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Police v Faleiva [2011] WSSC 25 (16 February 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

NEEMIA FALEIVA male of Mulifanua.
Defendant

Counsels: Ms P Valoia for prosecution
Defendant unrepresented

Sentence: 16 February 2011

SENTENCE

This is another case of an older male here a 27 year old sexually assaulting a young girl. In this case the complainant is 8 years of age and is a member of the family into which the defendant is married. If one has not been issued there will issue a suppression order in respect of the complainants name and other details including her village.

The summary of facts relates that on Thursday 30 December 2010 at about 5:00pm in the evening the defendant woke up the complainant who was asleep and instructed her to go and wait for him in the bathroom. Shortly afterwards he followed her and when he entered the bathroom he went inside, locked the door and carried the victim to the sink where he pulled down his pants and instructed the complainant to perform oral sex on him. The complainant did as she was instructed after which the defendant removed the complainants panties and spat on his fingers and used them to fondle the complainants private part. As a result of these actions the defendant was charged with the offence of indecent assault. And although he pleaded guilty to the indecent assault at the first available opportunity he questioned some aspects of the police summary of facts in particular denying that he did anything to the complainant.

He subsequently withdraw this challenge but in order for me to be clear as to what had actually happened I requested that the complainant appear and give some testimony to the court on the matter. Her oral testimony to the court was essentially confirmatory of what is in the police summary of facts. Testimony which was not questioned by the defendant when he was given an opportunity which indicates that he accepted what she told the court. This is a case of a very young trusting complainant being led into indecent acts by an older member of the extended family.

It is clear from what is before the court that the defendant subsequently apologized to the complainants family for his actions. This was confirmed personally to the court by the complainants mother and the defendants father in law who both told the court that they have forgiven the defendant for his actions and sought leniency for him. I congratulate them on their being able to do that because not all of us have a capacity to forgive such abhorrent and unnecessary actions by an older male on a young innocent female. As I have told them I do take that into consideration in assessing a suitable penalty for the defendant. But it cannot operate to save the defendant from the penalty the court must impose which is one of imprisonment. In order to mark the seriousness of the offending and societys denunciation of the conduct of the defendant and in order to send a strong message out to the males of our community that sexual abuse of young female will not be tolerated, will not be accepted and will not be excused.

The maximum penalty for this offence is 7 years in prison. Considering all the circumstances I take 4 years as the appropriate start point for sentence. From that I will make a one-third deduction in order to reflect your guilty plea leaving a balance of 32 months. From that should be deducted a period to reflect the fact that you are a first offender and you were previously of good character Neemia. I deduct 12 months for that leaving a balance of 20 months. For the fact that there has been a reconciliation and in acknowledgment of the petitions that were placed before the court by the complainants mother and the father in law and also because of your own expression of remorse I deduct from that 20 months a further 6 months. That leaves a balance of 14 months. You will be convicted for this indecent assault and sentenced to 14 months in prison.

............................
JUSTICE NELSON