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Police v Wright [2003] WSSC 30 (3 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

GARY WRIGHT,
male of Australia
Defendant

Counsel: Mr R. Schuster for prosecution
Mr H. Schuster for the defendant

Hearing: 23 September 2003
Sentencing: 03 October 2003

SENTENCING REMARKS OF VAAI J

You now appear for sentence on this serious and very common offence of indecent assault which you are liable to seven (7) years imprisonment.

On the afternoon on the 6^th of September, you went to the restaurant where the victim was working. Although there is a conflict in evidence as to what actually transpired between yourself and the victim in that restaurant, it is not disputed that it was agreed at the restaurant that you and the victim will spend the night on your yacht, which means therefore that you informed the victim that you had a yacht at the harbour. It is also not disputed that you told the victim to meet you on the steps leading to the sea outside Aggie Grey’s Hotel at 9 o’clock that night. It is also not disputed that you did meet on those steps and you both rowed out to the yacht that night. It is also not disputed that while you were on the yacht you showed a blue movie which the victim did watch on the yacht. It is also not disputed that you turned off that movie as the police boat approached the yacht in the evening.

Now the aggravating features of this offence are firstly in view the young age of the victim. And that before embarking on your indecent act for which I convicted you, you displayed a blue movie which I consider as a calculated fore play on your part to sexually arouse the victim.

The fact that the victim may have consented to or was precocious in some aspects on the night in question does not in my view go in your favour.

Little boys like this victim need protecting from himself. There is also the comment by the probation report on the impact of your offending on the victim, and I quote from the report:

"I interviewed the victim Robert Chang Tong about how he feels since what happened. I could see a young boy who is very much traumatized by the incident. He was nervous and he could not talk much because he tried and hide his face most of the times. He however told me that he has been very ashamed because his young friends and those who know him are starting to call him Gary instead of Robert. Others have been asking a lot of questions and he feels terrible and sad."

As a result of your not guilty plea, this victim has to give evidence and had to re-live the events of the night on the yacht.

In your favour I take into account what your counsel has told the court and what is set out in the probation report which sets out your life history. I note you have been spending some part of your life in helping young people in different parts of the world. I accept that this is your first offence.

The court must however consider the sentence appropriate in the context of your offending. This country has as counsel for the prosecution has told the court is a signatory to the convention for the protection of young children from sexual and other forms of abuses. We comply and adhere to the principles of that convention.

The purpose of the sentence that I intend to impose is to deter and to reflect the seriousness of the offence and to remind similar minded people like you both here in Samoa and visitors to this country that we condemn sexual violation of our young people. So that those who offend and sexually abuse our young people should be dealt with severely to convey societies condemnation and denunciation of such act.

For this offence you are sentenced to two (2) years and nine (9) months imprisonment.

JUSTICE VAAI

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

GARY WRIGHT,
male of Australia
Defendant

Counsel: Mr R. Schuster for prosecution
Mr H. Schuster for the defendant

Hearing: 23 September 2003
Ruling:

RULING OF VAAI J

The accused is a 49-year-old Australian, single, travelled to Samoa in his yacht. He is charged that on the 6^th day of September 2003 he indecently assaulted a boy under the age of 16 years. It is alleged that the crime was committed in the evening on board the accused’s yacht moored at the Apia harbour. The alleged complainant (victim) is a young boy of 15 years who left school in 2002 and has since been assisting with the family restaurant at Togafuafua.

The Complainant’s Age

Before dealing with the allegation of indecent assault I shall first resolve the issue concerning the age of the complainant. The complainant is described in the information as Robert Chang Tong whereas the birth certificate produced is for one Oka Ezra. Oka Chang Tong, the uncle and guardian of the complainant has given the court the explanation which I accept in full and which the defence did not seriously challenge. When the complainant was born his natural parents were living with Mr and Mrs Oka Chang Tong and the complainant was named Oka Ezra. The natural father then migrated to the United States of America and when the complainant was 1½ years old the natural mother moved to join the father in the USA leaving the complainant with Mr and Mrs Chang Tong who changed the complainant’s name (not legally) to Robert Chang Tong. At the time of the alleged offence the complainant was still living with Mr and Mrs Chang Tong. As a result of my findings I have no difficulty in concluding that the person described in the information as Robert Chang Tong is one and the same person named in the birth certificate as Oka, Ezra born on the 25^th October 1987.

