IN THE SUPREME COURT OF SAMOA
Police v Faapaia [2015] WSSC 126

Case name: 	Police v Faapaia	
		
Citation: 	[2015] WSSC 126	
		
Decision date: 	26 February 2015	
		
Parties: 	The Police (Prosecution)
Kave Faapaia, male of Leauvaa and Vaimoso. (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S3775/14, S4225/14, S3776/14	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Courthouse, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	For the indecent assault carried out on the night of 10 October 2014 convicted and sentenced to 18 months in prison.  Remand in custody time to be deducted.  
In respect of the second charge of S4225/14 the earlier indecent assault on the girl convicted and sentenced to 12 months in prison, concurrent term.
On the third charge of assault S3776/14 that is a duplicate charge that is dismissed
O lona uiga o lou taimi e te nofo sala ai mo le mataupu lenei e 18 masina ae toesea ai le taimi lea sa e nofo taofia ai e faatalitali le faaiuga Kave.  	
		
Representation: 	O Tagaloa for prosecution
Defendant unrepresented	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
THE POLICE
Prosecution

AND:

	KAVE FAAPAIA, male of Leauvaa and Vaimoso.
Defendant

Counsel:	O Tagaloa for prosecution
Defendant unrepresented

Sentence:	26 January 2015

SENTENCE

1.	The defendant is a 27 year old male of Leauvaa and Vaimoso.  The victim is a 12 year old female attending primary school.  She is the niece of the defendant, being a daughter of a cousin. The usual suppression order will issue prohibiting publication of the identity and other details pertaining to the young girl.
2.	The defendant has pleaded guilty to three charges involving the victim; two charges of indecent assault on two separate occasions and one charge of assault.  The police summary of facts which the defendant admitted this morning says that between 1 January and 10 October 2014, while the victim was sleeping on the floor at her house the defendant approached and touched her breast.  On 10 October at 11:00 pm at night the defendant did the same sort of thing again.  He came home intoxicated, approached the victim who was sleeping on one of the couches in the sitting room of the family house and began touching her body including fondling her breasts.  He also according to the summary pulled down her shorts and tried to touch her private parts but the victim woke up pulled away and chased the defendant from the place.  The matter was reported by the family to the police and the defendant was charged accordingly.
3.	The victim impact report filed by the police indicates the victim has been greatly embarrassed and shamed by this incident.  The matter also led to her being removed from her family home for her own protection and she now is in the care of the Samoa Victim Support Group.  
4.	As we are all aware there are many cases involving older male family members indecently assaulting younger females of the family.  Such behaviour is totally unacceptable and would not be tolerated by our society or by the law.  Imprisonment terms are therefore usually imposed for such behaviour as they strike at the root of what this country is based on the family and the sanctity of the family unit.  Families are where young girls are entitled to feel protected and secure and where it is the duty of older males to look after them not sexually abuse or harass them. That is our custom which sadly these days some people are beginning to not understand.
5.	I deal firstly with Information S3775/14 relating to the incident on the night of 10 October 2014 where according to the police summary of facts late at night you indecently assaulted the sleeping girl.  The maximum penalty for this offence Kave is 7 years in prison by law.  In all the circumstances a 4 year start point is appropriate.  You are entitled to a deduction for your guilty plea because you have saved the courts time by a guilty plea; the plea also means the girl does not have to go through the trauma of a court case.  I deduct one-quarter of your sentence in a recognition of your guilty plea.  Leaves a balance of 3 years in prison.  
6.	I have read the documents in relation to your matter Kave.  You are a first offender.  You have a good pre-sentence report that has been placed before the court.  Several people speak highly of you and your good background of tautua to your family is mentioned in that report.  To recognise those matters I deduct a further 6 months from the balance of your sentence.  Leaves 2½ years.  
7.	Your pre-sentence report also confirms that your mother has made an apology to the victims grandmother, who was the caregiver for the victim at the time.  The grandmother has accepted that apology.  For that reconciliation I deduct a further 6 months leaves a balance of 2 years in prison.  
8.	The report also indicates your family has been penalised by the village because of what you did; a penalty that has been fully met by your family.  In addition you have been banished by your village.  To recognise those matters Kave, I will deduct a further 6 months from the balance of your sentence, leaves 18 months in prison.  
9.	There are no other deductions that can be made in respect of your sentence.  For the indecent assault carried out on the night of 10 October 2014 convicted and sentenced to 18 months in prison.  Remand in custody time to be deducted.  
10.	In respect of the second charge of S4225/14 the earlier indecent assault on the girl convicted and sentenced to 12 months in prison, concurrent term.
11.	On the third charge of assault S3776/14 that is a duplicate charge that is dismissed.
12.	O lona uiga o lou taimi e te nofo sala ai mo le mataupu lenei e 18 masina ae toesea ai le taimi lea sa e nofo taofia ai e faatalitali le faaiuga Kave.  Ia ua e malalamala i le faaiuga?  (Defendant said yes.) 

JUSTICE NELSON