Police v Olo [2017] WSSC 10 (16 February 2017)

THE SUPREME COURT OF SAMOA
Police v Olo [2017] WSSC 10

Case name:	Police v Olo
Citation:	[2017] WSSC 10
Decision date:	16 February 2017
Parties:	POLICE (Prosecution) v TIME OLO male of Luatuanuu, Alamagoto and Vaoala (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	The accused is convicted of each charge of sexual connection and sentenced to 2 years and 9 months imprisonment for each. These are to be served concurrently. Any time spent in custody is to be deducted. The name of the victim and her family is suppressed.
Representation:	L. Sio for Prosecution P. Mulitalo for the Accused
Catchwords:	sexual connection with a young person under 16 years and domestic relationship
Words and phrases:
Legislation cited:	Crimes Act 2013 section. 59(1), Family Safety Act 2013 section 17, Sentencing Act 2016 section 7(1) (j), Crimes Act 2013 section 61 (2) (a)
Cases cited:	Police v Fuiono [2011] WSSC 83 (26 July 2011), R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594, Police v Imoa [2014] WSSC 144, Police v Sivao [2016] WSSC 29, Police v Lunai [2015] WSSC 176, Police v Fetu [2013] WSSC 105 (9 September 2013),
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
:

BETWEEN

P O L I C E
Prosecution

A N D

TIME OLO male of Luatuanuu, Alamagoto and Vaoala
Accused

Counsel:
L. Sio for Prosecution
P. Mulitalo for the Accused

Sentence: 16 February 2017

S E N T E N C E
THE NAME OF THE VICTIM IS PERMANENTLY SUPPRESSED.

The charges

1. The accused appears for sentence on six counts of sexual connection with a young person under 16 years pursuant to section 59(1) which each carries a maximum penalty of 10 years imprisonment.
2. On 16 January 2017, leave was granted to vacate his not guilty pleas and these were substituted with guilty pleas to all six charges.

The offending

3. The Prosecution summary of facts admitted by the accused says that the accused is a family friend and was living with the victim and her family at her house at Vaoala. The accused is 57 years old. The victim is 15 years old and now lives in the Samoa Victim Support Group shelter.
4. Prior to this offending, the accused had caught the victim having sex with a cousin. He then told the victim that if she does not come to him in the same way, he would tell the victim’s mother and stepfather.
5. On 25 June 2016 late at night, the victim went to the defendant’s room. The victim took off her clothes and approached the victim. They had sexual intercourse that night.
6. On 31 June 2016, late at night, the victim passed the defendant’s room on the way to her room when the defendant called her. They had sexual intercourse.
7. On 11 July 2016, the victim went into the defendant’s room and took off her clothes. They had sexual intercourse.
8. On 13 July 2016, when the whole household had gone to sleep, the victim went into the defendant’s room, took off her clothes and they had sex.
9. On 31 July 2016, again when the whole household had gone to bed, the victim and the defendant went into his room and had sex twice that night before she went back to her room.

The accused

10. As shown in the pre-sentence report, the accused is 56 years old. He is married with two children and another six children from earlier marriages. He lives at Vailima with family while his own family and children live at Aleipata.
11. He worked as a tar sealer for four years but most of his .time is now spent tending to his family’s plantation. His older children in Australia send him money.
12. According to the accused, the victim in this matter had come to him expressing her misery at what her step father and brother were doing to her that is, having sex with her. She said her mother knew what was happening and did nothing. She said she gave in because of fear.
13. The first encounter they had started with the victim coming into his room and lying on top of him. He then sucked her genitalia and had sex with her. He says this happened three times and all after he had consumed alcohol.
14. He told Probation that he is remorseful and regrets his actions deeply.
15. His friend Efu John Thorton says that the accused is humble, respectful and hard working. He says this offending is uncharacteristic.
16. The accused has five previous convictions from 1984-1987, two of those being for rape and indecent assault.
17. There has been no reconciliation.

The victim

18. The victim impact report says that the victim was scared of the accused. When she does not obey his orders, he gets really angry towards her and treats her like his wife. Sometimes he would try to assault her by slapping or punching her.
19. She says the accused also threatened to kill her if he ends up in jail. This caused her to panic and keep what happened to herself.
20. She is now staying at Samoa Victim Support Group Shelter where she feels safe. She sometimes has flashbacks to what happened.

