Police v Auvaa [2016] WSSC 205 (30 November 2016)

IN THE SUPREME COURT OF SAMOA
Police v Auvaa [2016] WSSC 205

Case name:	Police v Auvaa
Citation:	[2016] WSSC 205
Decision date:	30 November 2016
Parties:	POLICE (Prosecution) AND FANAEA AUVAA male of Falealupo. (Defendant)
Hearing date(s):	21 and 22 November 2016
File number(s):	S406/16, S407/16, S412/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	In the normal course of events Fanaea the penalties for your offending on BA would also be cumulative to the term imposed for your indecent assault on IL. Because that is a different assault on a different complainant on a different date occurring four days before your assault on BA. However I extend to you some measure of leniency and order that while the terms for these charges are cumulative to your existing sentence, they will be served concurrently with one another. This means that in total, you will serve for these matters an additional 6 years in prison.
Representation:	O Tagaloa for prosecution Defendant unrepresented
Catchwords:	Sexual connection - indecent assault – sex offender -
Words and phrases:
Legislation cited:
Cases cited:	Police v BA [2014] WSYC 2 AG v Maumasi [1999] WSCA 1 Tavita v Minister of Immigration [1994] 2 NZLR 257, 266 Police v Faiga [2008] WSSC 96
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FANAEA AUVAA male of Falealupo.
Defendant

Counsel:
O Tagaloa for prosecution
Defendant unrepresented

Sentence: 30 November 2016

DECISION AND SENTENCE OF NELSON J

1. Defendant faces three charges: information S406/16 that at Tafaigata on 19^th August 2015 he indecently assaulted BA, a young person over 12 and under the age of 16 years, S407/16 that at Tafaigata on 19^th August 2015 he attempted to have sexual connection with BA, a young person over the age of 12 and under the age of 16 years and S412/16 that at Tafaigata on 15^th August 2015 he indecently assaulted IL. He has pleaded not guilty to all three. Suppression order to issue in respect of the identifying details of the complainants.
2. The defendant is a prisoner at Tafaigata serving a 20 year term for multiple counts of rape of his 14 year old biological daughter: see Police v FM (unreported judgment) of 18 March 2013. His is obviously a long sentence. That of course has no bearing on the matter at hand and I ignore it completely for the purpose of assessing the defendants guilt or innocence on the present charges. It merely provides background to the current allegations against him.
3. The police evidence which essentially comprised the testimony of the two complainants showed that at the relevant time the defendant was one of two head “matai” of Cell number 14 at Tafaigata Prison. Cell 14 comprises a block of 5 rooms adjacent to each other. The defendant occupied Room 1 of Cell 14. The complainants were at the relevant time held in Cell 14.
4. The evidence of IL the complainant for information number S412/16 of indecent assault is that on the night of 15 August 2015 he was asleep with other inmates in Room 1. He awoke in the middle of the night to the defendant masturbating him under his lavalava. He was well aware it was the defendant even though it was dark and he identified the defendant as his assailant. He was taken by surprise at the defendants actions, stood up and went outside the room. Spent the remainder of the night half-asleep by the doorway of the room. No doubt because he feared further sexual assaults at the hands of the defendant. Literally.
5. Size-wise the defendant is of a much bigger and more mature build. IL said he is now 24 years old. The defendant is a man over 60 years of age. He said he did not consent to what the defendant did but did not say anything to him. He did tell his cellmates and subsequently reported the incident to the Prison Authorities.
6. On being given an opportunity to cross examine the complainant, the defendant indicated he had no questions to ask. I interpret that to be an acceptance of the complainants testimony.
7. The second complainant is BA in respect of informations S406/16 a charge of indecent assault and S407/16 a charge of attempted sexual connection. At the time BA was 13 years of age and was serving a 2 year sentence at the Olomanu Juvenile Facility for sexually assaulting a girl under 10 years of age: see Police v BA [2014] WSYC 2.
8. BA had been sent to Tafaigata Prison because he had escaped from Olomanu, probably more than once. A decision however that cannot from any point of view be justified and for which the Prison Authorities must be held accountable for it created the environment within which a convicted child rapist could reoffend. Against another young victim.
9. BA’s evidence was that 19 August 2015 was his first night in Cell 14. He was invited by the defendant to sleep in his room as he had no roommates at the time. The complainant naively accepted and was dozing off to sleep when the defendant entered the room. The defendant lay down beside him pulled down his shorts and began fondling his genitals. This caused him to awaken fully. He pulled up his shorts and turned his back to the defendant who pretended to be sleeping. Defendant pulled his pants down again and tried to apply oil from a bottle beside his bed to his backside in an attempt according to the complainant “e taumafai ai e tau mea lo’u muli.” The complainant said he resisted and slapped away the defendants hands but the defendant kept trying to pull him close to him “tago fa’apipi’i atu lo’u tino i lona tino” causing him to stand up and leave the room. He saw the naked defendant again pretending to go to sleep. He sat by the cell door for the remainder of the night. He reported what happened to Manu the other head matai of their cell-block who told him to lay a complaint.
10. Complainant also said the defendant told him what happens in Cell 14 should stay in Cell 14, no one should find out. And that he was in prison for killing a person and if the complainant told anyone, he would kill him inside Cell 14. When Manu reported what happened to the Prison Authorities only then did the complainant have the courage to make a statement to the Police.
11. I have no difficulty in accepting the evidence of the complainants. They were convincing and their stories are credible. BA’s evidence remained unshaken by the defendants cross-examination. When given an opportunity to give evidence if he wished or call witnesses in his defence, the defendant apologized to the court and asked that his days in solitary confinement as punishment for this matter by the Prison Authorities be taken into consideration. That is tantamount to a confession of guilt. I find all three charges proven beyond reasonable doubt.
12. As to sentence I have dispensed with the need for a pre-sentence report from the Probation Office. Such would be of no use to the defendant who has a previous conviction for an offence of a similar nature. His offending here again involved young victims. In the case of BA a minor only 13 years of age.
13. I am astounded that the Prison Authorities would place a minor in an adult prison. It was to avoid this kind of problem that the Olomanu Juvenile Facility was built. And so that young offenders irrespective of the seriousness of their crimes could serve their terms in an environment conducive to rehabilitation and reintegration. Furthermore, so that efforts could be made to reform these young people before re-introduction into society. It is a well documented fact that association with hardened criminals can have the effect of turning young offenders into the monsters that lurk within our penal system. It seems these matters require to be re-stated.
14. Separation of juvenile offenders from their adult counterparts is also in line with Samoas obligations under the Convention of the Rights of the Child which we executed and ratified over 20 years ago. As stated by the Court of Appeal in AG v Maumasi [1999] WSCA 1:

