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Police v MO [2015] WSYC 9 (11 August 2015)

YOUTH COURT OF SAMOA
Police v MO [2015] WSYC 9

YOUTH COURT OF SAMOA
HELD AT MULINUU:

BETWEEN:

P O L I C E
Informant

AND:

MO, male of Sapulu, Faleasiu.
Young Person

Counsel:
B. Lo Tam – Faafiti for Prosecution
D. Kerslake for Young Person

Sentencing: 11 August 2015

SENTENCING REMARKS BY JUDGE ROMA

Charge

1. MO, you appear this morning for sentence on one (1) charge of having sexual connection with a child under the age of twelve (12) years, contrary to sections 50 and 58(1) of the Crimes Act 2013. The maximum penalty for this offence is one of life imprisonment.
2. Your appearance this afternoon follows the Court granting your application on 3 June 2015, to vacate your not guilty plea and enter a guilty plea to the charge, and this Court’s oral findings on a hearing of disputed parts of the prosecution’s Summary of Facts on 17 July 2015.

Offending

3. The circumstances of your offending are such that on 1 April 2015, in the afternoon, at Sapulu Faleasiu, the victim, who was then 11 years of age, was outside her home helping her mother in their garden. At about 6pm, her mother went inside the house to wash up whilst the victim remained playing outside.
4. You live nearby and were on the road walking past the victim’s house. You saw the victim and called out to her to come over. She came over to where you were and you led her into a nearby long grass area. You told the victim that you wanted to kiss her and proceeded to not only kiss but also touched her vagina with your index finger.
5. At the time, the victim’s mother had noticed that her daughter was no longer outside their house. She walked up the road towards your house and started calling out her daughter’s name.
6. Hearing her mother’s calls, you told the victim not to answer or make noises in case she would find you. Shortly after her mother had gone back, you allowed the victim to return to her house through an inland route.

Victim

7. The victim was 13 days away from her 12^th birthday and attending Faleasiu Primary School at the time of your offending.
8. The Victim Impact Report states that she was scared and felt pain when you touched her private part. According to her mother, there were bloodstains on the victim’s undergarment, she was feverish on the night and was given panadol. She was unable to attend school the following day.
9. In response to questions from the Court, the victim’s mother says that all this was relayed to the Police. The Summary of Facts however makes no mention of this important detail, and neither is there a medical report to support this statement in the Victim Impact Report.
10. According to the pre sentence report, the victim’s parents are deeply concerned about their daughter, and so they should be. She is withdrawn and embarrassed, having become the subject of ridicule from their neighbours and her school as a result of what you did to her. The fact that their daughter moved to be under the care of Samoa Victim Support Group after the incident, at least gave her time to try and heal and forget the terrible things you did to her.
11. I am now informed by her mother that she is now back at home and attending school.

12. The prosecution says that there was no reconciliation. There is however, in the victim impact report, confirmation that your parents apologised to the victim’s parents after the incident. Your pre sentence report also confirms the family group conference between you, your parents and the victim’s parents. It was the first opportunity for you to address the victim’s parents and you personally apologised for your actions.

Aggravating Factors

13. This is a very serious offence and aside from the nature of your offending and the impact on the victim, you need only look at the life imprisonment penalty imposed by law to realise how very serious it is.
14. The impact of your actions on the victim is a significant aggravating factor. The fact that you violated her physically is an important consideration and so will the emotional and psychological impact your actions will undoubtedly have on her for a long time.
15. I also consider the victim’s young age to be an aggravating factor.
16. Whilst I did ‘not’ find as fact that the victim told you to stop and that you covered her mouth when her mother called out for her, I am of the view that you did take advantage of the fact that you knew the victim and her family. I am also of the view that the victim could not have answered her mother’s calls because she was scared of you, just as she was at the possibility of her mother finding the both of you.
17. The prevalence of this offending amongst young offenders is also relevant.

Mitigating Factors

18. In relation to the circumstances of your offending, I accept your Counsel’s submission that this was more opportunistic than a planned and premeditated act as submitted by the prosecution.
19. Compared to other cases of unlawful sexual connection, I find that your offending is at the lower end of the scale.
20. Your guilty plea, though not entered at the earliest opportunity is also a significant factor in your favour. I do not consider your guilty plea to be of any less weight for the fact that the victim was subsequently required to give evidence because in the end, I found in your favour over two significant parts of the police summary that necessitated the hearing of evidence.
21. The fact that your parents apologised to the victim’s parents on your behalf after the incident, and again most recently, when you also had the chance to personally apologise to the victim’s parents is another factor in your favour.
22. I must also take into account in mitigation of penalty your personal circumstances. From your counsel’s submissions and the pre sentence report, you were 14 years of age at the time of your offending. You are now 15 and attending Aana No. 1 College at year 9 level. You wish to continue with your schooling. You are to your School Principal, a hardworking student, and apart from the usual chores that you help out with at home, you also enjoy playing rugby. At your young age, this is the first time that you have appeared before the Courts for a criminal offence. I seriously hope that this will be the only time, and certainly for this type of offending. You have accepted full responsibility for your actions and I accept that you are remorseful.