The Complainant’s Allegation

The complainant was working in the family restaurant in the late afternoon of the 6^th September when the accused came at about 6pm for a meal. While the complainant was going about doing his chores the accused was drinking beer bought from a nearby shop and from time to time the accused asked several questions of the complainant after the accused introduced himself as Gary and inquired as to the food available and their prices. He said the accused asked him for his age and he told the accused he was 16. He was also asked if he wanted to go round the world but the complainant did not reply. And when the accused asked him if he wanted to go to Australia the complainant again did not respond. Similarly when the accused told the complainant they would go to the boat the complainant again did not respond.

Later that evening when he again talked to the accused he was told by the accused that they will leave for the yacht between 8 and 8.30 and the accused gave him $20 for the taxi to Aggies hotel where they will meet on the steps leading to the sea.

Mr Chang Tong whom the complainant referred to as his father arrived with his two young daughters and Mr Chang Tong talked with the accused. At about 8.30 the accused left the restaurant and shortly thereafter the complainant packed some clothes into a bag and went to Aggies by taxi where he met up with the accused and proceeded to the yacht by dinghy. Upon arrival on the yacht the complainant was shown around the yacht; he was given a glass of soft drink and he was told by the accused that they were both sleeping on the yacht. The accused was drinking spirits and the complainant said the accused asked him if he wanted his glass of drink mixed which he understood to be an alcoholic drink. He was told by the accused they will travel to Savaii for 2 weeks, then to Fiji for two weeks before travelling round the world.

The accused then went into his room and called the complainant to come to the room. He went in and sat on the bed while the accused was sitting on a chair and they both watched a movie on a TV screen. When asked what move they were watching the complainant responded it was a movie of girls without clothes; girls were doing stupid things, they were fucking. During the course of watching the movie the accused left his chair and moved to the bed, told the complainant to lie down, asked the complainant if the complainant knew how to fufu, then the accused proceeded to undress himself, then he pulled down the complainant’s pants and sucked the complainants penis while at the same time he was himself masturbating. The complainant said he ejaculated and it was about that time that he heard the police and the accused turned off the movie and the light in the room and the accused told the complainant to go to the police.

Under cross examinations the complainant denied telling the accused in the restaurant that both his real parents were dead, he denied asking the accused to let him see and sleep on the yacht, he denied telling the accused he had no family and no where to sleep; in fact the complainant denied any suggestions that he wanted to run away from home and he denied he was pushing and persuading the accused to take him out of Samoa.

The Evidence of the Accused

The accused was brought ashore the same night, interviewed at the Apia Police station where he gave a written statement. He also testified. He admitted meeting the complainant at the restaurant on the evening of the 6^th September; it was his last night in Apia and scheduled to sail out the following morning. He went to the restaurant and saw the complainant in the kitchen. He talked to the complainant who told him that he was 16 not attending school. The complainant then requested the accused if he could sleep on the accused’s yacht that night and when the accused inquired why the complainant said he had no parents and he slept around at his friend’s places. As he was touched by the boy’s plight he agreed, he told the complainant he was sailing out the next day and if he wants to sleep in the yacht to be at Aggies by 9pm.

Later that evening Mr Chang tong came to the restaurant and talked with the accused about many things. The accused did not know then that Mr Chang Tong was Robert’s father but he knew Mr Chang Tong was the owner of the Restaurant. When he left the restaurant he walked towards Aggies Hotel and the complainant was already waiting with his bag. On the yacht he showed the complainant around and they both sat down on the deck where he drank gin and sprite and the complainant had sprite. They talked for 30-40 minutes as the complainant was interested in sailing and wanting to sail to Savaii. The complainant’s interests then appeared to switch to TV, movies and DVDs and the accused was questioned if he had red DVD but the accused only had blue and blue movie was watched inside the cabin by the complainant while the accused went back on deck to drink his gin. The police came after he had turned off the DVD as it was time to take the complainant ashore. Before he turned on the movie the accused said he discovered the complainant was not an orphan, so it was agreed that the complainant will be taken back ashore at about 11.30 that night.

