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Police v Fetu [2013] WSSC 105 (9 September 2013)

SUPREME COURT OF SAMOA

Police v Fetu [2013] WSSC 105

Case name: Police v Fetu

Citation: [2013] WSSC 105

Decision date: 09 September 2013
Parties:
POLICE v BILLY FETU, male of Samatau and Lalovaea

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
L Taimalelagi for prosecution
T S Toailoa for defendant

Catchwords:

Words and phrases:

Legislation cited:
Cases cited:
Police v Fetu Peniamina (24 June 2013)
Police v Vaioa Solia [2012] WSSC 78

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

BILLY FETU, male of Samatau and Lalovaea.
Defendant

Counsel: L Taimalelagi for prosecution
T S Toailoa for defendant

Sentence: 09 September 2013

SENTENCE

As this is a matter that involves a minor on a sexual complaint there will issue the usual suppression order prohibiting publication of the details of the young girl involved. The defendant appears for sentence on one count of having sexual intercourse with the complainant who is a girl between 12 and 16 years old and is not his wife.

The police summary of facts submitted by the prosecution has been accepted by the defendant through his counsel. But as this summary does not tell the whole story I will supplement it with material that is contained in the complainants statement to the police dated 7th January 2013.

It appears that the complainant was adopted at a young age by her mothers brother and lived in Savaii with him and his wife. But because she was beaten up so often she eventually ran away from home. And she came to Upolu in search of her real father. On the bus on the way to Salelologa wharf to catch the ferry to Upolu she was befriended by a woman who noticed that was travelling alone. She told the woman she was coming to Upolu to search for the family of her natural father. This lady offered to help her. She paid for her bus fare as well as her fare on the ferry and travelled together with the young complainant from Savaii to Upolu.

As it was the Christmas period she invited the complainant to stay with her for the Christmas holidays and after they will go and look for her fathers family. The complainant agreed and she spent the holidays with this ladys family at Lalovaea. During this period however she came into contact with some mature older males and during her stay at the womans family she had consensual sexual intercourse with at least three older males of the family. One of them appeared before me earlier this year and the court sentenced him to 6 months in prison for having sexual intercourse with a minor: see Police v Fetu Peniamina judgment dated 24 June 2013.

The complainant left the family after the holidays and met up with a policeman who said he knew her natural father. He took her to his family to help her locate the aiga of her natural father. The defendant is the brother in law of that policeman.

While the young girl stayed with this family this incident of consensual sexual intercourse occurred between the defendant and the young girl. No long thereafter the young girl left the family and found her way to the family of her natural father. When she got there female members of the family noticed that she had love bites and marks on her neck. When questioned about them she related her experiences. The family accordingly reported the matter to the police. Which leads us to the defendant this afternoon and the count of carnal knowledge against him.

There has been no victim impact report filed with the court. But this seems to me to be a classic case of a young immature female making wrong decisions about her sexual partners. It is this very sort of young female that the law of carnal knowledge is designed to protect. As stated often by the court and I quote from Police v Vaioa Solia [2012] WSSC 78:

“The law against carnal knowledge is there to protect young girls from older more experienced males. It is also there to protect young girls from their own inclinations until they are mature enough to make responsible choices.”

The message that the court must continually send out to experienced and older men is to stay away from underage females. The defendant here is a 23 year old male. The complainant was just over 15 years of age when this incident occurred. So he is 8 years older than her. It will be seen from the background I have referred to that the complainant was essentially a runaway teenager looking for her natural father. As such she was alone and vulnerable. And the defendant was one of a number of males who took advantage of her situation for their own sexual satisfaction.

There is nothing in the circumstances of this case that would justify a departure from the courts usual sentencing policy. In fact there is every reason for it to follow the sentencing policy. I do take into account what your lawyer has submitted on your behalf Billy. As well as the fact that you have pleaded guilty and even though at a late stage it has still avoided the necessity of a trial. It is also clear from the probation office pre-sentence report you have a good record and you are of good character. You are relied on by your family and you make your contribution as many young Samoan males do to their support. You have good references from your spiritual advisors as well as from people of note in your village. You are obviously well thought of by all concerned. And I accept that on this occasion you made a wrong decision when you became involved with this young girl. The probation office has referred to a previous conviction but as it is for the offence of burglary and theft I consider that an unrelated offence and I ignore it for the purposes of this matter.

The offence you have pleaded guilty to carries a maximum penalty at law of 7 years in prison. The prosecution have asked that a term of at least 12 months in prison be imposed. But the cases that they have cited in support of that submission are not analogous. For example the case of Smith involves a defendant 32 years older than the pregnant complainant and involved multiple offending. In your case you have only charge against you. It is a case of one-off offending.

Considering all matters you will be convicted and sentenced to a term of 8 months in prison. But your 6 week period of initial remand in custody is to be deducted from that term.

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