Police v Lave [2012] WSSC 17 (19 January 2012)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

FERETI MALUALII MANO LAVE
Defendant

Counsels: Ms L Taimalelagi for prosecution

Defendant unrepresented

Sentence: 19 January 2012

SENTENCE

The defendant has pleaded guilty to indecently assaulting a then 14 year old complainant. And after explaining to him the ingredients of the offence he accepts that he maintains his guilty plea to the charge. The defendant is a 29 year old male from the same village as the complainant. In case one has not been issued there will issue a prohibition order prohibiting publication of the details of the complainant and that will extend to the village of both the complainant and the defendant.

The summary of facts which the defendant has admitted this morning states that the complainant was at an auntys house on the day of the offending. The aunty was absent and only the complainant and her cousin were at the house. The documents before the court suggest the defendant and complainant are related in that the complainants mother is married into or "nofotane" to the defendants family. The summary says that the parties agreed to meet behind the bathroom of the house. There they engaged in a "evaga" and various other amorous activity leading to the complainant undressing and lying on the concrete floor. At some stage the defendant undressed and got on top of the complainant in preparation for having sexual intercourse. But the complainant became scared and refused and all that occurred was that the defendant kissed the complainant before the two of them parted company. The victim impact report states that there was also a love-bite on the complainants chest. The love-bite is entirely consistant with the activity as related in the police summary of facts.

No doubt Fereti you have heard from the previous sentencing today how serious the court regards sexual offending against young females by older more experienced mature males. The complainant in this case was 15 years younger than you and was under-age. You as an older mature male should have exercised better judgment and restraint and not become involved with an under-age girl. It is to your credit that you respected her wishes and proceeded no further with your activities. Because if the matter had proceeded to full sexual intercourse between you and the under-age girl I would have sent you to prison.

But considering all the factors of this matter I am of the view an imprisonment term is not required. I note no force or violence was involved in the offending and the indecent assault consisted of kisses and a love-bite. And that you in reponse to the complainant becoming scared and not wanting to proceed further refrained from taking matters to the next level. You are saved from a prison term today Fereti but let me be very clear in a warning. You now have a record of a sexual offence against a young girl. Should you be foolish enough in the future to repeat this sort of behaviour with another under-age girl then expect a totally different outcome to what is going to happen today. Ua manino lea tulaga i lau susuga Fereti? (Defendant indicated he understood).

I take into account the defendant is a first offender who pleaded guilty and that the probation office report confirms that his parents apologised to the complainants family the night the defendant was arrested, an apology which was accepted by the complainants mother. I also note that the defendant has spent some one and a half months in custody awaiting sentence on this charge.

For this offence therefore his penalty will be as follows: firstly he will be convicted and sentenced to time already served under the custody of the police. Secondly within 7 days hereof he is to pay court costs of $50, police costs of $50, probation office costs of $50 in default 14 days in prison.

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JUSTICE NELSON