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Police v Smith [2013] WSSC 118 (31 July 2013)

[THE NAMES OF THE COMPLAINANT, HER FAMILY AND HER VILLAGE ARE SUPPRESSED]

SUPREME COURT OF SAMOA

Police v Smith [2013] WSSC 118

Case name: Police v Smith

Citation: [2013] WSSC 118

Decision date: 31 July 2013

Parties: POLICE (prosecution) and IOANE FELISE FALANIKO SMITH male of Safotu Savaii and Lalovaea

Hearing date(s): 24 June 2013, 30 July 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
L Taimalelagi for prosecution
K Ainu’u for defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, s.53

Cases cited:
Police v Siaki (29 April 2013)
Police v Peniamina (24 June 2013)
Police v Solia [2012] WSSC 27
Police v Fotualii [2011] WSSC 26
Police v Niko [2010] WSSC 11

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

IOANE FELISE FALANIKO SMITH male of Safotu Savaii and Lalovaea

Defendant

Counsel: L Taimalelagi for prosecution

K Ainu’u for defendant

Hearing: 24 June 2013, 30 July 2013

Sentence: 31 July 2013

Charge: Carnal Knowledge (x1)

SENTENCE OF SLICER J

1. The defendant has pleaded guilty to the crime of unlawful sexual intercourse on a girl under the age of sixteen contrary to the Crimes Ordinance 1961 section 53. Other Informations alleging sexual misconduct have been withdrawn and dismissed. The Information alleged that the crime was committed between 30 November 2012 and 1 January 2013.

Facts

2. The girl was aged fifteen and at the relevant time was staying at the home of her biological family. She had left her home to stay with that family following trouble with her mother. A complaint was made to police on 4 January 2012. She had met the defendant, who was a friend of that family where she was staying, between 30 November 2012 and 1 January 2013. During that time she had sexual intercourse with the defendant at the fale.
3. The defendant originally pleaded not guilty to the charge but changed that plea on Information S156/13 to that of guilty on 24 June 2013, the date of the scheduled hearing.
4. The defendant is entitled to the benefit of his plea but not that of an early plea, except in the manner later stated in these Reasons.

Victim Impact Statement

5. The girl says that she has gradually become more and more to like herself ‘but the incident still plays on my mind from time to time.’ She has had no contact with the defendant nor any of the family and there has been no reconciliation.

Commencing Point

6. The prosecution has referred to cases such as Siaki (29 April 2013 – 15 months imprisonment); Peniamina (24 June 2013 – 6 months imprisonment); Solia [2012] WSSC 27 (7 months imprisonment); Fotualii [2011] WSSC 26 (starting point of four years twelve months but for multiple offences) and Niko [2010] WSSC 11 (concurrent sentences of twelve months). The Court finds the above references as useful.
7. The prosecution submits a starting point of thirty months imprisonment.
8. Here the age difference between the defendant and the victim was thirty-two years similar to that in Fotualii (supra) although in that case the girl became pregnant as to a much older defendant. In that case there had been multiple acts of sexual misconduct.
9. Parliament has increased the maximum penalty for crimes of this nature because of prevalence and a need for greater deterrence. In Fotualii (supra) the sentencing Judge determined the commencing point of four years given the multiple offences and the pregnancy.
10. Consistent with the above, the Court accepts thirty months as an appropriate commencing point. The maximum penalty is that of seven years imprisonment.

Mitigation

11. The defendant is entitled to the benefit of his plea entered at a late stage although given the withdrawal of other charges it could be said that he was entitled to reserve his plea until the other matters had been determined.
12. The defendant left school at Year 11 and in 1985 worked in agriculture as a contract field inspector for two years. He was employed by a processing factory between 1994 and 1996 and in 2011 secured employment as a security officer but suspended because of this matter.
13. The Court accepts that he is well regarded within his community and helped his family as a responsible provider. The Court accepts that he believed she was older than fifteen. Such is not a defence. There is a large age difference between the two. It accepts that he had consumed a large amount of alcohol before the sexual act.
14. The defendant took issue with two matters concerning the sexual misconduct. The first was that the girl had stated herself to be aged nineteen at the time of the sexual intercourse. That matter was repeated by a member of the defendant’s family. That alone would not have been sufficient but on 30 July the complainant confirmed that she had told other family members that she was older than her actual age. The prosecution accepts that to be a significant mitigating factor but reminds the Court of the already significant age differences between the parties. The belief of the defendant that the complainant was aged nineteen would not amount to a defence in law.
15. The complainant also agreed that she had been given $20.00 from a member of the family or the defendant but the Court does not accept that is a mitigating matter. The $20.00 was to provide her for the bus fare to return to her home. This was not a demand by the girl for payment for sexual favour. The Court does not accept that as a mitigating matter.
16. There has been no ifoga.
17. The Court accepts that the defendant had consumed a considerable amount of alcohol at the relevant time.
18. The defendant has spent four months in custody for this offence.

ORDERS:

(1) Ioane Smith is convicted of the crime of unlawful sexual intercourse.
(2) Ioane Smith is sentenced to a term of imprisonment for 12 months imprisonment but is entitled to have the benefit of 4 months imprisonment already served. For the purpose of parole, he is taken to have received a 12 months sentence and would be able to obtain parole on the basis of one half of the sentence i.e. after a further 2 months. If the Court is wrong as to that it will recall the sentence and impose one which accords specifically with the legislation, section 10 (c).
(3) The names of the complainant, her family and village are suppressed.

..............................

(JUSTICE SLICER)