Attorney General v Lua [2016] WSCA 1 (19 February 2016)

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Case name:	Attorney General v Lua

Citation:	[2016] WSCA 1

Decision date:	19 February 2016

Parties:	Attorney General (Appellant) and Siaosi Lua (Respondent).

Hearing date(s):	17 February 2016

File number(s):	CA08/15

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	Honourable Justice Fisher Honourable Justice Panckhurst Honourable Justice Aitken

On appeal from:	Police v Siaosi Lua (Supreme Court matter)

Order:	For these reasons the Attorney General’s appeal against sentence is dismissed

Representation:	P Chang for Appellant D Roma for Respondent

Catchwords:	Unlawful sexual connection – imprisonment term

Words and phrases:	Effective sentence – guidelines for sentence - bands

Legislation cited:

Cases cited:	Crimes Act 2013 Key v Police R v AM (CA27/2009) [2010] 2NZLR 750 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372

Summary of decision:

Court:
Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Aitken
Hearing: 17 February 2016
Counsel:
P Chang for Appellant
D Roma for Respondent
Judgment: 19 February 2016

[1] This is an appeal by the Attorney General against an effective sentence of 3 ½ years imprisonment imposed upon a charge of unlawful sexual connection. In challenging the adequacy of the sentence counsel also asked the Court to establish a guideline for sentencing in relation to the crime of having unlawful sexual connection with children under 12 years of age. The Crimes Act 2013 increased the penalty for this offence to one of life imprisonment, rather than 14 years imprisonment.

[2] Indeed Ms Chang argued that the appropriate course was to apply with necessary modification, the sentencing bands for the offence of rape established in Key v Police [2013] WSCA 3 in the present context as well. In large measure the argument was founded on the circumstance that the maximum penalty for rape was likewise increased to life imprisonment in the 2013 Act.

[3] In advance of the hearing we advised counsel that establishment of a guideline would be considered. We are grateful for their response in providing submissions, and materials, of particular relevance to the structuring of a guideline.

[4] The Respondent pleaded guilty to charges of unlawful sexual connection and indecent assault.

[5] The Respondent, Siaosi, was 48 years of age. As at 25 October 2014 he lived with the complainant’s family as he was related to her grandfather. At that time the complainant was almost 6 years of age. A funeral was occurring in the village.

[6] Siaosi had been drinking. Within the house he hugged and kissed the complainant in an inappropriate manner, before sucking her neck and causing a love bite. He then made the complainant lie down, removed her panties and kissed her genital area.

[7] At this point the complainant was led outside and behind a hedge. There Siaosi sucked her genital area and required the complainant to hold, and rub, his penis. Finally, he placed his penis in the immediate area of the complainant’s anus and made thrusting movements, but without penetration.

[8] The complainant asked whether she could get a drink, was allowed to do so and did not return. Some time later her grandmother noticed the love bite bruise and the complainant gave an account of what Siaosi had done to her. A medical examination revealed two bruises to the neck area and a superficial graze to the left elbow.

[10] Justice Nelson was asked to adopt a 9 year starting point based on the rape sentencing bands contained in Peti Key. He declined to do so because he considered that case should only be applied if the offending involved a penetrative act. Instead he adopted a 5 year starting point to reflect the intrinsic seriousness of the offending and the aggravating factor that, as a boarder in the family home, Siaosi was in a position of trust.

[11] The Judge then considered personal mitigating factors and allowed reductions of 15 months for the guilty plea, a “nominal” 1 month for an absence of previous convictions but a “chequered” background, and a further nominal 2 months for Siaosi’s banishment from the subject village. This resulted in the imposition of a 3 ½ term upon the violation charge.

[12] The indecent assault attracted 18 months imprisonment, but this was made concurrent given that the assault was an aspect of the same course of conduct. We shall return and consider the arguments directed to the length of the sentence in due course, after we have considered the issues relating to a guideline.

[13] Ms Chang advanced 2 main submissions. First, that in enacting the new Crimes Act in 2013 Parliament had spoken and judges were required to reflect the increase in the maximum penalty to life imprisonment for rape and sexual connection with children when imposing sentences. Second, counsel argued that “just as New Zealand law has equated penile penetration of the mouth or anus, or violation involving objects, with (the offence) of rape, similarly Samoa has equated the offence of sexual connection with a child with that of rape.”

