Attorney General v Sefo [2018] WSCA 16 (25 October 2018)

IN THE COURT OF APPEAL OF SAMOA
Attorney General v Sefo [2018] WSCA 16

Case name:	Attorney General v Sefo
Citation:	[2018] WSCA 16
Decision date:	25 October 2018
Parties:	ATTORNEY GENERAL (Appellant) and NIKO SEFO (Respondent)
Hearing date(s):	22 October 2018
File number(s):	CA20/18
Jurisdiction:	CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Sapolu Honourable Justice Fisher Honourable Justice Harrison
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeals against the order discharging Mr. Sefo without conviction and suppressing publication of his name are dismissed.
Representation:	L Sua-Mailo for the Appellant Sua H Wallwork for the Respondent
Catchwords:	Unlawful sexual connection with a person under 16 years of age – discharged without conviction – name suppression – sex consensual – first offender – apology to victim’s family – acquittal – early guilty plea
Words and phrases:
Legislation cited:	Crimes Act 2013, s.59(1)(5); Criminal Procedure Act 2016 ss.177(1); 177(3); Sentencing Act 2016, ss. 10(2); 11; 69; 69(2); 70.
Cases cited:	Chang v Attorney-General [2018] WSCA3
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 20/18

BETWEEN:

ATTORNEY GENERAL
Appellant

A N D:

NIKO SEFO
Respondent

Coram: Honourable Chief Justice Sapolu
Honourable Justice Fisher
Honourable Justice Harrison

Hearing: Monday 22 October 2018

Counsel: L Sua-Mailo for the Appellant
Sua H Wallwork for the Respondent

Judgment: Thursday 25 October 2018

JUDGMENT OF THE COURT

Introduction

1. Niko Sefo pleaded guilty in the Supreme Court to two charges of sexual connection with AB a female under the age of 16 years. The Attorney General appeals against Justice Vaai’s decision to discharge him without conviction.
2. The Attorney General also appeals against the Judge’s order suppressing publication of Mr. Sefo’s name.

Facts

3. Mr. Sefo was aged 20 years at the time of his offending. He is single and lives with his family on a planation at Falevao where he is employed in a manual capacity. AB was aged just under 15 years. She lived with her family at Leulumoega Tuai.
4. Mr. Sefo and AB met when they were both attending school in Apia. He was at the Latter Day Saints Self Reliance School and she was at Maluafou College. They became boyfriend and girlfriend, but their relationship was not sexual.
5. AB decided to leave her family and live with Mr. Sefo and his family. Mr. Sefo’s mother allowed AB to sleep with her for the night but insisted that she return to her family. Mr. Sefo escorted her to catch the bus home the next day from Falevao to Leulumoega, a long journey.
6. One day in June 2018 AB returned unexpectedly to Falevao. AB resisted another request by Mr. Sefo’s family that she return to her family. She wanted to live with Mr. Sefo as husband and wife. His family then relented, and actively supported their relationship. One evening after her arrival Mr. Sefo and AB had consensual sexual intercourse, and again a few days later.
7. AB’s family reported her disappearances to the police after she had been away for some days. She was quickly located through Facebook posts.
8. Mr. Sefo was described as an obedient and loyal young man. He was a first offender. He knew that AB was under the age of 16 years but did not know that he was committing an offence by engaging in a sexual relationship with her. He was contrite and apologetic when he learned that he has committed a crime. AB’s family has accepted his apology and forgiven him. Her mother wanted the charges against Mr. Sefo withdrawn.
9. The offence of unlawful sexual intercourse with a woman under 16 years of age carries a maximum penalty of 10 years’ imprisonment.^[1]
10. After hearing from Mr. Sefo and the prosecutor, the Judge exercised his discretion to discharge Mr. Sefo without conviction.^[2] The Judge was satisfied that the direct or indirect consequences of a conviction for Mr. Sefo would be out of all proportion to the gravity of his offending.

Jurisdiction

11. We must determine a preliminary question about this Court’s jurisdiction to hear an appeal against a Judge’s decision to discharge a defendant without conviction.
12. The Attorney General appeals on the ground that the appeal is against a sentence passed.^[3] However, a discharge without conviction is taken to be an acquittal.^[4] The Attorney General’s right of appeal can only be exercised if an acquittal has followed a trial.^[5] There was no trial here. Mr. Sefo pleaded guilty immediately when the charges were called in Court.
13. However, we accept Ms. Sua-Mailo’s submissions that a discharge without conviction is deemed by statute to be a sentence. Section 10(2) of the Sentencing Act lists within “the hierarchy of sentences” a “discharge or order to come up for sentence if called on.” This provision is not easily reconcilable with s.11(1) which recognises a situation where a discharge without conviction is the more appropriate way of dealing with a defendant than “entering a conviction and imposing a sentence” or with s.69(2) which specifically recites that a discharge without conviction is an acquittal. Both these latter provisions reflect the conceptual distinction between an acquittal, on which the Court is not required to pronounce sentence, and a sentence, which necessarily imposes a sanction whether in the nature of an order, direction or monetary penalty.
14. Nevertheless, we are satisfied that for those purposes s.10 of the Sentencing Act operates to treat a judicial order discharging a defendant without conviction as a sentence. We have jurisdiction to hear the Attorney General’s appeal as a result.

