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Police v Fa'imoa [2023] WSSC 65 (21 July 2023)

SUPREME COURT OF SAMOA
Police v Fa’imoa [2023] WSSC 65 (21 July 2023)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ALO TAVITA FA’IMOA male of Sataoa Safata.
Defendant

Counsel:
E. Tiitii for the prosecution
C Seiuli on behalf of T F Tufuga for the defedant
Sentence: 21 July 2023

SENTENCE

1. As the victim in this matter is a child there will be an order suppressing publication of her name or any identifying details. This is a permanent order. Also suppressed will be the name of the village where this incident occurred.
2. The defendant pleaded not guilty to four (4) charges: firstly S429/21 alleging that in the relevant village on 13 January 2021 he did attempt to have sexual connection with the complainant a child under twelve (12) years of age.
3. The second charge S398/21 is that same time same place he did indecently assault the complainant. Third charge is S397/21 same time same place he did verbally make a threat to kill namely “e ke ka’ua loa o’u faasiokia pe faga oe”, directed to the same complainant. Final charge is S396/21 same time same place he did assault the complainant.
4. At the trial the evidence of the female complainant who was nine (9) years of age at the time was as follows: On Wednesday 13 January 2021 she was at her grandmother’s house. It was evening and she was sleeping on a chair.
5. In cross examination she said the defendant had been playing dominos with other men and the men left to go play volleyball. The defendant stayed behind and was sitting on the floor by her feet. He was “faasausau” with a singlet hanging on one shoulder. While she was asleep she felt someone touching her legs. In her evidence she pointed to the inner thigh area of her right leg, her “auaga”. This woke her up and she realized it was the defendant. She said he was trying to remove her pants. She pushed away his hand “se’i ese laga lima” but he continued to try to remove her pants. And he said to her “take off your pants so I can eat you”. She told him she would report him to her mother and he responded by saying if she did that he will kill or shoot her.
6. She stood up and changed chairs to another chair where she watched the volleyball game in progress outside. And when the defendant got up and went to the toilet she returned to her original chair and went back to sleep. She was subsequently woken by her sister and in the company of her mother went home where she told her mother what had happened.
7. She said there were no other people at the front part of the house at the relevant time only the defendant and his daughter who was asleep on another chair. She also mentioned her 90 year old grandfather who is a stroke victim. And her mother and sister and others who were in the adjacent brick back part of the house.
8. It is not clear from the evidence what they were doing when this sexual assault allegedly occurred or whether they were in a position to observe the events in the front part of the house. The house consists of a “ta’alaelae” part in the front and a brick part at the back where the kitchen is.
9. The complainants said there were plants obstructing the view from the outside where the volleyball game was occurring. So people outside could not see in and their view would have been obstructed by the chair as well. The Police photos show this chair to be in fact a couch rather than a chair. And I am satisfied that at the relevant time the complainant was lying on a couch because she would be unable to stretch out on a chair.
10. The complainants further evidence was that she did not complain to her mother at the scene as there were other people around “la e kumu le lakou fale”. This obviously made her reticent to report what had happened in front of others.
11. The complainant’s mother was also called as a witness by the Police. Her evidence was she saw the complainant sleeping on the couch “nofoa momi” with her legs towards the defendant. Because the complainant was wearing very short shorts she slapped her on the head and woke her up. She told her off and the complainant woke briefly but then went back to sleep. She testified further that the defendant objected to her waking her daughter up “aua le faia le keige la e moe”. She went back to the brick part of the house and later sent her other daughter to awaken the complainant.
12. The complainant came and they all went home and at the house the sister told her the complainant was crying and when interviewed the complainant she told her about what the defendant had allegedly done to her. The complaint was generally in the same term as her testimony to the court.
13. The mother’s evidence was the stroke ridden 90 year old grandfather was in a back part of the front of the house as shown in the Police photographs and that when she arrived the domino game was over but the volleyball game was in progress. She said the defendant is a “faiava” in the family he is married to her aunty. But the defendant’s daughter and the complainant are good friends and the defendant often visits their house.
14. The last item of the police evidence was a cautioned statement given voluntarily by the defendant to the Police some two (2) months post-incident on 02 March 2021. The only incriminating part of that statement is a request by the defendant to the Investigating Officer when he was informed of the charges “pe mafai lava ona toe fai se soalaupule o le mataupu lenei i tua”. The Investigating Officer told him this was no longer possible.
15. At the conclusion of the Police evidence the defendant waived his Constitutional right to silence and elected to testify. Regrettably much of his evidence had not been put by his counsel to the prosecution witnesses in cross examination. So much of it was rendered inadmissible. But in essence he denied any wrongdoing, he said there was no sexual assault, he never touched the girl and made no threat to her. He admitted at the time he was wearing a lavalava and a singlet but he was not “fa’asausau” as the girl says. And that he was busy “omiomi la’u telefoni” although he did not clarify what this activity entailed.
16. He agreed with the complainant’s mother that she came and slapped the girl in the face and woke her up. He also confirmed in his testimony his request to the Investigating Officer when interviewed to “soalaupule le mataupu i tua”. He did not explain in his evidence exactly what the objective of such a ‘soalaupule’ would be.
17. No other evidence was called by the defence, even though he had stated in his examination in chief that his wife was opposite him when he was ‘omiomi’ his telefoni. See page 43 of the transcript where he says: “sei vagana ai Mealofa lea sa ma faafesaga’i”. Suggesting that his wife was present during some part of the material time. But the wife was not called.
18. The defendant’s evidence therefore stands alone as against that of the complainant and her mother and his request to the investigating Police Officer for “soalaupule” when interviewed about this matter.
19. In assessing the evidence, I noted the complainant’s recollection for detail was good, down to the colour of the clothes she wore and how the defendant was dressed. And as to the other events of the day. There was only one area where she disagreed with her mother viz as to where the stroke ridden grandfather was sitting. She referred to it as being at the “tala” of the brick part of the house. While she was not questioned as to what she meant by use of the word “tala” this is not a significant aspect in my view because use of the word “tala” by a 9 year old could have been referring to the back part of the house. I also noted the complainant’s demeanour in chief and in cross-examination was good.
20. On the other hand, the defendant’s evidence was not convincing. In many crucial areas for example his clothing, the sequence of events, the identification of those present he agreed with the testimony of the complainant and her mother. His request to the Investigating Officer for “soalaupulega” is also in my view significant. This is not the reaction of an innocent person.
21. On the evidence I was therefore satisfied the prosecution have proven the charges beyond reasonable doubt and that the defendant had succumbed to the temptation of seeing the complainants legs and trying to take advantage of this 9 year old to whom he was no stranger.
22. I found him guilty accordingly and today it is a matter of imposing an appropriate sentence for his actions.
23. Prosecution have submitted that the aggravating factors such as the vulnerability of the victim who was a sleeping 9 year old girl and the age difference of 40 years between him and the complainant are relevant and indeed they are. It is also relevant that there were threats used to silence the victim and the following is taken from the victim impact report filed by the victim.

