Police v Toma [2015] WSSC 65 (30 June 2015)

SUPREME COURT OF SAMOA
Police v Toma [2015] WSSC 65

Case name:	Police v Toma
Citation:	[2015] WSSC
Decision date:	30 June 2015
Parties:	POLICE (prosecution) v SAFUNE TOMA (accused) male of Siutu, Salailua.
Hearing date(s):	28-29 April 2015
File number(s):	S690/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 1 year and 5 months imprisonment on each of the two remaining charges against him. Both sentences to be concurrent. - Any time the accused has already spent in custody is to be further deducted from that sentence. - It is recommended to the prison authorities that this accused serves his time at the Olomanu Rehabilitation Facility
Representation:	L Su’a-Mailo for prosecution L R Schuster accused
Catchwords:	sexual violation by rape – sexual connection – maximum penalty - pleaded guilty at the first reasonable opportunity to the charge of doing an indecent act on a child under the age of 12 years – aggravating factors relating to the offending – vulnerability of the victim – premeditation – impact of the offending – age of victim and age disparity – mitigating factors relating to the offending – previous good character – apology– sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.49 (1) (a) and (2), s.52 (1), s.58 (1)
Cases cited:	R v AM [2010] 2 NZLR 781
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S690/14

BETWEEN

P O L I C E
Prosecution

A N D

SAFUNE TOMA male of Siutu, Savaii.
Accused

Counsel:
L Su’a-Mailo for prosecution
L R Schuster accused

Sentence: 30 June 2015

S E N T E N C E

The charges

1. The accused had stood trial before a panel of assessors on one charge of sexual violation by rape, contrary to s.49 (1) (a) and (2) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment under s.52 (1), and one alternative charge of sexual connection with a child under the age of 12 years, contrary to s.58 (1) of the Act, which also carries a maximum penalty of life imprisonment. By the verdict of the assessors, the accused was found not guilty of rape but guilty of sexual connection. Counsel for the prosecution explained that the sexual connection the prosecution had in mind here is the private part of the accused having come into contact with the genitalia of the victim.
2. Prior to the trial, the accused had pleaded guilty at the first reasonable opportunity to the charge of doing an indecent act on a child under the age of 12 years, contrary to s.58 (3) of the Act, which carries a maximum penalty of 14 years imprisonment. Counsel for the accused explained to the Court that to his understanding, the accused had pleaded guilty to his acts of undressing the victim, then lying on top of her, and then putting his private part to her genitalia. In other words, the accused’s guilty plea related to all the indecent acts done by the accused on the victim which included putting his private part to the victim’s private part.
3. There is some confusion here as the charge of sexual connection under s.58 (1) which carries a maximum penalty of life imprisonment and to which the accused had pleaded not guilty and the charge of doing an indecent act under s.58 (2) which carries a maximum penalty of 14 years imprisonment to which he pleaded guilty cover the same ground. The difficulty to which this gives rise is whether I should give the accused the full discount for a guilty plea at the first reasonable opportunity to the charge under s.58 (3) or whether there should be some reduction in that discount because of his not guilty plea to the charge under s.58 (1) which covers the same ground. I have found no case where this type of situation has arisen before. In the circumstances of this case where the trial was really focused on the principal charge of sexual connection by rape and not on the alternative charge under s.58 (1), I have decided to give the accused the benefit of the doubt and give him the usual discount of 1/3 for a guilty plea at the first reasonable opportunity.

The offending

4. On 2 January 2014, the victim who was then 11 years old was sent with her younger brother by their mother to collect coconuts from the cattle farm (pa povi) inland of their village at Siutu in Savaii. The accused who was then 18 years old was also going inland to collect firewood, as he told the probation service. He saw the victim and her brother and followed them.
5. When the accused caught up with the victim and her younger brother at the stone fence (pa maa) of the cattle farm, he told the victim’s brother to wait at the stone fence while he goes with the victim to collect coconuts from inside the cattle farm. The accused then walked off with the victim. When they came to one of the coconut trees inside the cattle farm, the accused cut off a coconut frond (launiu) laid it down, removed the victim’s clothes, and laid her down on the coconut frond. The accused then laid on top of the victim and put his private part to the victim’s private part. According to the victim’s evidence, she felt pain but this incident did not last for long; it was brief. The accused then told the victim not to tell anyone about what had happened.
6. After the incident, the accused and the victim then went and collect coconuts. The accused gave 60sene to the victim and then left.

