IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 5/93

BETWEEN:

THE ATTORNEY-GENERAL
Appellant

AND:

TAMALEMAI TUANUU TAMALEMAI FERETI
Respondent

Coram:	The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 31 March 1994

Counsel: M.B. Edwards for Appellant
L. Kamu for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

This is an appeal by the Attorney General against a sentence of 12 months imprisonment to be followed by 12 months probation imposed on 9 June 1993, the appellant having pleaded guilty to the charge that on 14th October 1992 he had sexual intercourse with a named girl over 12 years and under the age of 16 years not being his wife.

The ground for the appeal is that the sentence was manifestly inadequate. The maximum sentence for this offence is 7 years imprisonment. According to the summary of facts the respondent is 42 years of age. On 14th October 1992 the girl was attending Primary School. At the morning interval she was sent by one of the teachers to the respondent to get some money for cigarettes. He lived near the school.

When the girl arrived at the house the respondent was the only person present. The girl conveyed the teacher's message to him. He did not respond to that but pulled the girl into his room in the house. He pulled her on to the bed where he removed her panties and removed his lavalava and had sexual intercourse with her. She did not scream when she was pulled into the respondent's room because she was scared she would be hit. The respondent did not give her any money for the teacher.

Because another teacher had seen her at the respondent's house she was asked why she was late returning to the school. She explained what had happened to her. She was 13 years of age at the time and at that time the respondent was living as man and wife with the girl's mother. She treated him as a brother.

The Probation Service pre-sentence report refers to the offender as a mature man, 42 years, single and presently holding the title Tamalemai of his family in his village. He was making his first appearance before the Court. His father spoke highly of him, described him as a humble, kind and a hardworking man in the family. The report refers to a traditional apology by the offender, his father and family to the victim's family and it says that he is remorseful for his acts. It is stated that he appeared before the council of chiefs and orators of the village and was fined with 10 sows, but the family could only afford a cattle beast and this was accepted.

In this case the Judge on sentencing said he accepted defence counsel's submissions that the girl either consented or the circumstances were such that the respondent was led to believe the girl consented to his act of sexual intercourse with her but the Judge qualified that by adding:

"On the other hand the court takes into account that the victim in this case is related to yourself and perhaps she might not have resisted your actions in having sexual intercourse with yourself because of the close family relationship she has with yourself. The Court also takes into account the fact that the victim in this case is only 13 years of age, so she is about 29 years younger than you".

Consent is not a defence to this charge but it may be a relevant consideration on sentencing. We take this opportunity to clarify what is meant by consent. True consent can only be given by a person in a position freely able to make a rational decision with full understanding of the situation. Mere submission, that is, lack of resistance is not to be taken as consent. It has been said in a number of cases that the age of the girl may itself be sufficient to negative the possibility of consent. In this case we do not regard this primary school girl of 13 years of age who was pulled into the respondent's room, pulled on to the bed where he removed her panties as having cooperated or consented at all on those facts. Force was used by the respondent to have sexual intercourse with her. The respondent was 29 years her senior and living as man and wife with her mother. He had both age and position to dominate her and as the summary of facts says, she did not scream because she was scared she would be hit.

If the sexual intercourse had been consensual one would have expected her to have got the money she went for and taken it back to school. On the contrary she made an immediate complaint to a teacher when asked. Nor need this Court explore why the respondent was not charged with rape. It is sufficient to regard it a serious offence of its kind.

In the absence of evidence to the contrary the summary of facts must be accepted and we regard this as a case in which the girl did not consent.

This is the second case of its kind to come before this Court this week and underscores the reference by counsel for the appellant and by the sentencing Judge to its prevalence. It is therefore necessary for the Court to impose a deterrent sentence to mark the Court's denunciation of conduct which denies to a child the right to grow up unmolested and undefiled, free of sexual abuse.

We agree with the Judge that this is a serious offence and that imprisonment is the most appropriate penalty. The question on this appeal is whether a term of one year's imprisonment is manifestly inadequate. We accept and apply those well known principles in appeals seeking an increase in the sentence and to which we referred in the Ioane judgment which has just been delivered.

In this case there are the mitigating factors that the respondent is a first offender, that his family made a formal apology to the girl's family which was accepted and that the village council imposed a penalty which the respondent had paid by way of giving a cattle beast to the village council. This must be taken into account by s.8 of the Village Fono Act 1990. There is the further matter that the respondent pleaded guilty and he must be given credit for that.

However, the aggravating features are the young age of the girl and the position of trust in which the respondent was placed as her mother's de facto husband and the force he used to have his way.

After full and careful consideration to all the relevant matters in this case we are satisfied that the sentence of one year's imprisonment followed by one year's probation was manifestly inadequate. We do not see the gravity of this offence markedly different from that of Ioane and will be treated in the same way. The sentence imposed in the Court below is quashed and in lieu thereof the sentence of this Court is two years imprisonment. By the Offenders Probation Act probation can only follow a term of imprisonment of less than 12 months.

Solicitors:
Attorney General's Office, Apia for Appellant
Kamu & Peteru, Apia for Respondent