Youth Court of Samoa

Police v BA [2014] WSDC 2

Case name: Police v  BA 

Citation: [2014] WSYC 2

Decision date: 12 June 2014

Parties: 

POLICE (prosecution) v BA  a young male 

Jurisdiction: Criminal 

Place of delivery: Mulinuu

Judge(s): DCJ Tuatagaloa

On appeal from: 

Order:

Representation: 
 Ms Rexona Titi and Ms Brigitta Faafiti Lo-Tam for Prosecution 
 Mr Patrick Fepulea’i for Young Person 		

Catchwords: 

Words and phrases: 

Legislation cited: Crimes Act 2013 s.58 (1), The Young Offenders Act 2007 s.5 & s.15 (2) (3), s.16, The Community Justice Act 2008 s.5, s.12 (c)

Cases cited:
Key v Police [2013] WSCA 3), Puwhare v R, CA 227/10, 2 July 2010

Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE 

Prosecution

AND:

BA, a young male 

Young Person (Defendant)

Counsel : Ms Rexona Titi and Ms Brigitta Faafiti  Lo-Tam for Prosecution.
     Mr Patrick Fepulea’I for defendant 

Sentencing date: 12th June 2014

SENTENCE BY JUDGE TUATAGALOA

CHARGE

1.	BA pleaded guilty to the offence and is to be sentenced today with the offence of sexual conduct with a child under 12 years old under section 58(1) of the Crimes Act 2013.
2.	BA was just 10 years and 11 months old when he committed this offence. That makes him one of the youngest to ever appear in the Youth Court. Added to that is the tragic fact that his offending is of the most serious nature ever seen in this jurisdiction.
3.	The offence of sexual conduct with a child under 12 years old carries a maximum penalty of life imprisonment.
FACTS

4.	I need to outline how the offence was committed.  This I obtained from the Summary of Facts and from the Pre-sentence Report of what BA told Probation. 
5.	On Friday, 7 March 2014 at around 7pm BA met the Victim in front of her house. BA and the Victim are neighbours. BA asked the Victim where she was going and the Victim told him that she was going to tafao. BA asked her if she wanted to tafao with him and the Victim told him ‘yes’. BA then took the Victim to a bush area where he inserted his penis into the Victim’s vagina two (2) to three (3) times. BA told Probation that he stopped when the Victim cried and told him that her vagina hurts and that he saw blood on her genital.
6.	The Victim was taken to hospital on the same night.   
  VICTIM
7.	The Victim was born on 4 July 2008 and was only 5 years and 8 months old at the time of the offending.
8.	 She lives with her parents and is the 6th child of eight siblings.
9.	On the evening of the offending it was apparent to her parents as soon as she arrived home that something was wrong. She had blood on her genital area, her thighs and buttocks. She told them what BA had done to her.
10.	The Victim sustained very serious injuries that she was admitted to the hospital on the same night, had emergency surgeries and remained for 3 weeks. 
11.	She had to undergo 3 surgeries of vaginal repairs, anal repairs and a further surgery to remove her bladder to allow for the vaginal and anal repairs to heal properly and also for her to be able to pass bowel or urine. 
12.	The parents of the Victim are going through a lot with what has happened to their daughter. They no longer let their young children out of their sight. They keep themselves busy so they do not have to be reminded of what had happened but their hearts break every time they look at their daughter. I can only try and understand how and what the father or the parents of the Victim are going through but I can never fully comprehend the extent of their hurt.
The Injuries:
13.	The attending physician, Dr Manatua Iati at Moto’otua who examined the Victim noted the following:
Pelvic Exam:
•	Hymenal tear from 5oclock – 7oclock position;
•	Deep 3rd degree posterior wall vaginal tear extended down to the anal sphincter;
•	Fresh bleeding from both vaginal and hymenal tears - 1st degree right vaginal wall tear approx. 1cm long with arterial bleeder;
•	Red abrasions around urethral opening and the clitoris;
•	Red abrasions around the hymen
•	Three 0.5cm lacerations in a fanning orientation posterior edge of the anus (6oclock position)
Anal Area:
•	Rectal mucosa exposed;
•	Loss of sphincter muscle;
•	Fibrosis around the anus;
•	Loss of normal anal rugae;
•	Lacerations at 6oclock position as noted above.
14.	Due to the severity of the injuries the Victim underwent vaginal repairs and was then referred to the Operating Theater team to assess her anal wounds and tone. 
15.	The Head of the Surgical Unit, Dr Aleki Fuimaono noted that there were some anal tears present with the inner layers of her anus protruding outwards. A colostomy was done where part of her large intestine was brought out through the left side of her abdomen. This is to divert the faeces from contaminating the vaginal repair and anal tears while giving it time to heal.
16.	Dr Fuimaono in his report dated 26th May 2014 said that the Victim is recovering well post operatively, her colostomy functioning well, vaginal repair healing well, anal tore present. 
17.	The operation to reinsert her bladder or closure of her colostomy is due in 3 to 6 months time. This means that the Victim has not healed.
PROSECUTION SUBMISSIONS:
 
The Prosecution calls for a custodial sentence to be imposed on the following reasons:

•	The severity of the injuries sustained by the Victim in which she undergone more than one surgical procedure;
•	The offending is at the higher end of the scale with sexual connection cases (Key v Police [2013] WSCA 3);
•	The prevalence of this type of offending amongst young male is increasing; and
•	It is in the interests of the community for the Court to take a stern approach to this offending.

