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Police v Fanuasa [2006] WSSC 22 (5 May 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LUPE TUTOGI FANUASĀ
male of Taga.
Accused

Counsel: M Boone-Dumaran
Accused in person

Sentence: 5 May 2006

SENTENCE

The charges

The accused is charged with four counts under s.50 of the Crimes Ordinance 1961 of having sexual intercourse with a girl under the age of 21 years who is his stepdaughter and at the time of sexual intercourse was living with him as a member of his family. Each of the counts carries a maximum penalty of seven years imprisonment. To all four counts the accused pleaded guilty at the earliest opportunity.

The offending

According to the pre-sentence report prepared by the probation service, the accused and the natural mother of the victim have been living together as husband and wife for seven years at the village of Taga in Savaii. The victim is a daughter of her mother from a previous union with a different man. Two years ago, the victim joined her mother and the accused and lived with them. The victim’s mother continued to spend the week in Apia where she has a job leaving behind the accused and the victim by themselves at their home in Taga, Savaii. The mother would only return home on Saturday and then come back to Apia on Sunday because of her job.

It was during the weekly absences of the mother from home that the accused and the victim who were left by themselves at Taga started to feel closer and closer to one another until the temptation became too much to resist and the two of them agreed to have sexual intercourse. The acts of sexual intercourse with which the accused is being charged all occurred during the period from the beginning of September 2005 to the end of December at the accused’s house at Taga.

The accused

The accused is a 35 year old male from the village of Taga, Savaii. He is a planter. His de-facto wife is the mother of the victim but they have no natural children. He is also a first offender.

The accused told the probation service that he was tempted when his wife came to her job in Apia for the week and he was left alone with the victim at Taga. The temptation soon became too much for him to resist and he therefore had sexual intercourse with the victim.

The victim

The victim is now 21 years old. So she must have been between 20 and 21 years old at the time of the alleged acts of sexual intercourse with the accused. As a result of those acts, the victim is now pregnant.

Mitigating circumstances

The accused’s plea of guilty to the charges at the earliest opportunity, his being a first offender, the circumstances in which he was left behind with the victim at home in Taga while the mother came to Apia to work, and the age of the victim may be taken into account in mitigating.

Aggravating circumstances

The breach of trust involved in this case, its cultural gravity, and the fact that the victim is now pregnant are aggravating circumstances. The totality of the offending is also to be considered.

The decision

Having regard to the mitigating circumstances and the aggravating circumstances as well as the need for deterrence in cases of this kind, the accused is convicted on each of the charges against him and sentenced to 18 months imprisonment. All sentences to be served concurrently. The five weeks during which the accused has been in custody is to be deducted from his sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for the prosecution