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Police v FG [2015] WSYC 6 (13 August 2015)

THE YOUTH COURT OF SAMOA
Police v FG [2015] WSYC 6

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

AND

F.G of Satuimalufilufi
Young Person

Presiding Judge: Judge Mata Keli Tuatagaloa

Counsel:
Ms Leone Su’a-Mailo for Informant
Mr Alex Su’a for Young Person

Sentencing Date: 13 August 2015

SENTENCE BY JUDGE TUATAGALOA

Charge

1. The young offender appears for sentence after having been found guilty of one count of sexual conduct with a child under 12 years old under section 58(1) of the Crimes Act 2013.
2. The young offender was 13 years old when he committed this offence.
3. The offence of sexual conduct with a child under 12 years old carries a maximum penalty of life imprisonment.

The Offending

4. On the 6^th February 2015 at Satuimalufilufi at around 3pm the young offender underneath a breadfruit tree behind the young female victim’s house performed oral sex on her.

Prosecution Submissions

5. The Prosecution submits that the Court must consider the following principles of sentencing:
   1. The gravity of the offending in the particular case, include the culpability of the offender; and
   2. The seriousness of the type of offence in comparison with other type of offences, as indicated by the maximum penalties prescribed for the offences.
6. The court to take in to account the following:
   • Planning and Premeditation;
   • Vulnerability of the victim;
   • Psychological harm to the victim.
7. In view of Key v Police [2013] WSCA 3 which is binding upon this Court a custodial sentence under section 16(f) be imposed upon this young offender with a starting point of 5 years.

Defence Submission in Mitigation

8. Counsels for Young Person in his submissions say the following for the court to consider when passing sentence:
   • Age of the young person;
   • Young person remorseful;
   • Young person realised that his actions will have a profound effect on `himself and his family given the stigma now associated with him;
   • Young person have apologised to the victim and her family;
   • Young person have endured hardship in living away from his parents;
   • Good character.
9. Counsels further submitted that the young offender’s age and limited knowledge of the impact of his actions upon the victim his abiding by his bail conditions and order of the court to live elsewhere and attending counselling and the reports provided shows that he is not a threat to the safety of the community.
10. Counsels ask for a non-custodial sentence.

Court Orders

11. The Court ordered the following:
    • A pre-sentence meeting to be conducted by Probation between the young offender and his parents with the young victim and her parents.
    • The young offender while awaiting sentence was ordered to stay with Rev. Tauapa’i of EFKS Lalovi because of the continuous tension between the families of the young offender and young victim and that they are neighbours. The young offender was also ordered to attend counselling with Mr Tapu Tuisuga of Samoa Victim.

Pre-Sentence Meeting:

12. In the first pre-sentence meeting the Probation conducted separate meetings with the young offender and his parents and the young victim and her parents. The reason being the young victim’s parents were very resentful and angry with what happened to their daughter.
13. When the matter was called for sentencing on 24 July 2015, the Court ordered another pre-sentence meeting to be conducted with everyone present and the representative of Samoa Victim was asked to assist Probation with this meeting. The parents of the young offender and those of the young victim were reminded of the importance of being able to meet, to talk about what happened and for the victim’s parents to vent their anger and frustrations. This will be important as a healing process for the victim and her parents and would hopefully, for everyone to be able to move forward.

Pre-sentence Reports/Victim Impact Report

14. It was clear from the first pre-sentence meeting that the young victim’s parents find it difficult and were angry against the young offender with what he did to their daughter. As a result, the father removed himself from their home at Satuimalufilufi and is living at his family at Solosolo to avoid anything from happening. The first Report also says that the young victim’s mother noticed a change in her young daughter that she is acting and behaving like an adult “..tele ni suiga ua vaaia i lana tama teine ona ua pei o ni amioga a se tagata ua matua talu ona tula’i mai lenei mataupu.” The mother in the Victim Impact Report says that her daughter talks back to her. She also said that since the offending her daughter appeared sick and had lost her appetite and in the process became skinny and fragile.
15. The young victim’s mother said that there would not have been any tension or anger from them towards the young offender and his parents if the young offender and his parents had met with them and apologised when it happened. On the other hand the report say that the parents of the young offender spoke with the young offender of what he did and the young offender told them he did not do anything. This could be the reason why the young offender’s parents did not initiate a meeting or never went to meet with the parents of the young victim.
16. The court also noted during the hearing that there was an underlying issue between the two families with the land between their properties.
17. The report from the second pre-sentence meeting said the young offender cried and apologised to the young victim and her mother. As a result the young victim’s mother has forgiven the young offender and that her family will no longer object to the young offender returning to live with his parents and family next door to them. The father of the young offender spoke and conveyed how grateful they are and their heartfelt thank you to the young victim’s mother and family for accepting their son’s apology.

