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Police v Leatuvao [2015] WSSC 116 (20 March 2015)

THE SUPREME COURT OF SAMOA
Police v Leatuvao [2015] WSSC 116

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

VAIAOGA LEATUVAO
male of Salailua and Matautu-tai
Defendant

Counsel:
L Su’a-Mailo and L Sio for the Prosecution
R Faaiuaso for the Defendant

Hearing: 17 February 2015

Sentence: 20 March 2015

ORAL SENTENCE OF JUSTICE E M AITKEN

1. Mr Leatuvao, you appear for sentence today, having pleaded guilty to 14 offences in respect of three different victims. You appear, having pleaded to 7 charges of carnal knowledge, specifically sexual intercourse with a girl over the age of 12 and under the age of 16 years, between 1 January 2012 and 22 September 2012, and in respect of that victim, who I will call Victim A, one charge of indecently assaulting her. You pleaded guilty to 3 offences of carnal knowledge against Victim B and 3 offences of indecent assault in respect of Victim C. At the time of your offending, offences of carnal knowledge carried a maximum penalty of 7 years. That has subsequently been increased but I must proceed on the basis that that was the maximum penalty at the time. The charge of indecent assault carried a maximum penalty, at the time, of 5 years.
2. In terms of your offending, I will summarise it in this way – At the time you offended you were an employee at the Senese Inclusive Education School. That is a school that, amongst its services, operates a school for those who have hearing impairment. The three victims in this case all have a hearing impairment and can only communicate through the use of sign language. You had learned sign language through your involvement or prior to your involvement with the school, and you, along with others in the school, in teaching or other positions, communicated with the victims by using sign language.
3. As part of the school program there were events in the evening including a church youth group, and included in your duties was the task of driving the van to pick up the students involved in such youth group sessions from their home and deliver them to the church group sessions. At the conclusion of those sessions, you would pick up the students and then take them to their homes and it was in the course of taking these three young people to their homes that you committed these offences. What is very clear to the Court, and I proceed on this basis, is that there was a clear pattern of offending against each of the girls over this 9 month period of time.
4. I will deal with each of the victims in turn. Victim A was 15 years old. On the way home from one of these youth church group meetings, you delivered every other young person in the van and left her until last. You did this on 7 separate occasions over the 9 month period. Instead of taking her home when she was the only person left in the van, you went back to the school grounds. You went into either an office, a class room or a hut at the school. You demanded that she removed her clothes and then you had sexual intercourse with her. On one occasion, you indecently assaulted her by licking her vagina and kissing her breasts. On some of these occasions, you thanked her in sign language for the sex and then you delivered her home. As I said, that took place on 7 separate occasions over a 9 month period of time.
5. Over the same period of time, you offended in a similar way in respect of Victim B. This happened on 3 separate occasions; she too being 15 years old at the time. On each occasion, you used the same method in effect. You would leave Victim B in the van to be the last one to be delivered home and then took her, like Victim A, back to the school. On that occasion, you told her to take off her clothes; you had sexual intercourse with her and then you took her home. On the second occasion, instead of going back to the school, you drove the van to a secluded part of the road; you told her to undress in the van; she complied with that demand; you had sexual intercourse with her and then you took her home. On the third occasion, Victim B was in fact on the island of Savaii with her family, you were there in your work capacity as part of a Senese Inclusive Education working event. Notwithstanding that, you stopped at the family home of Victim B and picked up the girl from that home, took her to your hotel and had sexual intercourse with her there before dropping her home.
6. In respect of Victim C, again, over the same period of time, you offended against her. She was 18 at the time but it was a similar pattern of offending. Once again, you dropped everyone else off on your way home, leaving her the last one in the van. On one occasion, you drove her not home but again back to school. However, you did not go into the school. On that occasion, she was seated in the back of the van; you got into the back of the van with her; you kissed her on her mouth and then returned to the driver’s seat and drove her home – that amounts to an indecent assault. On the second occasion, again she is the last on in the van; you went to the school on that occasion; you left her in a classroom; you left the classroom briefly and returned to the classroom completely naked; you told her to take off her clothes; she did that; you indecently assaulted her by kissing her and fondling her breasts but the matter went no further, and you eventually drove her home. On the third occasion, you were with her at the swimming pools; you put your hand inside her swimming shirt and touched her breasts; at that point she told you to go away, and you left. That was the last time you offended against her. Those were the three indecent assault charges for which you are now to be sentenced.
7. You explain your behaviour, well, there is little real explanation for your behaviour. It can be said of course that you make no excuses for it but certainly you offer no explanation for it through your counsel, although you do extend your apology now to the victims and their families, and to your own family and community. To the Probation Officer in the report before the Court, you claim that a close relationship developed between you and the three victims. You claim that they flirted with you using sign language, and you say that they all consented. You claim that you were weak and in effect succumbed to temptation – but that is the only comment that you really make in respect of this criminal offending.
8. Because a sentence of imprisonment is inevitable, I turn now to identify the starting point and to do that I have regard to the following aggravating factors; the factors that make your offending more serious than not.