DEFENCE SUBMISSIONS/PLEA IN MITIGATION:
18.	Counsel for BA, Mr Patrick Fepulea’i said that in his 30 years of practise he has never come across a case of this nature. He found it difficult because of the severity of injuries and the very young age of the Victim. 
19.	Given BA’s age, he asked the Court for alternative sentence from imprisonment. He said that an alternative sentence will best facilitate rehabilitation and reintegration in to society but that an imprisonment term will most likely achieve the opposite. 
20.	Mr Fepulea’i does not agree with a custodial sentence but asks the Court to consider the alternative sentence as recommended by Probation and sentence as in another young person’s case of P v TF (unreported 24/4/14). Mr Fepulea’i submitted that as a society, we have an obligation for this young offender to learn from what he had done and not become a hardened criminal.
21.	BA had pleaded guilty to the offence, his family had performed an ifoga to the Victim’s family and BA and his family are banished by the village and now live elsewhere.
PRE-SENTENCE REPORT:
22.	I have read the Pre-sentence report provided by the Probation. Your parents are said to have apologised on the same night to the Victim’s grandmother who was the only home as the parents of the Victim were not present as they had taken their daughter to the hospital. Although the grandmother accepted the apology the Victim’s father did not accept the apology. 
23.	The Pre-sentence report says that you told the officer who interviewed you that you watched an adult movie with your older sister and her husband in the afternoon of the same day. It was what you watched that you acted upon which as a result you are now before this court. 
24.	This matter was taken before the village council and the council has temporarily banished you and your family. The village council has a very important role to play in maintaining peace and harmony within the village. They have sanctions against people who committed offences against other people within the village or those people that will bring disrepute to the village. I very rarely agree with village council decision on banishment but in light of the circumstances of the offence committed, is one of serious sexual nature against the female gender of a very young age. 

25.	The banishment upon you (and your family) means that you live away from your home and village. This will allow the Victim time to heal physically and mentally. I truly hope that this young victim’s age will be a great asset to the healing process and that she will heal completely both physically and mentally and will not remember any of this when she grows up. 
26.	The Pre-sentence report because of your very young age recommends probationary supervision with special conditions of counselling and spiritual guidance.
27.	The recommendation by Probation is consistent with principles of the Young Offenders Act 2007 of rehabilitation and reintegration into the community. 
THE YOUNG OFFENDER
28.	Other than an early guilty plea there are no other mitigating factors.
29.	There are, however a number of mitigating features about you personally that I take into account when deciding what sentence to impose.
30.	This charge is your first encounter with the Youth Court and it is not the usual offence that most of our young people come in contact with the law. This is a very serious offence that you are charged with.  
31.	You are only 10 years old and 11 months at the time of the offence.  That is a very important consideration.  You are at a critical point of development and youth is relevant in assessing the consequences of conviction. 
32.	The Probation Officer who prepared the report says that you felt remorse, and you know that what you had done is wrong. I believe that because of your age you have not fully understand the extent of what you had done and the long term impact it would have on the young victim for the rest of her life.  Your father still stands in support of you regardless of what you have done. That is what a parent or parents should do, is to support their children no matter what. I know they are trying to understand and even come to terms with what you did. Your father is asking for a second chance for you to allow him to continue his fatherly duties and to assist with your rehabilitation from this offence that you have committed. 
33.	You and your parents are banished and now living away from your home and village. You will continue to live and stay away from your village and home until such time as is reasonable for you to return. Your living away from home will in some way help the Victim to forget what had happened to her and I hope that she will be able to once again be the young girl she was before this happened and that she will be able to put all this behind her, however difficult that will be.

LEGAL PRINCIPLES
34.	The preamble to The Young Offenders Act 2007 states that it is 'to provide a criminal justice system for Young Persons, their treatment by the Courts, and related purposes.'
35.	As to the jurisdiction of the Youth Court, s.5 states that:
(1)	Subject to subsection (3), any criminal charge brought against a Young Person shall be laid in the Youth Court and the hearing of each charge will be subject to the provisions of this Act.
(2)	Any Young Person who is charged with a criminal offence must be dealt with in accordance with the provisions of this Act.
(3)	A charge of murder against a Young Person shall be laid in the Supreme Court and dealt with by the Supreme Court.'
36.	Part V of the Act deals specifically with sentencing.  Section 15 gives sentencing options without entering a conviction, and section 16 sentencing options when the Court has determined pursuant to either section 15(2) or (3) that a conviction is warranted.
37.	Of relevance in this case is s.15(3) which states that:
'Where the Court is of the opinion that a conviction and sentence is required in the interests of justice after having given due consideration to all the circumstances of the offence it may convict and sentence the Young Person in accordance with section 16.'
38.	Worth noting is the fact that all of the sentencing options in s.16 are disjunctive, that is, either the court convict and discharge or impose a suspended sentence or impose a fine or community work or supervision or  imprisonment. In other words they cannot be combined.  That is unhelpful in my view.  A sentence of supervision or community work might very well be insufficient on their own, but combined will be an appropriate sentence.
39.	The most punitive option under The Young Offenders Act can be found in s.16(f):
'Impose a term of imprisonment, to be served in a youth residential facility or if such a facility is not available a prison, provided however, the Court must only impose a custodial sentence as a last resort and in circumstances where there is no reasonable alternative.'
40.	The Community Justice Act 2008 is:
'An Act to promote criminal justice by the provision of a community based justice system that foster community based sentencing options and the rehabilitation and reintegration of offenders.'

