Police v Faiva [2012] WSSC 88 (21 September 2012)

SUPREME COURT OF SAMOA

Police v Faiva [2012] WSSC 88

Case name: Police v Faiva

Citation: [2012] WSSC 88

Decision date: 21 September 2012

Parties:
THE POLICE v PA’I FAIVA, male of Falelatai

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms F E Niumata for prosecution
Mr R Schuster for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Police v Sakarata [2006] WSSC 38

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

PA’I FAIVA, male of Falelatai.

Defendant

Counsel: Ms F E Niumata for prosecution

Mr R Schuster for defendant

Sentence: 21 September 2012

SENTENCE

This defendant appears for sentence on one count of attempted carnal knowledge of the complainant who was a girl under 12 years of age. In fact she was 10 years old and attending primary school. A suppression order will of course extend to the identity and any particulars in relation to the girl.

The defendant in this case is a 44 year old married man with a wife and two young children. He is well educated. He holds a computer science qualification from the University of the South Pacific and is employed as an IT Consultant in the Ministry of Natural Resources and Environment. He is a person of obvious good character as testified to by the many testimonials given to the probation office. He mentors young people in computer and science subjects and services the computers of his local school in his own time. There is no doubting that he is a useful and contributive member of society.

He was friends with the parents of the complainant. In this spirit he travelled to the complainants village one weekend to conduct IT training for staff employed at the complainants parents beach resort. The training began Friday 19 August and resumed Saturday 20 August 2012. That Saturday as the training progressed the defendant began consuming alcohol.

The material before the court indicates that by the end of the day he had consumed such a large quantity that the training had to be discontinued because he was intoxicated. He accordingly went to bed but awoke again around 9:00pm that night. After dinner he resumed drinking at the bar of the resort. When the bar closed he was still there. By all accounts by this time he was in a well intoxicated state.

At around 2:00 am in the morning the defendant entered the unlocked bedroom of the sleeping complainant. He turned off her light and then proceeded to sexually assault her. The complainant gives the following account of this assault in her police statement.

“Tusa o le 2 i le vaveao ae ou faalogoina loa o etoeto mai e le tagata lo’u vae agavale (auaga). Sa ou fai atu soia. Sa ou te’i i le tago mai ua susu lo’u susu agavale, sa ou ee ma ou fai atu iai soia ae ua tago pupuni lo’u gutu. Sa tago ua tau toso i lalo lo’u ofuvae ae o loo o’u ee lava ma ou tau manava ona o loo pupuni lo’u gutu ma lo’u isu e le tamaloa i lona lima. Sa ou te’i ina ua oso mai lo’u tina ua toso ese le tamaloa mai o’u luga ma tulei i fafo ma lo’u potu.”

The complainants mother in her police statement gives the following corroborative account.

“Pe tusa o le 2 i le vaveao ae ou faalogo atu ua ee si a’u tama. Sa ou ala mai ma ou savali atu i lona potu ma ou vaaia ai o faō mai le alii lea o Pa’i Faiva i luga o si a’u tama. Sa ou tago lima lua atu loa ma toso mai i luga ma tulei i fafo ma le potu. Sa ou tago atu ua opo mai la’u tama ma ou ee ae o loo tagi foi si a’u tama.”

On these facts the defendant is probably fortunate that he is not charged with a far more serious offence. There is no understating the seriousness of his conduct.

The policy of this court in cases of sexual offending by older mature males on young females has been stated on many previous occasions. I only propose to quote from one such decision that of the Chief Justice in Police v Sakarata [2006] WSSC 38: although that was a case of indecent assault by a 49 year old man on an 8 year old girl, the principles spelt out therein apply to all sexual offending by older males on younger females.

There the learned Chief Justice spoke of the objectives of sentencing as being as follows: “the protection of society from acts of indecency committed on its young members, particularly young girls who are so often the victims of such crimes, retribution or punishment of the offender which must be appropriate for the particular crime and should reflect its condemnation by the community, a deterrence which is an attempt to restrain the offender from re-offending and other like minded people from committing the same crime.” In imposing a sentence of imprisonment he said that protection of society, retribution and deterrence were the most relevant considerations.

I accept what counsel for the defendant has submitted as stated earlier that the defendant is a useful member of society. And that his services will be missed if he is sent to prison. I would add to that the burden that his family would have to necessarily bear in being deprived of a bread winner. His wife and children are going to become also innocent victims of his offending. But the circumstances of the offending in this case are so serious that the courts normal sentencing policy for this kind of offence must be applied. The court must continue to reiterate its message to mature males of our community that you if behave in this fashion to young girls this will be your fate. As accepted by defendants counsel self imposed intoxication to the level the defendant had achieved is no excuse for such behaviour.

The offence the defendant has pleaded guilty to carries a 7 year maximum penalty. This offending was carried out in the bedroom of a 10 year old late at night. Upon a female sleeping alone in her bed. According to the complainants police statement a fair degree of violence was used by the defendant to restrain the complainant and to try and stop her from screaming out. The defendants actions were only stopped by the mother entering the bedroom and physically pulling him off the complainant. The medical report on the complainant indicates that she sustained some injuries from the defendants assault. In particular love bites to her left breast. As well her victim impact report recites the trauma of the experience.

Considering all the relevant circumstances of your case Pa’i a 5 year start point for sentence is appropriate. You are entitled however to certain deductions as pointed to by your defence counsel. First and foremost for your guilty plea. As indicated to counsel you will be given full credit for your guilty plea because it was entered when the charges against you were eventually finalized by the prosecution. It also avoided the necessity for the complainant testifying and saved the courts time and is an indication of remorse for what you did. For your guilty plea I deduct one-third of your sentence a period of 20 months leaving a balance of 40 months. For the fact that you are a first offender with a clean police record I make a further deduction of 12 months from your sentence leaving a balance of 28 months. The documents before the court indicate no ifoga or apology was effected in this matter, there can therefore be no deduction for that matter. However your counsel has pleaded for some leniency given your background and your circumstances. The court has some discretion to exercise mercy in sentencing I will remove a further 4 months from your penalty and round off your sentence to 2 years in prison.

For this matter Pa’i you will be convicted and sentenced to a period of 2 years in prison.

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JUSTICE NELSON