Police v Sola [2016] WSSC 143 (3 August 2016)

SUPREME COURT OF SAMOA
Police v Sola [2016] WSSC 143

Case name:	Police v Sola
Citation:	[2016] WSSC 143
Decision date:	3 August 2016
Parties:	POLICE and FAAFETAI SOLA male of Tiavea Uta (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala Warren
On appeal from:
Order:	The accused is convicted and sentenced to 2 and ½ years imprisonment. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify him. The suppression order does not relate to the defendant. A copy of this decision is to be provided to the Ministry of Education, Sports and Culture
Representation:	M. Lui for Prosecution Accused in person
Catchwords:	sexual conduct with a child under 12 years - early guilty plea
Words and phrases:
Legislation cited:	Crimes Act 2013, section .50 (b) and section 58(1)
Cases cited:	R v Hamilton-We (CA #160;49/79, 14 August Wood Woodhouse, Richardson and Somers JJ) R v Peachey (CA 92/01, 17 July 2001,t, Panckhurst and Potter JJ), R v AM (CA 27/2009, CA 32/2009), Police v Wr v Wright [2015] WSSC 118 (7 April 2015) [2016] WSSC 54 (6 April 2016) R v Sargeant (1974) 60 Cr App0;App㺼74, 77, per, per Lawton CJ) [1952] R v Martin [1992] 3 NZLR 513 (CA)(Cooke P, Richardson and Hardie Boy
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FAAFETAI SOLA male of Tiavea Uta
Accused

Counsel:
M. Lui for Prosecution
Accused in person

Sentence: 3 August 2016

S E N T E N C E
THE NAMES OF THE VICTIM, HIS FAMILY, HIS SCHOOL AND HIS VILLAGE ARE SUPPRESSED.

The charge

1. The accused appears for sentence on one charge of sexual conduct with a child under 12 years pursuant to s.50 (b) & 58(1) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment.
2. He pleaded guilty to the charge on 27 June 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that between 1 January 2016 and 31 May 2016, the victim was standing in front of the store room of the school when the accused approached the victim. The accused held the victim’s hand and took him inside the teacher’s room. The accused locked the door of the teacher’s room and told the victim to kiss him but the victim refused. The accused proceeded to kiss the victim on the lips. The accused told the victim to remove his clothes and the victim did as he was told. The accused told the victim to lie on the floor facing down and when the victim had done this, the accused tried to insert his penis inside the victim’s buttocks but his penis could not enter the victim’s buttocks. Then the accused told the victim to face the ceiling and the accused sucked the victim’s penis.
4. A few minutes later, another student came knocking at the door. The accused got up to open the door while the victim put on his uniform. The accused then left the teacher’s room and the victim went back to his class room.
5. When the victim got to his class room, he cried to his friends and told one of his friends what had happened.
   6. One of the teachers asked the victim why he was crying and the victim told the teacher what the accused had done to him. The matter was then reported to the school principal and to the Police.

The accused

7. As shown in the pre-sentence report, the accused is 27 years old, single and lives with his family. He is the youngest of nine children. The report says he is a transgender.
8. He is a primary school teacher and earns $408.00 per fortnight. The victim is an ex-student of his.
9. The accused has been a teacher since 2013 having graduated from the National University of Samoa with a Diploma in teaching. His brother told Probation that the accused is the breadwinner for their family and he remains supportive of him.
10. His brother told Probation that he has apologised to the victim’s family and gave one large fine mat and $50.00 which was accepted by the victim’s family.
11. There are four testimonials in support of the accused from his reverend, his village mayor and two school principals.
12. His reverend says he is a Sunday school teacher, a treasurer for the choir, and very much involved in church youth activities.
13. His village mayor says that the accused holds tutorials during school holidays at the request of the village mayor.
14. Both school principals attest that the accused is an excellent teacher.
15. The accused told the Court he is extremely remorseful and pleads for another chance to work as a teacher to serve Samoa and God.
16. He is a first offender.

The victim

17. The victim impact report given to the Court says that the victim is 10 years old and attends primary school.
18. He explains that he was very scared during the incident. He was told by the accused not to make a noise and not to tell anyone what happened. He says he is afraid of the accused and does not want to see him again.
19. The victim’s father confirms that the father of the accused apologised and gave 1 fine mat.

