Police v Ieremia [2014] WSSC 70 (25 November 2014)

SUPREME COURT OF SAMOA

Police v Ieremia [2014] WSSC 70

Case name:	Police v Ieremia
Citation:	[2014] WSSC 70
Decision date:	25 November 2014
Parties:	POLICE (prosecution) and PATI IEREMIA male of Vaiusu, Salelologa and Tafaigata (accused)
Hearing date(s):
File number(s):	S2790/14
Jurisdiction:	CRIMINAL
Place of delivery:	MULINUU
Judge(s):	CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation:
Catchwords:
Words and phrases:	unlawful sexual connection, maximum penalty, aggravating and mitigating features, sentence
Legislation cited:	Crimes Act 2013, ss.52 (2), 59 (3), (5)
Cases cited:	R v AM [2010] NZCA 114; [2010] 2 NZLR 750
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2790/14

BETWEEN

POLICE
Prosecution

AND

PATI IEREMIA male of Vaiusu, Salelologa and Tafaigata
Accused

Counsel
R Titi and B Faafiti-Lo Tam for prosecution
Accused in person

Sentence: 25 November 2014

SENTENCE

The charges

1. The accused Pati Ieremia appears for sentence on one charge of unlawful sexual connection pursuant to s.52(2) of the Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment and one charge of committing an indecent act on a “young person” pursuant to s.59(3) of the Act. The term “young person” is defined in s.59(5) to mean a person who is between the age of 12 years and 16 years. The accused pleaded guilty to both charges at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts which was confirmed by the accused, the accused who is 19 years old and the victim who is 11 years old were at the time of the offending serving terms of imprisonment at the Olomanu rehabilitation facility. On Wednesday 20 August 2014 after the prisoners had their evening meal, the victim walked to a nearby faleoo which was used by prisoners as a resting spot after their daily work. He was followed by the accused.
3. When the victim entered the faleoo and lay down, the accused entered and started talking to him. After a short time, the accused opened his lavalava and showed his genitals to the victim. He told the victim to come and suck his penis but the victim said no. The accused again told the victim to come and suck his penis but the victim told him to stop it. The accused then told the victim for the third time to come and suck his penis or else he would do it upon him. However, the victim continued to refuse. The accused then went over to where the victim was lying down and lay on top of him, held him down, and kissed him. The victim resisted and tried to push off the accused but the accused was bigger and stronger than him. The accused then pulled up the victim’s lavalava and performed oral sex on him by sucking his penis.
4. While the accused was performing oral sex on the victim, another prisoner came to the faleoo and found what the accused was doing to the victim. When this prisoner asked the accused what they were doing, the accused replied it was nothing. However, the victim told this other prisoner what had happened. The matter was then reported to the prison authorities.

The accused

5. The accused has previous convictions for burglary and theft for which he was sentenced earlier this year and for uttering insulting words and throwing stones for which he was sentenced on 6 November 2014 in the District Court to a total of 4 months imprisonment. The previous conviction card seems incomplete as one of the accused’s burglary convictions related to a burglary committed by the accused while he was on bail pending sentence for a previous burglary. This appears from the pre-sentence report of 7 July 2014.
6. The previous pre-sentence reports on the accused show he has had an unstable life. His parents separated when he was 4 years old. He first stayed with his mother and when his mother left for New Zealand he stayed with his father. He also had a low level of education having left school at Year 6.

The victim

7. The victim impact report shows that the victim has been psychologically affected by what the accused did to him. He is still trying to block out of his mind the memory of what the accused did to him. He also feels ashamed when other inmates laugh at him because of what happened to him.

The aggravating and mitigating features

8. The aggravating features in relation to the offending are: (a) absence of consent from the victim as shown by his persistent refusal of the advances by the accused, (b) the psychological impact of the offending on the victim, and (c) the fact that this offence was committed in prison while the accused was serving an imprisonment sentence. There is no mitigating feature in relation to the offending.
9. The aggravating features which are personal to the accused as offender are his previous convictions though they were for different types of offending. However, like his present offence, the accused’s recent previous conviction for throwing stones involved violence and the use of force. The only relevant mitigating feature in relation to the accused as offender is his early plea of guilty to the charge against him. I would not consider the accused’s young age as a mitigating feature personal to him. The reason is that this feature must have been taken into account in relation to the sentences passed on the accused for his previous offences which all appear to have been committed this year. However, the accused has continued to re-offend.

R v AM sentencing guidelines

10. In 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. Of relevance to this case are the sentencing bands for cases of sexual violation where unlawful sexual connection is the lead offence. Those bands are set out and discussed in R v AM [2010] NZCA 114 at paras [113] – [124] as follows:
    • (a) Band one: 2 – 5 years

Appropriate to cover offending at the lower end of the spectrum where none of the “culpability assessment factors” is present or where one or more of those factors is present to a low or moderate degree.

(b) Band two: 4 – 10 years

Appropriate for cases of relatively moderate seriousness and will encompass cases which involve two or three of the factors which increase culpability to a moderate degree.

(c) Band three: 9 – 18 years

Appropriate for the most serious offending of this type and will encompass cases which involve two or more of the factors increasing culpability to a high degree, for example, a particularly young victim or an extensive period of offending. This band will also be appropriate where more than three of such factors are present to a moderate degree.

11. It must be noted that this is not a case of sexual violation by rape to which different sentencing bands apply as set out in R v AM [2010] NZCA 114, para [90]. This is a case of sexual violation where unlawful sexual connection is the lead offence. I refer counsel to paras [113] – [124] of R v AM [2010] NZCA 114 and the culpability assessment factors set out and discussed in paras [37] – [62] for the sentencing bands in cases of sexual violation where unlawful sexual connection is the lead offence as it is in this case.
12. For this case, I have decided to adopt band one above.

Discussion

13. Having regard to the aggravating features relating to the offending, I will take 3 years as the starting point for sentence. I will add on 3 months for the accused’s previous convictions. That increases the starting point to 3 years and 3 months. I will deduct 30% or one year and one month for the early guilty plea. That leaves 2 years and 2 months.

The result

14. The accused is convicted and sentenced to 2 years and 2 months imprisonment on each of the two charges against him. Both sentences are to be concurrent. That means the accused will serve a total sentence of 2 years and 2 months imprisonment. That total sentence is to be cumulative on the current sentences served by the accused.
    

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CHIEF JUSTICE