Police v Asomuamua [2010] WSSC 46 (17 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

FOLOTOTO ELI ASOMUAMUA,
male of Palisi, Samalaeulu & Faga Savaii
Defendant

Presiding Judge: Justice Slicer

Counsel: F Vaai for Prosecution
T Ponifasio for Defendant

Sentencing: 17 May 2010

Charge: Rape

TRANSCRIPT OF SENTENCING

Court starts at 9:40AM

Vaai: may it please this honourable court I appear for the prosecution

HH: yes thank you Ms Vaai

Ponifasio: may it please the court I appear for the defendant

HH: yes thank you

Now last time on 27 April there was only 1 issue which was whether the communication had been initiated by the complainant and that was agreed. We have no other differences between the prosecution and the defence?

Vaai: no your honour

HH: thank you, I have rec/d a copy of the psr which suggests a lengthy supervision term, do you have a copy of the Mr Ponifasio?

Ponifasio: no your honour, neither the defence nor the prosecution have obtained one

HH: alright, mine is marked court copy, I'm sorry you're going to have to share it

Now we have the prosecution's statement of facts and today if there's anything to add Ms Vaai you will

Vaai: no your honour

HH: victim impact statement I have, you have that I presume?

Ponisfasio: I just rec/d it this morning

HH: and you've rec/d the sentencing memorandum?

Ponsifasio: yes I have rec/d it

HH: that's all that prosecution wishes to put to me is that correct?

Vaai: yes your honour

HH: thank you

Ponifasio: thank you your honour if I may add in the course of my closing submission this morning in the addition to the summary of facts

HH: do you want to have a look at the psr, we only have the 1 copy

Ponifasio: please your honour

HH: okay just have a couple of minutes to scan it

Ms Vaai while counsel is looking at the psr, is it the practice here that if a short term imprisonment is imposed there cannot be hours of community service in other words you must chose one or the other and the other question is again with imprisonment you cannot add a probation order to the imprisonment in other words the court must choose?

Vaai: that's correct your honour it's usually an imprisonment term

HH: or the combination of the other probation and or community service and the only other vehicle left would be s113

Vaai: that's correct

HH: you put to me thank you a sentencing memorandum of comparable cases which of course range from great through to lesser cases of sexual misconduct I notice in the case of Keil and Fagalele the court fined in Keil although I don't think that's appropriate here and in the other 2 years of probation and 250 hours of community service they married the probation and community service into the one order but I could not add to that a short term imprisonment that is the point the legislation doesn't permit that, there was one vehicle what could you do if you were to sentence less than 12 months, I haven't brought my Act with me, that's when it's open to put in community service orders

Vaai: that's true your honour

HH if you decided that imprisonment is an option then you may exercise community service orders but only if the sentence you were going to impose was 12 months or less have I got the right?

Vaai: yes your honour

HH: alright thank you for that

Now you had a chance to read the psr?

Ponifasio: yes I have your honour

HH: I should say Ms Vaai, sorry to interrupt, I'm inquiring about that because of the recommendation in the psr itself saying a lengthy probation and some other form

Vaai: its usually to the discretion of your honour on what sentence to impose

HH: yes I understand that or else you wouldn't need us, you would just put your comments down and file them on the court bench and then but no, I was asking for your assistance about how it works when you want to mix and match, take a piece of this and take a piece of that

Vaai: its usually one or the other

HH: the only way, I'm used to the same system that you cannot mix and match but with one exception and that is when you have 2 charges, supposing you have one of sexual misconduct in May and you have another in September I can put sentence on one and make it less or put something on the other because I have 2 charges

Vaai: thank you

HH: alright now counsel

Ponifasio: thank you your honour if I may finish what I had started earlier in relation to the probation report I have prepared to divert a little and give a little bit of detail in relation additional facts that may be relevant to the sentencing your honour however having read the probation report I couldn't have put it any better than that and if I could be allowed during the course of my submission just to quickly go over some of these points I would be grateful your honour

