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Police v TJS [2022] WSSC 48 (19 September 2022)

IN THE SUPREME COURT OF SAMOA
Police v TJS [2022] WSSC 48 (19 September 2022)

NOTE: THERE IS AN ORDER SUPRESSING OR PROHIBITING THE PUBLICATION OF THE NAMES OF THE VICTIMS AND THE DEFENDANT

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

TJS

Defendant

Counsel: T. Sasagi for Prosecution
M. Soonalole for the Defendant

Date: 19 September 2022

SENTENCE OF TUATAGALOA J

The charge

1. The accused appears for sentence on one count of sexual connection with a child under 12 years pursuant to section 58 of the Crimes Act 2013 which either carries a maximum penalty of life imprisonment^[1] or maximum 14 years imprisonment.^[2]
2. The prosecution only on the day of sentencing identified section 58(1) as the offence provision by which the young offender is charged with. Section 58(1) attracts the penalty of maximum life imprisonment.

The offending

3. According to the summary of facts the young victim was on her way to her aunt’s house by a dirt road at the same time as the young offender who was carrying a bunch of coconuts (popo). The young offender stopped the young victim and pulled her behind some teuila plants whereby he pulled the young victim’s pants down, stooped and licked the young victim’s genitalia. This is defined as sexual connection pursuant to section 50(b) of the Crimes Act 2013.

The victim

4. There is very little information provided of the victim. According to the summary of facts the victim was eight years’ old at the time of the offending. She and the young offender are from the same village.
5. According to the victim impact report (VIR), the young victim suffered or sustained no physical injuries. The young victim is said to be scared to go anywhere on her own for fear of this happening to her again.
6. The young victim still continues to attend school.

The accused

7. The accused is a young offender who from the summary of facts was 17 years old at the time and was in Year 12 at Leififi College. He is currently in Year 13. He is described by his father in the PSR (pre-sentence report) as a, “reliable child who attends church regularly and is involved in the church choir and the church youth group.” The father pleads for a second chance for his son. Additional character testimonies are provided by the young offender’s Church Minister, Reverend Faafouina Vaimalu of the Methodist Church in his village who describes him as “an obedient hardworking child who studies with his children and a devoted young Christian”. A letter from the young offender’s village pulenuu confirms that the young offender’s family have carried out a village penalty imposed upon them. The young offender has never been in trouble or sanctioned by his village until now. Both have also asked for leniency from the Court and for the young offender to be given a second chance.
8. What the young offender said in his PSR of the offending is consistent with the summary of facts provided by the prosecution except the part where it says that the young offender covered the young victim’s mouth with his hand.

Sexual Offending under section 58

9. The offending by definition falls under section 50(b) of the Crimes Act 2013 as “connection between the mouth or tongue or any part of the body of any person and any part of the genitalia or anus of any other person.”
10. Section 58 is the offence provision with sexual conduct with child under 12. Unlawful sexual connection generally is punishable by up to 14 years’ imprisonment under s. 52(2) whereas s. 58(1) prescribes life imprisonment in the case of offending against children under 12 years.
11. Their Honours in Attorney General v Lua^[3] at paragraphs [17] & [18] saw the need for a specific guideline to cover unlawful sexual connection offending against children under 12 years. Their Honours said at [17]:
    • “Sexual connection against children covers a wide spectrum, from the most serious penetrative acts to fleeting skin on skin touching of the genitalia or anus.”
12. Lua provided the sentencing guideline bands to apply to unlawful sexual connection against children under 12 years where there is no penetrative act. Section 58(1) is sexual connection by penetration while section 58(2) & (3) refer to non-penetrative. This guideline judgment (they say) must be read together with the sentencing general guidelines in R v AM ^[4] .The sentencing bands in Lua are:
    • 10.1 Band one (2-6years): where the offending is at the lower end and there is an absence of aggravating features or their presence is limited. Their Honors on band one at paragraph [25] made the following observations:
      • “The least culpable will be of a single skin on skin touching of the genitalia or anus of a limited duration. In the absence of other aggravating factors offending at this level may well warrant a starting point as low as 2 years before personal mitigating factors are considered.”
    • 10.2 Band two (5-12 years): where the offending is of moderate seriousness and involves two or three aggravating features.
    • 10.3 Band three (11years – life imprisonment): where the offending is of the most serious of this kind which would involve offending against multiple victims over a significant period in the presence of serious aggravating features.
13. I turn now to consider the aggravating and mitigating features of this offending.