Aggravating features of the offending

20. There are several aggravating features of this offending.
21. The first aggravating feature is that the accused is a school teacher in whom and parents place their trust to teach their children while they are in school, not to sexually abuse them. Students place their trust in teachers to keep them safe at school. This incident happened at school. This offending is a gross breach of trust on the part of the accused.
    22. The second is that the victim is a child of 10 years old. He is very young and vulnerable. The younger the victim of a sexual offence the greater the need for protection: This proposition was stated by the New Zealand Court of Appeal in R v Hamilton-Wallace vhey (CA 92/01, 17 July 2001, Gaulnc Panckhurst and Potter JJ) it was stated that sexual offending against under-age children is consistently regarded as more serious than similar offending against adults. Young persons were more vulnerable and the law provided for their need for greater protection.
    23. It is also aggravating that the accused is more than twice the victim’s age and there is an age gap of 17 years. This, like young age, goes to the vulnerability of the victim. In R v AM (CA 27/2009, CA 32/2009), the New Zealand Court of Appeal referred to the United Kingdom Guidelines which suggest that the offending will be more serious the younger the child and the greater the age gap between the victim and the offender.
    24. The fourth aggravating feature is that the offending was premeditated. The accused took the victim into the teacher’s room of the school and locked the door. He took active steps to ensure that he got the victim alone.
    25. The psychological impact on the victim is taken into account as an aggravating feature. The victim was afraid at the time of the incident and remains afraid of the accused. His childhood has been marred by what the accused did to him. His innocence has in effect been shattered.

Mitigating Factors

26. His good character according to the testimonials weigh in his favour.
27. His remorse expressed to Probation and to the Court is a mitigating factor.
28. The apology by his brother or father to the victim’s family is taken into account.
29. His early guilty plea to the charge is a mitigating factor.

Discussion

30. The charge of sexual conduct with a child under 12 years old carries the highest penalty available under the criminal law and that is imprisonment for life. No doubt this penalty reflects the contempt held by society for those who sexually abuse the most innocent and vulnerable members of society, being children under 12 years old. They cannot defend themselves.
31. The sexual connection in this case is connection between the mouth or tongue of the accused and genitalia of the victim.
32. What makes this case also particularly horrendous is the fact that the accused is a teacher in the school of the victim and used to teach the victim. This abuse of a position of authority and trust is deplorable.
33. In cases before this Court of Police v Wright [2015] WSSC 118 (7 April 2015) and Police v Velo [2016] WSSC 54 (6 April 2016), the issue of teachers sexually abusing and sexually assaulting students arose.
34. It is clear that when it comes to sexual offending by teachers on students, this Court has held that “protection of school children from teachers like the accused is a very important consideration”(per Sapolu CJ in Police v Velo). Sapolu CJ says;

The main aggravating feature of this offending is the breach by the accused of the victims’ trust in him as their teacher as well as the trust of the victims’ parents that their children would be safe at the school. It is essential that this trust between students and their teachers and between the parents of the students and their teachers of their children should be maintained. Students rightly expect to be safe at school and so too the parents of the students. Sexual misconduct by a teacher towards a student will undermine that trust and the good image of the school.

35. In Police v Wright, Aitken J said in relation to aggravating facto rs;

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. ...you 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.

36. It is a very real concern that the accused is involved with other children and youth through the church and the village. As a result of his actions, he will most likely never work as a teacher again.
37. In this case, there is a need to hold the accused accountable for the harm done to the victim, to promote in him a sense of responsibility for, and an acknowledgment of that harm, and to provide for the interests of the victim who is very young, vulnerable and defenceless.
    38. There is also an overriding need to deter the accused and others from committing the same or similar offences and to protect the community from the accused. This protection is particularly important for children. The Court has a duty as does this country to protect children from sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child (Article 19 United Nations Convention on the Rights of the Child). Teachers have children in their care while they are at school.
    39. I support the proposition espoused by the Court of Criminal Appeal in England in R v Sargeant (1974) 60 Cr App
        #160;74, 77, per Lawt Lawton CJ)>

[S[S]ociety, through the Courts, must show its abhorrence of parti types of crime, and the only way in which the Courts can show this is by the sentences thes they pass. The Courts do not have to reflect public opinion. On the other hand Courts must not disregard it. Perhaps the main duty of the Court is to lead public opinion.

