IN THE SUPREME COURT OF SAMOA
Police v Toso [2016] WSSC 156

Case name: 	Police v Toso	
		
Citation: 	[2016] WSSC 156	
		
Decision date: 	08 April 2016	
		
Parties: 	POLICE (Prosecution)
IOANE TOSO male of Aleipata. (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:		
		
Representation: 	F Ioane for prosecution
L R Schuster for defendant	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Attorney General v Lua [2016] WSCA 1	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	IOANE TOSO male of Aleipata.
Defendant

Counsel:	F Ioane for prosecution
		L R Schuster for defendant

Sentence:	08 April 2016

SENTENCE
1.	Ioane has pleaded guilty to one count of sexual connection with a child under 12 years of age.  This is said to have occurred at Aleipata on the 06th of January 2015.  The defendant was then living at Aleipata.  A permanent suppression order will issue in relation to the name and any other identifying detail of the 8 year old child involved in this matter.  
2.	The unchallenged police summary of facts says the defendant at the time of this offence was 18 years of age, was single and living at home with his mother.  There is no mention of a father in the material before me.  The unusual feature of this defendant is the mother says he was born deaf.  As a result he only attended one year of Primary School and dropped out of a school for children with special needs in the district.  According to the pre-sentence report and his background from the probation office his life consisted of a fairly sheltered upbringing.  Although his pastor in a reference attached to the report indicates that the defendant enjoys and fully participates in church and youth activities.  
3.	I have no doubt the defendants hearing impairment was a significant factor in his life and would have prevented his undertaking any meaningful education at village school level.  No effort seems to have been made probably for financial and other good reasons (e.g. accommodation) to relocate him to Apia where he could have attended an appropriate special needs orientated school or like institution.  One such institution is Senese Inclusive Education Support Services centered in Apia.  They examined the defendant for the purposes of this proceeding and report that “Mr Toso is profoundly deaf in both ears and therefore needs to be fitted with a powerful hearing aid.  We also found that he was not as responsive as most clients with profound hearing loss because he has not been in school all his life.”  
4.	Absent any further specialist report I conclude that the defendants intelligence level and capability would accordingly be very low.  And that he does not possess any knowledge or communication skills except on a very rudimentary level.
5.	The police summary of facts goes to state that on the morning of the relevant day the victim was sent by her mother to a neighbouring family in the village on an errand.  The victim had to walk through a bushy area in order to get to the neighbours house.  On her return from her errand, as she passed though the bushy area, she met the defendant walking towards her holding a machete. As they neared each other the defendant motioned to the victim to come over.  The victim did so and stood in front of him.  The defendant bent towards her and kissed the victim on the cheek.  He then put his hand inside the front of the girls shorts and touched her genital area.  During this time the victim was standing in front of him crying.  
6.	A woman of the village passing by saw the defendant and the victim and observed the defendant kneeling in front of the victim with his hand inside her shorts.  The defendant upon seeing the woman quickly removed his hand and the woman took the victim home and reported to her family what she had caught the defendant doing.  Same day the family reported the matter to the police leading to the current proceeding before the court.  
7.	Sentencing for the offence of sexual connection with a child under 12 years old was recently reviewed by our Court of Appeal in Attorney General v Lua [2016] WSCA 1. There the Court of Appeal established a three Band sentencing approach for the offence taking into consideration the manner of the offending.  The Bands began with the lowest of B1 2 to 6 years in prison and progressed to the highest of 11 years to life for the most serious kind of offending.  