“Sa lagona lo’u fefe i fa'amatalaga sa fa’afefe ai a’u pe a ta’u i lo’u tinā. Sa fai mai e tago faasioti a’u pe fana. E o’o mai le taimi nei o lo’o lagona pea lo’u fefe iai, ou te le toe fia vaai foi o nofo latalata atu ia matou. Nei tei ua matou omai i le aoga ae tago faasioti a’u pei o ana tala sa faafefe ai a’u. O se aafiaga ua ou fefe ou te toe vaai iai pe toe oo atu i le matou fale.”

24. The prosecution submit that these factors and the circumstances of this case are serious enough to require an imprisonment sentence. Indeed the lead offence of attempted sexual connection carries a 14 year maximum penalty of imprisonment. And they say the court should apply the Sentencing Bands set down by the Court of Appeal in Attorney General v Lua [2016] WSCA 1.
25. I concur with the prosecution as to the first part of their submission but am of the view that Lua only applies to cases where sexual connection was the lead offence and the conduct in question was non-penetrative. Here there is no suggestion of penetration of any kind but the lead offence is not sexual connection with the child but attempted sexual connection with the child. And the offence of attempted sexual connection has the lower maximum penalty of 14 years in prison and it is a totally different kind of offence.
26. After hearing further submissions from counsel on the matter I am satisfied that the Bands in Lua do not apply to this case. But considering all the circumstances especially the extent of the defendants attempt to give effect to his intent and the purposes of sentencing under the Sentencing Act in particular section 8 thereof relating to offending against children, an imprisonment sentence is appropriate. This is necessary to hold the defendant accountable for what he did and continue to send a message from the court that sexual offending and attempted sexual offending against young children is not tolerated. And the court must be consistent in delivering this message.
27. Your offending however is at the lower end of the scale except for the fact that the child is very young she is only 9 years of age. The maximum penalty is as observed 14 years in prison but I agree with counsels that a start point should be around 2 years in prison.
28. You will be treated as a first offender for this offence because it is a different kind of offence from your previous offences. I also give you credit for the good background as narrated in the pre-sentence report. For your first offender status I deduct 6 months from your start point of sentence. For your good background a further 6 months. Leaves a balance of one (1) year in prison.
29. On the issue of reconciliation the Probation Office has now clarified in their latest report that according to the testimony of Taelega Lima there has been no reconciliation only a request by your wife to withdraw the charges. So that leaves a balance of 12 months in prison.
30. There is no other deduction required in mitigation and the defendant elected to defend these charges. On the lead offence you are therefore convicted and sentenced to 12 months in prison, less remand in custody time.
31. In relation to charge S398/21 of the defendant touching the inner thigh area of the complainant’s leg convicted and sentenced to 9 months in prison, concurrent term.
32. In relation to charge S397/21 this carries a 3 year penalty. In this matter the defendant’s previous convictions are relevant as is the complainant’s victim impact report. On that charge the defendant will be convicted and sentenced to 12 months in prison, concurrent term.
33. On the final charge S396/21 this is part of the indecent assault offending, on that the defendant is convicted and discharged without penalty.
34. Ia o le aotelega o le mataupu o lona uiga o lau fa’asalaga mo moliaga ia e 12 masina i le toese ae tatau ona toesea le taimi lea sa e nofo taofia ai e fa’atalitali le fa’aiuga. Pei ona ta talanoa i le taimi ua fano a fa’apea e iai se suiga ona o le tulaga lea o le fa’aleleiga e tatau ona fa’asa’o mai e le Ofisa Fa'anofo Va'ava'aia ona mafai lea ona toe silasila iai le Fa'amasinoga i le vaega lena. Ae mo le asō o le fa’aiuga lena.

JUSTICE NELSON