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Police v FST [2016] WSYC 5 (18 August 2016)

YOUTH COURT OF SAMOA
Police v FST [2016] WSYC 5

IN THE YOUTH COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

FST, male of Saanapu
Young Person

Counsel:
Ms. F. Ioane for National Prosecution Office
Ms H. Wallwork for Young Person

Sentence: 18 August 2016

SENTENCE BY JUDGE ROMA

Charges

1. FST, you appear for sentence on 2 charges of having sexual connection with a girl under 12 years (s 58(1) Crimes Act 2013). Both carry a maximum penalty of life imprisonment.
2. To both charges, you pleaded guilty on 9 June 2016.

Offending

3. Your offending involved 2 victims who are both your younger sisters. The incidents from which the charges arise occurred between 31 March and 1 May 2014.
4. On the first incident, you were home alone with the first victim. You called her to come to the side of the house where you were. You told her to remove her shorts which she did. You then laid her on the floor and rubbed your penis on her vagina. She told you to stop which you did, before she put her shorts back on and left.
5. In respect of the second incident, the second victim was eating at home in the afternoon having just arrived from school. You called her out to go with you inside the toilet. She refused but you pulled her hand inside, removed her shorts, told her to lie on the floor before you placed your penis on her buttocks. Like the first victim, she felt uncomfortable, got up and put her shorts back on, went outside the toilet and inside the house.

Victims

6. Both victims are your younger sisters. At the time of your offending, they were living with you, your parents and family at Saanapu.
7. The first victim and younger of the two, says in her victim impact report that she is very saddened by what you did to her. You are her brother and she looked up to you. Although one incident she says you should never have done what you did to her.
8. She relays that the incident caused tension within your family and if it was not for one of your aunties who reported it, it would never have come to light.
9. The second victim and older of the two shares the same terrible experience. She says that she was scared and angry when you did what you did to her, especially because she knows that you knew what you did was wrong. It saddens her more that you did the same thing to your younger sister.
10. Both have since been removed from home to be under the care of Samoa Victim Support Group. Whilst grateful for the help and support of SVSG, they say that they both miss home.
11. Both victims also relay that you were in tears and had apologised to them one day outside Court after this matter was called.
12. But a formal pre sentence meeting also took place in which you, your sister victims, your parents, a SVSG representative and a representative of Probation were all present. The report I have of that meeting says that you again apologised, and that your sisters have forgiven you.

Accused

13. You are now 16 years of age. At the time of the offending, you were 14 years. You are the 4^thchild of 8 siblings. You stopped going to school at Year 9 level. You have since been staying home.

Aggravating features of your offending

14. The following are aggravating features of your offending:
    • (i) Planning and premeditation - On both occasions, you waited for the victims to be alone and most vulnerable before you approached them;
    • (ii) There were 2 victims of your offending. They were of very young age and therefore most vulnerable;
    • (iii) Your relationship to the victims and breach of trust - The 2 victims are your younger sisters. As their older brother, you should have been protecting them, and they should have been safe with and around you. Instead, you breached their trust in a most disgusting way;
    • (iv) Impact on victims – Apart from what they mention in the victim impact reports, I have no doubt that what you did will have a lasting impact on them, physically and psychologically;

Mitigating features of your offending

15. Without suggesting that what you did to your 2 sister victims were any less serious, I am of the view that there have been far worse cases that have come before the Courts. According to the summary, your offending involved rubbing your penis on the first victim’s vagina, and placing it on the second victim’s buttocks. You stopped when told by the first victim, and you let go of the second victim when she stood up and left.

Aggravating factors relating to you as an Offender

16. There are none.

Mitigating factors relating to you as an Offender

17. The following are mitigating factors relating to you as an offender:
    • (i) Guilty Pleas to both charges – Apart from acknowledging responsibility for your actions, your pleas have also spared the need for your sisters to relive their experiences by giving evidence in Court;
    • (ii) Your apology to both your sister victims and your parents;
    • (iii) Your family was also heavily punished by your village;
    • (iv) Personal circumstances – You were 14 years of age at the time of the offending. Your offending led to a breakdown of your family, if it had not already been the case. You are also a first offender. I also bear in mind that you have suffered shame and been the subject of ridicule as a result of your offending.

