Police v Ameituanai [2015] WSSC 209 (11 November 2015)

THE SUPREME COURT OF SAMOA
Police v Eti Ioane AMITUANAI [2015] WSSC 209

Case name:	Police v Eti Ioane AMITUANAI
Citation:	[2015] WSSC 209
Decision date:	11 November 2015
Parties:	Police (prosecution) v Eti Ioane AMITUANAI, male of Lotofaga Safata (defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	Convicted and sentenced to 100 hours’ community service and 15 months supervision with the following special conditions: Not to associate with girls under 16 years old. Attend the “To Manatu” programme with probation. Not to re-offend within your supervision term. Carry out any other term as directed by probation.
Representation:	Ms Ioane for the Prosecution Mr Schuster for the Defendant
Catchwords:	unlawful sexual intercourse – victim under 16 years of age – first offender – ifoga –
Words and phrases:
Legislation cited:
Cases cited:	Police v Avefua Moimoi Fiso Police v Olilve Puafua
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

ETI IOANE AMITUANAI, male of Lotofaga Safata
Defendant

Counsel:
Ms Ioane for the Prosecution
Mr Schuster for the Defendant

Date: 11 November 2015

ORAL SENTENCE OF JUSTICE TUATAGALOA

1. Eti Ioane you now appear for sentence after six counts of having unlawful sexual intercourse with a girl under 16 years old. You have confirmed the summary of facts which are as follows:
   • You had unlawful sexual intercourse with this girl at your family at Matautu Apia.
   • Members of your family reported the matter to the girl’s parents who placed her in a shelter.
   • The girl ran away from the shelter, rang you up and she came and met you in front of your family’s house at Matautu.
   • You and the girl then went by taxi to your family at Lotofaga Safata where the girl stayed with you for three to four days; during that time you had unlawful sexual intercourse with the girl four times.
   • All this unlawful sexual intercourse took place in the month of September 2015.
2. The girl is 15 years old, you are 23 years old. In the probation report you said that you were not aware of the girl’s young age given her mature physical appearance. I do not accept that because you would have had the opportunity to ask the girl how old she is when you told Probation that at Lotofaga Safata on 6 September this year, the victim came over to your house and you both spent the whole day talking and getting to know each other. No sexual intercourse took place that time or day.
3. The law places the responsibility on all the defendants that because of their age they would be more mature and presumably know better than the younger victims. As such, the law forbids sexual intercourse with girls under
   16 years old.
4. The prosecution always advocates for deterrence by way of custodial sentence. Your lawyer, Mr Schuster, accepts that the law is also to protect young girls from themselves but submits that the Court should consider the circumstances of each case as they arise accordingly.
5. There is eight years disparity between your age and that of the girl. The presumption is the bigger the disparity in age the more vulnerable the victim is. In this case with the age disparity that may be so but it is only one factor that we need to look at but we need to look at the circumstances of this case to truly gauge the vulnerability of the victim.
6. In the probation report the girl stayed with you for three or four days at your family at Lotofaga Safata. Her father came to get her but she did not want to go or refused to go. It was not until your aunty spoke with the girl that she then returned home. The girl was taken to a shelter by her parents because they could not protect her from her own decisions at such a young age yet the girl ran away from the shelter and went to the accused.
7. It is clear from the summary of facts and the probation report that you did not persistently pursue the girl to have sex or over borne her will to have sex or pressure her to have sex. You and the girl are said to have started going out in February 2015 of this year but it was not until September of this year, some six months after, that you started a sexual relationship. You were in a boyfriend/girlfriend relationship and the sexual relationship between you and the girl was consensual.
8. Your counsel has asked the Court to consider the following in your favor:
   1. That you are a first offender and you are obviously of previous good character.
   2. That your family has formally apologized to the girl’s family and has presented three fine mates, a umu, a pig and $100. This apology was accepted by the girl’s family and they have forgiven you.
   3. I accept that you are remorseful.
   4. You have pleaded guilty to all six counts.
      
9. Your counsel in his submissions has also informed the Court of your wish to live together with the girl when she comes of age.
10. As I said earlier the prosecution is asking for a deterrence sentence by way of custodial and they are relying on a case of Police v Avefua Moimoi^[1] for the Court to take into account and impose a custodial sentence. As I also said earlier, your counsel Mr Schuster on the other hand asks the Court to consider each case according to its own circumstances.
11. The case of Police v Avefua Moimoi is distinguished upon the following and this was also said by Mr Schuster in his submissions:
    • The age of the victim in that case she was 12 years old, is very young in that age category of 12 to 16 years old. If you look at it she was still in Primary School. As such, that victim is very vulnerable. The girl in this case she is 15 years old, a little bit older than that victim and she is on the top end of that age category of 12 to 16 years old.
    • The accused in Avefua, was the instigator or doing the approaching of the victim while as in the present case it was the victim who ring’s up the accused, who went to the accused house and did not want to go back to her family.
12. Interestingly in the case between Police v Olive Puafua^[2], another case of Justice Aitken, the victim was 15 years old, defendant was 18 years old. The most aggravating, aside from age in that case, was that the defendant as the uncle of the victim yet Court in that case on the circumstances of that particular case imposed a non-custodial sentence.
13. The Court with this offending has imposed a range of sentences that range from supervision and community service to custodial sentences. The Court do take into account other cases as guidelines or for comparison in making its decision but what it comes down to is, the Court makes the decision according to the circumstances of each case as they arise.
14. I have said in previous sentences that deterrence is not only by way of custodial sentence but can also be achieved by non-custodial sentence. This should never be seen as the Court taking such offending lightly. The Court certainly do, denounce such behaviour or offending but the Court should approach sentence taking into account the circumstances of each case accordingly.
15. In the circumstances of this case a custodial sentence is not appropriate. Accordingly, I convict and sentence the accused to 100 hours’ community service and 15 months supervision with the following special conditions:
    5. You are not to associate with girls under 16 years old.
    6. You are to attend the “To Manatu” programme with probation.
    7. You are not to re-offend within your supervision term.
    8. You are to carry out any other term as directed by probation.
       

....................................
Justice Mata Tuatagaloa

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^[1] Unreported, 15 June 2015
^[2] Unreported, 3 June 2015