Counseling Assessment Report:

18. The young offender told Mr Tuisuga that an older kid from his village showed him pornography on his mobile phone. He watched it once. Mr Tuisuga raised concern and said the following:
    • “From my professional point of view, F.G no doubt, is from a loving and caring family and he is a very good kid. My grave concern would be for these older kids he hangs out with, that have negative influences on F.G and other children in the village. These older kids abusive and anti-social behaviours, no doubt have destroyed these children’s innocent minds with damaging effects.”
    • Mr Tuisuga went on to say:
    • “I believe, professionally, that F.G is a victim himself too, because he was being exposed in a very young and tender age, to these sexual explicit images and movies.”

The Young Offenders Act 2007

19. The preamble to The Young Offenders Act 2007 states that it is 'to provide a criminal justice system for Young Persons, their treatment by the Courts, and related purposes.'
20. Part V of the Act deals specifically with sentencing. Section 15 gives sentencing options without entering a conviction, and section 16 sentencing options when the Court has determined pursuant to either section 15(2) or (3) that a conviction is warranted.
21. Of relevance in this case is s.15(3) which states that:
    • 'Where the Court is of the opinion that a conviction and sentence is required in the interests of justice after having given due consideration to all the circumstances of the offence it may convict and sentence the Young Person in accordance with section 16.'
22. Worth noting is the fact that all of the sentencing options in s.16 are disjunctive, that is, either the court convict and discharge or impose a suspended sentence or impose a fine or community work or supervision or imprisonment. In other words they cannot be combined. That is unhelpful in my view. A sentence of supervision or community work might very well be insufficient on their own, but combined will be an appropriate sentence.
23. The most punitive option under The Young Offenders Act can be found in s.16(f):
    • 'Impose a term of imprisonment, to be served in a youth residential facility or if such a facility is not available a prison, provided however, the Court must only impose a custodial sentence as a last resort and in circumstances where there is no reasonable alternative.'
24. The Community Justice Act 2008 is:
    • 'An Act to promote criminal justice by the provision of a community based justice system that foster community based sentencing options and the rehabilitation and reintegration of offenders.'
25. Under s.5 of that Act:
    • '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.'
26. Of course that aligns with the philosophy which underpins The Young Offenders Act.
27. Although under the Community Justice Act s.12(c) provides for post release conditions to be imposed for up to 12 months on a sentence of imprisonment less than 2 years, I do not consider that possible (although desirable) in the Youth Court because of s.5 (2) of The Young Offenders Act which makes it clear that any Young Person who is charged with a criminal offence must be dealt with 'in accordance with the provisions of this Act.' Furthermore, s.16 (f) makes no provision for post release conditions to be imposed.

The Victim

28. The Victim was 6 years old at the time of the offending.
29. She lives with her parents at Satuimalufilufi and is neighbours with the young offender.
30. The Victim was taken to hospital on 13 March 2015, a month after and was seen by Dr Faleluafua Matatumua. Dr Matatumua in her report noted the following:
    • “ – No signs of injury seen
    • Normal pre-pubertal genitalia”
31. The mother of the young victim has noticed a big change in the young victim’s attitude towards her and is no longer the active carefree child she was before the offending.

The Young Offender

32. There are, a number of mitigating features about the young offender personally that I take into account when deciding what sentence to impose.
33. It is his first encounter with the law and it is sad that this offence is becoming prevalent with the young people particularly young males.
34. He was 13 years old at the time of the offence. Age is a very important consideration and youth is relevant in assessing the consequences of conviction. He is at a critical point of development.
35. The Probation Report on the second pre-sentence meeting say that the young offender apologised to the young victim and her mother and the mother has accepted the apology and has forgiven the young offender.
36. Reverend Tauapa’i finds that the young offender interacts well with everyone at his home. He finds the young offender to be polite and gets on well with other kids of his church. Reverend Tauapa’i has no concerns or issues regarding the young offender.
37. The parents of the young offender speak highly of the young offender and are at a loss as to why this has happened.
38. I accept that the young offender’s parents are trying to understand and even come to terms with what he did. I can understand why any parent would feel like they did because no parents would expect their children at that age to know or come to do what the young offender did.

