Police v Wright [2015] WSSC 118 (7 April 2015)

THE SUPREME COURT OF SAMOA
Police v Wright [2015] WSSC 118

Case name:	Police v Wright
Citation:	[2015] WSSC 118
Decision date:	7 April 2015
Parties:	Police (prosecution) and Raymond Wright, male of Vaitele-tai and Siusega (defendant)
Hearing date(s):	3 March 2015
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Aitken
On appeal from:
Order:	Three months’ imprisonment followed by 12 months’ supervision
Representation:	L Su’a-Mailo for the Prosecution L R Schuster for the Defendant
Catchwords:	violence –insulting words –intimidation – forced sexual intercourse by threatening – teacher-pupil connection – breach of trust – no prior convictions –ifoga
Words and phrases:
Legislation cited:	Crimes Act 2013 s 46(b)(1). New Zealand Summary Offences Act s 21.
Cases cited:	Police v Aleki Mulitalo
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

RAYMOND WRIGHT
male of Vaitele-tai and Siusega
Defendant

Counsel:
L Su’a-Mailo for the Prosecution
L R Schuster for the Defendant

Hearing: 3 March 2015

Sentence: 7 April 2015

ORAL SENTENCE OF JUSTICE E M AITKEN

1. Mr Wright, you have pleaded guilty to a charge that between 1 March and 31 May 2014, you used violence to or by words or your acts intimidated Matile So’onanofo Talosaga to compel her to have sexual intercourse with you; that is an offence contrary to section 46 (b)(1) of the Crimes Act 2013 and it carries a maximum penalty of one year’s imprisonment.
2. You clearly accept, by your plea of guilty, that, in this case, the words that you uttered to her intimidated her, and intimidate simply means to make someone timid or to force them into some action or behaviours by the use of threat, and clearly that is what has happened here.
3. In terms of the facts, there is some disagreement as to aspects of what happened but none of those disagreements materially affect your culpability and I proceed to sentence you on the basis of the following facts:
4. Between 1 March and 31 May last year, you were a teacher at Maluafou College where the victim was a pupil. You were 27 years old; she was 16 years old. One afternoon, she was with a group of students cleaning a small room that was attached to one of the classrooms. At some point that afternoon, she was the only student left in that room. She says that you entered the room and closed the door; you say that you were in that small room and she entered the room but you accept that you closed the door. I proceed on the basis that you were alone with this 16 year old student in a room and that you then closed the door. You then approached her; you kissed her; you asked her to have sex with you, to which she said no.
5. However, with a view to compelling her to have sexual intercourse with you, you said to her that if she did not agree to what you were asking, you would get angry with her and you did that so as to intimidate her to comply with your request for sexual intercourse. Your threats or your intimidation was effective as she undressed, she lay down on the ground and you kissed her and proceeded to undress yourself. She claims that you then said something further to her, which you deny but you accept, and she maintains, that she felt compelled to have sexual intercourse with her – whether you uttered anything separate is not, in my view, material to your culpability, you having accepted that throughout the process of sexual intercourse she was acting in response to your earlier intimidation.
6. After you completed sexual intercourse, you got dressed. She recalls you telling her to hurry up and return to the assembly in case you were caught and she says she did as she was told. You recollection is that you left the room but that you did tell her to follow you afterwards – in other words, not leave with you, I infer – in case she was seen by other students or teachers. Again, in my view, this is not a material dispute because you clearly accept that you instructed her, one way or another, to act in a way that would minimize the risk of detection.
7. It was not until 2 July that matters were reported to the Police and it would seem from the witness statements before me and from what your Counsel submits that it came to the notice of the teachers at the school and that the Police were then contacted.
8. I have indicated already that there has been a dispute raised about some aspects of the Summary of Facts. I declined to adjourn the matter for a disputed facts hearing as, in my view, for the reasons given I do not regard the dispute as material.
9. In terms of determining the starting point for sentence, in my view, the starting point must be a sentence of imprisonment. There is no dispute from your Counsel that that must be the case. The dispute between the Prosecution and the Defence is that, the Prosecution urges the Court to conclude with a sentence of imprisonment; for you, it is submitted that having regard to the matters of mitigation a community-based sentence would be appropriate.
10. To fix the starting point, I must identify the aggravating factors that attach to this behaviour. The first and most grievous in my view is the obvious breach of trust. You were the victim’s teacher; someone that she should have been able to look to for protection from harm and not someone who should take advantage of her, as you clearly did. Irrespective of what you claim might have been her conduct towards you, you, Mr Wright, as her teacher, were in a position of power and authority over her and you breached that position in a significant and material way. You also breached the trust placed in you by her parents and of course by the school to act in a way that was appropriate with your status as a teacher. The Prosecution regards the place of the offence as a matter of aggravation. I do not. It is implicit in the breach of trust.
11. Secondly, I regard the victim as a vulnerable young woman, primarily because of her age; she was a school girl; she was 16 years old. Through your Counsel, it is submitted that the fact that she may have had a prior sexual relationship makes her less vulnerable or not vulnerable at all. I disagree. I reject that submission. She is a 16 year old school pupil. She was vulnerable as a young woman and as a pupil of yours and you put her in a clearly impossible position by threatening her – a position that was made perhaps even more difficult if, in fact, she had demonstrated some degree of affection towards you as you appear to claim.
12. As for whether the matter was premeditated, the Prosecution argues that it was. On your behalf, Mr Schuster argues that the actions were spontaneous. Certainly, on the material before me, you chose a time when she was alone with you and you closed the door but there is no evidence before me from which I could conclude that this matter was anymore premeditated than that, and I do not therefore regard premeditation as a matter of significant aggravation.
13. The age disparity is: you were 27 and she was 16; it is a significant age disparity.
14. And finally, the matters of aggravation must include the consequences of your behaviour on her. As a consequence of course she permitted you to perform that most intimate of sexual functions: sexual intercourse; and the consequences for her now, irrespective of how the offending came to be known, are that she feels very embarrassed. She feels that people look and treat her differently. She says that in her family she feels hated for what has happened; her father blames her she says. Her actions, as she describes them or the consequences of your behaviour, have divided her family and she is concerned about her reputation in the village.
