IN THE SUPREME COURT OF SAMOA
Police v EA [2016] WSSC 216

Case name: 	Police v EA	
		
Citation: 	[2016] WSSC 216	
		
Decision date: 	04 November 2016	
		
Parties: 	POLICE (Prosecution) and EA male defendant. (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S2036/16	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	-	The final sentence of this court therefore in respect of your matter EA is convicted and sentenced to 18 months in prison term to be served at Olomanu Juvenile Facility.  But 6 months of that sentence is suspended on condition you attend the rehabilitation programs of the Probation Service.  I can say to you that may seem a harsh penalty but I assure you considering the girl is only 8 years old it is a lenient sentence.  	
		
Representation: 	L Sio for prosecution
J Brunt for defendant	
		
Catchwords: 	-	
		
Words and phrases:	sexual connection with children under 12 years - suppression order -  sexual assault - Band approach - aggravating features - sentence is suspended - rehabilitation	
		
Legislation cited:	Community Justice Act 2008	
		
Cases cited:	Attorney General v Lua [2016] WSCA 1	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	EA male defendant.
Defendant

Counsel:	
L Sio for prosecution
J Brunt for defendant

Sentence:	04 November 2016

S E N T E N C E
1.	The defendant is 18 years of age but was 17 years at the time of his offending.  At a young age he faces an extremely serious charge.  He pleaded guilty to unlawful sexual connection with a girl under 12 years of age.  The victim was his cousin and was at the time of the offence 8 years old.  She was attending Primary School and lived next door to the defendant and his family.  The material before me indicates she would often come to the defendants house to watch TV.  Clearly she was well-known to the defendant as was the defendant to her, being an older male cousin.  
2.	The maximum penalty for what the defendant did was recently increased by Parliament to life in prison. That means for this offending the defendant can spend up to the rest of his life in prison.  That is an indication of how serious Parliament regards this kind of offending. Rightly so because there is ample evidence that shows how such offending negatively impacts upon young children and is something that they can carry for the rest of their lives.  
3.	Given the age of the parties in this matter there will issue a permanent suppression order prohibiting publication of anything that may indentify the victim and in order to further protect her identity that would extend to the defendant and his details.  And the order is to extend to publication by any mode including all forms of social media.  The case report for this matter shall be Police v EA. 
4.	The uncontested summary of facts from the police states this matter occurred during the month of October 2015.  The defendant was at his house and the victim and another cousin were playing close by.  The defendant approached the young girls and chased away the victims young cousin leaving the victim alone with the defendant.  It was at that time he gave effect to the sexual assault on her.  According to the police summary of facts he instructed her to lie down on the floor of a faleoo and removed her pants and panty.  He also undressed then used his finger to digitally penetrate her private part.  The summary relates that the victim tried to scream but he covered her mouth.  Further that the assault caused the girls genitalia to bleed, probably then causing the defendant to stop the sexual assault and send the victim away.  
5.	The young girl went to her home, showered and told her mother about what had happened.  The mother saw blood on the victims thighs and genitals and called out to the defendant who was passing by “what had he done to the young girl.”  A relative overhead this grabbed an aulama and beat the defendant.  This relative then relayed to the co-defendant SP who I will deal with shortly what had happened.  The victims mother went with the victim to the road to find transport to go to the police station to report the incident.  Whilst on the road SP approached the victims mother and persuaded her not to go to the police and file a complaint.  As a result of this the victim and her mother went back home and the matter was kept within the family.  
6.	It only came to light when one of the victims teachers at school noticed the victim behaving in a peculiar manner and questioned her. From there the matter found its way into the hands of the police.  
7.	The victim was taken for a medical examination on the 24th of November about a month after the incident.  The medical report of her examination notes there was a suspicious irregularity at the 6:00 o’clock position of the hymen.  I am satisfied this irregularity was a result of the defendants digital penetration of the young girls private part.  
