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Police v Fotualii [2011] WSSC 26 (16 February 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

UELE TAALILI FOTUALII
male of Satufia Satupaitea and Vaitele -uta.
Defendant

Counsels: Ms P Valoia for prosecution
Mr H Hoglund for defendant

Sentence: 16 February 2011

SENTENCE

This defendant appears for sentence on a number of charges specifically nine counts of having sexual intercourse with a girl over the age of 12 and under the age of 16 years not being his wife, an offence that is commonly known as carnal knowledge. The summary of facts in this matter relates that the defendant is a 38 year old male from the village of Satupaitea and he is married and a father of three. The victim is a female of the same village and in case there has not been one made there will issue a suppression order prohibiting publication of the name and any other details of the victim including her village.

The summary relates that on Thursday 30 September 2009 the defendant returned from his plantation and spotted the complainant on the road. The two parties met up and the defendant is said to have taken her to the side of the road to some bushes where he undressed her. The defendant then laid the naked complainant on the ground and proceeded to have sexual intercourse with her. The following day Friday 31 September 2009 the defendant again met the victim as she was on her way to her grandmothers house. It relates the defendant took the victim to a secluded area where he undressed her and again had sex with her.

The summary continues that during the month of January 2010 the defendant was watching television at the house of the complainant. It states that he left there shortly afterwards but returned to the house later that night and again had sex with the complainant. The summary continues that sometime in the following month of February 2010 the defendant returned from his plantation, he met the victim, led her to a nearby property and again was intimate with her. A further incident of sex occurred on 5 April 2010 when the defendant came upon the victim and her sister out gathering coconuts after the defendant had instructed the sister to leave the area. The summary states that the victim at that time was 2 months pregnant to the defendant.

The summary continues that further instance of intercourse occurred in May 2010 as well as on 01 June, 4 July and 8 August 2010. The summary concludes that when it was discovered the complainant had become pregnant the matter was reported to the police and has led to the defendant being charged with the nine counts of intercourse to which he has pleaded guilty.

As outlined in the victim impact report filed before the court this offending has had a profound impact on the complainant. She has had a child as a result of these acts of sex. Acts which began when she was 14 years of age. It also relates the effect that this has had on the complainants reputation in the village in particular because the defendant is a married man and a father of children of his own.

The courts sentencing in relation to offences of carnal knowledge rests on the fact that the offence is treated as an extremely serious offence because it is a very common offence and because it usually has long term consequences to a complainant. And because with under age girls is not only contrary to law but to some aspects of our culture. For these sorts of reasons there is often an imprisonment term imposed for the offence especially in cases such as the present one where the age difference between the parties is substantial. In this case there is 24 years between the defendant and the complainant. The complainant in this case being a very young 14 years as I have stated at the time the offending began.

It is also to be taken into consideration that this is not a one-off instance of sexual intercourse. The defendant faces nine counts of sex over a period of time. There is no question the complainant consented to all the acts of sex but that does not assist the defendant because he is a mature married individual and he should have known better. And it is not to be overlooked that in this case the young girl became pregnant as a result of these offences. A custodial penalty is appropriate and justified for this case. In order again to send a clear message out that sex with underage girls is not only inappropriate, it is unlawful and will be met by stern treatment.

The maximum penalty for each of these offences is 7 years in jail. Considering all the circumstances a 4 year start point is appropriate. From that is to be deducted a one-third term for the defendants guilty plea which has saved the necessity for the complainant to testify and for the court to waste further time in this matter. That leaves a balance of 32 months. As defendants counsel has rightly pointed out the defendant is a first offender and was previously of good character and he is entitled to a substantial reduction for that. A one year term will be deducted for that leaving a balance of 20 months. It is also clear from the documents before the court Uele that you have been banished from your village and that your family had to pay a substantial fine in this matter. For those matters I deduct a period of 8 months that leaves a balance of 12 month in prison.

Considering the penalties in like cases that is an appropriate term for this matter. You will convicted and on each charge sentenced to 12 months in prison but all terms are to be served concurrently so that you will serve a total time of 12 months in prison.

............................
JUSTICE NELSON