[14] We accept the first proposition without reservation. In short judges are bound by the will of Parliament and must, therefore, give effect to any new maximum penalty by generally increasing penalties for the offence in question.

[15] However, we do not accept the second proposition. New Zealand law has not equated penetrative unlawful sexual connection, and rape, offending save in the sense that sexual violation (which includes rape) has a maximum penalty of 20 years imprisonment. More accurately, the New Zealand Court of Appeal in R v AM (CA27/2009) [2010] 2NZLR 750 prescribed 2 guidelines for sexual violation “where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects,” and another for “other violations where unlawful sexual connection is the lead offence” (para [5]). For convenience the former is referred to as the rape guideline.

[16] Thereby in New Zealand penetrative violations of the mouth or anus (whether penile, or by an object), and rape, were “equated” to the extent that they were grouped in a single sentencing guideline. But there was an obvious rationale for this. The existence of a penetrative act is the common feature. A single guideline, but incorporating 4 bands of seriousness, enables rape, and penetrative penile violations of the mouth or anus and such penetrations with an object, to be evaluated in a logical manner.

[17] By contrast, we think it would be simplistic, and wrong in principle, to reason that the rape guideline in Peti Key can be applied equally to sexual connection offending against children, simply because both have a maximum of life imprisonment. In particular there is not an obvious feature which is common to both rape, and sexual connection against children. 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. This indicates the need for a new specific guideline to cover this species of offending which, we accept, is particularly serious on account of the vulnerability of the victims and the lifelong harm which they may suffer. 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]).

[18] Despite our rejection of the Peti Key submission, we are of the view that it is desirable to establish a guideline for sexual connection against children. Ideally it would be preferable to consider separate guidelines for child and non-child cases in the one judgment. Unlawful sexual connection generally is punishable by up to 14 years imprisonment under s52 (2), whereas s58 (1) prescribes life imprisonment in the case of offending against children under 12 years. This would dictate the need for separate guideline bands, but nonetheless it would be advantageous to consider both guidelines together. But, we cannot do this. The only appeal before us concerns a very young child and we have not had the benefit of submissions directed to sexual connection offending against children 12 and over, and adults, which is punishable to a maximum of 14 years under s52(2).

[19] In the event that we did not accept her main argument Ms Chang proposed four over-lapping bands, with band one starting at five years imprisonment and band four ending with life imprisonment.

[20] Counsel described the bands which she proposed as applicable where sexual connection was the lead offence “and the conduct was non-penetrative,” but committed against a child under 12 years. This raises an important point.

[21] As noted in R v AM the so called rape bands are specifically drafted to apply to offending “where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects.” This represents a mix of rape and sexual connection offending as that offence is defined in Western Samoa and New Zealand. When this Court in Peti Key adopted the R v AM rape bands (but with an uplift in the terms of imprisonment for each band), it did not expressly adopt the extended lead offence definition set out above. The Court simply noted that the guideline would apply to rape “under the new Act”

[22] We accept Ms Chang’s submission that it is appropriate to expressly adopt the extended definition and include these particular penetrative sexual connections in the Peti Key rape bands. We note that, in the meantime, this approach has been followed by Western Samoan judges in a significant number of sentencing decisions. We affirm that this was an appropriate course, and that the bands in Peti Key are now to be applied whenever the lead offence involves a penetrative act of the kind defined in the previous paragraph. It follows that rape, and the defined penetrative violations committed against children under 12 years will be assessed by reference to the bands set out in Peti Key.

[23] Ms Roma did not propose a set of bands for unlawful sexual connection offending against children, although she argued that the sentencing judge was right in not applying Peti Key in this case.

[24] We consider that 3 bands are appropriate for sexual connection offending against children under 12 years. The bands we adopt reflect the approach taken by the New Zealand Court of Appeal in R v AM, but with an uplift to reflect the higher maximum penalty in Western Samoa. The bands below apply when unlawful sexual connection is the lead offence (and there is no penetrative act as earlier defined):

[25] We add some general observations. That band one has a range from 2 to 6 years reflects the diversity of sexual connection offending. The least culpable offending will comprise a single skin on skin touching of the genitalia or anus which is of 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.