Sentencing Principles for Young Offenders:

39. The following principles must be taken in to account in sentencing of a young person:
    • That a young person who commits an offence should be kept in the community so far as practicable and consonant with the need to ensure the safety of the public;
    • The young person’s age is a mitigating factor in determining whether or not to impose sanction, if so, the type of sanction to impose;
    • Any sanction to be imposed should take the form most likely to maintain and promote the development of the young person and it is the least restrictive form appropriate in the circumstances;
    • The underlying causes of the offending by a young person must be addressed;
    • The views and interests of the victim and the impact of the offending are considered.
40. The rights of the young people under the United Nations Convention on the Rights of the Child to have their need for rehabilitation and reintegration respected through the criminal justice system. The principles and purposes of sentencing of young offenders in the Youth Court especially set up for young persons’ must be first and foremost considered.

Aggravating Features:

Seriousness and prevalence of the offending amongst the youths;

Impact of offending

41. This offending has had a huge impact on the young victim’s family. Her father left their family, went and lived with his family at Solosolo to avoid him reacting against the young offender and his family. The physical change the mother noticed in her daughter that she appeared sick, lost appetite and in the process became skinny and fragile said to be as a result of what happened is not substantiated by any medical evidence. That is, the young victim might be contracting some illness and not from what happened.

Vulnerability of the Victim

42. The Victim’s was playing by herself under the breadfruit tree. Her age makes her more vulnerable. Her mental maturity is intrinsic with her age.

Disparity of Age

43. There is a disparity of 7 years between the victim’s age of 6 years old and the young offender’s age of 13 years.

Premeditation

44. There was no premeditation. This was more an opportunistic offending. The young offender saw the young victim playing under the breadfruit tree with no adult around.

Harm

45. It is intrinsic in any sexual offending the emotional or psychological harm upon any victim regardless of age. The degree of violence in any sexual offending would determine the degree of harm.

Mitigating Features

46. The mitigating features relating to the offending were (i) it was a brief encounter (ii) there were no physical injuries sustained by the victim and (iii) degree of physical violence was very low to non-existence.
47. I will address the following mitigating features personal to the young offender as submitted by Counsels for the young offender:

Young age

48. The young offender’s age is highly relevant to assessing culpability. Justice Winkelman in Puwhare v R, CA 227/10, 2 July 2010 in sentencing a young offender made the following observation:
    • “It was accepted that the adolescent brain is far from fully developed and consequently, teenagers have impaired decision-making and a tendency to impulsive conduct. Adolescents are also particularly subject to peer pressure. Science now confirms “... what any parent could tell us about the behaviour of teenagers in their household”.^[1]

Apology

49. The young offender in the second pre-sentence meeting cried and apologized to the young victim and her mother.

Remorse

50. I accept that the young offender was remorseful when he cried and apologized. I also feel that he was ashamed with what he did. This is also a sign of acceptance on the young offender (and his parents) of his actions and the effect his actions have on the young victim and her family but also his family.

Good Character

51. The young offender was 13 years old at the time of the offending. There has been scientific proof that the adolescent brain is far from being fully developed at this age. As such, they do not fully comprehend the impact of their actions. Thus, one of the reasons why rehabilitation is very important with young offenders. I do not place too much weight on this feature in the sense that he has not offended until now. On the other hand,
    Reverend Tauapa’i of EFKS Lalovi who he is temporarily staying with finds the young offender to be polite and interacts well with everyone at his home and church, good at doing chores around the house and likes to entertain others through singing and dancing. This shows the innocence of this young offender at this age and the fact that he does not fully comprehend the impact of his actions as he does not seem to be worried. At the same time it shows the sort of young person he is – polite, sociable and basically a good kid. His parents are said to be at a loss as to why this has happened. In this sense, I will tak his good character as a mitigating feature.

Hardship

52. The hardship faced by the young offender has been as a result of his actions. I do not place any weight on it as a mitigating factor.