HH: alright can I have one of the probation reports back then please, thank you

Ponifasio: may it please the court, your honour the def appears for sentencing and he had entered a guilty plea to 1 count of sexual intercourse w/a female between the age of 12 and 16 pursuant to s53 (1) of the crimes ordinance 1961, the summary of facts your honour defence has no objection to the summary of facts dated 27 April 2010 prepared by the prosecution other than the amended to para 4 which should read "that it was the victim that called the defendant from her cellphone for her to meet with the defendant on the early hours of May 18, 2009" this amendment was made on 27 April 2010 and has been accepted by both parties, in the principles of sentencing your honour the defence also has no objection to the principles of sentencing submitted by the prosecution at para 2 and 3 of their sentencing memorandum that is to denounce the conduct which the offender was engaged in the deterrence of the offender and the likeminded people of such conduct to protect the community and rehabilitate the offender, I now refer to case law your honour the defence has also considered the case laws put forward by the prosecution in support of the sentencing memorandum the defence will not provided any further case your honour in this matter but would leave this matter to this honourable court's discretion however we do point out some of the cases which I think would be relevant in this matter namely the case of Pita Tupai, the case of Sailimalo Ioane, Aitken Keil and the case of Lavetala Fagalele, I will now go into the aggravating factors your honour, prosecution in its sentencing memorandum under the heading aggravating factors has listed 3 factors for the consideration of this court as aggravating factors, the 1st factor is the complainant's age at the time of the offending and the age difference between the complainant and defendant being 9 years, it is submitted that the complainant may have been 12 years old at the time of the offending however it was the complainant that initiated the meetings between the complainant and the defendant in the early hours of the day when she contacted the defendant on her cellphone

HH be careful, did you say the word meetings? It's unlikely is it not that she would have initiated first contact, all they were saying was she initiated the meeting singular, she went after him and ensnared him on the charge of carnal knowledge sexual intercourse with a girl under the age of 16 on this evening she initiated the contact and rang him, that's considered by the prosecution, are you turning this into meetings in other words she initiated the relationship from the beginning, I find that hard to believe

Ponsifasio: if I may assist the court this relationship spread over a certain period of time

HH: I'm sure that's right

Ponifasio: which is about 7-9 months, if I could say the complainant initiated all the meetings you honour over the phone the fact was the defendant was never allowed to call the complainant it was always the complainant that made these calls to the defendant

HH: I understand that but that's a different proposition, hardly likely to ring up the family at home and have dad answer the phone and say who is it oh it's actually your girlfriend's 22 year old lover

Ponsifasio: yes sir

HH: that's not quite what I had in mind in my question at some stage contact must have been made between the 2 in others words somebody talks to somebody, somebody develops the friendship and then it moves on and on and on until it ends up with sexual contact, he would've initiated at least some of that, not him making the phone call you're not portraying yourself as a victim are you of the wilds of a young woman?

Ponifasio: I understand sir

HH: thank you

Ponifasio: what I was getting at sir was it may have been implied at the contact that the sexual intercourse was consensual

HH: there was no suggestion that it wasn't

Ponifasio: thank you sir my point is that it is highly unlikely that the defendant took advantage of the complainant as an inexperience and immature person since it was the complainant that initiated the meeting and such

HH: alright don't you believe, sometimes you capture one fale and it burns down, he took her virginity

Ponifasio: thank you your honour the second point is the prosecution submits in its aggravating factors that the def has ensured that the victim's psychological development would be impaired for years to come due to this offending however the prosecution have not provided a psychology's report to prove this allegation which implies the def had an intention to impair the complaint's psychological development

HH: they don't show that do they, they say that she's angry she feels hurt by it she doesn't want to see him again she's very sad about it and she's ashamed, they're psychological effects that you and I would understand and don't need a psychologist to tell us that do you?

Ponsifasio: no sir

HH: okay

Ponifasio: sir if I may go into the mitigating factors now?