40. The Courts through its sentences can lead public opinion. Inevitably, sentences imposed by Courts send out messages to the public; messages of deterrence, messages of abhorrence or indignation, messages of despair, and even messages of hope.
41. However I am mindful that whatever message is sent out, balance and objectivity must be maintained otherwise a factor may be given undue weight resulting in a sentence which is so out of kilter with sentences for similar offences in the same jurisdiction or other jurisdictions. I pay heed to the caution by Napier CJ in Webb&# O’Sul7;Sullivan [1952] SASR 65, 66 in his oft-quoted statement:

The Courts should endeavour to make thishment fit the crime, and the circumstances of the offender, as nearly as may be. Our firs first concern is the protection of the public, but, subject to that, the Court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.

42. In a similar cautionary vein, in R v Martin [1992] 3 NZLR 513 (CA)(Cooke P, Richardson and Hardie Boys JJ), it was repeated;

it is incumbent on the Courts to resist the temptation of being led by indignation to inflate punishments unnecessarily beyond an already condign and severe level. There is little or no point in making such additions.

43. I approach this sentence keeping all these factors in mind. There is no other sentence apart from imprisonment for the accused. Prosecution submits a starting point of 8 years imprisonment is appropriate.
44. Because of that inevitability, I turn now to identify the starting point and in determining that starting point, useful guidance is provided by the New Zealand Court of Appeal case of R v AM (CA 27/2009, CA 32/2009). The Court of Appeal set sentencing bands for offending involving sexual violation and provided two sets of guidelines. For the purposes of this sentencing, I take heed of the unlawful sexual connection guidelines (USC guidelines). The guidelines are usefully provided to assist in determining the starting point, keeping in mind the uplift in the terms of imprisonment because of the difference in maximum penalty.
45. Of greater relevance and application is the case of Attorney General v Lua [2016] WSCA (19 February 2016). The Samoa Court of Appeal found it desirable to establish a guideline for sexual connection against children and pronounced that the new guideline applies to all sentencing decisions for unlawful sexual connection against children under 12 years from now on. The Court remarked that the guidelines ‘do not place the sentencing judge in a straight-jacket”. I would add that the guidelines have been extremely helpful in working towards, not necessarily the exact same sentence for similar offences, but a consistent approach to sentencing of similar offences in the exercise of judgment.
    46. Three bands were considered appropriate for sexual connection offending against children under 12 years. The bands are;
        1. Band one: 2-6 years(appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features or their presence is limited);
        2. Band two: 5-12 years (where the offending is of moderate seriousness and involves two or three aggravating features); and
        100. Band three: 11 years-life imprisonment (where the offending is the most serious of this kind, for example it involves offending against multiple victims over a significant period in the presence of serious aggravating features).
    47. Prosecution submits that this offending falls within band 2. I find that this offending falls within band two (5-12 years), where the offending is of moderate seriousness and involves two or three aggravating features. The aggravating features are the breach of trust of a child by an adult in a position of authority and trust, the young age of the child, the age gap between the victim and the accused of 17 years and the level of premeditation. It falls within the lower end of band two because it was a brief and isolated incident, the victim did not suffer any physical injuries and there was an absence of violence. To reflect the intrinsic seriousness of the crime, including aggravating features, I would place the starting point at 5 years.
    48. Therefore the starting point for sentence is 5 years imprisonment. I deduct 6 months for the apology by the family of the accused and his remorse. I deduct 6 months for his good character up to the time of this offending. Finally I deduct 1/3 for his early guilty plea.

The result

49. The accused is convicted and sentenced to 2 and ½ years imprisonment.
50. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify him. The suppression order does not relate to the defendant.
51. A copy of this decision is to be provided to the Ministry of Education, Sports and Culture.

JUSTICE TUALA WARREN