village for the earlier violence and it is likely will remain banished following this conviction. That banishment is accepted as a matter relevant to penalty.
   
4. Iosia pleaded guilty to the information on the day on which his trial was to commence. There has been a delay in the presentation of this case and the Court accepts that he did plead when he was aware that the complainant would give evidence and his plea avoided putting the complainant to the ordeal of testimony.
   
5. The respective ages of the parties, the breach of trust and family responsibility and the need to protect children require a significant penalty. Cases such as Utuvai 2008 WSSC 50, Finau 2006 WSSC 33, Faiga 19 November 2008 and Taugofie 28 November 2008 provide useful guidelines for the appropriate sentence but it is impossible to achieve complete parity. The commencing point is that of 3 years and 6 months imprisonment.
   
6. The plea of guilty, the forgiveness of the complainant, the consequences already imposed on the defendant and his subjective characteristics permit the calculations of that sentence to be 2 years and 6 months imprisonment. The suppression of the names and identity of the village are for the protection and future life of the complainant.
   

Orders

1. Fuavai Iosia is convicted of the crime of Indecent Assault.
   
2. Fuavai Iosia is sentenced to a term of imprisonment for a period of 2 years and 6 months.
   
3. The names of the defendant, the complainant and her family name and village are suppressed.
   

JUSTICE SLICER