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Police v ML [2024] WSSC 129 (27 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v ML [2024] WSSC 129 (27 September 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

M.L

Defendant

Counsel: H. Apisaloma for Prosecution
J. Brunt for the Defendant

Decision: 27 September 2024

DECISION OF THE COURT

1. Defendant pleaded guilty to one count of sexual connection with a child under 12 years by way of digital penetration and one count of abduction of a child under 16 years of age with the intent to commit sexual connection upon her.
2. Given the age of the complainant, her name and any identifying details are permanently suppressed from publication.
3. The agreed Police Summary of Facts says:
   • “The defendant is a 19 year old male of [x-village] and [y-village]. He is single and unemployed. The victim is a 7 year old female attending primary school. The defendant and victim are not known to each other.
   • On 5^th April 2024 at around 5:30pm – 6:00pm, the victim was at the Friendship Park playground at Matafele with her mother and two siblings. The victim and her siblings were playing on the swings at the playground. their mother was present watching them.
   • At one stage the victims 2 year old baby sister walked away from the playground towards a small bridge nearby. The victims mother went over to the small bridge to collect her daughter. At the time the victim and her older sibling were still playing at the playground. In that moment the defendant saw the victim was alone and went over to her.
   • The defendant grabbed hold of the victims hand and led her to exit the Friendship Park. The victims sister then noticed that the victim was nowhere to be seen so she ran over to her mother and told her mother that the victim was missing.
   • The victims mother searched for the victim all around the Park area but she was not there. The matter was reported to the Police for assistance.
   • By this time the defendant had taken the victim away from the Friendship Park to the National Provident Fund building. The defendant made her sit down on the benches on the ground floor. The defendant then inserted his hand inside the victims shorts and digitally penetrated her vagina.
   • The victim cried and ran away from the defendant. The victim walked and ended up at Matautu. She was found by a family at Matautu who took her in for the night. The family took the victim to the Police station the following morning.
   • On 6^th April 2024, the defendant was taken to Apia Police Headquarters for cautioning and was charged accordingly.
   • At mentions on 28^th May 2024, the defendant through counsel entered not guilty pleas and the matter was set for hearing.
   • On 22^nd July 2024 on the date of the trial, the defendant through counsel vacated his not guilty pleas and entered guilty pleas to the following amended charges:
     • (a) One count of sexual connection with a child under 12 pursuant to sections 58(1) & 50(a)(i) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment; and
     • (b) One count of abduction pursuant to section 131 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
   • The defendant has no previous convictions.”
4. There are many disturbing aspects in this offending. The defendant told the Probation Office:
   • “ML explained that on the day of the offending, he had finished work around 4:00pm that evening. He bought three bottles of taula strong beers and headed to the back of the government building where he drank the three bottles of beer. ML stated that upon finishing the beers he headed to the Friendship Park. ML admitted that he sat on the park chairs and looked at the children playing on the playground. He admitted that there was one particular child who was playing by herself isolated from all the other children on the playground. He began stalking her and keeping an eye out for a grown-up or guardian of the child. ML admitted that he was sexually aroused by the child’s appearance.”
5. The defendants offending is aggravated inter-alia by the very young age of the complainant, her vulnerability as she was virtually alone in the playground enabling the defendant to effect this kidnapping, the fact that she was kidnapped from a public space where children of all ages are entitled to feel safe and protected, the pre-meditated stalking by the defendant and then pouncing on her when he observed she was effectively unsupervised. There is also the undoubted effect this offending has had on the complainant as detailed in her Victim Impact Report.
6. The courts sentence must convey the necessary messages to the defendant as well as to the general public condemning such behaviour and to promote in the defendant a sense of responsibility for the harm he has caused. It must also hold him accountable for his actions.
7. The court accepts the prosecution submission that considering all factors, this offending falls within B-2 of Attorney General v Lua [2016] WSCA 1 which governs sentencing for this kind of case. And that an appropriate starting point for sentence is 7 years imprisonment.
8. From that I deduct 1 year to reflect the defendants youth and immaturity. Leaves a balance of 6 years imprisonment. The defendant is a first offender and although no apology has been effected, I accept the reasons for that are the defendants lack of family support (he is described by his caregiver adopted parents as “stubborn, disobedient and problematic”) and the fact that he has been in custody since the offending. But I also give weight to his counsels submission that:
   • “With proper advice/counselling and having a well-informed conscience the defendant has come to realise the seriousness of what he has committed. He shed tears of regret during several sessions.
   • Scared and confused, the defendant initially pleaded not guilty, but pleaded guilty once proper legal advice was rendered. A reflection also that he is genuinely and deeply remorseful.
   • The defendant has not apologised personally to the victim and to the family as he has not had the opportunity to do so given he has been in custody since on or about the 5^th August 2024.
   • That through counsel he offers his deepest apology to the victim and to the parents of the victim for what he had done and begs for forgiveness.
   • The defendant acknowledges and accepts the seriousness of the offence and therefore takes full responsibility of his actions.”
9. I am satisfied his remorse is genuine, this accords with my own observations of him. I deduct 1 year to reflect those factors. Leaves a balance of 5 years.
10. For his guilty pleas which has avoided the very young complainant enduring the trauma of a trial and which has also saved the courts time and precious resources, I deduct 2 years. Leaves a balance of 3 years imprisonment.
11. As indicated at sentencing (see courts remarks below), the report before me indicates this young man would benefit from rehab therapy. The Salvation Army through the Probation Service have indicated their willingness to assist in such cases. The Sentencing Act 2016, section 5(1)(g) also empowers the court in cases it considers appropriate “to assist in the defendants rehabilitation and reintegration”.
12. There is additionally the need to avoid imposing on young defendants as reiterated in previous cases “a crushing sentence” that would be counter-productive to what a criminal sentence on a young defendant sets out to achieve. I reference here the Court of Appeal decision in Siueva v Attorney General [2020] WSCA 5 where the court noted:
    • “There has been a growing judicial recognition in recent years of the effect of youth in criminal offending and its interrelationship with sentencing principles. The Court identified a number of important factors:
      • (a) There are age related neurological differences between young people and adults. Cognitive, emotional and psychological immaturity can contribute to a breach of the law. While this leads to a reduction in culpability, it does not excuse a young person from taking responsibility for his or her offending;
      • (b) Imprisonment can have a greater effect on young people than on mature adults and long sentences may be crushing for them. A sentence which might otherwise be appropriate for an adult can become disproportionately severe for a young person. There is evidence that adolescents experience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour while in prison. Recognition of this factor preserves the principle of mercy in sentencing.
      • (c) Offending by young people is frequently a phase which passes fairly rapidly and thus a well-balanced approach is necessary to avoid alienating them from society by the imposition of a lengthy term of imprisonment. Young people have a greater capacity than adults for rehabilitation, particularly given their undeveloped characters. They should not be regarded as beyond help, even after serious offending, unless there is no escape from that conclusion.
      • (d) On the other hand, where the offending is grave, the scope for taking account of youth is limited if the offending raises concerns about public safety. The requirement for deterrence and denunciation is also relevant.
    • All these factors require careful evaluation on sentencing, especially where the offending is serious and a long term of imprisonment is in prospect.”
13. On this basis, I reduced the defendants sentence from 3 years imprisonment to 18 months subject to the special condition that he satisfactorily completes the above-referred Salvation Army Rehabilitation and Psychoeducational Programme on alcohol and drugs. Further that his remand in custody time awaiting sentence be deducted from his sentence.
14. It is sincerely hoped that the combination of a prison sentence and a rehabilitation programme will ensure as far as reasonably possible that the defendant does not do something stupid like this again or reoffend in his future life. But as indicated to the defendant, ultimately that is a matter for him and any re-offending will be viewed in a completely different light.

