Youth Court of Samoa

Police v TF [2014] WSDC 1

Case name: Police v  TF

Citation: [2014] WSYC 1

Sentencing date: 24 April 2014

Parties: 

POLICE (prosecution) v TF a young male 

Jurisdiction: Criminal 

Place of delivery: Mulinuu

Judge(s): DCJ Tuatagaloa

On appeal from: 

Order:

Representation: 
 Ms Rexona Titi and Ms Brigitta Faafiti Lo-Tam for Prosecution 
Ms Unasa Leilani Vaa-Tamati for Young Person	

Catchwords: 

Words and phrases: 

Legislation cited
The Community Justice Act 2008 s.5, The Young Offenders Act 2007 s16 (1) (f)

Cases cited:
Key v Police [2013] WSCA 3

Summary of decision:

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE 

Prosecution

AND:

TF, a young male 

Young Person (Defendant)

Counsel : Ms Rexona Titi and Ms Brigitta Faafiti  Lo-Tam for Prosecution.
           Ms Unasa Leilani Vaa-Tamati for Young Person

Sentencing date: 24th April 2014

SENTENCE BY JUDGE TUATAGALOA

CHARGE

1.	TF you are to be sentenced today on 3 charges, all laid under the Crimes Act:  2 charges of sexual connection (s.58(1) & s.50(a)(i)) and 1 charge of indecent assault (s.58(3)).
2.	You were born on 3 September 1999.  You were 14 years old when you committed these offences. 
3.	The offence of sexual connection carries a maximum penalty of life imprisonment while the offence of indecent assault carries a maximum penalty of 14 years imprisonment.
FACTS
4.	TF, I need to turn for a moment to outline how each of the charges came about.  

5.	On Sunday 29 September 2013 you went with your mother and younger brother for a family to’ona’i (Sunday lunch) at the Victim’s house. Sometime in the afternoon you took the Victim in to one of the rooms at her house. You laid her down, took off her clothes and did the following:
  
•	Indecent assault:
You spit on your hand and rubbed the Victim’s genital.
•	Sexual connections:
You penetrated the Victim’s vagina with your finger; and
You then inserted your penis in to her vagina. 
VICTIM
6.	The Victim was 6 years old and a first cousin. Her father and your mother are brother and sister. 
7.	The Victim felt pain when you penetrated her with your penis and when she told you, you stopped. The next day, the Victim came back from school and told her mother that her vagina was sore when she goes to the bathroom. The Victim then told her mother what you did to her and the matter was then reported to the Police. On Wednesday, 2nd October 2013 the Victim was taken to the hospital and the medical report noted the following:
•	Hymen was not intact;
•	There was a small tear at the 10 o’clock position of the hymen; and
•	There was also a 1cm x 1cm abrasion to the ureteral opening.
8.	The Victim Impact Report obtained by the Police says that the Victim has become withdrawn, no longer wants to play with other children and she is also afraid to be alone. The parents of the Victim are very worried for their daughter.
9.	 Despite that the parents of the Victim (because you are a nephew and are family) they wish for you to be given a second chance to continue your education. You must know that what you have done is wrong and you must know why you are being given a second chance. 
PRE-SENTENCE REPORT
10.	I have read the Pre-sentence report provided by the Probation. It says that you cried and knelt before the Victim’s parents to ask for forgiveness. Your parents have apologised to the parents of the Victim and the Victim’s parents accepted the apology. The Victim’s father however asked that you live away from your home and village to allow the Victim time to heal physically and mentally. This you have done and you now live at Vaimoso and attend school. 

11.	This matter has not been taken before the village council for the reason that it is a family matter and the young people involved are first cousins. I do not agree that, that is the best way to handle this matter when the offence committed is one of serious sexual nature against the female gender of a very young age and especially when the offender and victim are first cousins. Sexual offences which happened within the family must be brought out and addressed openly so that the matter could be dealt with accordingly. The village council has a very important role to play in maintaining peace and harmony within the village. They have sanctions against people who committed offences against other people within the village or those people that will bring disrepute to the village.   
12.	This offence goes to the core of the Samoan culture. It is a gross breach of the sacred covenant between a brother and sister or male to female. When this happens the finger is pointed to the parents of the offender and the family environment he is growing up in to. It questions the integrity of the values of parenting within Samoan families especially so if living in villages.  
13.	The Pre-sentence report provided by Probation recommends probationary supervision for 2 years and community service.
14.	The recommendation by Probation is consistent with section 5 of the Community Justice Act 2008. It is also consistent with principles of the Young Offenders Act 2007 of rehabilitation and reintegration into the community.
LEGAL PRINCIPLES
15.	You must stand up and be counted for your offending.  What you did was wrong.  You know that.  The victim of your offending is very young and your own first cousin.  The impact on her must be taken into account.  Because of your age I am searching for the least restrictive outcome that is appropriate in the circumstances.  Make no mistake though, you will be punished for your offending but on the other side of the coin is the need for you to know and accept that what you did was wrong and is not acceptable. You cannot continue on not knowing the impact and effect your actions now has on this young Victim for the rest of her life.   
16.	I want to return to the sexual violation charges because they are the most serious charges.
17.	The case of Key v Police [2013] WSCA 3 sets out the bands for sexual violation by way of rape.  Although it dealt with a sexual violation by way of rape which involved an adult having been found guilty by assessor trial, it is helpful in your case because the Court of Appeal gives guidance as to what the starting point of imprisonment should be for different kinds or circumstances of sexual violation.  

