Police v Sefulu [2011] WSSC 143 (19 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

MAOAMA SEFULU
male of Vaitoomuli Palauli Savaii.
Defendant

Counsel: Ms L Taimalelagi for prosecution
Defendant unrepresented

Sentence: 19 December 2011

SENTENCE

The police summary of facts in this matter states that the defendant is a 28 year old male of Vaitoomuli, single and was at the relevant time employed by the victims parents as a labourer on their cattle farm. As such he was living with the victims family and had been doing so for approximately a year prior to this offending. The victim is an 8 year old female who attends primary school. Details as to her name and identity have been suppressed as per order of the court.

On Saturday 17 September this year the victim after helping out the defendant with his chores went to the Samoan fale located behind her family home and watched television in the defendants room. That suggests that the Samoan fale was the labourers quarters and that was where the defendant was residing. It is not revealed by the summary of facts what time of the day or night this offending is alleged to have occurred. What is stated is as the victim lay on the bed the defendant who was sitting in a chair next to the bed began to have sexual urges in respect of her. As a result the defendant reached over to the victim and began fondling her breasts. The victim resisted but the defendant persisted and became more aggressive and his assault continued down her abdomen to the inside of her panties.

The summary goes on to state that the defendant fondled the victims vagina before digitally penetrating her private part. This caused the victim pain and discomfort and she pushed away the defendants hand and immediately left the room. The victim returned to the family home and reported the incident to her 14 year old sister who was the only other person at home at the time. The sister in turn reported the matter to their parents and eventually it was referred to the police. Later that day the victim was taken to the National Hospital at Motootua where she was examined by Doctor Ulai Tapa Fidow.

Because the defendant rejected the assertion that he had digitally penetrated the complainant the doctor was called by the prosecution to give evidence of his findings. His testimony and report indicates that a genital examination revealed the victim had a "ruptured hymen with soft tissue bruising of the labia." He explained that the bruising was in the external genitalia of the victim and was fresh. As the examination was conducted the same day of the assault this is a clear indication of digital penetration consistent with what is alleged in the police summary of facts. I therefore reject the defendants denials of digital penetration.

Indecent assault of young girls is a serious charge. An indecent assault of an 8 year old is even more serious and is punishable by up to 7 years in prison. That the indecent assault was committed by a trusted employee aggravates the matter. The facts reveal that the defendant had lived in the family for approximately a year pre-offending and his presence at home with the complainant indicated that the parents regarded him as no threat to their young children. The fact that the young girl was comfortable enough to be watching television in a room in the defendants place of residence also indicates that she trusted him. The defendant betrayed both these trusts.

The age gap of 20 years between the defendant and the young girl is a further aggravating factor. The offence was not committed in the family home but it was certainly within the precincts of the family property. The effect this has had on the victim is on the material available to the court substantial. She cried when she was interviewed for the purposes of a victim impact report. And I am informed by counsel that her mother says she continues to have recurring nightmares. Quite apart from that trauma the defendant has also robbed this young girl of a precious treasure namely her virginity. It was something for her to choose to whom to give, it was not the defendants for the taking.

The courts policy in view of the seriousness and prevalence of this sort of offending has been and will continue to be to impose deterrent terms of imprisonment. The only question is how long is appropriate considering the circumstances of the offending and the offender. The maximum penalty for this offence as I have stated is 7 years in prison. But I note you are a first offender and that you pleaded guilty to the charge thus saving some of the courts valuable time and resources. The nature of the indecent assault is also relevant as is the age of the girl.

The prosecution have asked that the court impose in the circumstances no less than a 3 year term of imprisonment. I think that is slightly on the high side considering penalties in like cases. You will be convicted and sentenced to 2½ years in prison but your time awaiting sentence is to be deducted.

...........................
JUSTICE NELSON