8.	Were I to apply this approach to the circumstance of the present case I would start sentencing at the mid to lower end of B1 because there are aggravating factors present.  Namely that the defendant was armed with a machete when he first encountered the young girl. Although the summary goes on to record that when discovered by the passing woman the defendant was kneeling in front of the victim with his hand inside her shorts.  Suggesting that possibly he had by that stage put the machete down.  It is also clear from the summary of facts this incident occurred in a bushy area where the victim was alone and vulnerable.  That plus the very young age of the girl are further aggravating factors.  
9.	However Lua also recognises in paragraph 31 that there may be cases where a departure from the Band approach is warranted.  And in paragraph 28:
“The three bands overlap. This is of course deliberate. Sentencing is an art, not science. There is no substitute for the careful evaluation of all relevant factors which the sentencing judge can bring to bear to a case in the immediacy of the courtroom. Guidelines are intended to provide a consistent method for the evaluation of particular types of offending. They do not place the sentencing judge in a straight-jacket.”
10.	Observations as to how these band approaches is to be applied. In particular the learned judges of the court noted that the guidelines are not intended to place the sentencing judge in a straight-jacket. 
11.	In its totality this is a case of a young for all intents and purposes illiterate defendant with no formal schooling committing low level offending on an 8 year old child.  The defendant told the probation office he had watched pornography on the cell phone of a friend previously. Something that should disturb all of us but is becoming increasingly common among the young people of our community.  In particular young males of school age.  And it was these images that flooded the defendants mind prompting him into the offending.  Obviously a display of poor and immature judgment on his part and of failure to appreciate that the girl before him was only a child of 8 years.  
12.	In respect of the actual offending this consisted of the defendant touching the childs “genital area” as outlined in the summary of facts.  Whether this equates to the defendants touching her genitalia is not clear.  It is an abhorrent act by any measure but it would appear to be at the lower end of the scale compared to some that have come before the court.  It is also apparent the necessary apologies and customary reconciliation have been attended to by the defendants mother and uncle with whom the defendant now lives and who is probably providing the father figure guidance that was lacking in the defendants upbringing.  I have certainly noticed as observed by defendants counsel that the uncle has been physically present at every calling of this matter before.  And in conversations I have had with him from the Bench it is clear he is genuinely concerned for his nephew and is willing to do whatever is necessary to help him.  To keep him out of any further trouble or mischief.  
13.	The pre-sentence report confirms the defendant has been banished from his village for his actions. Which is why he now resides with the uncle in another village far from his place of birth and far from where the victim resides.  I note the defendant is a first offender and there is no evidence he has been involved in this or any similar incident in the village where he grew up.  His guilty plea to the charge is some expression of remorse and more importantly has avoided the necessity of an 8 year old having to come to court and reliving an unpleasant and traumatic experience.  