[26] Band three will attract the worst cases, for example involving sexual connection against generations of children with the presence of serious aggravating factors. We anticipate that such cases may prove to be rare because, regrettably, such offenders often commit penetrative violations as well. Then, the lead offence will fall to be dealt with under the Peti Key guidelines. It follows that the most serious acts covered under this guideline will be digital penetrations.

[27] As emphasised in Peti Key this guideline judgment likewise is to be read in conjunction with R v AM. That case provides general guidance in relation to numerous aspects of sentencing practice applicable in the sexual violation context.

[28] Second, the three bands overlap. This is of course deliberate. Sentencing is an art, not science. There is no substitute for the careful evaluation of all relevant factors which the sentencing judge can bring to bear to a case in the immediacy of the courtroom. Guidelines are intended to provide a consistent method for the evaluation of particular types of offending. They do not place the sentencing judge in a straight-jacket.

[29] Third, the bands indentify a range to be used in fixing a starting point which reflects the intrinsic seriousness of the crime, including any aggravating features. Typically, adjustment will then be required to reflect circumstances personal to the offender, for example youth, good character or the provision of reconciliation and ifoga. The final step, is the reduction for a guilty plea (if required) to produce the final sentence. This of course is the methodology explained in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) and discussed in R v AM (at [14]).

[30] Fourth, aggravating features or “culpability assessment factors” as they are called in R v AM are discussed in that case in some detail. We adopt that discussion (at [34] to [64]). For convenience we refer to the aggravating features relevant to sexual connection offending against children, namely: planning, violence, detention and home invasion, harm to the victim, multiple offenders, scale of offending, breach of trust, hate crimes, the nature and degree of sexual connection and the views of the victim. Three further aggravating features (at [53] to [61]) do not apply to children under 12 years because they concern the issue of consent. We also note that the views of the victim will not be relevant if the victim is still very young, but may assume weight if the offending is historical and the victim can speak for herself or himself.

[31] Fifth, as noted in Peti Key (at [33]) there may be exceptional cases that require a starting point below the lower end of the range of 2 years set in band one. Such cases will be rare and clear reasons will be required to explain the departure.

[32] The new guideline applies to all sentencing decisions for unlawful sexual connection offending against children under 12 years from now on. Likewise, from now on the Peti Key guidelines extend to and govern penile penetration of the mouth or anus, and penetrative violation involving objects.

[33] Accordingly, we direct that this judgment be emailed to trial judges, the Attorney General, and the Law Society promptly following its delivery.

[34] To recap the sentencing judge adopted a starting point of 5 years before making deductions for personal mitigating factors which resulted in an end sentence of 3 ½ years on the sexual connection charge. Counsel for the Attorney General submitted that the starting point was manifestly inadequate because the Peti Key bands should have been applied and a 9 year starting point adopted. There was no challenge to the reduction of 1 ½ years.

[35] We have already rejected the contention that the Peti Key bands were applicable. Had this guideline judgment existed we would have expected the judge to have adopted a starting point towards the top of band one. Indeed, 6 years imprisonment would have been an appropriate starting point.

[36] However, we are not persuaded to intervene. Firstly, this is an Attorney-General appeal and this Court should only intervene where there is a manifest inadequacy and then only to the extent necessary to address the deficiency. A 5 year starting point was not manifestly inadequate.

[37] Further there was a complication in relation to an amendment to the sexual connection charge. When the plea of guilty was entered the judge made an amendment by deleting the words that Siaosi had sexual connection with a child “by licking her vagina.” In his sentencing remarks he said that the prosecution had amended the charge “to remove the oral sex allegation.” He added that other acts committed by Siaosi constituted sexual connection in any event.

[38] We raised this at the appeal hearing. Counsel for the Attorney General said that the oral sex reference was only removed to make the charge “non-specific” because there were a number of acts which constituted sexual violation by law. The summary of facts was not amended and there was no intention to abandon the oral sex aspect.

[39] We fear there was an element of confusion. This unfortunate circumstance militates further against appellate intervention at this late point.

[40] For these reasons the Attorney General’s appeal against sentence is dismissed.

Court of Appeal of Samoa

Attorney General v Lua [2016] WSCA 1 (19 February 2016)