SUPREME COURT OF SAMOA
Police v XY [2017] WSSC 86 

Case name: 	Police v XY	
		
Citation: 	[2017] WSSC 86	
		
Decision date: 	30 May 2017	
		
Parties: 	POLICE v XY male of Lefagaoalii and Falevao

Hearing date(s): 	30 May 2017	
		
File number(s): 	S1984/16, S1985/16, S1986/16, S1987/16 and S1982/16	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Leiataualesa Daryl Clarke	
		
On appeal from:		
		
Order:	1	Order prohibiting publication in news media or internet or another publicly accessible database the name of the accused and of the victim.
2	I adopt the totality in sentencing principles and 14 months start point for imprisonment. I deduct 3 months for the accused‘s apology which has been accepted, the reconciliation that has occurred and his remorse which I accept as genuine. I further deduct 2 months for his prior good character and the village punishment. I finally deduct 2 ½ months for his early guilty pleas. 
3	The accused is accordingly convicted and sentenced to 6 ½ months imprisonment on all five charges. All sentences are to be served concurrently. On his release from prison, he is to be under the supervision of the Probation Service for 6 months with the special condition that (1) he attends not less than an 6 week spiritual counseling program with the Samoa Victim Support Group and (2) he not re-offend whilst under supervision.	
		
Representation: 	F Ioane for Prosecution
D Kerslake for the Accused 	
		
Catchwords: 	sexual connection with a young person	
		
Words and phrases:		
		
Legislation cited:	section 59(1) of the Crimes Act 2013, section 7, Sentencing Act 2016), (section 17(1), Family Safety Act 2013);

Cases cited:	R v AM (CA27/2009) [2010] 2 NZLR 750); R v David Michael Johnson [2010] NZCA 168), Court of Appeal said in Attorney General v Lua [2016] WSCA 1 (19 February 2016), R v AM at [53 – 54]), Tuala-Warren J 
in Police v Olo [2017] WSSC 10 (16 February 2017), Police v Imoa [2014] WSSC 144 (23 June 2014), Police v Seti [2016] WSSC 41 (1 April 2016) per Tuatagaloa J, Police v Oliva Puefua (3 June 2015, per Aitken J), Police v Isaraelu (23 June 2014, per Nelson J), Police v Melani (15 June 2015, per Aitken J), Police v Apelu [2015] WSSC 258 (28 May 2015).

		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P  O  L  I  C  E
Prosecution

A  N  D:

XY male of Lefagaoalii and Falevao
Accused

Counsel:	
F Ioane for prosecution
D Kerslake for the accused 

Sentence:	30 May 2017
S EN T E N C E
4	The accused appears for sentencing on five charges of sexual connection with a young person in breach of section 59(1) of the Crimes Act 2013 (“the Act”). The offence carries a maximum penalty of 10 years imprisonment. 
5	The accused entered a guilty plea to the charges on the 6th March 2017.
The Offending
6	According to the Prosecution Summary of Facts accepted by the accused through counsel, between the 1st of December 2015 and the 31st May 2016, the accused engaged in five separate acts of sexual connection with the victim who is a young person as defined by the Crimes Act 2013 on two different nights. 
7	According to the Summary of Facts, the first incident occurred sometime between the 1st of December 2015 and the 31st May 2016. The victim was asleep in her house when the accused went to her, touched her breasts and body and proceeded to take off the victim’s panties. This woke up the victim and he then engaged in sexual intercourse with her. About 10 to 15 minutes later, the accused again proceeded to digitally penetrate the victim followed by engaging in sexual intercourse with her. Later on the same night, the accused again repeated the same action and engaged in sexual intercourse with the victim. When this was done, he left the house and went to the house he was sleeping in.
8	On a separate date between 1st December 2015 and the 31st May 2016, the accused, after receiving a phone call from the victim again went to the victim who was then asleep. The accused kissed her and engaged in sexual intercourse with her. A few minutes later, he again proceeded to engage in sexual intercourse with the victim.