8.	The law as to sentencing for this kind of offence was laid down by the Court of Appeal decision in Attorney General v Lua [2016] WSCA 1. That case provides for sentencing for sexual connection with children under 12 years of age to be conducted using a Band approach. There are three Bands prescribed by the Court of Appeal. Band one, a term of 2 to 6 years start point is appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features or their presence is limited.  Band two, 5 to 12 years where the offending is of moderate seriousness and involves two or three aggravating features.  Band three, 11 years to life in prison where the offending is of the most serious kind.  
9.	There will undoubtedly be cases where a start point of less than 2 years imprisonment or a non-custodial sentence will be justified but as noted by the Court of Appeal in Lua such cases would be exceptional and rare.  Further that the sentencing Judge must in such cases explain very clearly the reasons for departure from the sentencing Bands set by law.  
10.	This court is not free to depart from the prescription laid down by the Court of Appeal.  I have the examined the instant case, there are no rare and exceptional circumstances that would justify departing from the sentencing bands or justifying a non custodial penalty. Indeed the young age of the girl means EA an imprisonment penalty is indeed required.  However I do partially accept defence counsels argument that strong guidance for this young defendant would also be beneficial to him and to the society that he will return to.  A combination of deterrence and rehabilitation is appropriate to the circumstances of the case.  
11.	In my assessment this matter falls within the B2 category of offending.  It is moderately serious because it involves digital penetration of a very young girl by an older male relative twice her age.  Even by the defendants own account to the Probation Office that what they were engaged in was mutual masturbation, it is still moderately serious offending.  It belongs in B2 also because of the presence of a number of aggravating factors.  I have already referred to the young age of the girl, being half the age of the defendant. There is also the fact the defendant is an older male cousin living next door in a house often visited by the young girl to watch TV.  By the customary dictates of the society we live in she was entitled to trust the defendant to show her good things and examples not subject her to this kind of behaviour.  There is also the vulnerability of the child who was playing near the defendants house. And the defendants action of isolating her by chasing away her playmate.  Indicative of planning and pre-meditation on the defendants part.
12.	I do not necessarily accept the prosecution submission that a further aggravating factor emerges from the victim impact report.  Where it refers to the victim being “in distress, sad and unhappy.”  Because it is clear from that report and other material before the court that she is currently with the Samoa Victim Support Group, she misses her family and cannot wait to see them again.  That could be one of the reasons or the main reason for her condition.  But I do accept that long term harm in the normal course of events is caused by offending of this nature against a young child.  That comes with the territory. 
13.	Considering all relevant matters the appropriate start point would be in the B2 range but at the lower end.  The B2 range of sentences is 5 to 12 years. I will start sentencing at 6 years.  For the mitigating factors in your favour deductions to that start point need to be made.  Some of these have been referred to by your lawyer in his submission.  
14.	Firstly you are a young man. Obviously the prospects of rehabilitation are high given your character and background and the lack of maturity you displayed.  For all those factors in particular your youthful age at the time of the offending I will deduct one-third of the start point sentence.  That is a period of 2 years, leaves a balance of 4 years.  
15.	You have a good pre-sentence report it speaks of your good character, you have not been in trouble with the law or the authorities before.  You have good references from various individuals, you stay with your uncle and you have been tutoring your younger cousins and helping out with the daily chores at the uncles house. Like every young Samoan male you are playing your part in the family you are living.  You are doing a course in engineering; you are therefore not uneducated or unintelligent.  For those factors I will deduct half a year from your remaining balance, leaves 3½ years in prison.
