Police v Faatoto [2015] WSSC 144 (16 March 2015)

IN THE SUPREME COURT OF SAMOA
Police v Faatoto [2015] WSSC 144

Case name:	Police v Faatoto
Citation:	[2015] WSSC 144
Decision date:	16 March 2015
Parties:	The Police (Prosecution) Tupuaitui Faatoto, male of Sinamoga and Papa Sataua. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Convicted and sentenced on this charge to 18 months in prison. Remand in custody time to be deducted.
Representation:	O Tagaloa for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

TUPUAITUI FAATOTO, male of Sinamoga and Papa Sataua.
Defendant

Counsel: O Tagaloa for prosecution
Defendant unrepresented

Sentence: 16 March 2015

SENTENCE

1. The defendant has pleaded guilty to one count of unlawful sexual connection on a 16 year old female who is his first cousin because her mother and the defendants mother are sisters. The police summary of facts which the defendant has admitted says he is a 19 year old male of Sinamoga is unemployed stays at home and helps out with the family chores. The complainant is 16 years of age and goes to school. There will issue the usual suppression order prohibiting publication of the complainants details.
2. The police summary says that on the 01 of February 2015 at night the complainant was sleeping in the faleoo behind the main house of the family. At about 5:00 am that morning the defendant returned drunk from a social outing and went to the complainants bed. Crawled into the bed and leaned his body against the complainants back. Waking up the complainant who recognized the defendant from a light that was on in the kitchen.
3. The complainant tried to get the defendant to go away and leave her alone but he would not. He removed her clothes and performed oral sex on her private part. The summary also said he tried to have sex with her but was not able to do so because the complainant was struggling and preventing him. The complainants uncle who was asleep on the other side of the house heard the noises got up and saw the defendant. He assaulted the defendant but the defendant was able to get away. Defendant was the next day apprehended by the police and charged in relation to this incident.
4. The complainant says in her victim impact report the defendant wanted to be her boyfriend but she consistently refused his advances. Clearly the defendant should have taken no as no and left things at that point. He did not do so and that is why he is in court this afternoon.
5. The charge against the defendant presumably refers to section 50(b) of the Crimes Act which makes it an offence to engage in oral sex without the free and voluntary consent of a complainant. That offence carries a maximum penalty by law of 14 years imprisonment.
6. There is no question that the offending in this case is serious. An imprisonment term is required because of that and to hold the defendant accountable for his actions. And to send a message to the defendant and to other young men that this sort of behaviour simply is unacceptable. And will not be condoned by society or by the law.
7. In all circumstances I accept the prosecution submission that B-1 of the Peti Key bands for sentencing applies to this case. I start sentence at 3 years in prison. You are entitled to certain deductions from that Tupuaitui which I now will make on your behalf. Firstly for your guilty plea one-quarter of sentence a period of 9 months leaves a balance of 27 months. You have a clean criminal record, you have a good pre-sentence report from the probation office. I deduct for those matters a further 6 months leaves 21 months.
8. I accept what your aunty has told the court this morning that the matter has been reconciled and that she has forgiven you for what you did to her daughter. And that she forgives you for what you did to her daughter. For that I will deduct 3 months from the balance of term leaves a period of 18 months in prison. No other deduction can be made for your matter Tupuaitui.
9. Convicted and sentenced on this charge to 18 months in prison. Remand in custody time to be deducted.
   

JUSTICE NELSON