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Police v Sale [2015] WSSC 259 (3 June 2015)

SUPREME COURT OF SAMOA
Police v Sale [2015] WSSC 259


Case name:
Police v Sale


Citation:


Decision date:
03 June 2015


Parties:
Police (prosecution) v Oliva Puefua Sale, male of Sapapalii


Hearing date(s):
13 April 2015


File number(s):
S3509/14, S3510/14 and S1312/14


Jurisdiction:
Criminal


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Ema Aitken


On appeal from:



Order:
On each charge, you are convicted and sentenced now to 12 months of supervision on probation. As a condition of that sentence, (1) you will complete 100 hours of community work. (2) You will undertake a alcohol and drug programme at the direction of your probation officer – as it is clear that alcohol was a factor, at least in the first offence. (3) You will live and work where directed by your probation officer; and (4) you will have no contact with the victim, unless with the expressed consent of your probation officer.


Representation:
R Titi and F Lagaaia for prosecution
F Hoglund for defendant


Catchwords:
Sexual connection with a girl under 16 years – sexual connection with a girl under 21 years – sexual connection with a family member


Words and phrases:
incest


Legislation cited:



Cases cited:



Summary of decision:


THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN

:
P O L I C E
Prosecution


AND:


OLIVA PUEFUA SALE, male of Sapapalii
Defendant


Counsel: R Titi and F Lagaaaia for prosecution
F Hoglund for defendant


Hearing: 13 April 2015


Sentence: 3 June 2015


Oral Sentence of Justice E M Aitken

1. Oliva Sale, you have pleaded guilty to three charges. The first is that between 1 and 30 April last year, you had sexual connection with a girl under the age of 16 years; secondly, between those same dates or more specifically between 7 and 30 April, that you had sexual connection with a girl, who was a member of your family, under the age of 21; and thirdly, that on 28 August 2014, you had sexual connection with that same girl, being a member of your family, under the age of 21.
2. On each occasion, the girl in question was in effect your niece. She is the daughter of your half brother. Specifically, your mother had children by her first marriage and the victim’s father was her eldest son. She remarried. She had four more children and you are the youngest child of your mother.
3. At the time of this offending, you were 17 years old and the victim was 15 and, then on 7 April, turned 16.
4. In respect of the first offence, before she turned 16, the two of you, I understand, were living in the same house and have been for about a month. She was sleeping with her grandmother when you woke her up and told her you would wait for her at the back of the house. She got out of bed and came to the back of the house, where the two of you had sexual intercourse. That incident happened approximately two days before her sixteen birthday.
5. After she turned 16, but still in the month of April, she was, on another occasion, sleeping with her aunty when you again went and woke her up and told her to meet you at the back of the house. She came to meet you and again the two of you engaged in sexual intercourse.
6. This happened on a third occasion in August of last year.
7. You pleaded guilty to those charges at a relatively early opportunity and I remind you that the charges carry a maximum term of 10 years for the offending when she was under 16 and 14 years for the offending when she was over 16. This is, on the face of it, serious offending. It is contrary to the law but also contrary to custom for you to have a sexual relationship with a family member.
8. You were not much older than her but you were, in fact, her uncle and even if I look at it more in a brother-sister type age relationship, certainly you should have acted in a protective way towards her.
9. I have been referred to a number of legal decisions and the prosecution submit that I should start with a consideration of a sentence of 3 years imprisonment. However, I intend to identify the relevant factors before I determine the appropriate sentence.
10. The first is of course the nature of the relationship. As I said, she is the daughter of your older half brother. An uncle/niece relationship can be a close one but here I note that, while the two of you knew each other, you had only been living in the same household for about a month before the offending commenced.
11. Secondly, I look at the number and duration of the offences, and here there were three separate incidents over a period of about 6 months.
12. Thirdly, there is clearly a breach of trust involved as I have already referred to.
13. Fourthly, I look at the age disparity or the age difference and, in this case, there is very little age difference between the two of you. She was just under 16 and then over 16 at the time of the offending and you were 17 throughout the time. This minimal difference is relevant for two reasons.
14. Firstly, I accept that both of you would have been relatively immature young people. Both of you were likely to have been impulsive and not really appreciating the nature of your behaviour and the likely consequences; and secondly, because this minimal age disparity distinguishes your conduct from that of other defendants, most of whom are sentenced to terms of imprisonment and often lengthy terms at that.
15. Finally, I have regard to the level of power or authority you might have had over the victim at the time. That requisite power or authority is an essential element of the charge as it defines the relationship from which your culpability is to be assessed. In other words, the law requires not just that you be her uncle but that you also have power or authority over her.
16. In this particular case, the victim has chosen not to provide a victim impact statement and there is no other evidence as to the nature of this power relationship; and given the nature of the offending and the minimal age disparity, I have reached the view that this power relationship was at the very lowest end of any spectrum.
17. It is for all of those reasons that I find this criminal behaviour to also fall at the lowest end of the scale. It is behaviour, in my view, more reflective of immaturity and perhaps ignorance than reflective of true criminal conduct. If imprisonment was appropriate, the starting point, in my view, would fall at between 12 and 18 months.
18. As to matters of mitigation, there are many. The first is your age. The second is your remorse which I accept is genuine. The shame that you have brought on yourself and your family and the fact that your family has apologised to the family of the victim, and that apology has been accepted. All of those factors coupled with your early guilty plea would permit me to reduce the sentence quite significantly, and all of those factors persuade me that in this particular case, a community-based sentence would adequately meet the interest of justice.
19. I regard the fact that you have been arrested and charged and brought before the Court as sufficient to deter you personally from any further conduct of this type and I regard the following sentence as being sufficient and adequate to hold you accountable for your behaviour.
20. On each charge, you are convicted and sentenced now to 12 months of supervision on probation. As a condition of that sentence, (1) you will complete 100 hours of community work. (2) You will undertake a alcohol and drug programme at the direction of your probation officer – as it is clear that alcohol was a factor, at least in the first offence. (3) You will live and work where directed by your probation officer; and (4) you will have no contact with the victim, unless with the expressed consent of your probation officer.
21. Now, Oliva Sale, those three convictions and sentence will now be part of your criminal record. If you were to offend again in any way that involves sexual offending then you can expect the Court to send you to prison. So you make sure you have learned what is appropriate and not appropriate conduct and never put yourself or any other young woman in this position again. Do you understand?

_____________________

JUSTICE E M AITKEN



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