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Police v Afiafi [2018] WSSC 62 (7 March 2018)

SUPREME COURT OF SAMOA
Police v Afiafi [2018] WSSC 62

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

AFIAFI JUNIOR AFIAFI male of Aele and Auala Savaii.
Defendant

Counsels: Ms L. Mamaia for prosecution

Mr R. Faaiuaso for defendant

Hearing: 18 May and 23 June 2017

Sentence: 7 March 2018

SENTENCING OF JUSTICE VAAI

1. The defendant is 41 years of age. According to the Probation report, he used to work as a baker and then left that job and worked for Pacific Forum Line in the delivery line of that work. From Pacific Forum Line, he resigned when he secured an opportunity on the regional seasonal workers scheme. From about 2008 onward it is not clear how many seasons he has done on the seasonal worker scheme, but it is clear that he was supposed to return for another season but was not able to because of this charge.
2. In his favour is the fact he is ANS: first offender. More significantly, his guilty plea. There is nothing about his character as provided in the pre sentence report that the court can impute directly or indirectly anything negative about his past. It is confirmed also from the Probation report as well that as a result of the offending the defendant’s family undertook a traditional apology (ifoga) to the family of the victim which the victim’s family accepted.
3. The court needs to weigh the above mitigating factors against the aggravating factors in this offending which are: the prevalence of this type of offending of preying on young girls. Especially young girls who are vulnerable, strong or weak mentally they may be a girl’s character is irrelevant when it comes to sexual offending of the type here. There is also the question of age disparity between the defendant who is 41 years of age and the victim who was 15 years of age at the time of the offence. It’s an age difference of about 26 years.
4. The prosecution referred to pre meditation as an aggravating factor but that in the court’s view is while highly relevant, subject to the specific matter I questioned counsel for the prosecution about this morning. The pre meditation by the defendant and therefore degree of blameworthiness in this offending according to the prosecution’s sentencing memorandum falls squarely on the defendant in view of the reason the offending took place in the first place. The significance and reliability of the evidence relating to the fact of premeditation as submitted by the prosecution depends on the reason the victim went to the defendant’s house at the hour of the morning she did. This makes sense provided the reason given in the summary is true. Defense counsel did not appear to realize the significance of the very issue the court’s concern was all about. From the court’s enquiry it is now apparent the reason the victim gave the police for going to the defendant’s place the morning of the offending i.e to collect a debt the defendant owed the victim’s parents from an outstanding credit regarding a game of pool at the victim’s family pool table was not true. Unfortunately, this issue reached the court by way of the summary of facts unchecked and obviously unscrutinised by either counsel. As has now been confirmed, the reason the victim gave and relied upon by the prosecution as supporting the view that the offending in the circumstances was premeditated, is false. It is false because as confirmed from the Bar, the defendant in fact did not owe a debt from a previous game of pool at the victim’s family pool table. Furthermore the rules of the particular pool table in question did not permit a player to play on credit.
5. In my respectful view, this offending would probably not have happened if the victim had not gone to the defendant’s place in the first place at such an early hour of the morning on the excuse she went to collect a debt. Young as her age suggests, age is not in the court’s view a factor which justifies lying to the police (if she did), and to whoever was responsible in preparing the summary of facts. I cannot emphasise enough the fact the charge this defendant faced and pleaded guilty to, is serious.
6. Because of the prevalence of this kind of offending on young girls, the courts have adopted more often than not a deterrence basis for sentencing of men who are proven to have preyed on young girls. This is clearly supported by the cases cited by the prosecution. The cases referred to by the prosecution in support of their application for a custodial sentence are however distinguishable on the basis that the reason the victim went to the defendant’s house which has now been established to the untrue, it is highly probable that what developed later and leading up to this offending would not have happened when it did had the victim not gone to the defendant’s place in the first place. It is inappropriate in my view to impose in this case a custodial sentence. The defendant was initially remanded in custody for about a month.
7. In weighing up the circumstances surrounding this particular offending, the mitigating factors outweigh the aggravating factors submitted by the prosecution in support of a custodial sentence. In view of the fact the defendant has already spent a month in police custody, it is not appropriate for the court to impose a further custodial period. The circumstances do not warrant it.
8. In the end, the court accepts the recommendation by the Probation Division. The defendant is convicted and is ordered to come up for sentence in 12 months if he reoffends. He is also ordered to undertake a period of probationary supervision for 6 months. He is also required to do 150 hours of community of service within the time he is under probationary supervision.
   

JUSTICE VAAI