9. Firstly, it is quite obviously planned, premeditated offending. You took steps to ensure that each victim, at the relevant time, was the last one to be dropped off and therefore alone with you, and dependent on you for transport; it was night time after all and these were young people in the van with you. You had access to the school grounds and given the time, it was evening or night, and no doubt your knowledge of activities at the school it is likely you knew that you were safe there and would not be seen – so each of your offences, on each of those 14 separate occasions was, in my view, planned and premeditated.
10. Secondly, this was a gross breach of trust. You were the driver for these young people; you were a member of the staff of the school; you were the interpreter for the girls. They were entrusted into your care by the school and by their parents and the girls themselves trusted you to provide safe passage to and from the church youth group and you breached this trust in a very profound way. I remind myself of the words of Victim A in her victim impact statement where she says that she looked to you as a father figure and because you were the son of a minister and because of your involvement as an interpreter at the church, she thought you were a good man that she could trust. Clearly, her trust was, sadly, very misplaced.
11. Thirdly and relevantly, is the vulnerability of these victims. To some extent victim vulnerability is inherent in the charge but it operates in this particular case as a specific aggravating factor as all three of your victims were deaf. They were dependent on you therefore to communicate for them or between them and the outside world – so not only were they dependent on you to drive them home at night in a safe way but they were dependent on you to communicate with others, and in my view that is an added degree of vulnerability, over and above what would normally be inherent in the charge.
12. Fourthly, there was a significant age disparity. You are more than twice the age of two of the girls and just under twice the age of the third. You were 35 at the time; they were 15 and 18 years.
13. And finally, although this is not a particularly aggravating factor, but I simply observe, particularly, in respect of Victim A, this was prolonged offending; it was not a single incident but it went on 7 times over a 9 month period of time.
14. Not unsurprisingly, there has been a significant impact of your offending on the victims. None of them had had any prior sexual intimacy or other sexual relationships prior to this experience with you, and in respect of Victim A, the fact that this was her first such experience adversely affected her. She trusted you; she feels you took advantage of her; she had difficulties at school after this; she was fearful but she acknowledges that things have got a little better with time. She, like many victims of sexual offending, blames herself to some extent; she regrets not being strong enough to push you away or stand up to you. She is embarrassed about what happened and her family are devastated. They feel betrayed by you and by the school and they are particularly aggrieved that neither you nor your family have ever apologised to them.
15. In respect of Victim B, this also was her first sexual experience and seems from her victim impact statement that the offending has had a significant adverse effect on her. She gets angry at times, which her family struggle to cope with; she has withdrawn from her friends and from socializing. Her family again are upset and angry; they are angry at the school for breaching the trust they placed in the school and angry at you for what you did to their daughter. They do acknowledge that the school representative did apologise to them but again observed that neither you nor your family have done so.
16. Finally, in respect of Victim C, she was slightly older than the other two, 18 years, and the offending against her, whilst serious, was not as serious as the offending against the other two victims. However, it was her first sexual intimacy and she feels disgusted by what happened and angry with you. She feels betrayed, as she had previously trusted you. Again, so did her family and she notes you have not apologised but she comments that is trying to forget about what happened and is wanting to move on.
17. Those 6 factors are what I regard as the aggravating factors of this offending and they need to be factored in to the starting point. I can discern no mitigating factors of the offending.
18. Having identified the offending, I turn then to consider the decisions of this Court and Courts in New Zealand (which is a Court to which the Supreme Court of Samoa does look from time to time for guidance) to guide myself as to the appropriate starting point. Both Counsel agree that the most useful authority from this Court is that of Police v Tuiletufuga, where this Court considered the starting point for a single act of carnal knowledge. On that particular case, the defendant was a teacher; the victim was one of his pupils, aged 15 years. The Court accepted that the act was, to some extent, consensual and that the victim had some emotional engagement with the defendant, and there was a single act of carnal knowledge and two other acts of indecent assault over a 3 month period. The Court identified the starting point there for that single act of carnal knowledge as 4 years in the circumstances where there, as in this case, the maximum is 7 years, and in respect of the indecent assault, a starting point of 2 years.
19. In terms of the New Zealand authorities, in R v Jones, the Court of Appeal recognised that there is, what can be called, a continuum of offending; at the lower end of seriousness is offending where the victim and the offender are similar ages; where there is perhaps some mutual flirtation or intimacy which then goes beyond that and where the offender is then charged with the offending – that is at the lower end of the scale. At the other end of the scale is offending where there is a dominant male in a position of authority, who sets out to deliberately seduce a young girl in his care – and I would place your offending towards that upper end although the victims cannot be described as young girls but rather young people or verging on young women, so slightly older than what would be the most serious type of offending of this sort.
20. In R v Mekaia, a decision of the High Court of New Zealand in 2005, where the offender was 30 and the victim, 14; where there was 7 offences over a period of one month; a 2 year starting point was arrived at. In Harvey v Police, another decision of the High Court of New Zealand, 4 charges of unlawful sexual connection between a 31 year old teacher and a 15 year old pupil, the Court held that a sentence at least a third of the maximum penalty was not excessive and in Police v Boyd, a doctor went online to meet girls; they were aged 13 to 15. This was not a breach of a doctor/patient relationship but it was offending over a 14 month period. He pleaded to two representative charges and the Court of Appeal held that a starting point of at least 5 years would have been appropriate had the matter been considered anew or de novo.
