THE YOUTH COURT OF SAMOA
Police v I.I [2014] WSYC 5

Case name: 	Police v I.I	
		
Citation: 	[2014] WSYC 5	
		
Decision date: 	05 November 2014	
		
Parties: 	Police (informant) and I.I, male of Vaimoso (young person) 	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Youth Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Tafaoimalo Leilani Tuala-Warren	
		
On appeal from:		
		
Order:	I convict and sentence you to two (2) years supervision with the following special conditions;
a)	To stay away from Vaiusu where the Victim resides and the victim herself;
b)	To continue to attend school;
c)	To abide by a curfew from 6pm – 6am seven days a week, unless in the company of a parent or a person over 25 years approved by a parent;
d)	To attend Sunday school and other church youth activities;
e)	To not have access to a cell phone; 
f)	To attend the youth counselling programme with Samoa Victim Support Group; and
g)	Complete 200 hours of community service.	
		
Representation: 	Ms Brigitta Faafiti-Lo Tam for Informant
Ms Leinafo Taimalelagi for Young Person	
		
Catchwords: 	Sexual connection – child (victim) under 12 years of age – 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s 58(1)
Young Offenders Act 2007 s 6(4); s13; s 16; 16(1)(e)`

Cases cited:	Key v Police [2013] WSCA 3
Police v TF [2014] WSDC 1

Summary of decision:		

NB:  ANY REPORTING OR PUBLICATION OF THESE PROCEEDINGS IS SUBJECT TO SECTION 8 OF THE YOUNG OFFENDERS ACT 2007

IN THE YOUTH COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P  O  L  I  C  E
Informant

AND:

I.I of Vaimoso
Young Person

Counsels:	
Ms Brigitta Faafiti-Lo Tam for Informant
Ms Leinafo Taimalelagi for Young Person

