SUPREME COURT OF SAMOA
Police v Fatu [2016] WSSC 125

Case name: 	Police v Fatu	
		
Citation: 	[2016] WSSC 125	
		
Decision date: 	05 July 2016	
		
Parties: 	POLICE and IOFI FATU, male of Falevai, Falelatai (Accused) 	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Leilani Tuala-Warren	
		
On appeal from:		
		
Order:	•	The accused is convicted and ordered to come up for sentence in 12 months. You are not to form a relationship with the victim and any other girl under 16 years old, and you are not to reoffend.
•	If you fail to comply with these conditions, you will be brought back to Court to be sentenced on this offence.
•	The names of the victim, her family and her village are suppressed.	
		
Representation: 	A. Tumua for Prosecution
Accused in person	
		
Catchwords: 	Sexual conduct with a minor – apology – first offender – victim 14 years of age – accused and victim in a boyfriend/girlfriend relationship – consensual – non-custodial	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 ss.50(a); 59(1)(5) 

Cases cited:	Police v Imoa [2014] WSSC 144
Police v Sivao [2016] WSSC 29
Police v Lunai [2015] WSSC 176 	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

IOFI FATU male of Falevai Falelatai
Accused

Counsel:
A. Tumua for Prosecution
Accused in person

Sentence: 5 July 2016

S E N T E N C E
THE NAMES OF THE VICTIM, HER FAMILY AND HER VILLAGE ARE SUPPRESSED.
The charge
1. 	The accused appears for sentence on one charge of sexual conduct with a child under 16 years pursuant to s.50(a) & 59(1)(5) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
2. 	He pleaded guilty to the charges on 23 May 2016.  
The offending 
3. 	The Prosecution summary of facts admitted by the accused says that on 
06 April 2016, at 8 pm, the accused told the victim to come to his house at 1am. At 1am, the victim went to the house of the accused and woke him up. The accused told the victim to undress and they started kissing. He kissed the victim’s breasts.  The accused then got on top of the victim and had sexual intercourse with the victim. The accused then dropped the victim off at her house. The victim’s mother reported the matter to the Police upon discovering the incident. 
4. 	The accused and the victim had been in a boyfriend and girlfriend relationship for two months.
The accused
5. 	As shown in the pre-sentence report, the accused is 21 years old, single and lives with his maternal family at Matautu Falelatai. He is the youngest of four children.
6. 	The accused works on the family plantation and looks after his mother.
7. 	His mother told probation that the accused is an obedient and reliable person. She relies on him to cultivate their plantation.
8. 	There are testimonials from Sui o le Nuu and his faifeau saying that he is a good person who renders service to the village and the church. He is responsible for looking after his mother.
9. 	There has been an apology by the mother of the accused to the father of the victim.
10. 	He is a first offender.
The victim 
11. 	There is no victim impact report given to the Court. In the summary of facts it is clear that the victim is 14 years old and attends primary school. 
Aggravating features of the offending
12. 	The first aggravating feature is that there is a 7 year age disparity between the accused and the victim. As such the accused is much older and more mature than the victim, and he took advantage of this.
13. 	The second aggravating feature is the vulnerability of the victim. She is 14 years old and still in primary school. 
Mitigating Factors
14. 	His good character according to the Sui o le Nuu, his faifeau and mother is taken into account in his favour.
15. 	His remorse expressed to Probation and to the Court is a mitigating factor.
16. 	The apology by your mother to the victim’s father is taken into account.
17. 	His early guilty plea to the charge is a mitigating factor.
Discussion
18. 	The Court’s attitude to this kind of offence is well established. 
19. 	Nelson J in Police v Imoa [2014] WSSC 144, said that ‘the law is there to protect young girls from mature men taking advantage of them. It is also there to protect young girls from making rash decisions and from getting into trouble’.
20. 	In Police v Sivao [2016] WSSC 29, Vaai J said ‘ the purpose of the law ...is to protect young girls from older men and from their own urges until they are old enough to know better and make rational judgments for themselves.
21. 	The sentences imposed by the Court have usually been custodial. Tuatagaloa J in Police v Lunai [2015] WSSC 176 has said that sentences of the Court have usually been custodial where the age gap between the accused and victim is 
10 + years.
22. 	The sexual intercourse in this case may have been consensual as the accused and the victim were in a relationship, but this is not a defence or a mitigating factor. It remains what it is, sexual intercourse with an underage girl. Deterrence is needed in this case.
23. 	Prosecution has submitted that a suspended sentence is appropriate in this case. The Court has on previous occasions departed from the usual custodial sentence, and that is because the Court should determine sentence based on the facts of each case. 
24. 	Having taken into account the aggravating features of the offending, I agree with Prosecution. Deterrence can be achieved by way of a non-custodial sentence. The sentence imposed today will be one whereby the accused will be required to be of good behaviour. I take into account that the accused is the only one looking after his mother. I take into account that the accused has been of good character and the Sui i le Nuu and Faifeau attest to this. I take into account that this is a one-off incident. 
The result
25. 	The accused is convicted and ordered to come up for sentence in 12 months. The accused is not to form a relationship with the victim and any other girl under 16 years old, and is not to reoffend.
26. 	If the accused fails to comply with these conditions, he will be brought back to Court to be sentenced on this offence.
27. 	The names of the victim, her family and her village are suppressed.

JUSTICE TUALA-WARREN