Sentencing Guidelines

18. I consider relevant in your sentencing the purposes and principles of accountability, denunciation and deterrence.
19. I must also take into account the gravity of your offending; the seriousness of the charges and your circumstances as an offender.
20. I am also guided by the Young Offenders Act 2007, in particular sections 15 and 16. Along with the Community Justice Act 2008, their emphasis is on the rehabilitation and reintegration of young offenders into the community.

Defence Submissions

21. Your Counsel says that this is a very sad case. It involves a young boy in you, 14 years at the time of offending and 2 young victims, who are both your sisters. Sadly, the silly mistakes of a stupid boy, she says, will have a terribly lasting impact on his young sisters including the breakdown of your family unit.
22. Counsel pleads for this Court not to punish you for being adventurously stupid but help you. She says that you have suffered already having been removed from your own family, your family was heavily punished by the village, and you were publically humiliated when your offending came to light and these matters ended up in Court.
23. Counsel submits that the Court must now consider rehabilitation.

Prosecution Submissions

24. Prosecution agrees that the focus should be on rehabilitation and reintegration and adds that it should heavily involve your parents.
25. Referring to previous cases, they recommend a non custodial 2 years supervision term with conditions.

Discussion

26. But the important question I must consider in accordance with section 15 of the Young Offenders Act 2007 is whether the interests of justice require that you be convicted of the charges.
27. I notice the recent increase in similar offending involving young offenders like you and in most cases, technology and ready access to mobile phones and internet have been cited as a contributing factor. The lack of proper guidance in the family by parents and elders in my view is also significant.
28. Whatever the causes, this Court is very saddened by and expresses great concern at its prevalence.
29. Coming back to your case, I have carefully considered your matter. Make no mistake FST, these are very serious charges. They attract a maximum life imprisonment penalty for each charge. On each occasion, you put one of your younger sisters through an undoubtedly terrible experience, and one which no young girl their age must go through.
30. But I have also considered the circumstances of your offending, your manner charged, your age at the time of offending and the consequences on you and your family thus far. You have suffered shame and insult for your actions, and your guilt I am sure will weigh heavily on your mind for a long time.
31. You no longer attend school and nothing before me indicates what you intend to do, at least in the near future. But I am of the view that to enter convictions against your name for the type of offending that you have been charged with, and involving your young sisters as victims, would taint your prospects of successful rehabilitation and reintegration into the community as is primary consideration for sentencing under the Young Offenders Act 2007 and Community Justice Act 2008.
32. For those reasons, I am satisfied that at this stage, the interests of justice do not require your conviction of the charges.

Decision

33. You are ordered under section 15(1)(b) Young Offenders Act 2007 to complete 100 hours community work within 6 months with conditions:
    • (i) You live with your aunt at Vailoa Faleata;
    • (ii) You attend church and its Sunday school or youth programmes;
    • (iii) You abide by a curfew of 7pm to 6am;
    • (iv) You attend the Youth Development Programme with the Samoa Victim Support Group;
    • (v) Others that the Probation Service may see appropriate and impose.
34. You are to appear again in this Court for judicial monitoring on 17 November 2016 at 12.30pm.
35. FST, before I stand you down, I want you to know that this was not an easy decision for me. But in the end and through the sentence I have just imposed, I decided to give you another chance. You must grab that chance and make good use of it.
36. You cannot change what has happened. But you can definitely learn from your mistakes and become a better person. You must do exactly that, because if you do not, and fail to comply with the conditions of sentence or come back for a similar matter, I will not be as lenient.

JUDGE FEPULEAI A ROMA