Aggravating features of the offending

14. I accept the following to be the aggravating features of the offending:
    • Vulnerability of the victim;
    • Age disparity of 9 years between 17 years and 8 years old; and
    • Psychological impact.
15. The vulnerability of the victim is reflected by both her age and the circumstances surrounding the offending. That is, it took place on a back (dirt) road and the young victim was on her own going to her aunt’s house. This should be a warning to all parents that they should never let their young daughters go on their own to run any errands or to the shops no matter what time of the day.
16. The psychological impact to the victim is the victim no longer feels safe on her own and is scared of the young offender or of any boys for fear of this happening to her again. She may for some time no longer trust boys in general.

Mitigating factors

17. The mitigating factors of the offending and those personal to the offender are:
    • The age of the offender;
    • First offender;
    • Early guilty plea;
    • Still attending school – Year 13 at Leififi Secondary;
    • Apology to the victim’s family (by the young offender’s family);
    • Village penalty that was imposed upon the young offender’s family and according to the PSR has been performed by the family.

Submissions by Counsels

18. Counsel for the young offender seeks for a discharge without conviction submitting that a conviction would have a disproportionate impact on the young offender with future studies and meaningful employment. He identified the following in favour of the young offender: young age (17 years), first offender, the young offender is generally of good character (character references from his faifeau, pulenuu and family), apology to the victim’s family, doing well in school both academically and in sports and is truly remorseful.
19. Counsel for the young offender implores the court to place heavy consideration on the fact that the offender is a young adolescent who according to scientific research^[5] revealed that in relation to adolescent brain development, those parts of the brain for exercising judgment, impulse control and self-regulation are still maturing throughout adolescence right up to mid-20s for males.
20. The Prosecution oppose the application for a discharge without conviction citing J W Gendall J in Fowlie v Ministry of Social Development^[6] that the risk must be “real” that they may possibly occur and not just feared consequences that would or probably occur. Prosecution says that the consequences referred to by Counsel for the young offender are not “real risks” as there is nothing before the Court to confirm that a conviction would have a disproportionate impact on the young offender from seeking meaningful employment or would affect his opportunity of further studies overseas. These are merely the wishes of the young offender that may or may not occur. The Prosecution further submits that the Court should be hesitant to usurp the role of a professional body or appropriate authorities, in this case the Immigration and University or TAFE from making such decisions.^[7] Furthermore, the Prosecution says that a conviction would not be disproportionate to the gravity of the offending by the young offender.
21. The Prosecution submitted for a custodial sentence with a starting point of 3 years’ imprisonment. The starting point falls in the median of Band 1 in Lua (supra). They identified the following as aggravating factors: vulnerability of the victim, age disparity, nature of offending (there was violence involved when the young offender pulled the victim behind the teuila plants and covered her mouth with his hand to stop the victim from screaming), and the psychological impact on the victim.
22. Alternatively, Prosecution seeks for Judicial Monitoring of the young offender for a period of 12 months under strict conditions referring to the case of Police v MFI^[8] before a discharge without conviction is considered. I do not accept this. The case of MFI and the present case involve young offenders but their offending are vastly different. MFI involves rape of a 5 year old while as the present case is not rape. Judicial Monitoring is best reserved for the specialized Courts like the Youth Court and/or Alcohol and Drugs Court.
23. I will first consider the law concerning discharge without conviction and then the principles of youth justice as the accused is a young offender under the UN Convention on the Rights of the Child Charter to which Samoa is a signatory.