Date:	5 November 2014
SENTENCE BY JUDGE TUALA-WARREN
CHARGES
1. 	I.I you are sentenced today in the Youth Court on one charge of sexual connection with a child under 12 years old pursuant to section 58(1) of the Crimes Act 2013. It carries a maximum penalty of life imprisonment.
2. 	You are in the Youth Court because you are 14 years old. 
FACTS
3. 	On Saturday 28 March 2015, the victim was visiting her grandparents with whom you live, at Vaimoso. You are first cousins with the victim and share the same paternal grandparents.  
4. 	At about 11pm that night, you were sleeping in the same room with the victim, her younger sister, and another female cousin. Whilst the victim was asleep face down, you pulled down her shorts, removed your lower clothing and straddled her bottom. You put your penis into her anus. The victim woke up because she felt pain in her anus. She stood up and ran out of the house. The victim told her uncle what you had done. 
VICTIM
5. 	The Victim is 10 years old and your first cousin. Your fathers are brothers.
6. 	She goes to Vaigaga Primary School and is in Year 6.
7. 	In the Victim Impact Report (VIR), the victim explained that her bottom had hurt at the time of the incident. 
8. 	The VIR also says that the mother of the victim has seen a change in her daughter in that she has become more outspoken and cheeky whereas she was quiet and passive before. No doubt the victim has been severely traumatised and is suffering psychologically since the incident. This is why she says in the VIR that she does not wish to think about the incident and in effect has blocked it out of her mind.
9. 	The victim has not returned to her father’s family at Vaimoso since the incident. This means that she is not able to visit her grandparents.
10. 	Fortunately the victim’s school has not suffered as a result of this incident.
11. 	You and your parents went to the Vaiusu-Uta where the victim lives with her mother’s family and apologised. The victim’s mother said that the apology was accepted.
PRE-SENTENCE REPORT
12. 	The Pre-Sentence Report says that your families reconciled before coming to the meeting. During the meeting, you apologised to your uncle who is the victim’s father. Your parents also apologised again to the victim’s parents.
13. 	The victim’s parents whilst accepting of the apology, have asked that you stay away from Vaiusu where the victim resides and that you live with your parents under their supervision.
14. 	Of grave concern to the Court is the part played by pornography accessible on cell phones in this offending.  This is not the first time young offenders have appeared before the Youth Court for sexual offences preceded by seeing pornography on cell phones. You have said that it was these images that you saw on a cell phone that caused you to do this to your cousin. This is of concern to the Court because research has shown that in relation to adolescent brain development, those parts of the brain for exercising judgment, impulse control and self-regulation are still maturing throughout adolescence, probably into the mid-20s for boys. (Brainwave, Issue 15, Winter 2012).
15. 	This is a cause of many sexual offences in the Youth Court and the availability and accessibility of pornography through cell phones needs to be considered and addressed by the Legislature. There would be much benefit in an awareness campaign in villages as I suspect many parents would be unaware.
16. 	Probation has recommended a sentence of community work with special conditions.
LEGAL PRINCIPLES
17. 	There are several legal principles which I take into account when considering an appropriate sentence for you.
Key v Police [2013] WSCA 3
18. 	The case before us is a case of penile penetration of the anus. The starting point therefore must be consideration of the sentencing bands in the Court of Appeal case of Key v Police. That case prescribes guidelines for sentencing for rape. It expressly does not address other types of sexual offending. However the Supreme Court has applied those guidelines to sexual connection involving penetration where the victim is under 12 years old (i.e. same maximum penalty as rape). The Supreme Court has expressly not considered itself bound by Peti Key guidelines for non-penetrative sexual connection.
19. 	Prosecution submits that this offending falls within sentencing band one which is appropriate where the offending is at the lower end and where there is absence of aggravating features or their presence is very limited.
20. 	I find it aggravating that the victim is like your sister. She was with your family for the weekend to visit her grandparents. What you did to her is an extreme breach of trust on your part. I agree with Judge Tuatagaloa in Police v TF [2014] WSDC 1, when she says, “This offence goes to the core of Samoan culture. It is a gross breach of trust of the sacred covenant between a brother and sister or male to female”.
21. 	I do not agree that this offence was premeditated in that it took some degree of planning. It was simply opportunistic.
22. 	In saying that, this is serious offending by its very nature. The victim is extremely young and vulnerable and the high penalty which attaches to this type of offending speaks volumes about the deplorable nature of these sexual offences.
23. 	I agree that this offending does fall at the lower end of the scale because of the limited presence of aggravating features. I accept that given that assessment, the sentencing range is 8-10 years imprisonment.  
24. 	However, it was recognised by the Court of Appeal in Peti Key that there will be cases that fall outside the guidelines and that if a Judge departs from the guidelines, it will be an exceptional case and clear reasons should be given for such a departure. (see para 33)
25. 	This is one of those cases given the age of the offender and the purposes and principles of sentencing young offenders.
26. 	I now turn my mind to the Young Offenders Act 2007 and the Convention on the Rights of the Child.
Young Offenders Act 2007(YOA)
27. 	The YOA provides a criminal justice system for young persons and their treatment by the Courts. The key underlying feature of such treatment is the focus on rehabilitation and keeping them out of custody where there is a reasonable alternative. The Act applies specifically to young persons over ten (10) years old and under seventeen (17) years old.
