Court/Judicial body: Court of Appeal
Date: August 18, 2000 CRC
Provisions:Preamble
Case summary
Background: A man was convicted and sentenced to nine months imprisonment on two counts of unlawful sexual intercourse with his adopted granddaughter, who resided with him. The Attorney General appealed the sentence imposed on the grounds that it (a) is manifestly inadequate in relation to previous decisions handed down for similar offences, (b) does not fully reflect the seriousness of the offence, (c) does not give sufficient weight to the need for general deterrence of this type of offence, (d) does not reflect the nature of the criminal act and the role of the offender and (e) is not in line with Samoa’s international obligations under the Convention on the Rights of the Child.
Issue and resolution: Sexual abuse. The court found that the sentence imposed was clearly inadequate given the nature and circumstances of the offence, and increased the time in incarceration from nine months to three years.
Court reasoning: The Court felt that it should send out a strong message that sexual abuse, particularly in the family setting, will not be tolerated either in law or in society. As such, a nine-month sentence would be unjust in failing both to adequately condemn the behaviour at issue and to effectively deter others from committing similar offences. Excerpts Citing CRC and Other Relevant Human Rights In his submissions for the appellant, Mr Schuster stressed the seriousness of this type of offence which carries a maximum sentence in Samoa of 7 years imprisonment. He called for a deterrent sentence and stressed Samoa’s international obligation to protect the interests of children under the Convention on the Rights of the Child ratified in 1994. As Cooke P. (as he then was) said in Tavita v Minister of Immigration [1994] 2 N.Z.L.R. 257, 266, Samoa’s ratification of the convention should not merely be ‘window dressing’. This Convention was referred to in Police v Howard Maumasi CA 07-1999. Judgment of this Court was delivered by Lord Cooke of Thorndon on 27 August 1999 and included the statement, “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 in the care of parents and any other person who has the care of the child. The preamble recognises that a child ‘should grow up in a family environment, in an atmosphere of happiness, love and understanding.’ The judge in this case has not ‘had regard to this Convention’ on sentencing in a case ‘within its scope.’
Citation: [2000] WSCA 6
CRIN comments: CRIN believes this decision is consistent with the CRC in that all forms of violence against children, including sexual abuse, must be criminalized. In order to be effective, these laws must be effectively enforced, which includes the imposition of sentences appropriate to the nature and gravity of the offence committed.
Link to full judgement: http://www.paclii.org//cgi-bin/disp.pl/ws/cases/WSCA/2000/6.html?query=Afa%20Lee%20Kum