The victim

7. As earlier mentioned, the victim was 11 years at the time of the offending. The victim impact report shows that the victim has not forgotten this incident but is trying to forget it. The victim’s mother is also still traumatised by what happened to her daughter.

The accused

8. As earlier mentioned, the accused was 18 years at the time of the offending. He is single and left school at Year 8. He now stays home rendering services to his parents and family through fishing and working on his family’s plantation.
9. The accused is also a first offender and the testimonials provided by his father, his village pastor, and his village pulenuu show that the accused had been a person of good character prior to this offending. The testimonial from the village pastor shows the accused as a respectful and obedient youth who has been very useful not only to the church youth but the church choir. The testimonial from the pulenuu shows the accused as an obedient and hardworking person upon whom the village depends because of the services that he renders to the village.

The aggravating factors relating to the offending

10. I will refer only to those factors submitted by the prosecution as aggravating factors relating to the offending which I accept.

(a) Vulnerability of the victim

11. At the time of the offending, the victim was in a vulnerable situation. She was only with her younger brother at an isolated place which was the village cattle farm inland of the village. The accused is also seven years older than the victim and no doubt physically stronger than the victim or her younger brother.

(b) Premeditation

12. Premeditation can be an aggravating factor relating to the offending but this would be of relatively limited weight in this case. The accused told the probation service that he was going inland to collect firewood when he saw the victim and her younger brother. He then followed them until he caught up with them and this offending occurred. In a sense this offending was opportunistic.

(c) Impact of the offending

13. The victim is still trying to forget what the accused did to her. Her mother is also still traumatised by what the accused did to her daughter.

(d) Age of victim and age disparity

14. The victim was only 11 years at the time of the offending. The age difference between the victim and the accused is 7 years.
15. As there was no relationship of trust between the victim and the accused, it follows that there was no breach of trust. It is true that the accused and the victim are from the same village and live not far away from one another. But I would not consider that as giving rise to a relationship of trust between them. The Convention on the Rights of a Child also had nothing to do with the offending that occurred. It had no involvement in the offending. So it is not an aggravating factor relating to the offending. But the Convention is something that the Court is aware of and bears in mind.

Mitigating factors relating to the accused as offender

(a) Young age of accused

16. The accused was 18 years at the time of the offending.

(b) Apology

17. The parents of the accused have apologised to the family of the victim and the apology was accepted.

(c) Previous good character

18. The accused is a person of previous good character as shown from the testimonials from his father, village pastor, and village pulenuu. Those testimonials show that this offending is out of character.

(d) Early guilty plea

19. The accused’s plea of guilty at the first reasonable opportunity to the charge of doing an indecent act on the victim is an important mitigating factor relating to him as offender.

Discussion

20. In considering the starting point for sentence, I refer to the sentencing bands for offences of unlawful sexual connection other than rape set out and discussed by the New Zealand Court of Appeal in R v AM [2010] 2 NZLR 781, pp. 781 – 786, paras [113] – [124]. These sentencing bands are as follows:
    1. Unlawful sexual connection band one: 2 – 5 years;
    2. Unlawful sexual connection band two: 4 – 10 years; and
    100. Unlawful sexual connection band three: 9 – 18 years.
21. It is recommended that the relevant pages and paragraphs of the R v AM [2010] 2 NZLR 781 be read in full in order to get their full flavour.
22. Having regard to the aggravating factors relating to the offending, I will take 3½ years as the starting point for sentence. I will deduct 12 months for the mitigating factors relating to the accused as offender such as his young age, previous good character, and the apology by his parents to the family of the victim. That leaves 2½ years. I will further deduct 1/3 for the accused’s early guilty plea. That leaves 1 year and 8 months. I will show mercy on the accused and deduct a further 3 months because he has had to undergo a trial on the more serious charge of rape of which he was found not guilty and this matter has been hanging over him for more than a year. That leaves 1 year and 5 months.

Result

23. The accused is convicted and sentenced to 1 year and 5 months imprisonment on each of the two remaining charges against him. Both sentences to be concurrent.
24. Any time the accused has already spent in custody is to be further deducted from that sentence.
25. It is recommended to the prison authorities that this accused serves his time at the Olomanu Rehabilitation Facility.

CHIEF JUSTICE