Sentencing Principles

23. I am guided in imposing sentence in your case MO, by the Young Offenders Act 2007, particularly sections 15 and 16.
24. The approach under the above sections is helpfully set out by Her Honour Judge Tuatagaloa in Police v. BA [2014] WSDC 2. The relevant parts of that decision state as follows:

“36. Part V 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 s15(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 due consideration to all the circumstances of the offence, it may convict and sentence the young person in accordance with section 16.”

25. I must therefore firstly consider whether in all the circumstances of your case Mr Otto, the interests of justice require your conviction. If I do so find, then I may convict and sentence you in accordance with section 16 which provides for the following sentencing options:
    1. “(a) convict and discharge the young person; or
    2. (b) order the young person to come up for sentence if called upon within 12 months; or
    3. (c) impose a fine on the young person; or

4. (d) order that the young person undertake a sentence of community work; or
   5. (e) order the young person to undertake a sentence of supervision; or
   6. (f) impose a sentence of imprisonment, to be served in a youth residential facility or if such 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.”

26. Apart from the above provisions, I am also guided by previous sentences of the Youth Court in similar cases. Two of these cases, which are also cited by both the prosecution and Mr Kerslake counsel in their submissions are Police v. TF (unreported 24 April 2014) and Police v. Dano Ah Sue (unreported 20 March 2015). In both cases, the young persons were convicted and imposed non custodial sentences with conditions.
27. As far as I am aware, the only case where the Youth Court has imposed a sentence of imprisonment is Police v. BA referred to above, where the young person was imposed a sentence of 2 years imprisonment with conditions. The most significant distinctive factors from the present are the very young age of the victim in Police v. AB, and the most serious injuries that she suffered and which required extensive medical treatment. Obviously, in that case, the Court found that there was no other reasonable sentencing alternative for the young person.

Discussion

28. Having considered the seriousness of the offence, the nature of your offending, the prevalence among young persons, the impact of what you did on the young victim, and previous decisions of this Court, I am satisfied that the interests of justice warrant your conviction.
29. The only question is which sentencing option under section 16 I should impose.
30. The prosecution seeks a custodial sentence and a starting point of 8 to 10 years, which is at the lower end of Band 1 of the tariff on sexual violation cases imposed in Key v. Police [2013] WSCA 03 (28 June 2013).
31. Without going into a detailed discussion of whether Key v. Police is relevant or not in this case, I am of the view that the most crucial differences to the present matter are (1) Key is a case of unlawful sexual connection by rape and involving penile penetration (2) Key is not a young offender (3) the Young Offenders Act 2007 is the legislative basis to determine sentences on all young offenders and (4) the methodology developed R v. AM [2010] NZCA 114 and adopted by the Court of Appeal in Key is in respect of sentences of imprisonment and is only of assistance in determining how long such sentences should be.
32. The prosecution also relies on the Youth Court’s sentence in Police v. BA. I find however the circumstances of that case and your case MO very contrasting as referred to in paragraph 27 of this decision.
33. Your Counsel Mr Kerslake on the other hand pleads for leniency in terms of a non custodial sentence, similar to those imposed in Police v. TF and Police v. Dano Ah Sue as referred to in paragraph 23 above.
34. Taking into account your guilty plea, the apology you rendered to the victim’s parents and your personal circumstances, including the fact that you want to continue with your schooling, and bearing in mind the underlying purposes for sentencing under the Community Justice Act 2008 and the Young Offenders Act 2007 I am of the view that a custodial sentence will not be appropriate.
35. The sentence must nevertheless reflect the seriousness of the offence and the need for you to rehabilitate and reintegrate into the community.

Sentence

36. You are convicted and sentenced to 12 months supervision with the following conditions:
    7. That you live at Manono with your maternal grandparents and away from the victim until this matter is revisited by this Court;
    8. That you continue to attend school;
    9. That you must not have any contact with the victim;
    10. That you attend your Church’s Sunday School and / or Youth Group at Manono;
    11. That you undergo spiritual counseling with Rev. Opapo Soanai at Falelatai. The Probation Service will arrange with Rev. Opapo Soanai and obtain reports as the Court may require;
    12. That you appear before this Court on 11 November 2015 at 12pm for judicial monitoring.

JUDGE FEPULEA’I A ROMA