HH: yes

Ponifasio: your honour the def is very remorseful and he now fully understands the nature of the offence and he has accepted full responsibilities for his actions as a result of what he has done he is very sorry and he is now rethinking everything he has done in regards to any future relationships the def and the complainant were in some sort of a boyfriend girlfriend love affair and they were aged 21 and 12 respectively at the time of the offence the def is also a 1st offender and has pleaded guilty to the charge, we put it across to yourself that the def has a bright future ahead of him at the time of the offending as he is a qualified seaman however as a result of the offending the def has been dismissed from his occupation as a seaman and he has lost his job the def is the only breadwinner of his family his father is due to have a serious operation in the near future and his family is relying heavily on the def to find a job to provide funds to pay for his father's operation your honour

HH: he has been unsuccessful thus far has he?

Ponifasio: he has been unsuccessful sir, the incident has brought a lot of disgrace to the def's family especially the def's parents according to Samoan beliefs it was this offending by the def that has brought shame to the def's family and the def's father has followed ill as a result of this offending the def is begging the court of a chance so he can prove to his parents that he can be a good person again and to make his parents proud of him again just like when he first found a job and provided for the family, in conclusion prosecution have requested a starting point of 1 year imprisonment however the defence submits that in considering both the aggravating and mitigating factors for this offending the defence submits that a non-custodial sentence will be appropriate given the circumstances of the offence and the def special circumstances in that the def ought to be offered another chance to grow and live life as a good and law abiding citizen therefore he could be a better person as he is still at a young age in his life and to make something of himself and in particular his parents to be proud of him once again, in this incident a fine or community service obligation is respectfully submitted for this honourable court's discretion, respectfully submitted may it please the court

HH: one question please and you may wish to take formal instructions on it you say that he lost his position as a seaman with the Pacific Forum was it

Ponifasio: yes sir

HH: as a result of this misconduct the psr dated the 11 May follows an interview with him on 30 April it seems from the probation officer that he told them his job at the Forum Samoa Shipping pays him a salary and he would send this money to his parents who are living in Savaii and then on the 3rd page it says this is his family's sole source of income that provides the family with necessities and other expenses and the like and it says that since his involvement in this case he resigned from his job not dismissed because his passport and other traveling documents were ceased by the court and I can imagine Forum Samoa saying we're not going to take a seaman on our ship and we end up in some foreign country and they say we have a man on board without a passport and traveling documents do you want 2 minutes to talk to him, it might be relevant that if he gets his passport back and traveling documents whether he knows if he can resume his occupation or has he lost that opportunity, I raised that because you said he was dismissed from his job as if the employer was punishing him for this it's not quite right, his passport's held here presumably because he's obviously a flight risk because when you're on a boat you don't have to come back, so that's why he resigned from his job because he doesn't have a passport and travel documents

Ponifasio: sorry your honour I actually missed that while I was reading through

HH: well you only just got it, do you want 5 mins I could defer the other matters?

Ponifasio: no sir if I can clarify that for the court this morning I have had the opportunity to discuss this in relation to his employment the truth is your honour he was laid off as a result of not being able to travel there is an understanding w/his employer that at the end of the court case and that if would again have in his possession his passport he would be able to reapply for the job this is my understanding

HH: it remains an understanding with his employer that subject to having a vacancy and the like that he'll be taken back on

Ponifasio: that is correct sir

HH: alright thank you that helps me

Anything in reply?

