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Police v Lie [2022] WSSC 44 (14 July 2022)

IN THE SUPREME COURT OF SAMOA
Police v Lie [2022] WSSC 44 (14 July 2022)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

MALAEOLA LIE male of Mauga.

Defendant

Counsel: T. Sasagi for Prosecution

U. Fuimaono for the defendant
Sentence: 14 July 2022

SENTENCING OF JUSTICE ROMA

Charges

1. You appear for sentence on 2 charges – one count of sexual conduct on a young person contrary to s59(1), Crimes Act 2013. The maximum penalty is 10 years’ imprisonment; and one count of indecent assault on a young person contrary to s59(3). The maximum penalty is 7 years imprisonment.
2. You pleaded guilty to both charges on 6 December 2021 when counsel first appeared having been appointed under legal aid.
3. You also pleaded guilty to a third and more serious charge of sexual violation by rape. As a result, you were remanded in custody pending sentence. But the rape charge was withdrawn on 20 June 2022 after the Court raised concern with both counsel given the matters you raise in the pre sentence report and clear from prosecution’s original summary, that you had a defence to the charge.

Offending

4. According to the amended summary of 30 June 2022, the victim is a 16 year old female from your village. She no longer attends school but stays home and helps out with family chores. You were in a boyfriend – girlfriend relationship with her at the time of the offending.
5. On 16 July 2021 at about 4pm, she was playing with other children when you called her to come and she complied. You led her inside a bathroom nearby, removed her shirt and asked her to lie down but she refused. You then asked her to suck your penis which she did until you ejaculated.
6. The second incident occurred the following afternoon. The victim was home alone when you approached her. You told her to remove her clothes. She laid down on a lavalava. You inserted your penis inside her vagina and had sexual intercourse with her until you ejaculated.
7. The victim’s family became suspicious. She told them what happened and they reported the incidents to police.
8. In the pre sentence report, you admit the offending and say that your relationship came to light when the victim’s father was looking for his money which the victim admitted taking and giving to you. You also told probation that the victim’s family searched for you, tied you with a rope and beat you up.

Victim

9. The victim was 15 years at the time of offending. She explains in the VIR that she was scared and felt pain in her vagina. She unsuccessfully tried to resist you. She does not want to see you again. I have difficulty accepting that part of her account given that the second incident occurred immediately a day after the first and given prosecution’s withdrawal of the rape charge. I bear in mind however the victim’s age; that liability for the charges against you is strict and consent is not a defence.
10. The report further says that no reconciliation has taken place.

Aggravating Factors

11. The aggravating features of your offending are:
    • (i) Vulnerability of the victim given her age and relationship with you;
    • (ii) Impact as stated in the victim impact report.

Mitigating Factors

12. I take into account the following:
    • (i) Guilty pleas entered at the earliest opportunity;
    • (ii) Your young age – you are 18 years but 17 at the time of the offending. The age disparity between you and the victim is 2 years;
    • (iii) Village penalty – the pre sentence report says that you were fined $500 and 5 larsows by the village;
    • (iv) Assault by the victim’s family – in the absence of information to the contrary, I accept what you told probation that you were searched for and assaulted by the victim’s family before they contacted police and had you taken in;
    • (v) As to reconciliation, there are conflicting accounts as to whether this was done. The victim’s family in both the VIR and pre sentence report deny that your family came to apologise. The victim’s father according to the pre sentence report however acknowledges that only in relation to a previous similar incident that your grandmother spoke to and settled the matter with his family with the agreement that you must not contact the victim again;
    • (vi) Personal circumstances – you are now 18 years of age and the third of 5 siblings. Both your parents have passed and since 2017 you and your siblings have been under your maternal aunt and her husband’s care. You have not had the benefit of formal school learning because of financial constraints. But you have been helping the family out on the plantation. You were employed as a labourer on a cocoa and taro plantation at Auala, Savaii for 5 months before you were charged. At your young age you are a member of the untitled men’s group of the village. You attend church regularly and are a member of the choir and youth group. You have not seen the victim since you were charged and counsel says that you regret your actions and know that you should have exercised better judgment. I accept your remorse. You are a first offender. But you were held in custody for 7 months from 3 November 2021 to 6 June 2022 following your guilty plea to the subsequently withdrawn rape charge.