“All Samoan courts should have regard to this Convention in cases within its scope.”

15. In speaking about the Convention the former President of our Court of Appeal Lord Cooke of Thorndon observed in Tavita v Minister of Immigration [1994] 2 NZLR 257, 266 that Samoas ratification of the Convention should not merely be “window dressing.” This court said in Police v Faiga [2008] WSSC 96:
    

“More than lip service must be paid to the provisions of the Convention.”

16. Samoas commitment to the Convention was recently reaffirmed by its ratification earlier this year of all three Optional Protocols to the Convention. It is the first Pacific Island country to ratify all three.
17. It is a matter of grave concern that not only was a minor remanded in the adult prison but he was placed in a cell-block overseen by a man serving 20 years for repeatedly raping his 14 year old daughter. It beggars belief and there must issue a strong condemnation of such action. It is no surprise that on his first night in Cell 14 this 13 year old fell prey to the defendant.
18. Perhaps if the defendant had been registered as a hard-core offender on a Sex Offenders Register this offending may not have occurred. For alarm bells would have rung even in the dim recesses of Tafaigatas corridors that the defendant was a convicted raper of young children and that it would not be appropriate to house him with or have him oversee minors or young offenders. I respectfully suggest there are strong and compelling reasons for Parliament to consider expediting the necessary Legislation for the better future protection of the young and vulnerable of this country. As this case shows, the sooner a Register for serious and serial sex offenders is established, the better.
19. Information S412/16 of indecent assault on IL carries a maximum penalty of 5 years in prison. Appropriate starting point considering all the circumstances is 2 years, upgraded to 3 years to account for the defendants record. Had you pleaded guilty, a discount of at least 25% could have been applied. But you chose to defend the charges therefore no discount is available. There are no mitigating factors in your favour. For this charge convicted and sentenced to 3 years in prison, cumulative to your existing term of imprisonment.
20. Information S406/16 of indecent assault on BA a 13 year old minor. The penalty must reflect the young age and increased vulnerability of the victim whom you lured into your nest on his first night in an adult prison. Convicted and sentenced to 4 years imprisonment also cumulative to existing term.
21. Information S407/16 of attempted sexual connection with BA a young person between 12 and 16 years of age. The maximum penalty for this offence is 10 years. This is the most serious of the charges. Your actions stopped short of rape for it is rape under the Crimes Act 2013 to have non-consensual sexual connection by penetration of the anus of a person with any part of your body. But your actions were clearly an attempt to establish a sexual connection with the complainant. Who was an unprotected minor under your direction and control as one of the two matai in charge of Cell 14.
22. Considering all circumstances the appropriate start point is 6 years, upgraded to 7 years because of your record. Again, no deductions available to you except to recognize the 5 months that you say you received as punishment by being held in Solitary Confinement in the “pa-simā” at the Prison. I am familiar with the “pa-simā” at Tafaigata Prison. Solitary confinement there is an archaic and brutal form of punishment. I will deduct 1 year from your sentence in recognition of that fact as no man should be punished twice for the same sin. On this charge convicted and sentenced to 6 years in prison, cumulative to existing term.

In the normal course of events Fanaea the penalties for your offending on BA would also be cumulative to the term imposed for your indecent assault on IL. Because that is a different assault on a different complainant on a different date occurring four days before your assault on BA. However I extend to you some measure of leniency and order that while the terms for these charges are cumulative to your existing sentence, they will be served concurrently with one another. This means that in total, you will serve for these matters an additional 6 years in prison.

JUSTICE NELSON