Police v Lavasi [2011] WSSC 147 (18 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

FAAIVIIVI LAVASI
male of Vaitele-fou and Mulifanua.
Defendant

Counsels:Ms T Toailoa and F E Niumata for prosecution
Defendant unrepresented.

Sentence: 18 July 2011

SENTENCE

The defendant has pleaded guilty to four counts of having sexual intercourse with a girl under 16 years of age not being his wife. An offence commonly referred to as carnal knowledge. The facts in accordance with the summary of facts admitted to by the defendant this morning are as follows: he is a 28 year old divorcee with three children while the complainant was at the time of these offences 15 years of age and attending school. There has been issued a suppression order in respect of the details of the complainant. That order is to continue and for reasons that will become apparent that order is also extended to suppression of any details in relation to the defendant.

In the month of April this year the defendant began a relationship with the complainant which is described in the summary as a boyfriend-girlfriend relationship. Considering that the defendant is 28 years of age and the girl was only 15 I would hardly describe that as a boyfriend-girlfriend relationship more like an adult having a relationship with a young girl.

The summary states that on four occasions in the month of May this year the defendant and the complainant had consensual sexual intercourse at different places. The defendant highlighted in his plea in mitigation this morning to the court the consensual nature of the intercourses and I accept that. But consent for the purposes of this offence is no defence. Because the law is aimed at protecting young girls from themselves and from older more experienced males until young girls reach the age of consent of 16 when the law says they are able to make an informed choice about who their sexual partners should be.

The maximum penalty for the offence is 7 years in prison. The courts policy has long been to impose prison sentences because the message that must be sent to older males is not to have sexual intercourse with underage females. To engage in carnal knowledge is to take a first step towards Tafaigata Prison. This applies even though a defendant is a first offender and has expressed remorse and pleaded guilty to the charge. You Faaiviivi are in that category. You are a first offender. You pleaded guilty and that has saved the courts time and resources and more significantly spared the complainant the indignity and turmoil of having to testify and relive this matter. For those factors you are entitled to credit .

Considering all factors including sentencings in similar cases to yours Faaiviivi you are convicted on each charge and sentenced to 12 months in prison but all terms will be concurrent. Your time in custody is to be deducted from that.

You have also been charged with one count of rape of the same complainant. It appears that when these charges were called you pleaded guilty to all the charges including that charge of rape. However, when the police summary of facts was read to you this morning you disputed those parts alleging a rape of the complainant and you told the court that the complainant consented to that instance of sexual intercourse as well. It appears from the police summary of facts that instance of intercourse was the last time that the two of you had sex. I also note the defendant said that he gave the complainant a love bite on the neck which her family noticed the next day leading to an investigation of this matter and leading to her claim of rape. A claim of rape which you have off and on denied.

You also told me that you did not fully understand the rape charge when it was read out to you. I note that you did not have the benefit of legal advice or the advice of a duty solicitor at the time you entered that plea. I want you to understand Faaiviivi that allowing a defendant to change plea is not an exercise to be undertaken lightly. It is only done if a defendant did not really plead guilty or was mistaken in his plea. And the overriding consideration is whether it is in the interests of justice to allow a change of plea. The matter lies in the sole discretion of the court.

Considering all factors I am however satisfied it is in the interests of justice to allow the defendants application in respect of this last incident of sexual intercourse. An incident covered by information number S504/11. On this charge your application is granted. Your guilty plea will be vacated and substituted by a plea of not guilty. That charge will be referred back to the court list to set a new hearing day. You are free to consult a lawyer if you wish to do so for that charge. If you cannot afford one you can apply to the Ministry of Justice for legal aid for a lawyer to be appointed to represent you.

As the defendant has now pleaded not guilty to a charge of rape in respect of the same complainant the suppression order must automatically extend to him and his details until that charge of rape has been disposed of by the court.

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