Police v Ulavale [2016] WSSC 88 (10 June 2016)

SUPREME COURT OF SAMOA
Police v Ulavale [2016] WSSC 88

Case name:	Police v Ulavale
Citation:	[2016] WSSC 88
Decision date:	10 June 2016
Parties:	POLICE v TAISESELE ULAVALE male of Salelologa
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE MATA TUATAGALOA
On appeal from:
Order:	Attempted sexual connection – The accused is to serve 2 years imprisonment. Assault – The accused is to serve 4 months imprisonment. The 4 months imprisonment for assault is concurrent to the 2 years imprisonment for the leading offence of attempted sexual connection.
Representation:	A Tumua for Prosecution Defendant in Person
Catchwords:	Attempted sexual connection – assault –previous conviction of similar nature –– sentencing guideline bands
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 58(2); 123; 58 (1); 58; 50.
Cases cited:	Attorney General v Lua [2016] WSCA 1 (19 Feb 2016) R v AM [2010] NZCA 114; [2010] 2 NZLR 750 Key v Police [2013] WSCA 03
Summary of decision:

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TAISESELE ULAVALE, male of Salelologa
Defendant

Counsel:
A Tumua for Prosecution
Defendant in Person

Sentence: 10 June 2016

SENTENCING OF JUSTICE TUATAGALOA

1. The defendant is Taisesele Ulavale a 26 year old male of Salelologa who pleaded guilty to two charges of:
   • Attempted sexual connection on a 4 year old child under section 58(2) of the Crimes Act 2013 which carries a penalty of maximum 14 years imprisonment; and
   • Assault on the same child under section 123 of the same Act which carries a maximum penalty of 1 year imprisonment.

The offending:

2. The summary of facts by the prosecution was read out and confirmed by the defendant. The summary of facts basically say:
   • The victim and her older sister went to a prayer meeting at around 7pm at Fogapoa, Savaii.
   • During the prayer meeting the victim went to the bathroom without her older sister’s knowledge.
   • The defendant saw the victim going to the bathroom and followed her whereby the defendant grabbed the victim in the bathroom pinned her on the floor by lying on top of her with his hand on her mouth.
   • Luckily the older sister got to the bathroom shortly after and found the accused lying on top of the victim with his hand on her mouth.
   • The older sister then with a broom smacked the defendant who ran away.

The Pre-Sentence Report: (PSR)

3. The pre-sentence report was prepared without the availability of the summary of facts where the defendant told probation a completely different version of what took place. He said that he was going to clean the bathroom when the victim followed him. He told the victim to go away not to follow him but she continued to follow him to the bathroom which he then slapped her on the mouth. The victim cried out loud, ran to the front and shortly after her mother came to the bathroom and beat him up with a broom.
4. The version of events of what the defendant told probation in PSR was read out to him and he was asked which of what he told probation and what is in the summary of facts represents the true events of what happened and the defendant said the summary of facts.
5. The defendant’s uncle whom the defendant used to live with at Salelavalu, Savaii told probation that the defendant does not live in one place but moves around a lot from one family to another. The uncle said that he had observed the defendant’s behaviour around young girls when he was living with his family and he sees the defendant as a threat to young girls.
6. At the time of the offending the defendant had moved from the uncle’s place at Salelavalu and was living at Fogapoa (also in Savaii).

The victim:

7. The victim from the summary of facts is a 4 year old female of Fogapoa, Savaii.
8. The Victim Impact Report (VIR) has the victim’s mother say there are no physical damage or any psychological impact of the offending on the victim. This is probably because the older sister got to the bathroom before the defendant could do whatever he intended to do to the victim.
9. The victim’s mother confirmed in the VIR that defendant’s mother came to their house and apologized to her.

The defendant:

10. The defendant is 26 years old, single, unemployed said to be from the village of Salelologa, Savaii but at the time of the offending was living at Fogapoa, Savaii.
11. The defendant has a previous conviction of similar offending in 2015 of attempted rape to which he was convicted and sentenced to 3 years supervision. The defendant at the time of this offending has not served one year of his supervision term.

The Prosecution’s submission:

12. The prosecution strongly advocates for a custodial sentence and I agree. The only issue is the length of the custodial sentence to be imposed. The prosecution submitted two submissions.
13. The first submission the prosecution submits that the court in imposing a custodial sentence is to apply the sentencing bands in Attorney General v Lua^[1] . They advocated for a starting point of 9 years which falls in the top end of Band two (5-12 years) where the offending is said to be ‘of moderate seriousness and involves two or three aggravating features.’
14. The prosecution subsequently filed supplementary submissions to which they submitted that the sentencing bands in Attorney General v Lua^[2] case do not apply saying the defendant in Lua was charged under section 58 (1) with maximum life imprisonment while as the defendant in the present case is charged under section 58 (2) with maximum 14 years imprisonment.
15. The above line of reasoning was used by the prosecution before Lua to have the sentencing guidelines in Key apply to unlawful sexual connection against children to which their Honours at paragraph [17]:
    • “..we think it would be simplistic, and wrong in principle, to reason that the rape guideline in Peti Key can be applied equally to sexual connection offending against children, simply because both have a maximum of life imprisonment.”
16. I reiterated the above said by their Honours with the reasoning given by the prosecution that the bands in Lua do not apply because of the difference in maximum penalties imposed as ‘simplistic and wrong’.

Discussion:

The Law:

17. Section 58 is specific to sexual connection against children under 12 years old.
18. The defendant is charged with attempted sexual connection of a child under 12 years pursuant to section 58(2) of the Crimes Act 2013.
19. Sexual connection under section 50 of the Act could be (i) by way of penetration by penile or object and (ii) connection by digital penetration or between the mouth or tongue with the genitalia or anus of the victim.
    
