Police v O'Brien [2011] WSSC 17 (1 March 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

FRED O'BRIEN
male of Faleula.
Accused

Counsel: R Titi for prosecution
T Leavai for accused

Sentence: 1 March 2011

SENTENCE BY SAPOLU CJ

1. The accused appears for sentence on two counts of committing an indecent act upon a girl under the age of 12 years and of abduction of a girl under the age of 16 years with the intention of having sexual intercourse with her. The accused was found guilty on both counts after trial.
   
2. The facts of this case are quite brief. On 3 September 2008, the victim who had just turned 5 years old went to the house of the accused's family, who are next door neighbours at Faleula-uta, to spend time with the children of the accused's sister. The accused who was then 17 years old accompanied the victim to an unoccupied hut in the bushes not too far away. On their way, they were seen by a male neighbour who followed them. When the accused and the victim arrived at the said hut, the accused removed his lavalava and sat on a sofa. The victim then sat on the accused's laps. At that time, their male neighbour who was following them was approaching the hut. When the accused heard the noise of someone approaching the hut, he stood up and ran away holding his lavalava. The victim ran after him.
   
3. At the trial, the accused denied having abducted the victim by accompanying her to the hut in the bushes and doing an indecent act to her. He testified that nothing like that happened. He said he had gone with his brothers to collect firewoods and when they returned they met the victim on their way home. He then escorted the victim back to her family's home. This is contrary to the evidence of the eye-witness who saw the accused and the victim walking by towards the bushes and then observed what the accused and the victim were doing inside the hut in the bushes. It is also contrary to the confession made by the accused to the police. I decided at the end of the hearing to disbelieve the accused and therefore rejected his evidence.
   
4. The level of criminality of this offending is towards the low end of the scale. This is because it appears that the victim was a willing partner to the offending, no force was used and there is no evidence of any physical injuries to the victim, the period of detention of the victim by the accused was also short-lived as they were interrupted shortly after they got inside the hut, the young age of the accused at the time of the offending, and the age difference of 12 years between the accused and the victim is not very substantial. On the other hand, the young age of the victim and her particular vulnerability have to be taken into account as aggravating factors.
   
5. The pre-sentence report on the accused shows that the accused still maintains his innocence and denies the charges against him. This is no sign of contrition or remorse. There has also been no reconciliation between the accused and the victim or her family. This is not a good reflection on the character of this young accused.
   
6. The pre-sentence report also shows that the accused comes from a low income family which depends mostly on fishing for their welfare. The accused left school prior to completion of Year 11 because his parents could not afford to pay for his school fees. The pre-sentence report further shows that the accused is a very responsible, hard-working and trust-worthy member of his family. He also has a talent in boxing having won a silver medal in the Oceania Boxing Tournament in 2006 at the age of 15 years. He is also a first offender.
   
7. In sexual cases involving young victims, the need for their protection and the need for deterrence must be borne in mind. This would normally mean a custodial sentence. In other words, the punitive and deterrent aspects of sentencing would normally take precedence over other considerations in this type of offending. However, where the accused is a young offender, consideration should also be given to the possibility of rehabilitation, particularly if the accused is a first offender.
   
8. In all the circumstances, the accused is sentenced to 10 months imprisonment to be followed by 12 months probation on both counts against him. This sentence takes into account s.7 (3) of the Offenders Probation Act 1971 which provides that if the Court sentences any person to imprisonment for less than one year, it may order as part of the sentence, that upon his release from imprisonment, he may be placed on probation for any period not exceeding one year. Counsel for the accused requested that if the accused is given a custodial sentence, that his sentence be served at the Olomanu Rehabilitation Centre. That is a sound application to make given that the accused is still only 19 years old and is a first offender. But that is a matter for counsel to take up with the prison authorities.
   
9. The period of time the accused has spent in custody pending sentence is to be deducted from the imprisonment part of this sentence.
   

CHIEF JUSTICE

Solicitor
Attorney General's Office, for prosecution
Leavai Law for accused