Vaai: no your honour

HH: alright thank you I won't defer sentence, stand up please

Folototo Eli has pleaded guilty to the offence of unlawful sexual intercourse with a girl under the age of 16 contrary to the Crimes Ordinance s53 (1) at the time of the offence he was aged 22 and she was 12 and is now 13, the court accepts the summary of facts as presented by the prosecution with the exception with 1 minor variation the complainant and def had been in a boyfriend girlfriend relationship for some 9 months, because she lived at home the arrangement was by necessity that she would make contact with him on her cellphone, on 18 May 2008 she contacted him and arranged to meet him later that evening, he collected her in a taxi and they returned to his aunt's house where they had sexual intercourse, he returned her come later in the evening, their conduct was discovered and the def interviewed by police and charged, he is entitled to a plea of guilty and that plea avoided the necessity for the complainant to give evidence, the court accepts he admitted responsibility and is remorseful, the sex was consensual, there has been an effect on the victim who is angry and hurt by his conduct but she had been a party to a consensual relationship over some months, the court accepts that she has suffered harm but not to a significant degree, his family has offered ifoga which has been accepted, the def has no prior convictions or record, he has rec/d a favourable psr, he has led a good life and has been responsible for his family, he has graduated at as a qualified seaman and has been employed by Forum Samoa as a seaman on international voyagaes, when charged w/this offence it was necessary for him to surrender his passport and travel documents this meant that his employer could not continue to take him or allow him to travel on international voyages, his counsel tells me that there is an understanding with his employer that if there is a vacancy he will be taken back on and immediate imprisonment would destroy any chance that he can continue w/a valuable career, the nature of the offence in that it was consensual and his own record and prospects permit me not to send him to prison, the court makes the following orders, 1. that he be convicted of the crime of sexual intercourse w/a girl under 16 2. he be subject to 2 years probation and I now interrupt the sentencing there was a matter which I had no considered, Ms Vaai if he resumes his employment if he is taken back on by Samoa Forum its going to get in the way of community service orders have you come across a case where they can work around somebody's employment, ordinarily you're employed somewhere in the area you get the notice and you come on one instance and you've got to clean the court floors and you can work around it but if he's on a boat out and back on a schedule does the probation officer stay, can I ask for your assistance, thank you for the report as always the court is grateful to the probation service, you've heard he's put on 2 years probation I'm minded to give him some hours of community service to show that this is not just a slap on the wrist but I don't want to put you in a position where you've got somebody traveling on a ship and you can never get hold of him to take the hours of community service any thoughts?

Fuiono: thank you your honour we have cases where the court imposed both supervision and community sentence we also have a case where a crewman was sentenced to serve community hours and supervision we prioritize his hours we have a new legislation where we can arrange for the def to make time to make sure that he has to serve his hours plus we have also prioritized the fact that we take into consideration that they work their living

HH: right it obviously will cause you some difficulty because you've got more to supervise but you think you can work around it?

Fuiono: yes your honour

HH: I'm going to reduce the 250 because it's going to require 1 or 2 years of work I've got him on 2 years probation I think I'll make it 150 hours of community service and hope that you can be flexible enough to fit it in or track him so you know where he is and act accordingly so if it doesn't cause you too much trouble that's what I'll do

Fuiono: no your honour

HH: thank you I'm grateful, is there anything you want to ask the officer counsel?

Ponifasio: no sir

Vaai: just a suggestion from the prosecution your honour maybe if he's not given any opportunity back by the Pacific Forum Line there are other shipping companies that provides for the local traveling that may be able to take back the def

HH: I understand that well we just double our ferry fleet

Did you want to say something?

Ponfasio: yes your honour, just an alternative it may not assist the court if he does there is a high possibility that he would be reemployed, if you would alternatively consider a fine perhaps instead of community hours, I will leave it to the court's discretion sir

HH: that appeals to me, I think sometimes the undertaking of community service does bring in the mind that you're part of the community and not an individual and you can't just go around doing what you want to do so the fine is if you got the money you pay it and that hurts in the pocket the other sometimes works where you communicate w/other people about your own age who have similar problems and you both got to do some work, I think I'll stay where I am if I'm not causing too much harm to the probation service by this I think I'm going to give him 150, no he's got to learn he was 22 she was 12 he'll get 200 hours of community service that's the 3rd order

Tell him this today you are lucky that the court has not sent you to jail but it is because of your good record you touch young girls again in any way and you will do a long time it is because of your work and qualifications as a seaman that I do not want to ruin your prospects of employment but touch a girl and you will have no chance, you may now leave

I will retired and rejoin you shortly to discuss the other matter

Vaai: as your honour pleases

Court adjourns at 10:20AM