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Police v Taivale [2000] WSSC 46 (29 September 2000)

SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SOOLEFAI TAIVALE,
male of Faatoia
Defendant

Counsel: Ms T. P. Vaai for the Prosecution
Mr T. V. Eti for the Defendant

Hearing Date: 13 September 2000
Sentencing Date: 29 September 2000

SENTENCING REMARKS OF VAAI J

Defendant on the 13^th September 2000 at the conclusion of a defended hearing before me as a judge sitting alone I found you guilty of an offence of indecently assaulting a female under the age of 12 years. You were then remanded to the 29^th September for a Probation Report and Sentence and for me to deliver my reasons in writing explaining why I so held you guilty as charged. On the 29^th September your Counsel Tuimalealiifano V. Eti made no appearance and Mr Pita Petaia appeared on instructions from your counsel requesting an adjournment for 2 weeks as your counsel was overseas. I granted the adjournment to yesterday the 12^th October after confirmation from Mr Petaia that your counsel will be back on-island by then. On the 12^th October Mr Petaia on behalf of your counsel submitted another request for a further adjournment to any date after the 24^th October as your counsel has undertaken another overseas trip. I refused the request adjournment and I adjourned the sentencing to today to give you the opportunity to prepare your plea in mitigation.

You now stand before me for sentence on this very serious charge of indecent assault to which you are liable to a maximum sentence of 7 years imprisonment. You are a married man of 39 years with 5 children, the eldest child being 16 years and the youngest is 6 years. You were at the time of commission of the offence living with your wife at her family at Faatoia. The victim of your disgraceful offending is your 11 year old daughter. She was asleep with her 2 youngest brothers in one of your family's fale while you were sitting outside your other house. You then sent your son away either to get some money from your wife to buy beer or to get some beer. You then called to your daughter to come. It was late at night. You asked her to kiss you and she did. But unknown to her you had other ideas. Very wicked ideas. You wanted her to kiss you using her tongue and you did proceed to kiss her the way you desired the kisses to be executed. You then removed her t-shirt sucked her breasts and poked your finger insider her vagina. You told the police you tried to have intercourse with her and I presume that was why you wanted to take her into the house but as you opened the door with one hand she pushed you away and ran. You gave chase but she crossed the stream and ran towards the road where she met some people who took her to their home and informed the police.

In mitigation I take into account all the matters referred to in your favour in the probation report. In particular I note that the people who have suffered and will suffer the most as a result of your offending is your wife and children including the victim. You are the sole breadwinner and your wife through the probation service has expressed her concerns with regards the payment of school fees of the family. Despite the offence she still speaks highly and favourably of you, but I must say this appears to me to be a sudden change in attitude on her part when compared to her demeanour in the witness box during the time she gave evidence. In any event I am satisfied that you were a sole provider for the family, and with the sentence to be imposed on you, your wife must realise that the source of income for the family will be severed. I have also listened to what you have to say. I accept you are remorseful.

The aggravating features of the offence are firstly by conducting a defended hearing the victim had to give evidence and she was therefore obliged to relive the distressing events of the offence. Secondly you are the father of the victim whom you brought up from the day she left her mother's womb and for more than 11 years she has looked up to you for love, protection and with complete trust. Your offending is a gross breach of that trust. Normally young children run to their father for help when in need but for this young girl she ran away from you late at night for fear of harm to be indicated by you. It is inevitable that she suffered mental trauma. It could very well be said that some irreparable psychological disorder may have been triggered by the events she experienced that night.

It has been said on many occasions that there has been a prevalence occurrences in this country of sexual violations of young persons. In most cases the victims live with the offenders. It is accordingly the duty of this court to impose deterrent sentences to reflect society's non-tolerance of such conduct and must be matched by custodial sentence to reflect society's attitude to such conduct. This court is obliged to impose deterrent sentence to reflect our society's obligation to protect the interest of children under the convention on the Rights of the child ratified in 1994. As Lord Cooke said in delivering the decision of the Court of Appeal in Police v Howard Masimasi CA 7/99 (27/8/99) "All Samoan Courts should have regard to this convention in cases within its scope."

The convention requires protection of the child from sexual abuse while that child is in the care of the parents or any other person who has the care of the child.

The purpose of the sentence that I am about to impose upon you is as I have said in a number of occasions in similar circumstances, is to impress upon you and other like minded men like you that there is simply no place in this society for sexual offenders like you.

You are sentenced to 3 years imprisonment.

JUSTICE VAAI