Police v Winterstein [2006] WSSC 68 (18 December 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA
BETWEEN
POLICE
Prosecution
AND
LUI WINTERSTEIN
of Papaloloa and Vailoa, Faleata.
Accused
Counsel: A Lesâ for prosecution
S Leung Wai for accused
Sentence: 18 December 2006
SENTENCE
The charges

The accused appears for sentence on two charges of doing an indecent act upon a boy under the age of 16 years pursuant to s.58 C (1) (b) of the Crimes Ordinance 1961 and two charges of inducing a boy under the age of 16 years to do an indecent act upon him pursuant to s.58 C (1) (c) of the same Ordinance. Each of the charges carries a maximum penalty of 7 years imprisonment. The accused pleaded guilty to all charges at the first opportunity and was remanded in custody. He has been remanded on bail since 20 November 2006.

The offending

As the Court has ordered suppression from publication of the names of the two victims in this case, I will refer to them as A and B. A is a 13 year old boy and B is an 11 year old boy.

In respect of victim A, the summary of facts produced by the prosecution and confirmed by the accused shows that in October 2005 the accused removed the victim’s shorts, spat between the victim’s legs, inserted his penis between the victim’s legs, and moved up and down. In December 2005, the accused asked victim A to suck his (the accused’s) penis and he also sucked victim A’s penis. Then on 10 July 2006 the accused removed victim A’s shorts, spat between the victim’s legs, and inserted his penis between the victim’s legs. At the times of these incidents, the accused was staying with victim A’s family. It appears from the sentencing memorandum provided by counsel for the prosecution that the mother of victim A is a relative of the accused and perhaps that is why the accused was staying with the family of victim A. All the indecent acts with which the accused has been charged in respect of A were committed at the house of A’s family.

In respect of victim B, the summary of facts shows that on 5 August 2006 the accused induced B to masturbate him. This incident took place inside the bathroom of the Robert Louis Stevenson Museum at Vailima where B’s father works as a nightwatchman and where the accused was working as a tour guide at the time.

The victims

Apart from what has already been mentioned about victim A, there is nothing else known about him.

As of victim B, there is a victim impact report on him. This report shows that B is still a student attending primary school. B says that he was shocked and scared when he was asked by the accused to suck his penis. He also says that he is finding it very difficult to forget about this incident involving himself and the accused.

The accused

The accused is a 23 year old male. He is a first offender. The pre-sentence report prepared by the probation service shows that the accused has never met his biological father and does not know who he is. His mother died when he was about 8 years old. The pre-sentence report also relates that when the accused’s mother died, he stayed with his uncle and his three children. The accused told the probation service that his uncle and his children sexually abused and molested him from the age of 8 years until he ran away in 2000 when he was 17 years old.

A psychiatric report prepared by Dr. Ian Parkin, the consultant psychiatrist at the Motootua National Hospital who examined the accused, also shows that the accused’s mother died when he was about 8 years old. The accused then stayed with his uncle and his children who sexually abused him on a daily basis until he ran away at about the age of 17 years. The report also shows that the accused related to the psychiatrist that when he was at high school he was bullied and made to perform fellatio on boys until he stopped going to school.

It would also appear from the psychiatrist’s report that the accused related to the psychiatrist that when he ran away from his uncle’s family, he went and stayed with an aunt. However, his aunt also abused him by calling him a "gay" when she talks to her children. The accused then left his aunt and it would appear that he then stayed with the family of victim A. At the times the present offences were committed, the accused was still staying with the family of victim A.

It does appear that the accused has not had a loving and stable family environment. He has never met his biological father and does not know who he is. His mother died when he was about 8 years old. He was then taken under the care of his uncle but he told the probation service and the psychiatrist who examined him that his uncle and his children sexually abused him on a daily basis. He then left his uncle at the age of 17 years and stayed with an aunt but he says his aunt also abused him by keep referring to him as a gay. He then left his aunt and stayed with the family of victim A.

In his report, the psychiatrist states that the accused has grown up learning that sexual abuse of young boys is the norm and the accused also described experiences of sexual abuse of himself between the ages of 10-18 years. The psychiatrist then says: "It is recorded in the literature that victims of sexual abuse in childhood are themselves more likely to abuse others." The accused is now being given therapy to help him with the effects of sexual abuse during his childhood and to reduce his chances of re-offending.

The psychiatrist in his report also expresses the opinion that the accused would have a high risk of committing suicide if he is imprisoned. The pre-sentence report also relates that the accused’s aunt has told the probation service that the accused has threatened to commit suicide a few times. In spite of these concerns, the accused had been in custody for about four months without committing suicide. He must also have left his aunt and stayed with victim A’s family for about a year, given the time period covered by these offences which were committed after the accused left his aunt, and yet he has not committed suicide.

