IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUIAISAMI ELIAPO FALELIMA SOOTAGA,
male of Tafagamanu-uta and Savaia Lefaga
Accused

Counsels:	Ms T. Faumuina for the prosecution
Mr LR. Schuster for the defendant

Sentence:	20 May 2009

SENTENCE

This defendant appears for sentence on two charges, one of attempted rape and one of indecent assault on the same complainant. The complainant at the time of the offending was 11 years of age and is the defendants wifes niece. This incident happened while the defendant was living at the complainants family. If a suppression order has not been made there will be one to issue in respect of publication of the complainants name and any details that may serve to identify her.

The summary of facts shows that on a date unknown between 31 May and 1 July 2008, the complainant was at home alone at their house. The defendant came and took her into one of the bedrooms where he removed all her clothes and laid her on the bed. He undressed her and proceeded to suck her breasts before trying to have sexual intercourse with her. Fortunately he was unsuccessful as he failed to achieve an erection. He told the Probation Office he was drunk. He got dressed and before leaving told the complainant not to tell her father about the incident. 

The second occasion occurred on 8 September 2008 while the complainant was at home again alone watching television. The defendant entered her house and took her into one of the bedrooms where he put her onto the bed, removed her and his clothes then began sucking her breasts before spreading her legs and trying to have sex with her. Again he was unsuccessful and before leaving told the complainant not to tell her father. Later that week the complainant told the defendants daughter about these incidents. This led to the matter being brought to the attention of the police.

The defendant has pleaded guilty to both charges facing him. In respect of the count of indecent assault on 8 September 2008, I have no difficulty in the defendants guilty plea. But the summary of facts in respect of the other charge of attempted rape does not in my opinion disclose the offence of attempted rape and I therefore decline to accept his guilty plea to that charge. I have considered the prosecution summary of facts carefully. I do not believe that they relate anything that justifies the charge of attempted rape. 

For the sort of facts that support a charge of attempted rape the prosecution should refer to the cases cited in their own written submission produced before the court. Cases such as Police v Iona [2007] WSSC 57 and Police v Leilua [2008] WSSC 47 and cases such as the one I just finished dealing with of Police v Amate (unreported) 20 May 2009. The key lies in the actus reus of the offence. What the summary of facts does however disclose in respect of the incident is that the defendant is guilty of either attempting to have sexual intercourse with a girl under 12 years of age pursuant to section 51(2) of the Crimes Ordinance 1961 or more clearly that he is guilty of indecent assault of a girl under 12 years of age contrary to section 52(1)(a) of the Ordinance. Both these offences carry the same maximum penalty and for the purposes of consistency I will therefore sentence the defendant today on the basis that the first incident was an indecent assault contrary to section 52(1)(a) of the Crimes Ordinance, so that he is being sentenced today on two counts of indecent assault on a girl under 12 years of age.

The applicable sentencing principles to charges of indecent assault by mature males on young girls have been canvassed in many cases, see e.g. Police v Faiga (unreported) 19 November 2008 and Police v Kome [2008] WSSC 32. Young girls have a right to be protected from sexual abuse by older men of their family a right guaranteed to them not only by the United Nations Convention on the Rights of the Child to which Samoa is a party but also by the domestic laws of this country. The prevalence of such offending demands imprisonment sentences and the only question is how long. 

I take into account the aggravating factors of the offending. Firstly the age difference between the parties of 37 years and the young age of the complainant, she was 11 years at the time of these offences; the fact that the offending occurred on the same complainant only months apart; the abuse of trust by the defendant of his position as an older uncle to the complainant; the fact that the defendant waited for the complainant to be alone before committing these acts which shows a degree of calculation and pre-meditation. There are also the consequences of the offending on the complainant herself. The victim impact report is not very clear in this regard but obviously sexual attacks on an 11 year old girl would and usually does leave long term mental trauma as conceded by counsel for the defence in his plea in mitigation. Trauma which can take many forms and which sometimes is curable by counseling, something not readily available in this country to victims of sexual abuse.

There are also factors in the defendants favour as pointed out by his counsel. The primary one being that he is a first offender who has pleaded guilty to the charges at the first available opportunity. There is also his previous good record and his apology through his counsel to the court which is more illustrated by his guilty plea than anything he has to tell the court on the day of judgment.

The defendants personal circumstances are fully outlined in the Probation Office report where it says on page 3 he is a 48 year old father of four from Savaia Lefaga, a planter and main provider for his wife and children and it speaks of testimonies provided for him depicting him as a person of good character although his wife and sister also spoke of some of his human frailties.

Considering all factors 4 years is an appropriate starting point for the penalty in this case. I would normally deduct ⅓ for the defendants guilty plea but the file record shows that the plea was not entered at the first available opportunity, it was only entered after the first hearing date fell apart, initially the defendant had pleaded not guilty to these charges. But that guilty plea is still of value in particular it has saved the complainant having to come to court and relive her ordeal. I therefore deduct 12 months for the guilty plea. For other factors in the defendants favour contained in the Probation Office report and referred to by counsel in his plea in mitigation, a further 12 months is deducted, that leaves a period of two years. The defendant is convicted and sentenced on each charge to two (2) years imprisonment, terms to be served concurrently.

JUSTICE NELSON