Under cross-examination the accused told the court he was a schoolteacher for 9 years 8 years at College and 1 year at a Reform School. He did admit that at the restaurant he accepted the complainant’s word that the complainant was an orphan but on reflection he should have asked the owner of the restaurant when the complainant requested to come onto the yacht to sleep. He also admitted that it was a mistake to show the blue movie to the complainant but the complainant needed cheering up. He denied that he turned off the cabin light of the yacht when he heard the police vessel; he said he cannot recall the cabin light was turned; the only lighting on at the yacht was the computer screen which he turned off as it was time to take the complainant ashore and it was coincidence the police came at that time.

Elements of the Charge

I now turn to a consideration of the elements of the charge of indecently assaulting a boy under the age of 16 years. I have ruled at the outset that I have found as proven that the complainant is under the age of 16 years so that the remaining elements for the prosecution to prove are:

1. that the accused directly and intentionally touched or handled the complainant without lawful excuse.
2. Secondly the prosecution must prove that there were circumstances of indecency which accompanied the touching or handling, that is to say that the touching or handling was hostile in a sexual sense (See R v Johnson (1968) SASR 132 referred to by Wilson J in Police v Siaosi Timai (unreported 13/05/99).
   

It is for me as judge of the facts using my common sense to decide whether the circumstances do amount to indecency. In that regard I have no difficulty at all here to find to suck a male penis amounts to circumstances of indecency because it would certainly offend against current community standards of propriety in Samoa. Indeed both counsels have understandably and correctly so limited their submissions on the first element namely whether the accused did suck the penis of the complainant. And in an attempt to resolve that issue it is really the word of the complainant against that of the accused. At the same time I must bear in mind that the onus is on the prosecution to prove that element beyond reasonable doubt.

The evidence is conflicting in most areas and a substantially volume of evidence was directed at what took place or was said at the restaurant but that it explained by the fact that there were originally 3 informations laid against the accused. Two of those informations were dismissed at the close of the case for the prosecution.

Turning now to the evidence it is not disputed that the accused and the complainant did talk at the restaurant and it was arranged that they would meet outside Aggies hotel on the steps leading to the sea where the accused’s dinghy was tied and both went to the yacht where both were to spend the night. It is not disputed that a blue movie was shown and was watched by the complainant and it is not disputed that as the police approached the yacht a light or source of light inside the yacht cabin was turned off.

What is disputed is whether the accused invited the complainant or whether the complainant requested the accused. It is difficult to comprehend how the accused a former teacher for 9 years could believe a young looking boy like the complainant on face value without further inquiries. After all he had a long conversation with the owner of the restaurant after the complainant had allegedly told him he was an orphan. Under cross-examination he conceded that on reflection he should have inquired to the restaurant owner. What is more important is that the complainant was working and was still working at the time the accused left the restaurant and yet the accused had gone ahead and make arrangements to meet the complainant outside Aggies at 9pm to row out to the yacht. The fact that the complainant was working did not seem to concern the accused.

The accused also admits that it was perhaps a mistake to show the blue movie but the accused thought at the time that the complainant needed cheering up. This is a rather startling statement from a so-called ex-school teacher. The obvious inference to be drawn is that the blue movie was a calculated foreplay to excite and arouse the complainant before he (the accused) moved in for the kill. So that when the police arrived one of the policeman who saw a light turned off confirmed the evidence of the complainant that the accused turned off the movie when the police

As a result of my findings I am satisfied that the prosecution has proven beyond reasonable doubt that the accused did undress and sucked the penis of the complainant. The fact that the complainant willingly went onto the yacht and consented to the sucking of his penis by the accused is irrelevant as consent by a complainant under the age of 16 years is no defence to the charge under consideration.

In conclusion I am satisfied that the prosecution has proved each element of the crime of indecent assault. I therefore find the accused guilty of the charge.

JUSTICE VAAI