28. 	The Court must after a guilty plea by a young offender, direct the Probation Service to arrange a pre-sentence meeting (s6(4)). One of the principles to consider at that meeting is putting in place a plan for rehabilitation of the young person (section 13).
29. 	Section 16 of YOA directs the Court to impose imprisonment only as a last resort and in circumstances where there is no reasonable alternative.
30. 	The YOA reflects the spirit of reintegration and rehabilitation of a child offender contained in the Convention on the Rights of a Child.
Convention on the Rights of the Child (CRC)
31. 	Article 40 of this Convention which Samoa has ratified promotes the reintegration of a child who has infringed the law back into society and the promotion of that child assuming a constructive role in society. The age of that child should be taken into account and balanced at all times with the reinforcement of that child’s respect for the human rights of others.  I take this Convention into account.  
Police v TF [2014] WSDC 1
32. 	The Youth Court case of Police v TF is not dissimilar to the case before us now.  The young offender was also 14 years old and was sentenced on three charges, two of sexual connection and one of indecent assault. The victim in that case was also under 12 years old, being 6 years old. The young offender and the victim were also cousins and the incident took place at the victim’s home when the young offender took the victim into one of the room during toonai.
33. 	Her Honour Judge Tuatagaloa placed emphasis on the importance of rehabilitation and reintegration of the young offender into both his development as a young person and the community. She was persuaded to give him a second chance due to his age, lack of previous convictions or violent behaviour, lack of continuing threat to the community and determination to complete his education. The young offender was sentenced to two years probation with additional conditions.  
THE YOUNG OFFENDER
34. 	I do not find any mitigating features of this particular offending. 
35. 	This is your first offence. I regard that at best a neutral feature given your age. You should not be offending at 14 years old in any event. You should be in school concentrating on school work.
36. 	I do however find a number of mitigating features personal to you that I take into account.  
37. 	Your age is a significant mitigating factor. As mentioned previously, your brain developmental stage is nowhere near that of an adult who is able to understand the severity of this offending as well as the consequences.
38. 	You have apologised and so have your parents. This apology has been accepted by the victim’s parents. Your apology shows your remorse for what you have done. I accept that you are remorseful and regretful of what you have done to the victim. In the pre-sentence report, it says that you accept what you did was wrong and you are deeply remorseful. 
39. 	You attend the School of Fine Arts. This is important as it will secure a good future for you if you persevere. Your time will also be spent usefully if you are at school. I see that you are a promising rugby player from the pre-sentence report, having won an award for your sporting ability on the rugby field. You are keen to complete school and find a job to help your family.
40. 	You have the support of your parents which is critical as they believe in you and have said that they will guide you and supervise you to ensure that you will not reoffend and will continue to attend school. A support structure should be robust for young person’s as they are less able to exercise self-control and self-regulation. No doubt for your parents, this has been a shameful incident for which they are extremely embarrassed and remorseful. 
41. 	As a final step, your guilty plea is also considered. This shows acceptance on your part for what you have done and has saved the victim from having to give evidence about a traumatic event.
SENTENCING
42. 	Probation recommends that you be sentenced to community work. Probation says that both your parents and the victim’s parents feel that this is an appropriate sentence for you.
43. 	Probation’s recommendation is espoused by the legal principles which I have canvassed. 
44. 	Although the offending falls within sentencing band one of Key v Police, I take into account all the mitigating factors in your favour, in particular your age. If you were an adult offender, even taking into account the matters of mitigation, a sentence of imprisonment would have been appropriate.
45. 	However given your age and in all the circumstances, there is a reasonable alternative sentence which makes imprisonment inappropriate. A community based sentence will focus on your rehabilitation and making you a constructive member of society. I do not find that you pose a continuing risk to the community. With the proper guidance and supervision, I accept that your reintegration into society as a constructive member of society can be achieved. 
46. 	My sentence of you promotes and supports the purposes of the Young Offenders Act and Convention on the Rights of the Child.
47. 	I am satisfied that the whole process of arrest and being brought before the Court, including your apology, will, together with  this sentence, deter you from further offending of a similar nature. It will also hold you accountable for what you have done. 
48. 	Because of the seriousness of the offence, I find that a conviction is required in the interests of justice. Therefore under section 16(1)(e) YOA, I convict and sentence you to two (2) years supervision with the following special conditions;
a)	To stay away from Vaiusu where the Victim resides and the victim herself;
b)	To continue to attend school;
c)	To abide by a curfew from 6pm – 6am seven days a week, unless in the company of a parent or a person over 25 years approved by a parent;
d)	To attend Sunday school and other church youth activities;
e)	To not have access to a cell phone; 
f)	To attend the youth counseling programme with Samoa Victim Support Group; and
g)	Complete 200 hours of community service.
49. 	I urge you to use this opportunity which the Court has given to devote yourself to your schooling as well as your rugby. Do not take this sentence lightly. Whilst this sentence allows you to remain in society and undergo rehabilitation, any further re-offending by you of a similar nature will most certainly call for a response by the Youth Court of an imprisonment term.

…………………………………
Judge Tafaoimalo Leilani Tuala-Warren