Jurisdiction to Discharge without Conviction

24. I reiterated what is said by Justice Vaai in AG v Khamtahn Stanley & Lomalasi Laufili^[9] as to the law at paragraphs [18] - [20]:
    • “[18] Section 69 of the Sentencing Act 2016 confers jurisdiction on a Court to discharge an offender without conviction. Section 70 provides guidance. The Court must be satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence before discharging a defendant without conviction.
    • “[19] The Court of Appeal in Attorney General v Ropati ^[10]discussed the correct approach to section 69 and 70. A four step approach is provided:
    • (a) Assess the gravity of the offence, a task which includes consideration of all the aggravating and mitigating factors relating to the offender and the offender;
    • (b) Identify the direct and indirect consequences of conviction for the offender;
    • (c) Consider whether those consequences are out of all proportion to the gravity of the offence;
    • (d) If the Court determined they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge.
    • “[20] The Court’s discretion to discharge without conviction under section 69 exists only if the Court is satisfied that the section 70 threshold has been met. Section 70 provides a gateway through which any discharge without conviction must pass.
25. The threshold test in section 70 is not a matter of discretion, but rather a matter of fact requiring judicial assessment.

Principles of Youth Justice

26. The accused is a ‘young offender’ under the Young Offenders Act 2007. Youth justice principles should apply to this young offender. Our Young Offenders Act was no doubt legislated on principles of youth justice as encapsulated in the UN Convention on the Rights of the Child (CRC); therefore, such principles should underlie considerations of any sentence of a young offender.
27. The Court of Appeal in Churchward v R discussed the following considerations that will influence the Court whether to allow a discount for youth:
    • (i) There are neurological differences between young people and adults (often referred to as an undeveloped brain in a young person), which makes a young person more impressionable and impulsive.
    • (ii) It is recognized that longer prison sentences tend to have a greater negative impact on young people.
    • (iii) Young people are generally more able to be rehabilitated and reintegrated into the community.
    • (iv) For young people, offending is often a short-lived thing with offenders growing out of a tendency to offend.
    • (v) Criminal convictions when a person is young may have a disproportionately greater effect on the person’s future prospect.
28. The Sentencing Act provides the Court with flexibility as to sentences to impose. The Court to take into account the defendant’s personal, family, community and background or other means with a partly or wholly rehabilitative purpose where such sentences (amongst others) would promote a sense of responsibility in the defendant and an acknowledgement of the harm done and where it would assist in the defendant’s rehabilitation.
29. Where the accused is a young offender, greater emphasis should be given to the possibility of rehabilitation and less to deterrence depends on the age of the young person, the circumstances of the offence and particularly if the accused is a first offender. However, there comes a point at which the seriousness of the offending by a young offender, where violence is so great that punishment and deterrence will take precedence over rehabilitation normally given emphasis to young offenders.
    • "It is well accepted that in the case of youth, general "deterrence and public denunciation usually play a "subordinate role to the need to have regard to "individual treatment aimed at rehabilitation. "However, important is that principle, it cannot "defeat the primary purpose of punishment nor in "circumstances where young offenders conduct "themselves in a way which an adult does, can it "stand in the way of the need to protect society. (R v AEM Snr and Ors [2002] NSCCA 58 at [97]-[98])
30. Those considerations are also likely to take precedence over rehabilitation in the case of young offenders who are repeated offenders and in respect of whom previous opportunities for rehabilitation given by the Court have not worked. Such young offenders are likely to go to prison, even if the seriousness of the offence on which they are again appearing for sentence is not so, great as for instance, the crime of rape. This is not the case with this young offender.
31. The approach when passing sentence on young first offenders has long been established and explained in Police v Totini Simanu [2007] WSSC4 where this Court said:
    • "In passing sentence on a young first offender, the age of the offender is "a most significant mitigating feature. Rehabilitation rather than "retribution or deterrence is usually the primary objective. The reason "for this is the concern of the Courts that a custodial sentence is likely to "expose a young first offender to corrupting influences and therefore the "risk that such an offender will be worse off at the time he comes out "compared to what he was when he went in, and that may cause him to "embark on a path of crime. In consequence, a non-custodial sentence "such as a term of probation is usually imposed in the case of a "young first offender. However, there are cases where the gravity of the "offence is so great that the only appropriate sentence in the "circumstances is one of imprisonment, notwithstanding the youth of the "offender and his previous good character."
32. I adopt and follow the above reasoning and approach with this young offender.

