Police v Faatauvaa [2019] WSSC 11 (18 January 2019)

IN THE SUPREME COURT OF SAMOA
Police v Faatauvaa [2019] WSSC 11

Case name:	Police v Faatauvaa
Citation:	[2019] WSSC 11
Decision date:	18 January 2019
Parties:	POLICE (Informant) and IAKOPO FAATAUVAA, male of Faga and Vailoa Faleata
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:	The accused is convicted and sentenced for each count of rape to 17 years and 4 months’ imprisonment. All sentences for the five counts of rape to be concurrent, less time he has been in custody awaiting sentenced. The accused is to go on the Sex Offender Registry.
Representation:	L. Sio for Prosecution T. Leavai for the Accused
Catchwords:	rape – familial connection (defendant/victim) – occurred multiple times – 32 year age disparity – victim vulnerable – breach of trust – pre-mediation – opportunistic – sexual offence – sentencing bands
Words and phrases:	victim now under care of Samoa Victim Support Group (SVSG) – accused to go on Sex Offender Registry
Legislation cited:	Crimes Act 2013 ss. 49(1)(a); 49(2); 52(1).
Cases cited:	Key v Police [2013] WSCA 3 (28 June 2013).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

IAKOPO FAATAUVAA male of Faga & Vailoa Faleata
Accused

Counsel: L. Sio for Prosecution
T. Leavai for the Accused

Date: 18 January 2019

S E N T E N C E

1. Iakopo appears for sentence on five counts of rape pursuant to section 49(1)(a) & (2) which carries a maximum penalty of imprisonment for life under section 52(1) of Crimes Act 2013.
2. The accused is the step-father of the victim whom on five different occasions committed the offences against the victim. The victim was only 14 years’ old when the offending started. The victim at the time of sentencing has only just turned 16 years’ old. The accused at the time of the offending was 46 years’ old.
3. The accused pleaded guilty to the five counts of rape. The summary of facts prepared by Prosecution was confirmed by the accused. His guilty plea and confirmation of summary of facts is contrary to what he told probation in the pre-sentence report (PSR). The PSR says that Iakopo maintains that there was no sexual intercourse with the victim, and that he only sucked her breasts and, inserted his fingers into her vagina. The PSR further says that Iakopo appears to blame the victim’s behaviour for his offending. That is, it was the victim who initiated what took place. I do not believe the accused.
4. The statements disclosed by Prosecution in the trial file of the victim are consistent to what the victim had relayed to some of the teachers at Pesega College where she was attending at the time. The victim told one of the teachers what the accused was doing to her especially at times when her mother was either travelling overseas or not at home, leaving the victim, her other siblings and the accused alone. The victim also told her teachers that her mother was aware of all this happening that she told her mother and the mother instructed her not to tell anyone; contrary to the mother’s account in the PSR where she said she was disappointed with the victim for not telling her. I do not believe the mother.
5. The Victim Impact Report (VIR) has the victim telling the mother when it first initially happened and as it continued to occur. It is very sad when mothers know or are aware of what is happening or being done to their daughters yet they do not protect them as they should but at most times turn a blind eye or take the side of the very same men who are abusing their daughters. In this case the victim told her whenever it happened to her and each time they sorted it out at home. Despite the accused apologizing he would continue to abuse the victim. The victim in the VIR said she never forgave him whenever he would apologize.
6. The aggravating factors of the offending are (as best summarized by counsel for the accused):
   • (i) Vulnerability of the victim: The victim was 14 years’ old, the accused was 46 years of age, an age gap of 32 years;
   • (ii) Breach of trust: There is a huge breach of trust. The accused is the step-father of the victim. He is an adult who plays a father figure role and has responsibilities as a father towards the victim and his other children. His ultimate role is that of a protector. Sadly, he abused his position of trust as a step-father towards the victim;
   • (iii) Pre-mediation/opportunistic: There is no doubt that the offending was both pre-meditated and opportunistic. The offending took place when the mother was away overseas or not at home. The accused behaviour in the circumstances of these offending is one of “sexual predatory behaviour;”
   • (iv) The offences occurred multiple times over a five year period;
   • (v) Violence is intrinsic to sexual offending. The accused by going to the victim’s room therefore not allowing the victim to leave and committing the offences is in my view associated violence. The accused culpability level in the commission of these five offences is at the high end of the scale;
   • (vi) Impact of the offending upon the victim: sexual offending will always have an impact on the victim especially so, when the victim is young and the offender is closely related to the victim. The victim has been removed from her family and is now with the SVSG where she says in the VIR she has found peace, feels safe and is very happy. Prior to being taken under the wing of SVSG, she would miss out a lot of days attending school; and when she was at school she could not focus because of the psychological impact of what was happening at home. Before she went to SVSG, most of the time she does not go to school; and when she does go to school she does not focus. At home she feels scared and no longer safer as she should be in her own home. She started to be withdrawn from her friends and from Church. There is no doubt from reading the VIR that the offending by the accused hugely impacted on this young victim.
7. There is no confirmation of the ifoga referred to in the PSR by the family to the village only what the mother says. I failed to see why an ifoga was carried out by the family to the village when the offences took place away from the village. That is, the victim and her family (including the accused) were not living in the village.
8. Sexual offending is violence against young girls and women. It is the second worst form of violence (apart from murder or manslaughter) against young girls and women. It is especially so when the perpetrator is one of the family or who plays the parent/guardian role and where the mother knows or is aware of what is happening but turns a blind eye or takes the side of the perpetrator.
9. The sentencing bands in Key v Police^[1] applies the Prosecution recommends a starting point of 20 years at the higher end of Band 3 or lower end of Band 4.
10. Counsel for the accused agrees to the starting point recommended by the Prosecution and submits for the Court to consider the first offender status, guilty plea and remorse of the accused.
11. The starting point of 20 years is appropriate. I will take into account the previous good character of the accused as evidence by the written testimonials provided on his behalf in mitigation.
12. I will not give a 25% discount that I usually give for guilty plea because the accused only pleaded guilty on the date of hearing and not earlier but I will give a 10% discount. I do not accept that he is truly remorseful because of what is reported in the PSR. For his previous good character, I give 8 months’ discount.
13. The accused is convicted and sentenced for each count of rape to 17 years and 4 months’ imprisonment. All sentences for the five counts of rape to be concurrent, less time he has been in custody awaiting sentenced.
14. The accused is to go on the Sex Offender Registry.
    

JUSTICE TUATAGALOA

---

^[1]Key v Police [2013] WSCA 3 (28 June 2013).