Police v Makei [2015] WSSC 94 (2 July 2015)

SUPREME COURT OF SAMOA
Police v Makei [2015] WSSC 94

Case name:	Police v Makei
Citation:	[2015] WSSC 94
Decision date:	2 July 2015
Parties:	POLICE (prosecution) v KARL MAKEI male of Utualii
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Ema Aitken
On appeal from:
Order:	In respect of the two charges you are convicted and sentenced to eight years imprisonment on each charge, the sentences is to run concurrently. Time served is to be deducted from that sentence.
Representation:	L Su’a Mailo and Ms Ioane for prosecution E Niumata for defendant
Catchwords:	sexual violation – unlawful sexual connection – rape – detention
Words and phrases:	sexual connection with a child under the age of twelve – sentencing bands for sexual violation –
Legislation cited:	Crimes Act 2013 s 49, s 50, s 50(a), s 58,
Cases cited:	Key v Police [2013] WSCA 03 R v AM [2010]NZCA 114
	Police v Solia
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

A N D:

KARL MAKEI
male of Utualii, Samoa
Accused in person

Counsel:
L Su’a Mailo and Ms Ioane for prosecution
E Niumata for defendant

Sentence: 02 July 2015

SENTENCE OF JUSTICE E M AITKEN

1. Mr Makei, you appear for sentence having pleaded guilty to two charges of sexual connection with a child under the age of 12. This is very serious offending; each offence carries a maximum penalty of life imprisonment.
2. The facts are that on 4 January this year the young victim, who was 10 years’ old at the time, stayed at home by himself while the rest of his family attended church. You went to his house probably to find his older siblings or family members but instead you found him alone.
3. On finding him alone, it is obvious that you planned then to offend against him and you commenced that process by making him watch a pornographic video on your cellphone. You then took him by the hand, told him to come with you and took him into one of the rooms of the house.
4. You told him to get up on the bed and when he had done that you pulled down his shorts. You then penetrated his anus with your penis, he cried in pain but you continued with the act until, it is likely, you ejaculated. You told the victim not to tell his parents or you will beat him up and then you left the house.
5. On 20 January, some 16 days later, you went back to the house. It was nighttime and the victim was asleep in the same bed as his brother. You went into the victim’s room, pulled the victim onto the floor and proceeded to pull down his shorts. You once again penetrated his anus with your penis and proceeded to have sexual relations with him. The victim again cried out due to the pain but after the event you fell asleep naked this time with the victim beside you on the floor.
6. The victim’s brother woke up (perhaps because his younger brother was crying), he turned on the light and saw you both and at that point the victim told him what had happened. The matter was reported to the police, you were arrested and admitted to your offending.
7. Now before I turn to the specific aspects of sentencing, I will address the issue of whether this Court should be or is bound by the judgment of the Court of Appeal in Key v Police [2013] WSCA 03 when dealing with sexual conduct with a child under the age of 12.
8. In that decision, the Court of Appeal adopted, in effect, the rape guidelines set out by the New Zealand Court of Appeal in R v AM [2010]NZCA 114 modified in terms of penalty to reflect the maximum penalty for rape in Samoa is life imprisonment.
9. R v AM dealt with the New Zealand position. Sexual violation there carries a maximum penalty of 20 years imprisonment. The offence of rape is maintained as part of the definition of sexual violation. The other part of the definition covers unlawful sexual connection, where such connection is defined in language very similar to the definition here in Samoa (as set out in [13] below), but with some material differences. In R v AM, the Court of Appeal approached the task of establishing sentencing Bands for all sexual violation offending by identifying two categories of offending: firstly, sexual violation where the offence is rape, penile penetration or violation involving objects; and a second category of offending, specifically all other forms of unlawful sexual connection including digital penetration and connection between the mouth or tongue of the offender with the genitalia or anus of the victim (which would include penetration by the tongue).
10. Given that the sentencing Bands for offending in the first category are higher than those in the second (despite the conduct all being subject to the same maximum penalty), the Court clearly proceeded on the basis that offending involving rape, penile penetration of the mouth or anus, or violation involving objects was prima facie more serious than offending involving digital penetration, and other forms of non-penetrative connection.
11. The Samoan Court of Appeal had cause to address the issue of rape in Key v Police and set out guidelines for Courts in Samoa when dealing with offences of rape. It is important to observe that, in that decision at [25], the Court of Appeal noted that its decision would be applicable to rape under the new Act, [in other words under the Crimes Act 2013] but it would be inappropriate for us to comment further on the newly introduced offence of sexual violation.