15. In terms of the impact, your Counsel urges me, in effect, to approach this with some caution. He submits that, in light of some of the statements disclosed in the course of these proceedings, the victim has at times boasted about what has happened to her or about this relationship and has at times tried to encourage a relationship with you. Again, I find that to be at odds with your acknowledgment of the offending. She behaved in this way – you acknowledge through your plea of guilty, Mr Wright – because you had intimidated her and that is at odds with someone trying to encourage a relationship, it seems to me. But the point here is that irrespective of her behaviours, she was 16 years old and you were her teacher and the consequences of this offending on her are matters, in my view, of aggravation.
16. In terms of the Convention on the Rights of a Child to which Samoa is a signatory, I do not regard that as a matter of aggravation. The Convention places obligations on State parties. Here, the State has given effect to its obligations by passing legislation to criminalize this sort of conduct and by setting maximum penalties. I do not regard that as an aggravating factor; it is simply a statement of fact.
17. The maximum penalty is one year’s imprisonment. There are no guideline judgments. There is a decision of this Court in 2008, Police v Aleki Mulitalo, where the offender was sentenced to 3 months imprisonment at the conclusion of a jury trial. There is no indication as to what the starting point was but there are obvious matters that must distinguish that case from this: the age disparity was less; the victim being 14, the defendant 21; there does not seem to have been any breach of trust; and the nature of the offending was materially different from what is before the Court, so I do not regard that case as setting any sort of guideline or precedent. The New Zealand authorities (without any way wishing to disparage the efforts of the Attorney General’s Office) are not particularly helpful in terms of setting a starting point. They arise out of consideration of section 21 of the New Zealand Summary Offences Act; the maximum penalty for that offence is 3 months imprisonment and it is directed at markedly different behaviours.
18. Looking therefore at this matter against the background that I have set, the Prosecution submits a starting point close to the maximum; a starting point of 11 and ½ months. For the defendant, it is argued that the starting point must be a term of imprisonment but that the Prosecution sets the benchmark in effect too high. I find that the starting point should be fixed near the top of the range for two reasons. Firstly, it is difficult to imagine much more serious offending of its type; and secondly, given the aggravating factors and in particular, the breach of trust. I fix the starting point for this offending at 10 months imprisonment.
19. I turn then to have regard to matters of personal aggravation or mitigation. There are no personal aggravating matters, Mr Wright. There are a number of matters of mitigation. Firstly, you are 27 years old and you have no prior convictions. You have a wife and two young children; your second child born only yesterday. I have had the benefit of a very detailed report from the Probation Service to which a number of references are attached and they are excellent references. You are clearly a hardworking man. You were highly regarded by your church and by your peers. You had a good work ethic and you were a dedicated teacher. I find this to be out of character offending – in other words, something that you are not inclined to do before or, it is to be hoped, in the future – so someone who has acted quite against the character that he has demonstrated to his family, colleagues and church community. In my view such an exemplary background, including a lack of prior convictions, should attract a significant reduction which I fix at 25%.
20. Secondly, and importantly, you have apologised to the victim and her family through the ifoga process. I regard this as a significant matter of mitigation. Her family have accepted your apology. Her father asks the Court for leniency. As part of that apology, I readily accept that you are deeply remorseful for what has happened. You are sorry for what has happened. You regret, deeply regret, this error of judgment and your significant part in this offending. It is no easy task to apologise for such an offence, such an intimate, personal offence. It is no easy task to accept responsibility and face up to your family and your peers but you have done that, and in my view that process of ifoga and your genuine remorse should also attract a significant reduction which I also fix at 25%.
21. There have been consequences of your offending. You have not worked as a teacher since this event; with this conviction it is highly likely that you will not be able to work as a teacher again. You have brought shame on your family and your family will wear the stigma of that, as will you, for some time to come. Those, however, I do not regard as matters of mitigation, Mr Wright. They are regrettably the normal consequences of this sort of conduct. But for your hardworking family background, an unblemished record and an excellent teaching record, for participating in the process of ifoga and for your genuine remorse, I reduce the penalty by 50% - in other words, from 10 months down to 5 months imprisonment. You are from there entitled to credit for your plea of guilty. That came on the morning of the trial but only once the charge had been amended; the amendment was significant as it removed the offending from what I regard as serious sexual offending down to serious offending but offending with the one year maximum penalty only. In those circumstances, on a principled basis, you would also be entitled to the maximum credit for that and I will fix that in this particular case at 2 months, which is probably rather generous but it reduces the sentence to one of 3 months imprisonment. But imprisonment, Mr Wright, there must be.
22. This is serious offending by a teacher against one of his pupils. It is offending of a most intimate nature and the purpose and principle of sentencing someone for this sort of offending requires the Court, to not only hold you accountable for your behaviours, but in particular to deter you and others from this sort of behaviour. Deterrence being one of the primary purposes of sentencing, in my view, the end point sentence must be imprisonment, and I impose now 3 months imprisonment. That will be followed by 12 months of supervision. There being no obvious rehabilitative needs, there will be no specific conditions attached to the sentence of supervision other than to comply with the directions of the Probation Officer.
23. Finally, I prohibit now by order of this Court the publication of the name of the victim of this offending and any details that might otherwise identify her, and that order is to be permanent.

Thank you, Mr Wright; you may stand down.

_____________________
JUSTICE E M AITKEN