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Police v A [2022] WSSC 29 (8 June 2022)

SUPREME COURT OF SAMOA
Police v A [2022] WSSC 29

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v A
Defendant

Counsel:
T. Sasagi for Prosecution
L. Su’a-Mailo for young person

Sentence: 8 June 2022

SENTENCING OF JUSTICE ROMA

The Suppression Order issued in relation to the names, villages and any detail that may lead to the identification of both the victim and young person is made permanent.

Charges

[1] You appear for sentence on 3 charges:

(i) 1 count of sexual connection with a child under 12 years contrary to s58(1) & 50(b) Crimes Act 2013. The maximum penalty is life imprisonment;
(ii) 1 count of sexual violation contrary to s49(1)(b). The maximum penalty is 14 years imprisonment; and
(iii) 1 count of threat to kill contrary to s129. The maximum penalty is 3 years imprisonment.

[2] You had denied all charges but on 9 March 2022 when the hearing was to take place you vacated your denial and entered guilty pleas to the charges.

Offending

[3] According to the Amended Summary of 30 May 2022 which you accept through counsel, on 4 February at around 3pm at Salelesi, the victim, an 11 year old female of Fusi Saoluafata was at school looking for her older brother so they could go home together. She met you on a nearby but inland road. You were holding a machete. She asked if you had seen her brother. You told her he was at someone’s house. She went there and you followed but the brother was not where you told the victim he was. The victim then returned to school.

[4] On the way you approached and lifted her to a secluded area near the school building. You laid her on the ground, removed her shorts and panties. She screamed but you covered her mouth and threatened ‘e ke ‘ē’ē loa i luga fasioki oe’. At the same time, you had the machete pointed at her neck.

[5] You undressed and twice tried to insert your penis into her vagina and she felt pain. You then stood her up and from behind pushed her head forward and rubbed your penis on her anus. You laid her on the ground and told her to fondle your penis to which she complied because she was scared of the knife lying next to you.

[6] You then told her to leave. She ran home and immediately told her mother what happened and about the pain in her genital area. Together they came to look for you and she kept hiding behind her mother. They found you still with the machete in your hand.

[7] She was taken for a medical examination the following day. The report describes that she was clinging to her mother and confirmed a non - intact hymen torn at the 7 o’clock position and a small abrasion on the left labia minora.

[8] You admit the offending in the pre-sentence report. In fact what you told probation is consistent with what is stated in the prosecution summary.

Victim

[9] The victim is now 12 years old. She was 11 at the time of offending. In the VIR she tells of how she felt pain when you tried to insert your penis in her vagina; how you held and covered her mouth when she tried to scream; how she was scared when you pointed the machete at her neck and threatened to kill her if she did not comply; and how there was no one around to come to her aid. She has been teased at school for what happened and does not want to see you again. She did not want to go back to school.

[10] Her mother confirms that a matai of your family has apologised on your behalf.

Aggravating factors

[11] The aggravating features of your offending are:

(i) premeditation – you lied to the victim about her brother, followed her and carried her to a secluded area when no one was around;
(ii) vulnerability of the victim given her age - and with your use of a machete, she was in no position to resist or defend herself;
(iii) violence and threats of violence were involved – you covered her mouth when she screamed and threatened to harm her with the machete;
(iv) use of a weapon;
(v) impact on the victim – you violated her physically and as noted in the VIR, your offending will have a lasting impact on her mentally and psychologically.

Mitigating Factors

[12] Personal to you as offender, I consider the following:

(i) your guilty pleas entered before hearing was to commence in March;
(ii) apology on your behalf by your maternal uncle which is confirmed by the victim’s mother in the VIR;
(iii) personal circumstances – You are now 16 years but 15 at the time of the offending. You

are the eldest of 5 siblings and have lived between your paternal and maternal side of the family. You have been banished from Salelesi as a result of the incident and now living at Fasitoo tai with an uncle. You are also attending Nuuausala College in Year 12. Your uncle whom you now live with has written in support of you and says that he has observed significant changes under his mentorship. He describes you as a hardworking youth who completes tasks assigned to you. You are a first offender.

Discussion

[13] You face serious charges one of which attracts a penalty of life imprisonment.

[14] You are a young person who until recent amendments to the Young Offenders Act 2007 would have been dealt with in the Youth Court. I bear in mind that under the Act rehabilitation is the focus for sentencing young offenders like you and imprisonment is imposed only as last resort when there is no other reasonable alternative.

[15] But relevant also are previous sentences for similar offending. One such case is Attorney General v. Lua [2016] WSCA 1 (19 February 2016) where the Court of Appeal set out the guidelines where unlawful sexual connection against children under 12 years is the lead offence and there is no penetrative act.

1. Band one: 2 – 6 years
   • Appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features or their presence is limited.
2. Band two: 5 – 12 years
   • Where the offending is of moderate seriousness and involves two or three aggravating features.
2. Band three: 11 years – life imprisonment
   • Where the offending is the most serious of this kind, for example it involves offending against multiple victims over a significant period in the presence of serious aggravating features.

[16] The Court further observed:

“That band one has a range from 2 to 6 years reflects the diversity of sexual connection offending. The least culpable offending will comprise a single skin on skin touching of the genitalia or anus which is of limited duration. In the absence of other aggravating factors offending at this level may well warrant a starting point as low as 2 years before personal mitigating factors are considered ...”

[17] Your counsel has referred me to the sentences on young persons in the Youth Court in Police v. BA [2014] WSDC 2 and Police v. TF [2014] WSYC 1 (24 April 2014); and this Court in Police v. MFI [2021] WSSC 70 (1 November 2021); and on adult offenders in Police v. Sola [2016] WSSC 143 (3 August 2016); Police v. XR [2018] WSSC 16 (2 February 2016) and Police v. Efaraima Aimiti & Susana Peni (Unreported, 4 November 2016).

[18] She argues that I follow the approach under the YOA where I must firstly determine whether a conviction and sentence is required in the interests of justice under s15 and secondly if so, apply the sentencing options under 16. She relies on Police v. MFI where the Court discharged the young person without conviction upon successful completion of a rehabilitation programme monitored over 2 years.

[19] Prosecution’s primary submission is to impose a custodial sentence with a starting point of 6 years. They acknowledge however the emphasis on rehabilitation under the YOA and concede that the Court may alternatively order you to undergo relevant rehabilitation programmes with strict monitoring conditions.

[20] I have carefully considered the submission of both counsel and the sentencing authorities cited. Compared to Police v. MFI, your use of a weapon and active threats to inflict violence aggravates the level of your offending. The interests of the victim and the public must not also be overlooked. I am satisfied therefore that the interests of justice warrant your conviction and sentence.

[21] I am also of the view that a custodial sentence is the appropriate penalty. On the lead charge of sexual connection with a child under 12 years, I find your offending to be on the lower end of Band 2 and adopt a starting point of 6 years.

[22] I make the following deductions – 8 months for the apology; 12 months for your personal circumstances including your remorse, banishment and first offender status; and 16 months for your guilty plea. The balance is 3 years. I make one last deduction of 20 months for your young age. The end sentence is 16 months.
Result

[23] On the charge of sexual connection with a child under 12 years, you are convicted and sentenced to 16 months’ imprisonment.

[24] On the charge of sexual violation, you are convicted and sentenced to 12 months’ imprisonment;

[25] On the charge of being armed with a dangerous weapon, you are convicted and sentenced to 6 months’ imprisonment.

[26] All sentences to be served concurrently.

JUSTICE FEPULEA’I A. ROMA