18.	Key v Police being a Court of Appeal decision is binding upon the subordinate courts but I must consider other factors because of the way you come before the Youth Court. I acknowledged Peti v Key is a tariff case on sexual violations but the point of difference and a crucial one is that the matter before the court involves a young person.
19.	I must take into account the seriousness of these particular charges, the premeditation involved, the age of the Victim and the fact that the Victim was your own first cousin. 
20.	I do not think that this case falls within Band 3 as recommended by the Prosecution. The Prosecution concedes that you were not violent in an angry manner, you stopped when the Victim complained that she was sore and the premeditation involved was at a lower end. I consider that this case falls within Band 1 of Key v Police. 
21.	When deciding how you should be sentenced I must take into account the purposes and principles of the Young Offenders Act of rehabilitation and reintegration into the community.  That is, regard to the desirability of keeping young offenders in the community so far as that is practicable and consistent with the safety of the community. This is also consistent with the principles of the Community Justice Act 2008.
22.	Section 5 of the Community Justice Act 2008 says that where an offender is convicted of an offence punishable by imprisonment the court must have regard to the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.  All of the other options of sentencing are available to me though.
23.	Section 16 (1)(f) of the Young Offenders Act 2007 says that the court must only impose a custodial sentence as a last resort and in circumstances where there is no reasonable alternative.
24.	I also take into account the rights of young people under the United Nations Convention on the Rights of the Child. The rights of the young people to have their need for rehabilitation and reintegration respected through the criminal justice system.
THE YOUNG OFFENDER
25.	There is one weak mitigating feature of this particular offending. That is, you stopped when the Victim told you that she was hurting.
26.	There are however a number of mitigating features about you personally that I take into account when deciding what the end point of imprisonment on sexual violation charges should be.
27.	These charges are your first encounter with the Youth Court and they are not the usual charges for most of our young people who come in to contact with the law. These are very serious charges that you are charged with.  
28.	I read from the Pre-sentence Report that you cried and knelt in front of the parents of the Victim to ask for forgiveness.  
29.	You are only 14 years old.  That is a very important consideration.  You are at a critical point of development and youth is relevant in assessing the consequences of conviction. You are still attending schools and that is very good for your development and education greatly assists in rehabilitation.
30.	The Probation Officer who prepared the report says that you felt remorse, extreme shame and that you had promised that you will never ever offend again. I believe that you are remorseful and very shameful and so you should be.   I accept that you regret what you have done.   I accept that both of your parents are doing their best to help you from being sent to prison.  I know they are trying to understand and even come to terms with what you did.
31.	You are now living away from your home and you will continue to live and stay away from your village and home until such time as is reasonable for you to return. Your return will depend on the Victim. Your living away from home will in some way help the Victim to forget what had happened to her and I hope that she will be able to once again be the young girl she was before this happened and that she will be able to put all this behind her, however difficult that will be and she will grow up to be the woman that she wants to be.
SENTENCING
32.	Taking into account your early guilty pleas to all charges, the mitigating factors in your favour and your personal circumstances which I have referred to, a custodial sentence is not appropriate. Your early guilty pleas to all charges show remorse on your part and acceptance of the wrong that you had done.
33.	Emphasis is placed on the importance of encouraging rehabilitation and reintegration in to both your development as a young person and the community. Your young age, lack of previous offending or violent behaviour, lack of continuing threat to the community and determination to complete your education are mitigating considerations.
34.	I am therefore persuaded to give you a second chance.  You need to know that the consequences of you breaching the sentence I am about to impose though are much harsher.
35.	I believe that the sentence I am to impose will achieve the principles and purposes of the Young Offenders Act of rehabilitation and reintegration and at the same time makes you the young offender take responsibility and be accountable for your behaviour and actions. 
36.	You  are sentenced on all charges to 2 years probation with the following additional conditions:

a)	To live away from village where the Victim resides;
b)	To have no contact with the Victim;
c)	To have no unsupervised contact with any female 16 years and under;
d)	To abide by a curfew from 6pm – 6am;
e)	To undergo Counselling as determined appropriate by the Probation Services;
f)	Judicial Monitoring – You are to appear back in court in a month’s time on 29 May 2014 at 12noon and from there we will then look at how monitoring should take place for the rest of your sentence. 
37.	You are to also serve 250 hours community service.
38.	If you are brought back before me for breaching this sentence make no mistake you will go to prison and the term will be no less than 2 years that you will currently serve under probation. 

…………………………………………
          Judge Mata Keli Tuatagaloa