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Police v Taimasa [2014] WSSC 121 (21 March 2014)

IN THE SUPREME COURT OF SAMOA
Police v Taimasa [2014] WSSC 121

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

MIKAELE TAIMASA, male.
Defendant

Counsel: G Nelson for prosecution
D Kerslake for defendant

Sentence: 21 March 2014

SENTENCE

5. The defendant appears for sentence on two charges. Contrary to what is contained in the prosecution amended summary of facts dated 21 February 2014 he is not for sentence on two counts of unlawful sexual connection with a child under twelve. What the court file shows is he pleaded guilty to information S2961/13 a charge pursuant to section 58 of the Crimes Act that he did an indecent act on the complainant a girl under twelve (12) years of age on 18 November 2013. And also pleaded guilty to S2913/13 a charge under section 60 of the Crimes Act 2013 that at the same place on the same date he did indecently assault the complainant.
6. The first charge carries a maximum penalty of 14 years in prison and the second a maximum of 5 years which terms are considerably less than the maximum for unlawful sexual connection which is life imprisonment. The police summary of facts indicates that the defendant is a 17 year old male attending school. The victim a 7 year old female also attending school Year 2 at the local Primary School. There will issue the usual suppression order prohibiting publication of the details of both the young girl and the defendant as they are young persons and this is a case of sexual offending. That extends to their villages of residence and where they go to school.
7. The police summary goes on to state that around 1:30 pm on the 18^th of November which was a Monday the complainant and her brother came home from school and went to help their grand-mother with grilling of cocoa seeds (“faapa’u le koko”). The complainant was instructed to go and collect firewood and “atigi popo” (coconut shells) for the fire. While she was doing this she met up with the defendant. She knows the defendant because they are neighbours and she often sees him gathering coconuts at the fence near the boundary of their properties.
8. The defendant waved the victim to come over. She did so. They talked and then walked towards the “pa povi” of the cattle farm. Inside the pa-povi the defendant instructed the victim to undress and lie down which she did. The defendant took off his shirt and sat down beside her. The summary says he then pulled out his private part spat on the victims private part and touched it. He raised the girls legs lay down on his side and rubbed his penis against her vagina. This went on for a short period of time resulting in his ejaculating onto the girls thighs. He stood up and told her to put on her clothes and go. Which she did.
9. About this time the victims brother walked past where they were and saw the victim getting dressed. He called out “o le a le mea na e fai ia (name of victim)?”. The defendant answered “e leai se mea na’o le ma talanoa”. The brother became suspicious and told the victim to go home. A few days later what happened came out and the victims grand-mother became aware of it. She reported it to the police hence the charges against the defendant and his appearance this afternoon after pleading guilty to the charges.
10. There is no question the offending in this matter is serious. It is an indecent assault on a 7 year old girl by someone 10 years older than her. The prosecution say the offending is aggravated because it was committed in the victims home. I do not know where that comes from because their own summary of facts says the offending occurred at the “pa povi”. They are however correct that such offending would necessarily impact on a girl so young. And would be something she would remember for some time. But it is to be noted that the victim impact report filed with the court does not note any unusual factors or behaviour of the victim post-incident. By unusual I mean particularly unusual. Her grandmother notes in the report that the victim still seems to act normally.
11. I agree with what the prosecution say that there was some pre-planning involved in this matter. The defendants actions speak for themselves. He lured the young girl to a deserted area in the “pa povi” where she would have been alone and vulnerable. The very young age of the girl is also a relevant factor. As is the nature of the indecent acts performed by the defendant upon her.