Discussion

13. The seriousness of the offence of sexual conduct with a young person is recognised by Parliament by providing a maximum penalty of 10 years. As the Court of Appeal observed in Attorney General v Sefo [2018] WSCA 16 (25 October 2018):
    • “ ... the purpose of the offence is twofold. One is society’s recognition that a young woman under 16 years of age requires protection from herself. That is why liability is strict and her consent is not a defence. The other purpose is to protect young women from predatory conduct by older male.”
    • (See also Police v. Taulapapa [2014] WSSC 66 (11 November 2014); Police v. Imoa [2014] WSSC 144 (23 June 2014))
14. But the court has also imposed varying sentences from custodial to non custodial depending on the facts of each case and circumstances of each accused. Prosecution submits that the purpose of s59 would be served in your case by imposing a custodial sentence with a starting point of 12 months.
15. In a helpful analysis of the cases, they rely on Police v. Ligaliga [2018] WSSC 88 where a 19 year old accused was sentenced to 6 months imprisonment for sexual connection against a 13 year old victim; Police v. Tasele [2017] WSSC 167 where a 21 year old accused was sentenced to 4 months imprisonment for sexual connection that resulted in pregnancy of the 15 year old victim; Police v. Wilson [2017] WSSC 71 where a 25 year old accused was sentenced to 4 months imprisonment for sexual connection against a 14 year old victim; and Police v. Apelu [2015] WSSC 258 where a 22 year old was sentenced to 7 months imprisonment for sexual connection against a 14 year old victim. In all 4 cases, there was a boyfriend and girlfriend relationship between the accused and victim. But the most distinctive feature compared to your case is the lower age disparity of 2 years in yours.
16. Your counsel submits that a non custodial sentence is appropriate. He relies on Police v. Sale [2015] WSSC 259 and Police v. Toevaa [2021] WSSC 65 where sentences of supervision were imposed. But prosecution also cites Police v. Fatai Fatai (Unreported, 30 April 2018); Police v. Lameko Sakaria (Unreported, 5 May 2017); Police v. Kone Lotomau Moa (Unreported, 7 April 2017); and Police v. Malotutoatasi [2017] WSSC 64 (21 April 2017).
17. I have considered those cases and find your offending to be at the lower end of the scale. I would have imposed a sentence of supervision but for one important factor - the fact that you have already spent 7 months in custody from 3 November 2021 to 6 June 2022.
18. The record shows that you were charged and held in police custody on 3 November 2021 and remanded to first appear in Court on 22 November 2021. The Court would have likely granted bail but for your guilty plea to the more serious charge of sexual violation by rape which attracts a life imprisonment penalty, entered when counsel first appeared on 6 December 2021. The most likely sentence for rape is an imprisonment term and as a result you were remanded in custody pending sentence which was deferred a number of times in part due to lockdown. You were released on 6 June 2022 after the Court raised concerns about your guilty plea to rape given the circumstances evident from the original summary and pre sentence report. As pointed out to counsel, it was clear from the material that you had a strong defence to the charge of rape.
19. Without the benefit of submissions I have considered whether I should exercise the discretion to discharge you without conviction under s69 Sentencing Act 2016. The law on discharges without conviction is well settled (see Attorney General v. Ropati [2019] WSCA (15 April 2019). The approach is that the Court must:
    • (i) Assess the gravity of the offending, a task which includes having regard to aggravating and mitigating factors;
    • (ii) Identify the direct and indirect consequences of a conviction;
    • (iii) Decide whether the consequences of a conviction would be out of all proportion to the gravity of the offending;
    • (iv) Exercise a discretion as to whether a discharge should be the outcome.
20. In Attorney General v. Sefo [2018] WSCA 16 (25 October 2018), the Court dismissed an appeal against sentence discharging the respondent without conviction for sexual connection against a girl under 16 years that he was in a relationship with. The Court was satisfied that the automatic entry of the 20 year old respondent’s name on the register would be a severely disproportionate consequence for him of a conviction for that particular offending.
21. More recently in Police v. Lelini Toalima (Unreported, 4 July 2022), Clarke J granted a discharge without conviction for the same offence on the basis that the accused’s consequent registration as a sex offender under the Sex Offenders Act; and the impact on his plans to become a teacher and move to New Zealand would be severely disproportionate to the gravity of the offending.
22. Applying the same approach, I am satisfied that the consequences of your conviction for this offence would be out of all proportion to the gravity of the offending.
23. I have found your offending to be at the lower end of the scale. You were in a relationship with the victim. The age disparity was 2 years and the incidents were reported because the victim’s family did not approve of your relationship. You are remorseful. You were assaulted by the victim’s family. More significantly, you were held in custody for 7 months when you should not have been because of your guilty plea to a rape charge that you had a strong defence to.
24. A conviction and automatic entry of your name in the sex offenders’ registry would be out of all proportion to the gravity of your offending.
25. I am further satisfied that this is an appropriate case where the exercise of the discretion under s69 should be granted in your favour. Clearly you have suffered more than the penalty the Court would have imposed. It would be unjust not to grant a discharge.

Result

26. On the charge of sexual connection with a young person and indecent assault on a young person, you are discharged without conviction.
    

JUSTICE FEPULEA’I A. ROMA