12. In other words, the Court of Appeal expressly declined to comment on that part of s 49 Crimes Act 2013 that refers to sexual violation as including unlawful sexual connection.
13. s 50 Crimes Act 2013 defines sexual connection as:
    • (a) connection occasioned by the penetration of the genitalia or the anus of any person by (i) any part of the body of any other person or (ii), any object held or manipulated by any person; or (b) connection between the mouth or tongue or any part of the body of any person and any part of the genitalia or anus of any other person; (c) the continuation of sexual connection as described in either subsections (1)(a) or (b).
14. What becomes clear is that the offending described as sexual connection in s50(a) is broader than the offending included in the first category of R v AM; and that, in Samoa, sexual connection includes connection between any part of the body with any part of the genitalia or anus whereas in New Zealand it is only connection between the mouth or tongue with the genitalia or anus that falls within the definition.
15. Relevantly also, as noted the maximum penalty for rape and for unlawful sexual connection in New Zealand is the same: 20 years imprisonment. Here in Samoa rape carries a maximum penalty of life imprisonment, unlawful sexual connection a maximum of 14 years. Given this, and the Court of Appeal's decision to address only rape in its guideline judgment in Key v Police, this Court should approach with caution the use of those guidelines for any other type of offending.
16. However, when I turn to the case before me, this offending is sexual connection with a child under 12 years. It is offending that involves penile penetration of the anus and falls squarely within the first category of offending as identified in R v AM and adopted by Key v Police. Relevantly, it also carries the same maximum penalty as rape in Samoa - life imprisonment.
17. While ultimately this may be a matter for the Court of Appeal, for these reasons I consider that this Court, if not bound by Key v Police, should at the very least depart from those guidelines only for good reason (expressly stated) when sentencing offenders under s58 Crimes Act 2013. I turn therefore to identify the aggravating factors and the appropriate bands by reference to Peti Key v Police.
18. In other words, Mr Makei, I turn now to address the aspects of your offending behavior that would lead to the identification of the starting point sentence of imprisonment.
19. The first factor I address is planning and pre-meditation. I proceed on the basis that there is no evidence that you approached that house on the first occasion knowing that the victim was alone but certainly on finding him so, you showed him pornographic videos which in my view demonstrates a degree of planning and pre-meditation, at least commencing at the time that you found him there. That act of showing him the video is also an effort to groom him or getting him ready for what followed, perhaps an attempt by you to normalize things.
20. On the second occasion, you approached the house late at night. You claim you went there to see someone else. I am not persuaded and I proceed on the basis that you entered the boy’s home on that second occasion with the primary purpose of offending against him this time. On that occasion too, therefore, there was that degree of planning and pre-meditation.
21. Secondly, I have regard to the issues of violence, detention and home invasion submitted by the prosecution as aggravating factors.
22. On the first occasion there was no violence in addition to what is already a violent offence, namely sexual violation. You did, on that occasion, threaten him with violence if he told on you. On the second occasion again there was no violence, nor was there any detention in either case.
23. Detention as an aggravating factor involves more than the physical restraint that is part in parcel of the act of sexual connection. (I observe that in R v AM at [40] the Court noted that a level of detention is inherent in the offending as the victim is not free to leave.) Detention may include the locking of the door, the locking of the house or the locking of the car; the tying up of the victim or moving the victim to a place from which no escape is practicable. Indeed on some occasions the act of detention itself constitutes a separate offence - but there was no detention in respect of either of the offences here.
24. As to home invasion I do not regard that as being present on the first offence as you entered the house for legitimate reasons. On the second occasion you entered by night while the child slept. The court recognizes the sanctity of the home; where it is violated, that can amount to an aggravating factor and I regard it as an aggravating factor in respect of the second set of circumstances.
25. Thirdly, I have had regard to the vulnerability of the victim and it is clear that this 10 year old was a vulnerable victim but to some extent that vulnerability is inherent in the charge. However you were 26 and there is therefore a 16 year age disparity between you and your victim which is an aggravating factor.
26. Fourthly I have had regard to the harm to the victim and read the victim impact statement. It is clear that the victim suffered both physical and emotional harm. He explains that he is scared and lives in fear of you, and his family describe that he has changed very much since this incident. He seems to have become very slow and passive and he is very sad. I am well satisfied that this boy has suffered significant emotional harm and that is likely to endure. There is a significant body of psychological or other medical evidence from which it is reasonable to assume that offending such as this can adversely impact on a victim well into adult life, and that must be particularly so in the absence of any counseling services.