12. I do not accept defendants counsel submission that there was no breach of trust. The defendant is a neighbour and as such was known to the victim. There is some suggestion in the victim impact report that this is not the first time the defendant has approached the victim. Her conduct in willingly accompanying the defendant to a deserted area of the “pa povi” is clear evidence that she trusted the older defendant. His taking advantage of that and their relationship is in my view a breach of the trust that was a part of that relationship. It was also a breach of the trust that young girls in our community usually have for older males who live next door.
13. Counsels submission that there was no physical force used in the matter is of limited value to the defendant. There may be no evidence of physical force but the evidence indicates that the defendant used his relationship with the victim to take her to the deserted spot. And no doubt to overcome any misgivings the 7 year old may have had. There was at best persuasion at worst coercion by the defendant.
14. The applicable sentencing authorities involving offending by young people on young children have been extensively canvassed in both counsels submissions. They consistently show that offending on children under 12 years of age is met by an imprisonment penalty. Those cases have many of the elements that are present in this case. Such as the young age of the victim, the abuse of trust or relationship by a defendant as well as the young age of the defendants involved.
15. In principle it would be wrong for the court to depart from those precedents and those sentencing approaches without good reason. Defence counsel has ably argued that the good reason in this case is the mental intellect of the defendant. He suggests the defendant has the mental capacity of a Year 5 student that is an 11/12 year old. That is based on the opinion of the defendants uncle who says he is a duly qualified social worker who has worked more than 10 years with Samoan youths in Brisbane, Australia.
16. The uncle has taken the defendant under his wing. The defendant has responded positively to his teaching, mentoring and counseling. An effort by the uncle to help the defendant improve himself and make him a better and more complete individual and thus become a useful and valuable member of society. The uncle has indicated a willingness to continue with these rehabilitative efforts and the probation office have agreed to assist in that regard. Probation office have submitted a comprehensive sentencing plan in support of the uncles efforts. There is no doubt in my mind that this is a very worthwhile endeavour that the defendants uncle is embarking upon. Not only for the defendant but for other participants of his program. It would ultimately benefit the defendant and relieve the burden on an overburdened probation office that normally has to engage in these sorts of rehabilitative efforts.
17. I have no difficulty with that aspect. But the issue here for the purposes of an appropriate sentence revolves around the circumstances of his offending. One of which is his mental capacity at the time of the offending. Unfortunately the only evidence I have of the latter is from an uncle who cannot be said to be an unbiased or independent source. The court must be cautious in the weight it can give to such an opinion.
18. I also note there is no indication that the uncle is qualified to make an assessment as to intellectual or mental capacity at the time of the offending. There is no mention of his holding any special psychological psychiatric or other relevant qualifications. I am left then in the position of having to proceed on the basis that the defendant has the mental capacity and capability of a normal 17 year old at school but perhaps a capacity on the lower side of 17 in terms of intellect. In this regard I note the uncles report acknowledges the defendant is in Year 11 in his school.
19. In weighing all matters out an imprisonment sentence for the offending cannot be avoided for the reason that the court must express by its penalty societys disapproval of the defendants actions. It must also deter the defendant so that he will never do this sort of thing again. And it must send a message to other young men of his age well if you do this sort of thing this is likely your fate.
20. In Police v Kome my brother Vaai, J also had before him a 17 year old offender and a 7 year old victim of indecent assault. In that case he said:

“The sentence should convey to you and other likeminded men like you that this sort of offending will not be tolerated by society. I accept that you are only 17 years of age and that you are also remorseful. But for this type of offence although you are young and although you are remorseful and although this is your first appearance before the court a custodial sentence must nonetheless be imposed to reflect the seriousness of the offence.”

21. But I agree there are many mitigating factors in the defendants favour including the factors referred to above.
22. As to a relevant start point for sentence I reject the prosecution submission that the rape bands outlined in Police v Key are applicable to this case. The charges here are not of rape or unlawful sexual connection involving penetration of the victims private part by the defendant. Whether by the defendants private part or by any other part of his body. The relevant authorities are those pertaining to indecent assault which both counsels have referred to in their submissions. Accordingly I reject the prosecution submission that the appropriate start point should be in the 8 to 10 year range.
23. The more serious of the two charges is the charge of doing an indecent act which carries a 14 year maximum penalty. I will deal with that first.
24. While 14 years is the maximum penalty considering all the relevant factors an appropriate start point for sentence is 5 years. The first deduction you are entitled to as referred to by your counsel is for your guilty plea. That plea has spared the 7 year old having to go through a difficult and traumatic experience. By giving public evidence before strangers of intimate things that happened to her. That guilty plea has also saved the limited resources and valuable time of the court. I consider a one-third deduction of penalty is justified. That is a period of 20 months leaving a balance of 40 months.
25. The next deduction you are entitled to arises out of your good background of service to the family as outlined in the probation office pre-sentence report. That is service to your original family and now to your uncle that you are living with. You also have a reference attached to your pre-sentence report from your faifeau, it speaks well of you. There is no indication you have been in trouble before in either of the villages you have lived and you are a first offender according to police records. For those matters I deduct 6 months from the balance of sentence leaving 34 months.
26. You are also in my view entitled to a separate deduction to reflect your young age. Because you are 17 you are not a young offender in terms of the Young Offenders Act 2007 which only applies to young men under 17 years of age. But I note in the materials before me that you just turned 17 when this offending occurred. Given the background circumstances and the uncles observations I apply the principles of the Young Offenders Legislation. And the CRC Convention generally which regards you as a child.
27. I am reinforced in that approach by the fact that not enough is known about the processes of thought and development in the way young people think. But the science is clear that young minds operate quite differently from adults physiologically as well as psychologically. And that many young offenders or young people who do the sort thing that you did may also be suffering from other neuro-developmental disorders. Co-occurring with other issues such as dyslexia, learning disabilities and other forms of communication disorders.
28. The impact of broken environments such as the one you come from on young people is also difficult to assess. This defendant comes from a classic young offender scenario where the mother has died and the father has formed a new relationship. Meaning family priorities have shifted which has probably left you lacking a certain degree of parental guidance, supervision and support. All participating ingredients in a recipe for trouble. This is consistent with the defendants limited learning ability as referred to by his uncle and the probation office. For those sorts of factors I will make a further discount from your sentence under the general categorization of age and lack of mental maturity. A discount that in my view applies would be a period of 12 months. That appropriately envelopes the significance of these sorts of matters. Leaves a balance of 22 months of your sentence.
29. For the apology and the reconciliation as noted by your uncle and confirmed in court when this matter was called last time by the victims father, also confirmed in the victim impact report by the victims care-giver grand-mother, the grand-mother being the original complainant in this matter. For those factors I deduct a further 6 months from your balance of sentence leaves 18 months.
30. That would normally be the term that you would have to serve for this offending. But because I believe a term of supervision under your uncles direction and care would benefit you in the long run and because of the provisions of section 12 (1) (c) of the Community Justice Act 2008 I will reduce this term by a further 6 months to 12 months in prison.
31. That period of imprisonment is to be followed by 12 months supervision on the following special conditions. Firstly you will live with your uncle at Aleisa under his care, control and direction. You are not to leave Aleisa and the care of your uncle without good reason and the consent of the probation office. Secondly you will undertake programs as directed by your uncle. Thirdly you will abide by the conditions submitted by the probation office in its sentencing plan dated 13 March 2014. Fourthly you will not during your period of supervision contact or attempt to contact the victim in this matter or come within 50 meters of her.
32. It is a further special condition of your supervision that you are not to return to the place where this offending occurred. You are to abide by all the other conditions imposed by the probation office as part of your supervision. That may include attending rehabilitation programs other than those prescribed by your uncle for your benefit.
33. It is also the recommendation of the court that the Attorney Generals office seek a protection order prohibiting contact between the defendant and the victim in this matter. It is the further recommendation of this court that the defendant serve his 12 month imprisonment term at the Olomanu Juvenile Facility for young persons. In respect of the second charge against you of indecent assault you are convicted on that charge and ordered to serve 100 hours of community service during your 12 month supervision term.
34. Now that is a bit elaborate in terms of sentencing Mr Kerslake is there anything that is not clear? (Defence counsel said no). And we are clear on the terms of the final sentence? (Defence counsel said yes).
35. Ia Mikaele o leisi afa o mea uma ia na ou fai atu ai a tonu e te le’o malamalama lelei iai. Ia o le mafuaaga lena e iai le loia o loo tulai mo oe leaga e fai sina lavelave lou mataupu. Ae o le a faamatala atu e le alii loia le faaiuga lea ua taunuu iai le faamasinoga i lau mataupu. O le faapuupuu o le faaiuga mo le moliaga autu lea na molia mai ai oe e 12 masina e te nofo sala ai i le falepuipui a tagata talavou i Olomanu. A maea ona tuli lau 12 masina lena ona tuli lea o lau 12 masina e te nofo ai i lou uncle i lalo o le ofisa faanofo vaavaaia. E iai tuutuuga faapitoa o lou nofo vaavaaia lena e tatau foi ona e usitai iai. Ae masalo e oo i se taimi faamalamalama atu tuutuuga faapitoa na ia oe pe a maea ona tuli lou taimi i le falepuipui a tamaiti i Olomanu. Ua e malamalama? (Defendant said yes).
36. Aua e te toe faia se mea faapea Mikaele. Ua ala ona e afaina tele i le mataupu lenei ona o le laititi o le teineitiiti lea na e solitulafono ai. Ia ma e ogaoga foi le tulaga o le mea na e faia. Ae a e toe faia se mea faapea ia e feololo le faaiuga lea ua oo iai i le asō i se faaiuga pe a toe aumai oe i se mea faapea. Ua manino ia vaega? (defendant said yes). Ia faafetai ua maea.
    

JUSTICE NELSON