Sentencing Remarks

15. ML o le tulaga lea ua iai lau mataupu, o lea ua manino mai le lipoti a le Ofisa Faanofo Va'ava'aia e iai polokalame e aoga mo oe i le taimi lea e tuli ai lou fa’asalaga. O lea o le a fa’apea le faiga o lau mataupu, pei ona ou fa'amatala atu i lau susuga e leaga le solitulafono lea na e faia ona e laititi tele le teineitiiti lea. E tatau ona fai se fa’asalaga fa’a-falepuipui mo oe.
16. Fai mai le tulafono e mafai ona fa’asala lau susuga mo se vaitaimi e le silia i le 14 tausaga. Ae ua mamafa tele lena faasalaga. Ou te iloa a fua i lau solitulafono ma tulaga uma o lau mataupu masalo o se fa’asalaga talafeagai o le 3 tausaga e nofo taofia ai ona o le solitulafono. Ae ona o lena e te laititi o lea o le a fa’a-‘afa le fa’aiuga. O lena e te laititi, e le’i tai tai lou olaga. E le fa’apea a uma le mea lea ua uma lou olaga. Leai o lena e laititi lou olaga e tatau ona e mafaufau e fai ni au mea aogā pe a e magalo mai tua.
17. E 18 masina lou fa’asalaga mo le mea lea. O le tulaga fa’apitoa e tatau ona e auai i polokalame fa’apitoa a le Salvation Army lea e fa’atino i le falepuipui. O polokalame na e taumafai e fesoasoani ia oe e le fesoasoani mo seisi o matou. O mea mo ML e le’o ni mea mo matou. Auai ai la i polokalame ia ma e usita’i iai.
18. E 18 masina lou fa’asalaga ae toese mai le 18 masina lena le taimi lea na e taofia ai e faatali le faaiuga. Ua e malamalama? (Defendant: Ia).
19. Ma a e magalo mai tua ML aua e te toe faia se mea fa’apea. Aua a fa’apea e te toe faia toe aumai oe i luma o le fa'amasinoga e feololo le 18 masina lena i lo le fa’asalaga o le a tu’u atu loa ia oe, ua e malamalama? (Defendant: Ia). O le a fa’apena ona fai. O le auiliiliga atoa o lou fa’asalaga o lea o le a fa’apepa e le fa'amasinoga momoli le kopi i lau loia e fa’amalamalama atu e le alii loia i se taimi. Ae o le fa’aiuga lena e 18 masina toese mai ai aso ia sa e nofo taofia ai. A’o le taimi lea e tuli ai lou fa’asalaga e tatau ona e auai i polokalame a le Falepuipui i mea tau fualaau fa’asaina.
20. For the record, convicted and sentenced to 18 months in prison. Remand in custody time to be deducted.

SENIOR JUSTICE NELSON