21. Having had regard to all of those matters to assist me in determining the starting point, I return now to set that starting point. The lead offence, the most serious offence, is the offending against Victim A. In respect of her, the Attorney General’s Office for the Prosecution argue a starting point of 5 years. On your behalf, your Counsel argues for a starting point of 4 years. The key authority, as I have recorded, is Police v Tuiletufuga, where the Court fixed a 4 year starting point. However, I remind myself that that was for a single act of carnal knowledge.
22. Having regard to those matters and I also have regard for the need, in this particular case, for a deterrent sentence. In other words, a sentence that will deter you and, I would hope, others from this sort of offending. A deterrent sentence is appropriate on the basis that societies generally rely on people like you, a man in a professional position with authority over these young people, with the opportunity for social enactment or engagement with them, to take special care to ensure that your behaviours are appropriate to their status, and on the basis of course that the girls’ parents and the pupils themselves must be able to trust such people who are in those positions of care and authority. Having regard to that I fix the starting point in respect of Victim A at 5 years. For the Attorney General’s Office argues that the sentences should be cumulative – in other words, I should add to that sentence, build on that sentence in respect of the other two offenders. For the defendant, it is argued that a concurrent approach is useful.
23. This Court has identified the approach, a decision of the Chief Justice, where he notes that as a general rule, cumulative sentences of imprisonment are appropriate where the offences with which the accused is being sentenced are of a different kind, whether or not they are connected. On the other hand, concurrent sentences of imprisonment are generally appropriate where the offences with which the accused is being sentenced are of a similar kind and connected offences. I regard this offending as being very much of a similar kind and, despite the three victims, to being connected in the sense that they were all pupils at the school and you offended against them in a very similar way, so I intend to adopt a concurrent approach but remind myself of the need to stand back and have regard to the principal of totality which requires me to ensure that the end point, whatever that might be, is just and appropriate in all of the circumstances.
24. Taking that approach then to the sentence of 5 years, in my view, the offending against Victim B can be seen as an aggravating factor and that would increase the penalty by a sentence of 2 years. On that occasion there were 3 offences of carnal knowledge but that victim would appear more profoundly and adversely affected than Victim A. In respect of Victim C, the offending was indecent assault, prima facie less serious offending and unsurprisingly, at least to date, the impact has been less serious and in my view that would attract a further uplift of 6 months. That brings me to a sentence of 7 ½ years imprisonment.
25. However, from that sentence of 7 ½ years, there are two matters in respect of which, in my view, you are entitled to credit; that would reduce the sentence. The first is that you appear before the Court with no prior convictions. You are 35 years old and although you are no longer a first offender given that you appear for 14 separate offences, you are, in my view, appropriately entitled to credit for an absence of prior convictions and I fix that credit at 15% of the starting point – in other words, some 15 months, that would reduce the sentence to 6 years and 3 months.
26. You claim to be remorseful but that is not objectively obvious and certainly it is not the sort of remorse that should attract some additional and discrete credit. As I have noted there has been no apology by you or your family until today in Court. I acknowledge that you have lost your job; I acknowledge that it is highly unlikely that you will ever be able to work in this sort of capacity again; but both those factors can properly be said to be the natural and ordinary consequences of this sort of behaviour.
27. I am aware that you spent 11 months in custody in the United States before being deported back here to Samoa. I do not regard that as a matter that should attract any credit – an application was made to deport you from the United States back to Samoa to face these charges; you chose to oppose it; you chose to appeal; you could have ended your custody there with a stroke of a pen but you chose not to do so, and, in my view, it would be unprincipled for that to attract any further credit.
28. Credit, however, is appropriate for your pleas of guilty; they came on the morning of the trial; they could have been entered earlier to some charges but it is fair to observe, as your Counsel reminds me, that there was in excessive 100 charges facing you, and certainly, at the morning of trial, the most serious charges were withdrawn and your pleas of guilty were entered then – so rather late in the day, but in any event but you did save the victims from the ordeal, as it would have been, of having to testify, and you did save the State some costs, although not significant given that the interpreter had already been flown in from Australia for the trial. In my view, again, 15% reduction would be appropriate and that brings the end point sentence to one of 5 years and 3 months imprisonment, and that is the sentence that I impose in respect of each of the charges of carnal knowledge; and on the four counts of indecent assault, you will simply be convicted and discharged as they have been taken into account in reaching the end point sentence.
29. There are two final matters. The time that you have spent in custody since your return to Samoa should, in my view, be deducted from the sentence imposed and I will leave that to the prison authorities to calculate.
30. Finally, in terms of orders, there will be an order permanently suppressing, or prohibiting the publication of, the names of the three victims and any details that might identify them but the suppression order does not relate to the defendant nor does it relate to the institution of which he was an employee given that that matter is already in the public domain.

Thank you Mr Leatuvao; you may stand down

_____________________
JUSTICE E M AITKEN