Discussion

33. The age of the young offender (apart from other factors) is a crucial factor in the consideration of a custodial or non-custodial sentence and whether there should be a conviction entered against the young offender albeit a non-custodial sentence is being imposed. The Prosecutions opposes the application for a discharge without conviction thereby seeks for both a conviction to be entered and a custodial sentence.
34. The young offender is charged under section 58(1) of having performed oral sex on the young victim (under 12 years) fleeting it may be. Where there is penile or by object penetration of the genital, mouth or anus the sentencing bands in Key v Police^[11] would be adopted and applied; where the sexual connection with a victim under 12 is non-penetrative the sentencing bands in Lua (supra) applies. The Prosecution’s seeks for a custodial sentence with a starting point of 3 years which falls in Band one (2-6 years): where the offending is at the lower end and there is an absence of aggravating features or their presence is limited.
35. The Court is mindful of the young age and vulnerability of the victim and any psychological impact on the victim. I find no premeditation that the offending was opportunistic. I also find that any violence involved to be at very low level. According to the summary of facts the offence lasted a few minutes and the VIR says that the young victim suffered no physical injuries and the only psychological impact is, the young victim is now scared to go anywhere on her own or be alone for fearing of this happening again. There is no psychological report to confirm whether such will be long term. I can only speculate and hope that such fear will dissipate as the young victim grows.
36. In passing sentence, I bear in mind the principles as I have set out. I take into account the mitigating factors both personal to the young offender and to his offending. I place great emphasis that the accused i n s a young offender and the fact that he is still attending school. At the time of the offending the young offender was 17 years’ old and in Year 12 at Leififi College where he sat and passed the School Level Certificate (SLC) enabling him to reach Year 13. He is now at Year 13 about to sit his Secondary School Leaving Certificate (SSLC) level in November 2022. Having made it to Year 13 suggests to the Court that the young offender is doing well at school. The young offender does seem to have a good chance of making it to tertiary level education whether it be overseas or local with the National University of Samoa.
37. Would a conviction be disproportionate? Having given careful consideration to the aggravating features, mitigating features and circumstances of the offending, the consequences of a conviction will be hugely disproportionate to the future of this young offender. An imprisonment term will not facilitate any rehabilitation to this young offender and would greatly impact on his education and the possibility of a bright and better future. The young offender would no doubt have learnt a valuable lesson that such behaviour is frowned upon by the law. I believe the young offender is truly remorseful of his actions that resulted in these legal proceedings.

Conclusion

38. The application for a discharge without conviction is granted.
39. The young offender is discharged without conviction.
    

JUSTICE TUATAGALOA

^[1] s.58(1)
^[2] s.58(2) & (3)
^[3] Attorney General v Lua [2016] WSCA 1 (19 Feb 2016).
^[4] R v AM [2010] 2 NZLR 750.
^[5] Brainwave Issue 15, Winter 2012
^[6] Fowlie v Ministry of Social Development[2011] NZHC[25 July 2015]
^[7] Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]; Steward v New Zealand Police [2015] NZHC 165 (13 February 2015)
^[8] Police v MFI [2021] WSSC 70.
^[9] Attorney General v Stanley & Anor [2022] WSSC 34.
^[10] Attorney General v Ropati (2019) WSCA 2.
^[11] Key v Police [2013] WSCA 3.