The Accused
9	The accused is a 22 year old single male of Lefagaoalii and Falevao and is a first offender. He is not in formal employment.
10	The accused’s Pre-Sentence Report says that he was raised by his maternal grandparents. He is the eldest of his parents 4 children and completed school to year 12. He currently resides with his mother and step-father at Falevao.
11	The accused is described by Reverend Anzac Tuala as ‘a very active and humble boy.’ He is active in the work of the taulealea. The Sui o le Nu’u for Falevao says of the accused that he is very committed to the work of the village as well as within the village youth. He is relied upon by his family for the work within the village and their family. According to the PSR, there has been reconciliation between the accused and the victim’s family and that they had presented 50 cans of tin fish and 6 fine mats as village punishment. The accused’s uncle told Probation that he has forgiven the accused and “prays for another chance for XY as that he could redeem himself through some of the programs conducted by the Probation Service.”
The Victim
12	The victim is a female who was 15 years of age at the time of the offending and is the accused’s first cousin. The accused’s mother is the victim’s father’s sister. At the time of the offending, the victim was in year 11. No Victim Impact Report was able to be obtained by Prosecution from the victim.  
Aggravating features:
13	The aggravating features of this matter are as follows:
•	the vulnerability of the victim given her young age (section 7, Sentencing Act 2016); 
•	the offending involved some level of premeditation;
•	breach of trust with the accused committing his offending within a familial relationship (see: R v AM (CA27/2009) [2010] 2 NZLR 750);
•	the offending was within a domestic relationship (section 17(1), Family Safety Act 2013);
•	full penetrative sexual intercourse with the victim (see: R v David Michael Johnson [2010] NZCA 168); and
•	the frequency of acts of sexual connection with the victim.
The mitigating features
14	The mitigating features are the accused’s early guilty plea on the withdrawal of certain other charges against him, his remorse which I accept as genuine, reconciliation with the victim’s family including the apology, good character and the village penalty imposed upon the accused and his family.
15	I note that counsel for the accused submitted that consent of the victim to the sexual connection is a mitigating feature for this Court to take into account. As the Court of Appeal said in Attorney General v Lua [2016] WSCA 1 (19 February 2016):
“There is also the concern that in relation to children consent is of no relevance, whereas in relation to rape sentencing mistaken belief in consent and prior consensual sexual activity may be factors to be considered (see R v AM at [53 – 54]).”
16	This approach was also adopted by Tuala-Warren J more recently in Police v Olo [2017] WSSC 10 (16 February 2017).
Discussion
17	It is well recognized that the offence for which the accused has pleaded guilty is an offence designed to not only to protect young girls from mature men taking advantage of them but also to protect young girls from themselves from making rash decisions (see for example: Police v Imoa [2014] WSSC 144 (23 June 2014); Police v Apelu [2015] WSSC 258 (28 May 2015)).
18	A review of sentences imposed by the Courts for this type of offending also shows that sentences vary between custodial and non-custodial sentences. In Police v Oliva Puefua (3 June 2015, per Aitken J), the accused was 17 years of age and the victim 15 years of age involved in a relationship. A non-custodial sentence was imposed. Similarly, in Police v Isaraelu (23 June 2014, per Nelson J), the accused was 19 years of age and in a relationship with the 14 year old victim and a non-custodial sentence was imposed. In Police v Melani (15 June 2015, per Aitken J), the 18 year old accused was in a relationship with the 12 year old victim. A custodial sentence was imposed. In Police v Seti [2016] WSSC 41 (1 April 2016) per Tuatagaloa J, the accused was 22 years old and the victim 15, an age difference similar to this case. The accused and victim were in a relationship. The accused was sentenced to a custodial sentence with a start point of 18 months.
19	 In this case, the accused engaged in sexual intercourse with the victim, his first cousin, on 5 separate occasions on two different nights in the family home. I have no doubt that the accused knew that what he was doing was wrong. Despite knowing this, he nevertheless snuck into her bed late at night while she slept to carry out these acts.  
20	As Nelson J in Police v Imoa (supra) said, imprisonment terms may be imposed “[s]o that the message that goes out to the defendant and all young men is leave girls under 16 alone.” Samoan society is based on the family structure and family values. These also form the core of our matai system, custom and culture. It should also therefore be made quite clear to the accused and others like him that what is expected from the men of their families is that their role to protect the young and vulnerable members of their families from harm and abuse, not to be the perpetrators of those crimes against them. To do so as the accused has done in this case is not only a serious breach of family trust but runs against our fa’a Samoa. In all the circumstances, an imprisonment term is warranted to hold the accused accountable for his actions, to denounce his conduct and to deter the accused and others like him from committing the same or a similar type of offence. The sentence will however balance punishment and deterrence with rehabilitation.
The penalty
21	I adopt the totality in sentencing principles and 14 months start point for imprisonment. I deduct 3 months for the accused‘s apology which has been accepted, the reconciliation that has occurred and his remorse which I accept as genuine. I further deduct 2 months for his prior good character and the village punishment. I finally deduct 2 ½ months for his early guilty pleas. 
22	The accused is accordingly convicted and sentenced to 6 ½ months imprisonment on all five charges. All sentences are to be served concurrently. On his release from prison, he is to be under the supervision of the Probation Service for 6 months with the special condition that (1) he attends not less than an 6 week spiritual counseling program with the Samoa Victim Support Group and (2) he not re-offend whilst under supervision.
LEIATAUALESA DARYL CLARKE