Police v Apiuta [2016] WSSC 202 (24 November 2016)

IN THE SUPREME COURT OF SAMOA
Police v Apiuta [2016] WSSC 202

Case name:	Police v Apiuta
Citation:	[2016] WSSC 202
Decision date:	24 November 2016
Parties:	POLICE (Informant) and VAL APIUTA, male of Faleula-uta (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	On the charge of sexual connection, the defendant is convicted and sentenced to 4 years and 8 months’ imprisonment. The imprisonment term to less any time in custody. On the two charges of indecent act, the defendant is convicted and sentenced to 18 months’ imprisonment to be concurrent. The sentence is also to be served concurrent with the leading offence.
Representation:	F Ioane for Prosecution P Mulitalo for the Defendant
Catchwords:	Indecent act – sexual connection with a minor – 15 year age disparity – previous convictions – early guilty plea – sentencing bands – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 50(b); 58(1); 58(3); 58(6);
Cases cited:	AG v Lua [2016] WSCA1 (19 February 2016) R v AM [2010] 2NZLR 750
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

VAL APIUTA male of Faleula-uta
Defendant

Counsel:
F Ioane for Prosecution
P Mulitalo for the Defendant

Sentence: 24 November 2016

SENTENCING OF TUATAGALOA J

1. The defendant is charged with two counts of indecent act under s. 58(3) and one count of sexual connection under s. 58(1) of the Crimes Act 2013.
2. The penalty for sexual connection with a child under 12 years’ old is life imprisonment while indecent act is maximum 14 years’ imprisonment.

The facts:

3. The summary of facts has been read out and confirmed by the defendant which basically says:
   • The victim met the defendant on his way home from the shop. They walked together on the road whereby the defendant asked the victim to suck his penis but the victim refused.
   • The defendant placed his arm around the victim’s head and led the victim to a secluded area where the defendant carried out the following to the victim:
     • − Kissed the victim on the lips;
     • − Masturbated the victim;
     • − Sucked the victim’s penis; and
     • − Attempted to penile penetrate the victim’s anus.
   • A cousin of the victim found the defendant doing this to the victim, punched the defendant who stood up and ran away.
4. The defendant is 26 years’ old, single of Faleula-uta and said to have been drinking alcohol prior to committing the offences.
5. The victim is an 11 year old male of the same village as the defendant. The pre-sentence report (PSR) has the defendant saying that the victim is a transgender.

The aggravating factors:

6. There is a 15-year age difference between the defendant and the victim. The difference in age would indicate the level of vulnerability of the victim. The bigger the age gap the more serious the offending will be.
7. It is well accepted that violence is inherent in any sexual offending. There is usually also associated violence to the commission of the offending. In the present case, at paragraph [6] of the prosecution’s summary of facts, the defendant by placing his arm around the victim’s head suggesting a ‘head lock’ and led the victim to a secluded area is an act of violence.
8. The defendant has previous convictions of offences not similar to his current offending. What is of concern is the variety of offences that the defendant commits from burglary and theft to possession of narcotics to the current sexual offending. The defendant is indeed becoming a ‘jack of all trades’ of offending. The defendant’s previous convictions are aggravating factors personal to the defendant as offender.

The mitigating factors:

9. The only mitigating factor is the defendant’s early guilty pleas.

Discussion:

10. The prosecution seemed to be confused with indecent act and indecent assault filing charges which they say were of indecent acts and charges they say of indecent assault but all under the same provision of s. 58(3). ‘Indecent act’ is defined under s. 58(6) to include indecent assault so they are one and the same.
11. The sexual connection offending in this case is that defined under s. 50(b) of Crimes Act 2013.

(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.”

12. The case of AG v Lua^[1] provides the sentencing bands for unlawful sexual connection (no penetration) against children who are less than 12 years’ old.
13. The offending is more opportunistic than pre-meditated as submitted by the prosecution. The summary of facts say that the victim met the defendant on the road on his way back from the shop and they walked together. Even though the offending is more opportunistic than pre-meditated, the Court in R v AM^[2] at paragraph [37] said:

“Offender who shows predatory sexual behaviour may be more likely to offend in an opportunistic manner. They should not be treated as lacking pre-meditation.”

14. The pre-sentence report has the defendant saying that the victim is a transgender. If the defendant thinks that this is a ‘greenlight’ for him to do what he did, he is wrong. The issue is not that the victim is a transgender; the issue is the victim’s age and the sexual offending by the defendant.
15. The offending could have been a lot worse if the victim’s cousin had not come across the defendant and the victim. What the defendant did or performed to or upon the victim were those to an adult not a child. This is predatory sexual behaviour.
16. The Court considers the offences in totality with the sexual connection under s. 58(1) as the leading offence.
17. The circumstances of this offending warrants a custodial sentence. The question is, which sentencing band the circumstances fall into. The prosecution submits higher end of Band 2 at 12 years starting point.
    • Band 2: 5 – 12 years.

Where the offending is of moderate seriousness and involves two or three aggravating factors.

18. I agree with prosecution that this case falls in Band 2 but not at the higher end at 12 years. The circumstances of this offending places it at mid-range of Band 2 at 6 years starting point. A further 6 months is added for previous convictions, this makes it 6 ½ years. The only mitigating factor is the defendant’s early pleas which I will deduct 25%, this leaves an end sentence of 4 years and 8 months’ imprisonment.
19. On the charge of sexual connection under s. 58(1), the defendant is convicted and sentenced to 4 years and 8 months’ imprisonment. The imprisonment term to less any time in custody.
20. On the two charges of indecent act the defendant is convicted and sentenced to 18 months’ imprisonment to be concurrent. The sentence is also to be served concurrent with the leading offence.
    

JUSTICE TUATAGALOA

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^[1] AG v Lua [2016] WSCA1 (19 February 2016)
^[2] R v AM [2010] 2NZLR 750