20. Section 58(1) could be sexual connection by either (i) or (ii) which would include penetration while as section 58(2) will be non-penetrative.

The decision in Attorney General v Lua:

21. Their Honours at paragraphs [17 & 18] saw the need for a specific guideline to cover unlawful sexual connection offending against children under 12 years because such offending
    • ‘..covers a wide spectrum, from the most serious penetrative acts to fleeting skin on skin touching of the genitalia or anus....[18] Unlawful sexual connection generally is punishable by up to 14 years imprisonment under s.52(2), section 58(1)prescribes life imprisonment for sexual offending against children under 12 years ’
22. As such their Honours in Lua provided sentencing guideline bands to apply to unlawful sexual connection against children under 12 years where there is no penetrative act. This guideline judgment (they say) must be read together with the sentencing general guidelines in R v AM ^[3] .
23. In the same decision their Honours at paragraph [22] extend the guideline bands in Key v Police^[4] where before applies only to penile penetration to include violations involving objects as defined under section 50(1) of the Crimes Act 2013. Their Honours in the same paragraph then say that rape and the defined penetrative violations committed against children under 12 years will be assessed by reference to the bands set out in Key.
24. It does not matter what the penalties are under section 58. Section 58 is specific to sexual connection against children under 12 years old. If penetrative the bands in Key apply, if non-penetrative the bands in Lua apply.
25. In summary we now have sentencing guideline bands to cover the following:
    • Key guideline bands for penetrative acts to include children under 12 years old; and
    • Lua guideline bands for non-penetrative acts against children under 12 years old.

The sentencing bands in Lua:

1. Band one (2-6years): where the offending is at the lower end and there is an absence of aggravating features or their presence is limited. Their Honors on band one at paragraph [25] made the following observations:

“The least culpable will be of a single skin on skin touching of the genitalia or anus of a limited duration. In the absence of other aggravating factors offending at this level may well warrant a starting point as low as 2 years before personal mitigating factors are considered.”

1. Band two (5-12 years): where the offending is of moderate seriousness and involves two or three aggravating features.
2. Band three (11years – life imprisonment): where the offending is of the most serious of this kind which would involve offending against multiple victims over a significant period in the presence of serious aggravating features.

26. I turn now to consider the appropriate aggravating features of this offending as submitted by the prosecution.

The aggravating features:

27. The prosecution submits the following aggravating features:
    1. Degree of violence of the defendant laying on top of the victim and closing her mouth with one of his hands may be at the lower end but such an assault on a 4 year old child is very serious.
    2. Age disparity of 22 years between the defendant’s age of 26 years old and the victim’s 4 years old go to the vulnerability of the victim.
    3. The place of offending at where a prayer meeting was held shows a lack of respect by the defendant.
    4. Premeditation on the defendant’s part because he saw the victim going to the bathroom alone and he followed her.
    5. The previous conviction of similar offending and the defendant re-offended not even a year in to his 3 years supervision term.
28. The defendant’s previous conviction of similar offending and having re-offended not even a year in to his 3 years supervision term as aggravating features to the defendant as offender.
29. However, I accept the following as aggravating features of the offending:
    • Pre-meditation: The defendant saw the victim going to the bathroom by herself and he followed her.
    • Age disparity of 22 years between the defendant’s 26 years and the victim’s 4 years old. The bigger the age disparity the more vulnerable the victim is.
    • Degree of violence: Any violence involved was minimal and of limited duration.
30. The most aggravating feature is the vulnerability of the victim.

The mitigating features:

31. There are no mitigating features to the offending.
32. The only mitigating features to the defendant as offender are:
    • The apology by his mother to the victim’s mother; and
    • Early guilty plea.

Decision:

33. I take the offending of attempted sexual connection as the lead offence.
34. The prosecution in their sentencing memorandum submits that this case falls within Band 2 (5-12 years) of the bands in Lua^[5] and suggests an appropriate starting point of 9 years.
35. However, their Honours at paragraph [31] say:
    • “..there may be exceptional cases that require a starting point below the lower end of the range of 2 years as set in band one. Such cases will be rare and clear reasons will be required to explain the departure.”
36. Although, I find that three aggravating features were present I consider a starting point of 20 months below 2 years in band one will be appropriate for the following reasons:
    • Apart from age disparity, the presence of the other two aggravating features were minimal and of limited duration because the victim’s older sister shortly after walked in to the bathroom and found the accused only lying on top of the victim with his hand on her mouth.
    • There was no skin on skin touching of the genitalia or anus by the accused of the victim.
    • The mother in VIR say there was no physical damage or any psychological impact upon the victim from the offending.
37. I uplift the starting point with 12 months for the accused previous conviction of similar offending and further 6 months for reoffending having not served one year of his 3 years supervision term. This brings it to 38 months (3 years+ 2months). I deduct 2months for the accused mother’s apology to the victim’s mother which would be most embarrassing and very shaming for the accused mother or for any parent to go through not to mention the sort of offence committed. I will then deduct 1/3 for the early guilty plea which is 12 months. This leaves 24 months or 2 years.
38. For the offence of assault of the defendant placing his hand on the victim’s mouth. I impose 4 months.
39. The accused, Taisesele Ulavale is convicted and sentenced as follow:
    • Attempted sexual connection – The accused is to serve 2 years imprisonment.
    • Assault – The accused is to serve 4 months imprisonment.
40. The 4 months imprisonment for assault is concurrent to the 2 years imprisonment for the leading offence of attempted sexual connection.
    

JUSTICE TUATAGALOA

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^[1] [2016] WSCA 1 (19 Feb 2016)
^[2] Supra
^[3] [2010] 2 NZLR 750
^[4] [2013] WSCA 03
^[5] Supra at [1]