Mitigating circumstances

The accused’s plea of guilty to the charges at the earliest opportunity and the fact that he is a first offender are mitigating circumstances. The accused’s personal circumstances, in particular his subjection to sexual abuse from about the age of 8 years to the age of 17 years, entitle him to a measure of leniency. As the psychiatrist says in his report, it is well recorded in the literature that victims of sexual abuse in childhood are more likely in later life to abuse others. This goes some way to reduce moral culpability. But I think one has to be cautious here about showing too much leniency on the accused for that reason in case it conveys the wrong impression that being the victim of sexual abuse during childhood provides some kind of licence to commit the same on others in later life. The present medical condition of the accused must also be given due consideration. According go the psychiatrist, the accused has an adjustment disorder with a depressed mood that is reactive to his current situation. He recommends ongoing counselling and psychiatric supervision for the accused as well as consideration of the need to start antidepressants which are drugs for alleviating the symptoms of depression.

Aggravating circumstances

The aggravating circumstances in this case are: (a) the youthfulness of the victims who are 13 and 11 years old respectively; (b) the potential of these offences to corrupt the victims; (c) the gravity of the acts committed, particularly the acts of fellatio; (d) the fact that indecencies were committed three times on victim A over a period of ten months; (e) the fact that these indecencies were committed while the accused was being allowed by the family of victim A to stay with them; (f) both victims must undoubtedly have suffered psychological harm as the victim impact report on victim B shows.

The decision

In this case, the sentencing principles of deterrence, retribution and rehabilitation are all applicable. Deterrence as a sentencing consideration is necessary to discourage not only the accused from re-offending but others who might be tempted to do what the accused did. In this case, the protection of children from sexual abuse which tends to corrupt and disturb, is also a most important consideration in support of a deterrent sentence.

For sentencing purposes, however, I have to remain cautious about showing too much leniency on the accused, which may not be totally justified in case the wrong impression is conveyed that being the victim of sexual abuse during childhood provides some kind of licence to do the same on others later in life.

In relation to the principle of retribution, the sentence to be imposed should have regard to and be proportional to the seriousness of the offences and the degree of culpability of the accused. This is a bad case of its kind which involves the sexual abuse of two young children by a 23 year old. The nature of the acts that the accused committed on victim A as well as the nature of the acts that he induced victims A and B to commit upon him are repugnant to current community standards of propriety in Samoa. The sentence should reflect society’s condemnation of this type of wrong-doing. However, I still have to bear in mind that in terms of the principle of retribution, the punishment should be proportional to the seriousness of the offence and the degree of culpability of the accused.

In terms of the principle of rehabilitation, it is clear from the pre-sentence report prepared by the probation service, the report by the consultant psychiatrist at the Motootua National Hospital, as well as the reports from Mapusaga-O-Aiga and Faataua o le Ola which are both non-governmental organisations that provide counselling services for juvenile offenders, victims of crimes, and others that the accused in this case needs rehabilitation by way of psychiatric assistance, supervision and treatment, as well as counselling. I am very grateful indeed to these non-governmental organisations for the interest and support they have shown so far to help with the less fortunate members of the community who have been victims of crimes or are young offenders.

In determining whether to impose a custodial or non-custodial sentence. I have decided to impose a custodial sentence. The reasons for this are, firstly, the establishment of the new Juvenile Centre at Mulifanua. The Centre seems to be designed primarily for the rehabilitation of young offenders. The accused is only 23 years and the rehabilitation programmes to be provided at the Juvenile Centre should be beneficial to him. Secondly, I do not see any reason why the psychiatric supervision and treatment recommended by the psychiatrist cannot be provided free of charge at the Juvenile Centre to the accused. In fact that is what the psychiatrist is recommending if a custodial sentence is imposed. Mapusaga O Aiga has also indicated to the Court in their report their willingness to provide counselling to the accused even if a custodial sentence is imposed. Thirdly, it is clear from the pre-sentence and psychiatric reports that since the age of 8 years, this accused has not had a stable family environment. When the accused’s mother died, he moved to stay with his uncle and children who sexually abused him on a daily basis for about 9 years. Then at the age of 17 years the accused ran away and stayed with his aunt who also abused him by referring to him as gay. The accused then left his aunt and lived with the family of victim A when these offences for which he is now appearing for sentence before the Court were committed. So the accused who is now 23 years has been living from family to family for the last 15 years during a very crucial period in the formation of his character. I think a period at the Juvenile Centre will not only expose the accused to counselling and rehabilitation programmes, but it will also provide a measure of stability to his life.

I have not overlooked what has been said about the risk of the accused committing suicide if he is sentenced to prison. As already mentioned, the accused has been in custody for about four months and nothing has happened. In any event, now that the risk has been drawn to the attention of the prosecution, the prison authorities must be alert to the risk and do whatever can be done to prevent it from becoming a reality.

It should also be mentioned that the prosecution in their sentencing memorandum have asked for a custodial sentence of not less than 3 years imprisonment. This sentencing memorandum was submitted to the Court before the psychiatric report on the accused was prepared and probably before the prosecution had the opportunity to see the pre-sentence report.

After careful consideration, bearing in mind that sentencing is a matter of judgment and not a mathematical exercise, I have decided to sentence the accused to 2 years and 3 months imprisonment on each of the charges against him. The period of about 4 months the accused has spent in custody has already been taken into account and is not to be further deducted. All the sentences are to be concurrent. I am of the view that this punishment satisfies all the requirements of deterrence, retribution, and rehabilitation in the special circumstances of this case.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
Leung Wai Law Firm for accused