42	Under s.5 of that Act:
'Where an offender is convicted of an offence punishable by imprisonment the Court must have regard to the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.'
41.	Of course that aligns with the philosophy which underpins The Young Offenders Act.  
42.	Although under the Community Justice Act s.12(c) provides for post release conditions to be imposed for up to 12 months on a sentence of imprisonment less than 2 years, I do not consider that possible (although desirable) in the Youth Court because of s.5 (2) of The Young Offenders Act which makes it clear that any Young Person who is charged with a criminal offence must be dealt with 'in accordance with the provisions of this Act.'  Furthermore, s.16 (f) makes no provision for post release conditions to be imposed.
43.	Having dealt with a number of sexual offence cases of late, it is now apparent that some amendments to the Young Offenders Act are necessary to allow the Youth Court to better respond to serious offending, which was not anticipated when the Act first came into force.
SENTENCING
44.	You must stand up and be counted for your offending.  What you did was wrong.  You know that.  The Victim of your offending is very young.  The impact on her must be taken into account.  Because of your age I am searching for the least restrictive outcome that is appropriate in the circumstances.  Make no mistake though, you will be punished for your offending but on the other side of the coin is the need for you to know and accept that what you did was wrong and is not acceptable. You cannot continue on not knowing the impact and effect your actions now has on this young Victim for the rest of her life.   
45.	Your age is highly relevant to assessing culpability. In Puwhare v R, CA 227/10, 2 July 2010 Justice Winkelman in sentencing a young offender made the following observation:
“It was accepted that the adolescent brain is far from fully developed and consequently, teenagers have impaired decision-making and a tendency to impulsive conduct. Adolescents are also particularly subject to peer pressure. Science now confirms “… what any parent could tell us about the behaviour of teenagers in their household”.
46.	You will be the youngest to appear in this court with such very serious offending.

47.	Key v Police [2013] WSCA 3 a decision from the Court of Appeal is a tariff case on sexual violations but the point of difference and a crucial one is that the matter before the court involves a young person. The principles and purposes of sentencing of young offenders in the Youth Court especially set up for young persons’ must be first and foremost considered. 
48.	The offending in this case is one of the worst committed by a young person. The degree of violation as correctly put it by the Prosecution in their Memorandum of Sentencing “exceeds imagination”. Your Counsel found it difficult to plea on your behalf given the severity of the injuries sustained and the very young age of the victim.
49.	I agree that this offending is prevalent amongst the young males and is increasing. This sort of offending by the young males upon young females has become of a shock given our culture and the way we are brought up as Samoans in a strict traditional way with cultural values. When this happens the finger is pointed to the parents of the offender and the family environment he is growing up in. It questions the integrity and values of parenting within Samoan families.
50.	It is more surprising that the young people committing these sexual offences reside in the villages with their families where one presumes that the traditional way and culture have more impact and influence in the upbringing as opposed to the young people living in the urban areas who are more exposed to outside influence.  But then of course technology has infiltrated our society urban or rural.  
51.	In the circumstances of this case I must impose a sentence that will send a message to the young people and their families that they cannot commit this sort of offending and get away with it. I must also at the same time keep in mind the need for rehabilitation of this young person and his reintegration back to society.
52.	I am also mindful of the rights of young people under the United Nations Convention on the Rights of the Child. The rights of the young people to have their need for rehabilitation and reintegration respected through the criminal justice system.
53.	I must take into account the seriousness of the offending, the premeditation involved and the very young age of the Victim. This case is more severe than the case of P v TF (unreported 24/4/14). 
54.	The seriousness of this offending and the limited options provided for under the Young Offenders Act I consider that there is no reasonable alternative but a custodial sentence under section 16(1)(f). 

55.	Taking into account your early guilty plea and your personal circumstances which I have referred to, a minimum custodial sentence is appropriate in these circumstances. The custodial sentence will act as deterrence and for you the young person to fully realise that what you had done is very wrong. 
56.	You  are sentenced to 2 years imprisonment (less time in custody) with the following additional condition while you are serving your term:
57.	To undergo any programs available Oloamanu which should include spiritual counselling and education.

…………………………………………
          Judge Mata Keli Tuatagaloa