16.	There has been an apology rendered, it has been accepted by the family of the young girl. This is confirmed in the pre-sentence report.  There is a petition from the victims mother to withdraw the matter. That cannot be done because the offending is too serious.  But I take that petition into account and under this overall head I will deduct a further 6 months from your sentence, leaves 3 years in prison.  
17.	The pre-sentence report confirms a substantial village penalty was levied and has been met.  That is required by law to be taken into account, I deduct a further 6 months from your term leaves 2½ years.  
18.	You have pleaded guilty to the charge against you, that has saved the limited time and resources of the Court and the State. More importantly it means that this 8 year old girl does not have to come to court and have to tell us all about the bad things you did to her.  That is a particularly important factor in my assessment given her age and her reticence according to the documents before me to discuss this incident with anyone.  I deduct 12 months from the balance of your sentence for those matters leaving a balance of 1½ years.  
19.	No other deductions are applicable to your case EA, so the end sentence in the normal course of events would be you serve 1½ years in prison. However as indicated I have come to the conclusion that you as a teenager living with your uncle at the time would benefit from some behavioural counseling.  Your offending was one-off and on this occasion you displayed bad judgment in being unable to control your urges and sexual impulses. But to your credit you stopped when the victim began bleeding.  It is not in your favour that the object of your abuse was your 8 year old younger cousin.  
20.	Weighing all these matters up it is indicative of the fact that you would benefit from some counseling and guidance for your future life because you are not going to prison forever.  It is important EA that you learn from this experience, that you put it behind you and afterwards get on with your life.  The difficulty I have is section 12(c) of the Community Justice Act 2008 mandates that where supervision is also sought to be imposed a 12 month imprisonment upper limit is prescribed.  
21.	To conform with the requirements of that legislation, I am therefore going to suspend 6 months of your sentence, so that your sentence is reduced from 1½ years in prison to 12 months in prison.  In substitution you will serve 6 months supervision on the condition that you attend under the direction and control of the probation service the necessary rehabilitation programs designed to help and assist you. If you fail to undertake those programs then your suspended sentence of 6 months will automatically come into effect and you will serve the additional 6 months of your sentence.  It is further ordered that in respect of the 12 months in prison that you are required to serve, that be served not at Tafaigata but at the Olomanu Juvenile Facility at Mulifanua.  That is a lower grade facility and is specifically designed for young offenders.  
22.	The final sentence of this court therefore in respect of your matter EA is convicted and sentenced to 18 months in prison term to be served at Olomanu Juvenile Facility.  But 6 months of that sentence is suspended on condition you attend the rehabilitation programs of the Probation Service.  I can say to you that may seem a harsh penalty but I assure you considering the girl is only 8 years old it is a lenient sentence.  Are we clear on the terms of the sentence? (Counsel indicated they understood). Ua e malamalama i le faaiuga o lau mataupu EA? (Defendant said yes).  
23.	Ia lelei alu e tuli fa’alelei lou fa’asalaga i Olomanu ma auai i polokalame lea ua poloaiga ai oe e te auai i ai, atonu e aogā mo lau susuga mo le lumanai ma aua e te toe tula’i i se mea fa’apea.  Aua o le mea moni lava, e feololo le fa’aiuga lea na tu’u atu nei, a fa’apea e toe aumai oe i se solitulafono fa’apenei ua ese loa se fa’aiuga e fa’afeagai ma oe, ua e malamalama? (Defendant said he wanted to continue his education). Masalo o le tulaga i lau aoga e le mafai ona fa’aauau sei mae’a ona tuli lou fa’asalaga mo le mataupu lenei. A mae’a ona tuli lou fa’asalaga ona mafai lea ona e toe foi e toe fa’aauau lau aoga, pe a fa’apea o lou naunautaiga lena e fa’aauau lau aoga. Ma o se mea lelei foi mo oe le fa’auma o lau aoga, e le taofia e le mataupu lenei le mea lena.  Fa’aauau lau aoga ma su’e sou lumanai mo lou olaga. 
24.	After representations from counsel, sentence further varied so that it takes effect as from 09 December 2016 to allow the defendant to complete exams and the current school year.  Defendant remanded on bail to live with his uncle until then.

JUSTICE NELSON