Discussion:

53. The Prosecution calls for a custodial sentence to be imposed applying Key v Police [2013] WSCA 3 with a starting point of 5 years. Key v Police a decision of the Court of Appeal is a tariff case specifically on rape, where there has been penetration.
54. The offending in this matter is one of unlawful sexual connection (s.49(b)) by way of oral sex (s.50(b)). Because of the age of the victim, the young offender is, therefore charged under s.58(1) whereby the imprisonment term is then life.
55. In the the case of R v AM [2010] NZCA 114, [2010] 2 NZLR 750 the New Zealand Court of Appeal set out and discussed the sentencing guidelines for cases of rape and sexual violation by unlawful connection. His Honour, Chief Justice Patu F. Sapolu in unlawful sexual connection cases ( see: P v Ieremia [2014] WSSC 70; P v Toma [2015] WSSC 65) where there is no penetration have applied the bands provided in R v AM [2010]. The sentencing bands for unlawful sexual connection to apply are those provided in R v AM if the sentencing judge is considering a custodial sentence:
    • “It must be noted that the starting point for sentencing approach is only of assistance in determining how long a custodial sentence should be if the sentencing Judge is mindful of imposing such a sentence. It is not appropriate where the sentencing judge is mindful of imposing a non-custodial sentence.” (see R v AM [2010] at para.14)
56. This offending (as I have said in earlier sentences) is prevalent amongst the young males and is increasing. The exposure to outside influence through technology by readily access to mobile phones, internet and television has a great impact on our young people.
57. In the present case the young offender watched pornography on a cell phone owned by an older boy in their village. Mr Tuisuga in his Counselling Assessment Report of the young offender:
    • “I believe, professionally, that F.G is a victim himself too, because he was being exposed in a very young and tender age, to these sexual explicit images and movies.”
58. The trend of the commission of sexual offences in the outer villages as opposed to urban areas still continues. One assumes that the young people living in the urban areas will be more prone to committing these sorts of offences as they are more exposed to outside influence. But, then of course technology has infiltrated our society urban or rural.
59. Opportunity seemed to be a big factor in the commission of these offences in or from the outer villages. It usually happens where the young offender comes across the young victim by herself or with other young children with no adult supervision.
60. I have to impose a sentence that will reflect the circumstances of the offending taking in to account age and personal circumstances of the young offender and the views and interests of the young victim. The need for rehabilitation so that the young offender will have a sense of responsibility for his actions and a sense of understanding that what he did is wrong and is frowned upon by society. There is also a need for a sentence that would deter other young people from committing these types of offences that is becoming prevalent amongst the young males.
61. The cornerstone of juvenile justice of rehabilitation and reintegration must always be first and foremost when considering sentence to be imposed unless circumstances so warranted a custodial sentence. Given the mitigating factors and the circumstances of the offending a custodial sentence is not appropriate in the circumstances.
62. Incarceration will not facilitate rehabilitation but will have more of a negative impact on the young person than any good. Incarceration will not address the underlying cause of this offending but rehabilitation. This young offender needs to be with his parents’ which will be most conducive to reincorporating this young person in to society and to his rehabilitation. His parents will continue to carry out their parental duties to supervise, advise and care for him.
63. To reflect the seriousness of sexual offending, this Court in previous cases have always (except in P v BF) sentenced the young offenders under s.16 (e) whereby a conviction is recorded and a supervision term is imposed with special conditions. Because of the limited sentencing options I believe that s.16(e) is most appropriate in addressing the seriousness of the offending by having the offending recorded and the supervision term with special conditions will assist in rehabilitation of the young offender.
64. The young offender is convicted and sentenced to 15 months supervision with the following conditions:
    1. To undergo a mentoring programme with SVSG;
    2. To attend spiritual counselling with SVSG;
    100. To continue with his education;
    4. To refrain from socialising or mixing with older boys;
    5. To have no unsupervised contact with females younger than him;
    6. To return and live with parents at Satuimalufilufi;
    7. Any other deemed necessary by Probation.
    8. Judicial Monitoring – You are to appear back in court in 7 month’s time on 11 March 2016 at 12noon.
65. F.G, I hope that the sentence imposed by the court is in your best interest and will have a positive effect in your development and growing up to becoming a young man. That you will learn from this and will never do it again.
66. The Court will not hesitate to impose a custodial sentence should you breach any of the conditions imposed of your supervision sentence.
    

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Judge Mata Keli Tuatagaloa

^[1] At [30].