Police v Apelu [2015] WSSC 258 (28 May 2015)

SUPREME COURT OF SAMOA
Police v Apelu [2015] WSSC 258

Case name:	Police v Apelu
Citation:	[2015] WSSC 258
Decision date:	28 May 2015
Parties:	Police (prosecution) v Hanns Apelu, male of Malie and Salepouae Saleimoa
Hearing date(s):	16 April 2015
File number(s):	S2552/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Ema Aitken
On appeal from:
Order:	In respect of this charge, Mr Apelu, you are now convicted and sentenced to serve 7 months in prison. Time served is to be deducted from that sentence.
Representation:	R Titi and C Amosa for prosecution Defendant in person
Catchwords:	Sexual connection with a young person under the age of 16 years
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

Hanns Apelu, male of Malie and Salepoua’e Saleimoa
Defendant

Counsel: R Titi and C Amosa for prosecution

Defendant in person

Hearing: 16 April 2015

Sentence: 28 May 2015

Oral Sentence of Justice E M Aitken

1. Mr Apelu, you have pleaded guilty to one charge of sexual connection with a young person under the age of 16 years. The maximum penalty for that charge is 10 years imprisonment.
2. In this particular case, the young person was 14 years old and you came across her when she was walking along the road, on her way to church. She agreed to go to the faleo’o with you and stayed with you there for some time. At some point, you kissed her and asked her if she wanted to be your girlfriend, and she agreed. Now at some point the two of you heard people walking along the road and you told her not to make a noise in case somebody found you both. The young girl then asked you if you would take her home because she thought that that was probably her family returning back from church.
3. It is important to note that you agreed to do that and the two of you were walking back to her place when she was worried as to what she would tell her parents, and she was a bit scared about going home.
4. You then suggested that she come and sleep a night at your house, and she agreed. The two of you lay down together and during the night had sexual intercourse, to which she consented. She stayed with you the next day and the following day – in other words, two days since she had last seen her parents. She again tried to go home but was again afraid, particularly, of what her father might say.
5. Two days later, her parents lodged a missing person’s report and in the mean time, she and you had gone in search of her biological mother.
6. She was located obviously by the Police; you were charged; and, as I have said, you have now pleaded guilty to this one charge of sexual connection with a girl under 16.
7. I must have regard to all of those facts and in particular to the following matters in deciding the sentence.
8. Despite her consenting to sexual intercourse, it was an offence for you to have intercourse with her and that is because the law protects young girls like her from themselves (in effect). That is, in part, because of their lack of maturity and therefore the likelihood that they will not really appreciate what it is that they are consenting to, and because the law is there to protect young girls in this way, the Court has always said that deterrence is the primary purpose of sentencing someone for offending in this regard.
9. I accept that she did agree. I accept that she was the one who did not want to go home in the first place – in other words, this is not a case where you have persuaded her or exerted some pressure on her to stay with you. But she clearly did not really understand what she was agreeing to and that is clear from how she feels now about it.
10. She regrets what has happened and is embarrassed and ashamed about it. She says what happened has changed her relationship with her family members. She says that having lost her virginity she is now not able to do one of the things that she wanted to do but that she is trying to put all of this behind her and move forward.
11. The difference in age between you was not significant: she was 14 and you were, at the time, only 21. It is not significant in the number of years but it is very significant in terms of maturity because that 7 year difference will make a huge difference to a 14 year old girl.
12. I have had a look at other decisions made in this Court for similar offending and I have read the very detailed and helpful submissions provided by the Prosecution. Given the circumstances of your case and in particular the age disparity, I fix the starting point for your offending at 12 months imprisonment. But I must look now at your personal circumstances to see if I am required to reduce that starting point in any way.
13. You are 22 years old. You have no previous convictions. You currently or you were assisting your family on the plantation and seem to have some family support, according to the probation report. I do accept that you are remorseful; you are sorry for what has happened. I accept that there was some affection between the two of you and that you did not do anything to deliberately or intentionally hurt this girl. There has been no formal apology or reconciliation but in fairness to you, you have been remanded in custody since your arrest.
14. In terms of credit for good character at 21, you have not really had the time to establish a history that might cause me to consider that you are a man of good character but I do acknowledge your past, your genuine remorse, and I reduce the sentence by 2 months, down to one of 10 months.
15. You also entered a plea of guilty to the charge. Now this was only entered recently but again, in fairness to you, you are not legally represented and prior to your plea of guilty, there were very serious charges, including the charge of rape, before the Court. Once that charge was withdrawn, you entered a plea of guilty to the matter that you now appear for sentence. In the circumstances, close to the maximum credit is appropriate for that plea of guilty. That I fix at 3 months and that means that in respect of this charge, Mr Apelu, you are now convicted and sentenced to serve 7 months in prison. Time served is to be deducted from that sentence.

________________________

JUSTICE E M AITKEN