14.	It also weighs heavily on the court that if this young man is sent to prison I am fearful of what could happen to him given his physical and mental condition.  And given that no facility or expertise exists at either of our prisons or even at the Juvenile Rehabilitation Center to cater for this kind of prisoner.  The prosecution have also today indicated that in light of the Lua Court of Appeal decision they are leaving the matter to the discretion of the court.  I interpret that to mean that they are not pursuing an imprisonment penalty.  
15.	The pre-sentence report has assessed the defendant as suitable for a community based sentence.  I remind myself that while deterrence accountability and protection of young girls are important and applicable sentencing principles, so is rehabilitation.  And a consideration of the impact prison would have on a vulnerable defendant like the present one.  
16.	I have come to the conclusion this is one of those rare instances where notwithstanding the seriousness of the defendants crime imprisonment should not imposed.  I add that this is not to be regarded as any sort of precedent and that the sentence in this particular case is tailored to its unusual and special circumstances.  
17.	Ia masalo e o’o i se taimi mulimuli e mafai ona fa’amalamalama i lau susuga Leatitoa, ona o tulaga lea na taumafai le Fa’amasinoga e fa’amaino atu i lana fa’aiuga, o lea o le a fa’asao le taulealea mai se fa’asalaga fa’afalepuipui.  O lea o le a tu’u atu i lalo o le va’ava’aiga a lau susuga Leatitoa ma le Ofisa Fa’anofo Va’ava’aia. Ae iai tulaga fa’apitoa o le fa’anofo va’ava’aia o le tama:
18.	E 2 tausaga lea o lea tu’u atu ai i lalo o le va’ava’aiga a le Ofisa Fa’anofo Va’ava’aia;
19.	E le mafai ona sui se nofoaga o le taulealea e tatau ona nofo pea ia oe o Vailuutai lea? (Uncle said they lived at Leauvaa).  Atonu e leai se afaina pe a tumau pea le taulealea ia oe i le taimi lea e nofo va’ava’ai ai.  E mafai le tulaga lena? (Uncle said yes).  Aua o lea o le a tu’u atu le faatuatuaga a le Fa’amasinoga ia oe Leatitoa, o le a le ave le tama i Tafaigata ao lea o le a tu’u atu i le tou va’ava’aiga.  Ae a iai se fa’aletonu o le a le taumate le tulaga o le a foi iai le taulealea.  Atonu ua tatou malilie uma i lea manatu, ma e mafai ona fa’atino lea fuafuaga e nofo le tama ia oe mo le 2 tausaga? (Uncle said yes).  Ma e le mafai foi ona suia le nofoaga e alala ai le taulealea vagana ua ioe iai le Ofisa Fa’anofo Va’ava’aia ma ua ioe iai le Fa’amasinoga mo le taimi lea e nofo vaavaaia ai. 
20.	O le isi tulaga fa’apitoa e iai le polokalame a le Ofisa Fa’anofo Va’ava’aia o le Community Service Program, o le polokalame e galue fua mo le manuia lautele o le atunuu. E fa’atonu e le ofisa le taimi e tatau ona auai atu ai Ioane i polokalame ia.  E 200 itula e tatau ona tuli e Ioane i le polokalame lea.  Ua ala ona 200 itula ona e matuia le solitulafono e tatau ona fuafua itula i le mamafa o le solitulafono. E tatau ona o’o atu i le fa’aiuga o le 2 tausaga ua maea ona tuli ana itula.  
21.	O se fautuaga a le Fa’amasinoga ou te le iloa pe mafai ona fai ae mo le agai i luma o le taulealea e tatau ona taumafai se fesoasoani mo lana fa’alogo.   Ou te le mai iloa pe mafai e oe le tama poo le Ofisa Fa’anofo Va’ava’aia ona fa’atino lea tulaga.  E iai auala fa’apitoa a le Senese ma isi fa’alapotopotoga e mafai ona fesoasoani ai i le gasegase lea.  Na o se fautuaga ae oute talitonu mo le agai i luma o le mea lena e tatau ona fai mo le tama lea.  A le o lena e tatau ona aoao iai le Sign Language (fa’aaoga lima ae le o fofoga ona o lea e fa’aletonu le fa’alogo a le tama).  Ae na o se fautuaga e fa’ata’atia atu ia oe ma le ofisa ona o lea ou te malamalama e le mafai ona fai fua mea fa’apena.  E tatau ona iai seisi e totogia le aoga.  E leai foi ni tupe a le Matagaluega ma le Malo e totogi ai le aoaoina o le tama lea, ae ta’atia atu pea o se fautuga i lau susuga ma le ofisa.  
22.	Ioane o lea o le a le avea oe i Tafaigata, o lea o le a tu’u atu oe i le va’ava’aiga a lou uncle ma le Ofisa Fa’anofo Va’ava’aia, ia e usitai iai.  A iai se fa’aletonu e logo mai e lou uncle ma le Ofisa Fa’anofo Va’ava’aia ua e le usitai, o Tafaigata le iuga.  Ua e malamalama? (Defendant said yes). Ma aua e te toe faia se mea fa’apea Ioane, aua a e toe faia e lai ma se mea e sefe mai ai oe mai se fa’asalaga fa’afalepuipui.  O le a fa’apena ona fai Leatitoa, o le fa’aiuga lena o le mataupu a lou alo.

JUSTICE NELSON