Court/Judicial body: Supreme Court of Samoa
Date: 19 November 2008 CRC
Provisions: Article 19: Protection from abuse and neglect Article 34: Sexual exploitation
Case summary
Background: The defendant, a 31-year-old man, was convicted of indecently assaulting an 8-year-old girl, which carries a maximum sentence of 7 years’ imprisonment. This case represents the sentencing phase of the trial.
Issue and resolution: Child sexual abuse; sentencing. The Court sentenced the defendant to three years’ imprisonment.
Court reasoning: Using a previous case as a baseline, the court considered four and a half years’ imprisonment an appropriate starting point. The court then reduced the sentence by 6 months for the defendant’s banishment from his home village, 6 months for his previous good record, and 6 months for general leniency and mitigating factors, including that the defendant was raising a young family of his own. The court imposed a sentence of three years’ imprisonment.
Excerpt citing CRC and other relevant human rights Samoa is a signatory to and has ratified with an immaterial exception the United Nations Convention on the Rights of the Child (“CRC”) adopted by the United Nations General Assembly in 1989. The preamble to that Convention recognizes that the child for the full and harmonious development of his or her personality should grow up in a family environment in an atmosphere of happiness, love and understating bearing in mind that the child by reason of his or her physical and mental immaturity needs special safe-guards, protection and care including appropriate legal protections. The Convention relevantly provides in Article 19(1): “State Parties shall take all appropriate legislative administrative social and educational measures to protect the child from all forms of physical or mental abuse including sexual abuse.” Article 34 of the Convention goes on: “State Parties undertake to protect the child from all forms of sexual exploitation an sexual abuse. For these purposes state parties shall in particular take all appropriate national measures to prevent the inducement of coercion of a child to engage in unlawful sexual activity.” The Court of Appeal as the highest Court of the land decreed in Attorney General v Maumasi [1999] WSCA 1 that all Samoan Courts should have regard to the articles of the Convention on the Rights of the Child in cases within its scope i.e. in relevant cases. No less a personage that Lord Cooke of Thorndon who was for many years the president of the Samoa Court of Appeal has stated that the following of the principles of the CRC should not be a mere window dressing. See further the observations of the Court of Appeal in Police v Kum [2000] WSCA 6. This is a clear mandate to the courts of this country to have regard to the provisions of the Convention in appropriate cases. The list of appropriate cases undoubtedly includes cases involving the sexual abuse of children. A child has the inalienable right to be protected from such behaviour. More than lip service must be paid to the provisions of the Convention. This is one of the reasons why the courts view offending against young and vulnerable children as serious and deserving of stern sentences. . . . The maximum penalty for this offence which involves young children under the age of 12 is seven years in prison. I am bound to observe that given the current social climate in relation to sexual offending against young children the question should be asked as to whether this maximum penalty set forth forty five or so years ago should not be re-visited by Parliament. Indeed the newly established Law Reform Commission may see it fit to undertake a review of all penalties for sexual offending against young children given Samoa’s obligations under the aforesaid articles 19 and 34 of the Convention.
CRIN comments: CRIN believes this decision is partially consistent with the CRC. The Court correctly cited Article 19 and 34, which requires States to take all appropriate measures to protect children from sexual abuse. This includes an obligation to investigate and punish those responsible for the abuse, and provide effective and appropriate sanctions against perpetrators. Courts must ensure that the protection and further development of the child and their best interests (and the best interests of other children where there is a risk of a perpetrator reoffending) form the primary purpose of decision-making, and that criminal law procedures are strictly applied in order to prevent impunity.
Citation: Police v Faiga [2008] WSSC 96 (19 November 2008)
Link to full judgement: http://www.paclii.org/ws/cases/WSSC/2008/96.html