Decision

15. As this Court has recently observed,^[6] a Judge must exercise his or her statutory discretion to discharge without conviction by balancing the direct or indirect consequences of a conviction to a defendant against the gravity of the offending. It is a judicial assessment of proportionality which in its nature is inherently fact specific.
16. Our starting point is with the gravity of Mr. Sefo’s offending. Parliament has recognised the offence of unlawful sexual intercourse with a young woman as serious by providing a maximum sentence of 10 years’ imprisonment following conviction. We agree with Ms. Sua-Mailo that the purpose of the offence provision 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 males.
17. However, while acknowledging Parliament’s recognition of the seriousness of the offence, we agree with the Judge that these facts cast an exceptional and mitigating light on Mr. Sefo’s offending. AB was unhappy with her family and wanted to live with Mr. Sefo as his wife. She must have experienced powerful bonds of affection for him. We assume the emotions were reciprocal. Initially Mr. Sefo’s family attempted to send AB back to live with her family. But if not encouraged, the couple to live as husband and wife. The family dynamic was uniquely supportive of the relationship. Ms. Su’a-Mailo accepts that AB was the instigator. She fairly concedes also that Mr. Sefo’s offending was at the lower end of the scale of gravity.
18. In addition to those factors, we repeat Mr. Sefo’s contrition at breaking the law, his deep sense of shame for his family and village, AB’s family acceptance of his apologies, and her mother’s wish that Mr. Sefo be exempted from criminal punishment. Ignorance of the law is no excuse when criminal liability is an issue but it is available as a mitigating factor on penalty. It is plain that Mr. Sefo never meant to transgress the law or knew that he was committing a criminal act. The Judge’s sympathy for him in these circumstances was not misplaced.
19. Ms. Sua-Mailo suggested that the Judge’s approach to Mr. Sefo’s offending was unnecessarily subjective. She was referring to his remarks in exchanges with the prosecutor during the sentencing process. While some of his observations were unfortunate, the Judge later apologised and our focus must be on the decision itself and the reasons which the Judge gave briefly in open Court.
20. The ultimate question is whether the consequences of a conviction to Mr. Sefo will be out of all proportion to offending which is at the lower end if not the lowest end of the scale of gravity. The Judge relied on two grounds. He was satisfied that a conviction may impede Mr. Sefo’s ability to travel overseas. He also considered Mr. Sefo’s automatic entry on the register of sexual offenders would be unjust.
21. On the first ground, we accept Ms. Sua-Mailo’s submission that there was a no evidence before the Judge that Mr. Sefo intended to travel overseas. He is working at his father’s plantation in a manual capacity. However, we appreciate the force in Ms. Wallwork’s observation from the bar that all Samoans, given their geographic isolation, want to travel overseas at some time in their lives.
22. On the second ground, we appreciate that Parliament has expressly listed the offence of sexual intercourse with a young woman under the age of 16 years as a qualifying offence for entry on the sex offenders register. The statutory purpose is to require certain sexual offenders to keep the police informed of their whereabouts in order to reduce the likelihood of reoffending and “to facilitate investigation and prosecution” of any future offences which they commit. The overriding purpose is one of protection against sexual offenders who are a real risk to the community.
23. It can safely be said that Mr. Sefo does not warrant this degree of attention, and society does not require this level of protection from him. We are satisfied that automatic entry of Mr. Sefo’s name on the register would be a severely disproportionate consequence for Mr. Sefo of a conviction for his particular offending.
24. The Attorney General also appeal against the Judge’s order suppressing publication of Mr. Sefo’s name. The Judge gave weight to the fact that publication would lead to AB’s identification. Ms. Wallwork pointed out that AB had published the existence of her relationship with Mr. Sefo on Facebook but not the details or reference to any sexual activity. The relationship was known to a wide range of people who would immediately associate Mr. Sefo’s offending with AB. We agree with Ms. Wallwork that publication of Mr. Sefo’s name in these circumstances would lead to AB’s identification as the victim of his sexual offending.

Result:

25. The appeals against the order discharging Mr. Sefo without conviction and suppressing publication of his name are dismissed.
    

HONOURABLE CHIEF JUSTICE SAPOLU
HONOURABLE JUSTICE ROBERT FISHER
HONOURABLE JUSTICE RHYS HARRISON

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^[1] Crimes Act 2013, s.59(1)(5).
^[2] Sentencing Act 2016, ss. 69 & 70.
^[3] Criminal Procedure Act 2016, s.177(1)
^[4] Sentencing Act 2016, s.69(2)
^[5] Criminal Procedure Act 2016, s.177(3)
^[6] Chang v Attorney-General [2018] WSCA3 at [65]-[70]