Police v Faasavalu [2018] WSSC 34 (20 March 2018)

IN THE SUPREME COURT OF SAMOA
Police v Faasavalu [2018] WSSC 34

Case name:	Police v Faasavalu
Citation:	[2018] WSSC 34
Decision date:	20 March 2018
Parties:	POLICE (Police) and KILIGI FAASAVALU, male of Sataoa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	- For the main offending I convict and impose a 10 month supervision term for each offence with the condition that the accused stays away from girls who are 16 years and younger. - For the lesser offence of indecent assault, the accused to be called up for sentence within 6 months should he re-offend or breach the special condition that he stays away from girls who are 16 years and younger. - The supervision terms are to run concurrently.
Representation:	L Sio for Prosecution C Vaai for the Defendant
Catchwords:	Unlawful sexual connection – penile penetration – digital penetration – mouth to genitalia – indecent assault – occurred multiple times – victim consented – village penalty – previous good character – young victim – 14 year age disparity – vulnerability – from same village – non-custodial – supervision term – early guilty plea – remorseful – exceptional circumstances (home situation)
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 50(a); 50(a)(i); 50(a)(ii); 50(b); 50(c); 58; 59(1); 59(3).
Cases cited:	Key v Police [2013] WSCA 3 (28 June 2013); Police v Ioane Solomona (unreported judgment). Police v Lua [2016] WSCA 1 (19 February 2016).
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

KILIGI FAASAVALU, male of Sataoa
Defendant

Counsel:

L Sio for Prosecution
C Vaai for the Defendant

Sentence: 20 March 2018

SENTENCING OF TUATAGALOA J

1. The accused is charged with six (6) counts of unlawful sexual connection with a girl under 16 years under section 59(1) as follows:
   1. Three (3) counts of sexual connection by way of penile penetration (s. 50(a)(i));
   2. One count of digital penetration;
   3. One count of sexual connection by way of mouth to genitalia; and
   4. One count of indecent assault by sucking the breasts.
2. The maximum penalty for the sexual offending in (i) – (iii) is 10 years imprisonment. The sexual connection between mouth and breasts (S1819/17) is indecent assault under s.59(3) which penalty is maximum 7 years and not a sexual connection as defined under section 50.
3. Unlawful sexual connection involves the introduction into the genitalia or anus of one person, of a part of the body of another person (s.50(a)(i)) or an object held or manipulated by another person (s.50(a)(ii)). It also includes connection between the mouth or tongue of one person and genitalia or anus of another (s.50(b)) the continuation of a non-consensual sexual connection is also an unlawful sexual connection (s.50(c)).
4. There are no sentencing bands or guidelines for unlawful sexual connection under s. 59 in regards to victims under 16 years. The cases of Police v Lua^[1] provides for sentencing guidelines and/or bands for non-penetrative sexual connection against victims under 12 years (s.58). While as Key v Police^[2] provide sentencing bands for rape for all age groups.
5. The summary of facts prepared by Prosecution was read out and except for the parts noted confirmed the rest which basically says:
   1. On 21 October 2017, the victim and the accused were passing each other on the road walking and the accused called out to the victim words to the effect that they meet later on that day and the victim responded, “Ok.”
   2. Between 7.00pm and 8.00pm that night the accused went to the main road and met with the victim.
   3. The Pre-Sentence Report (PSR) has the accused saying that he met the victim on the main road in front of his house when he was on his way to unlock his cellphone. That is, he did not go to meet her. The PSR also has the accused saying that he asked the victim where she was going and she responded that she came to have sex with him. The accused also said that the unlawful sexual connection took place in his faleo’o (shack) but not in the bushes as said in the summary of facts.
6. The accused is 28 years’ old, married with a young son. He is unemployed and looks after his young son while his wife who has a disability is employed by the Nuanua o le Alofa Organization as a Communication Officer.
7. The victim on the other hand was 14 years’ old. The victim from the Victim Impact Report (VIR) now lives with the Samoa Victim Support Group at Tuanaimato.
8. Both the victim and the accused are from the same village of Sataoa.
9. The accused is charged with other than the two unlawful sexual intercourse that took place on the same night, is also charged with what the Court sees as connected or accompanying acts of the unlawful sexual intercourse that took place. The accompanying acts referred to are kissing and sucking the victim’s breasts, sucking the victim’s genitalia and inserting his finger in her genitalia before penetration. The acts of kissing, sucking and digital penetration are a connected series of acts of the sexual intercourse that took place. That is, the overall nature of the offending that took place was the sexual intercourse albeit unlawful. Such accompanying acts are not aggravating as the victim consented although her consent is not a requirement under s. 59 to which the accused is charged, making the offending unlawful sexual intercourse. The accompanying acts referred to would in my view be aggravating if the victim was not consenting.
10. I turn now to identify the aggravating features of this offending. The Prosecution has identified vulnerability of the victim and the impact of the offending upon the victim. The only aggravating factor (in my view) is the vulnerability of the victim because of age. There is a 14 year age gap between the age of the victim and that of the accused. The bigger the age difference the more serious the offending.
11. I do not accept as an impact of the offending that the victim now lives at SVSG for the following reasons: firstly, the offending took place at Sataoa when the accused went to visit his family. He does not live at Sataoa but with his de-facto wife and young son at Toamua. The accused is currently bailed to live at Laulii. I do not see why the victim has been relocated to live with SVSG when the accused does not live at Sataoa but at Toamua and secondly the accused has been bailed to live at Laulii. The question is, is the real reason she now lives at SVSG is not because of the offending but her family and how they are embarrassed of what happened?
12. Apart from the aggravating factor noted, there are no other associated aggravating aspects in terms of additional violence, or being held against her will for the sexual offending to take place.
13. I have read the Victim Impact Report (VIR). It is clear that the victim has feelings for the accused. She says in the VIR that at times she thinks of the accused. Also in the same VIR, the victim lied about the love bite on her neck and told her aunty when she was questioned that nothing happened. It is clear that there was no harm physically or psychologically to the victim from the offending.
14. The Pre-Sentence Report (PSR) has the accused saying that he met the victim on the road in front of his house around 11.00pm. He asked her where she was going and she responded she had come to have sex with him. He said he told her to go home three times but she refused and so they both agreed to have sex. I do not accept the accused version of what the victim said when he asked her where she was going. The accused said that all the sexual connections took place at his shack and it was the victim who came to his house not him going to meet her or wait for the victim on the road. Counsel’s objection is that the accused is not a predator as painted or inferred from the facts as in the summary of facts.
15. The facts taken into account by the Court was that the sexual connections took place as pleaded ‘guilty’ to by the accused and that the victim was a willing participant and that the accused met the victim on the road and nothing more.
16. There are written testimonials from the accused religious minister, the pulenuu (mayor) of his village and from his de-facto wife. The minister and mayor talk about the accused good qualities and ask for mercy from the Court because of the circumstances of his wife and young son should he be imprisoned.
17. There is a written testimonial from the accused de-facto wife who as mentioned before has a disability due to a condition she was born with known as “brittle or breakable bones” that sometimes requires the use of a wheelchair. The wife talks about her being solely dependent on the accused with looking after their 10 month old son, the chores around the house and helping her with a lot of things that she cannot do. The wife refers to the accused as her “arms and legs.” She has forgiven him for his indiscretions and said that the offending took place when the accused went to visit his family at Sataoa.
18. The Prosecution has recommended the starting point of 2 years similar to the case of Police v Ioane Solomona^[3] where the age disparity was 13 years. The circumstances of that offending was very different. In Solomona, the victim clearly did not consent (although not required); there was an element of being held captive inside the bathroom by the accused of the victim and for the second incident forcibly the accused took the victim to his house and had sex with the victim. The offending in Solomona was clearly rape other than being unlawful sexual violation with a girl under 16 years. The Court there imposed a starting point of 18 months’ imprisonment. In those circumstances the starting point recommended by Prosecution does not make sense. The circumstances of the offending in Police v Solomona are a lot more serious than those in the present case.
19. I take the totality approach and given the circumstances of this particular offending I find as appropriate the starting point of 18 months.
20. I turn now to consider matters of personal aggravation and mitigation. There are no personal aggravating factors. The victim said in VIR that the accused has not apologized or there has been any reconciliation between the accused and her family. The reason this could not have taken place is due to the fact that the accused has been ordered by the Court to reside elsewhere and not set foot back in to the village while this matter is in Court.
21. As to the matters of mitigation the things that permit to reduce the sentence are as follows:
    1. Village penalty by way of fine that the accused and his family have adhered to;
    2. Previous good character – there are written testimonials from his Church Minister and village pulenuu attesting to his good character. From his partner’s written testimony, he is a loving and hardworking man who obviously takes great care of his partner and their 10 month old son.
    3. The early guilty plea to the offending. This is a sign of the accused accepting responsibility for his behaviour and also being remorseful.
    4. The accused unique family circumstances. The accused partner from her written testimonial relies on the accused for everything at home. The accused partner has a disability and as she said the accused is, “Her arms and legs.”
22. Taking all those factors into account, an end sentence will be between 6 – 10 months imprisonment.
23. I believe that this was very poor judgment by the accused. I also believe that he has learnt his lesson and is truly remorseful. Most importantly is his family – his partner with a disability and their 10 month old son who depend on him. As I have always advocated, an imprisonment term does not always deter people from again re-offending in the future but that true remorse, accepting that your behaviour is wrong and the impact the offending has on the accused and his family and a conviction record are also factors that would or could deter someone from re-offending in the future. I also give mercy to the accused due to the special and peculiar circumstances of his family. For these reasons I will turn the end sentence in to a non-custodial sentence.
24. For the main offending I convict and impose a 10 month supervision term for each offence with the condition that the accused stays away from girls who are 16 years and younger.
25. For the lesser offence of indecent assault, the accused to be called up for sentence within 6 months should he re-offend or breach the special condition that he stays away from girls who are 16 years and younger.
26. The supervision terms are to run concurrently.
    

JUSTICE TUATAGALOA

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^[1] Police v Lua [2016] WSCA 1 (19 February 2016).
^[2] Key v Police [2013] WSCA 3 (28 June 2013).
^[3] Police v Ioane Solomona (unreported judgment).