Police v Lauvao [2011] WSSC 75 (30 May 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

TEA LAUVAO male of Mutiatele Aleipata
Defendant

Counsels: Ms F E Niumata for prosecution
Defendant unrepresented.

Sentence: 30 May 2011

SENTENCE

The defendant in this case has pleaded guilty to two counts of indecent assault and one count of attempted rape. The police summary of facts which he had accepted states that he is a 35 year old male of Mutiatele in Aleipata, he is single and he is a "faifaatoaga" (planter) living with his relatives at their family in Aleipata. The young girl involved is a 12 year old female of the same village and I would remind the press of the suppression order in relation to publishing the victims details.

The summary states that the defendant was drinking on the morning of this incident and he admitted to the police that he was intoxicated. He was drinking with a friend during the day and after their party he remembered that there were no coconuts gathered for the evening meal of the family. So he went to fetch them and probably because he was drunk he forgot to take a knife. He stopped off at the house of the complainant ostensibly to borrow a knife from them and saw the complainant and her two young siblings asleep. He entered the house and the complainant woke up and saw he was in the kitchen. The defendant called the victim over and as the victim approached him he walked away to outside behind the kitchen where some paogo trees were. The victim followed to see what it was that he wanted.

The defendant admitted in his cautioned statement to the police that at the time he wanted to have sex with the victim. The summary of facts continues that when the victim arrived at the paogo trees the defendant grabbed her, took off her shorts, pulled her panties down and he took off his lavalava. At the time the victim was crying and had her eyes closed. He then grabbed hold of the girl and lifted her up against his body and attempted to penetrate her vagina twice with his private part. Just at that time a villager walked past and interrupted the defendants actions whereupon he released the victim and ran away. The villager came to the aid of the victim, the matter was referred to the police and when interviewed by the police the defendant admitted to indecently assaulting the victim and trying to rape her. The defendant also stated during that interview that prior to committing the offence he had been smoking marijuana. That is the background to the defendants appearance today for sentence upon two counts of indecent assault and one count of attempted rape.

The maximum penalty for indecent assault by law is 7 years in prison and for attempted rape 10 years in prison. The victim impact report filed by the Attorney Generals office indicates that the victim did not suffer any physical injuries but she bears mental scars from her ordeal because her classmates and fellow villagers have found out about this matter and this has caused her considerable shame and embarrassment. Irrespective of what the court does to the defendant today that is something this girl will have to live with for the immediate future in any event.

The material before me indicates the defendant has been banished by his village as a result of this offending and the complainants father appeared before the court this morning and also informed the court that a traditional ifoga has been presented and accepted. And as far as their family is concerned the matter had been resolved in the customary manner. That is a good thing as is the fact that the village council has fulfilled its function.

I will deal firstly with the more serious charge of attempted rape. The offence of attempted rape and the action of attempted rape on a 12 year old girl a very serious offence. The prosecution have in their written submission asked that the court start at a penalty of 9 years in prison. But the cases they have cited are not comparable cases to this one and I do not find them helpful.

Considering all the factors in your case Tea an appropriate start point should however be on high side and in this case it will be 8 years in prison to reflect the criminality of your actions and the young age of the girl involved. You have pleaded guilty, that shows remorse for your crime and it has saved the necessity of a trial and the girl testifying and reliving this experience. For those factors Tea I deduct a period of 2 years from the 8 years start point, that leaves 6 years. For the fact that you are a first offender and you have not previously appeared before the court I deduct ae period of 1 year that leaves a balance of 5 years. For the ifoga that was conducted and your penalty of banishment from your village as well as the petition put forward by the complainants father this morning I will deduct a further 1 year, that leaves a balance of 4 years. You are entitled to no further deduction in law, you will be convicted on the attempted rape charge and sentenced to 4 years in prison. But your remand in custody time awaiting sentence is to be deducted from that.

In respect of the indecent assault charges those are duplication of charges as the indecent assault is part and parcel of the attempted rape for which you have already been sentenced. No one should be punished twice for the same crime, those two charges are dismissed. Which means that for this matter, you will serve 4 years in prison minus your remand in custody time awaiting sentence.

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