27. As to the scale of the offending, there were two separate incidents 10 days apart.
28. It will be clear that I am taking the totality approach to the offending.
29. Apart from the factors already noted, there are no other aggravating aspects in terms of the scale of the offending, in particular no additional degradation, and the degree of violation was a single act of penetration on each occasion.
30. Given these aggravating factors, I am satisfied that the offending falls at either the top end of Band 2 or the lower end of Band 3 as described in the decision of Key v Police. The key factors are that there were two offences, the harm is likely to endure and that there was a home invasion on the second occasion. The victim was clearly vulnerable, although it is noted that that is to some extent inherent in the charge. In terms of relativity to other cases I observe that there was no additional violence over and above the offending, there were no weapons involved, no abduction and as noted no additional degree of degrading treatment.
31. I have carefully read and considered the Police v Solia to which the prosecution has referred me. The Court there in effect adopted a starting point of 21 years for a similar albeit single act of unlawful sexual connection with a boy under 12, in fact seven years old. I am not bound by that decision - it is a decision of this Court; and with greatest respect to my colleague I do not consider that a single act (in that case despite its obvious seriousness) could be seen as falling within band four of Key v Police, particularly having regard to example of cases in the R v A.M that would fall within Band 4.
32. It is for all these reasons I reach the starting point for this matter at
    14 years – in other words, at the bottom of Band 3 or the upper end of Band 2.
33. I turn now to consider matters of personal aggravation and mitigation. In terms of aggravating factors, you have prior convictions for theft and burglary that were entered in September 2000. You were 15 years’ old at the time, convictions were entered into the District Court, they pre-date the existence of the Youth Court. Given the time that has lapsed since then, and the different nature of the offending, they do not operate to aggravate the sentence.
34. As to the matters of mitigation, the things that permit me to reduce the sentence from the 14 years starting point are as follows: you are 25 years’ old. You left school at Year 11 and initially worked on the family plantation. You then got paid employment and you worked as a carpenter for the past four to five years until you were arrested and remanded in custody for this matter. You were obviously under the influence of alcohol when the offending occurred - but that is not a matter of mitigation. No other rehabilitative issues are identified either in the probation report or in the psychiatric assessment that I directed be undertaken.
35. Despite your prior convictions for behavior at the age of 15, I find you otherwise a person of reasonable good character. Certainly you have been a hard worker and a good family member, and I will allow some small credit for your otherwise good character on the basis that the Courts now recognize that offending by a 15 year old could be more about foolishness and risk taking than demonstrative of general criminal intention.
36. More importantly I grant some reduction in your sentence to allow for the apology that has been offered from your family to the family of the victim and accepted by the victim’s family. I also acknowledge your general remorse and credit is due to you to that. Further you have now been banished from your village, and that is a permanent banishment - a significant penalty on you and your family.
37. Taking all those factors together I reduce your sentence by a period of two years (around 15%).
38. But the maximum credit Mr Makei comes from the entry of your guilty plea. You entered a plea of guilty initially to (in effect) the wrong charges and entered a plea of guilty when the correct charges were laid against you. You have spared this 10 year old boy the ordeal of coming to Court to give evidence and you have demonstrated and accepted responsibility for what you have done. In such circumstances this Court recognizes an appropriate reduction of one third of the sentence which in this case would be a further 4 years.
39. That brings me to an end point sentence of eight years and in respect of these two charges you are convicted and sentenced to eight years imprisonment on each charge, the sentences is to run concurrently. Time served is to be deducted from that sentence.
    

_____________________
JUSTICE E M AITKEN

40. Addendum: This sentencing matter was dealt with orally by me on 2 July 2015. The issues raised in it, however, may have some wider implications. For that reason, I have reviewed my reasons given orally at [7] - [17] inclusive and made some amendments to them in this written version. My decision as to the sentence imposed and the reasons for it, however, have not been altered, nor are they affected by my review.