Aggravating features of the offending

21. The age difference of 47 years between the accused who is 57 and the victim who is 15 years old is a significant aggravating factor. He is an adult, married with children. He is much older than the victim, and he took advantage of this.
22. It is also aggravating that the accused had a domestic relationship with the victim pursuant to the Family Safety Act 2013 in that they shared the same residence. Section 17 of the Family Safety Act provides that the Court shall consider this as an aggravating factor. .The accused is an adult living in the same house as the victim. He is in a position of trust in relation to the victim, a position which he abused.
23. The accused also knew that the victim was particularly vulnerable because of her age and because she was a victim of sexual abuse by others, a fact that she shared with him prior to his offending. Rather than helping this child, who is a victim of a sexual abuse, he victimised her further by having sex with her numerous times. He saw her having sex with a cousin and used what he had seen to get her to have sex with him which is an extremely manipulative thing to do to a young girl.
24. This offending was premeditated and that is an aggravating feature. It took place six times during a period of about 2 months. There was a high level of premeditation given that this offending occurred a number of times. This cannot be attributed to impulsive behaviour. He used what he learnt about her, to; in essence, blackmail her into having sex with him.
25. The psychological impact on the victim is contained in the Victim Impact Report. She is scared of him as he threatened her. However those fears are somewhat alleviated by her living at the shelter.

Aggravating features relating to the offender

26. It is an aggravating feature relating to the offender that he has previous convictions. Sapolu CJ in Police v Fuiono [2011] WSSC 83 (26 July 2011) cited the case of R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 which guides me today in determining the part played by previous convictions in today’s sentencing. Sir Michael Meyers CJ in that case said;
    1. The Court should always be careful to see if the sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the questions of the nature and gravity of the crime and a prisoner’s previous conviction are involved in the question of his character. Further the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
27. It is also now contained in section 7(1) (j) of the Sentencing Act 2016 that one of the aggravating factors to be taken into account by the Court is the number, seriousness, date, relevance and nature of any previous convictions of the defendant and any convictions for which the defendant is being sentenced or otherwise dealt with at the same time.
28. He has two previous convictions for sexual offending. I note that these occurred in 1986, 31 years ago. However these are convictions for rape and indecent assault which are very serious and relevant to the charge for which he is being sentenced today.

Mitigating Factors

29. His belated guilty plea to the charges is the only mitigating factor that will be taken into account.

Submissions by Defence Counsel

30. In Defence Counsel submissions, he draws the Court’s attention to the consensual nature of the sex between the accused and the victim. I draw Counsel’s attention to section 61 (2) (a) of the Crimes Act 2013 where it provides that it is not a defence to a charge under section 59 that the young person concerned consented.
31. He also submits that there was no breach of trust as the accused was not in a position where the complainant was dependent on the defendant for care or trust. According to the accused, the victim in this matter had come to him expressing her misery at what her step father and brother were doing to her that is, having sex with her. She said her mother knew what was happening and did nothing. She said she gave in because of fear. The victim confided in the accused and the accused to an extent, breached that position of trust. He also lived in the same household as the victim. Implicit in that, is fact that he is an adult and she is a child living in the same household. It goes without saying that some trust was placed in the accused as an adult in the household.
32. Defence Counsel also submits that the complainant was not vulnerable. She is vulnerable by virtue of her age and because she was a victim of sexual abuse. These factors were known to the accused before he offended.
33. He also submits that the impact on the complainant cannot be solely blamed on the defendant as she had been sexually abused by her step father, step brother and step grandfather. The impact on the victim is expressly set out in the Victim Impact Report.
34. Defence Counsel submits that the complainant “had been to an extent promiscuous and flirtatious with the defendant”. Even if that were the case, the victim is 15 years old. She is a child. The law on carnal knowledge has developed to protect children of this age as they cannot be relied upon to make wise decisions given their age, and to prevent adults from taking advantage of their immaturity. I am concerned that this submission shows a lack of understanding around these issues.

Discussion

35. The Court’s attitude to this kind of offence is well established.
36. Nelson J in Police v Imoa [2014] WSSC 144, said that ‘the law is there to protect young girls from mature men taking advantage of them. It is also there to protect young girls from making rash decisions and from getting into trouble’.
37. In Police v Sivao [2016] WSSC 29, Vaai J said ‘ the purpose of the law is to protect young girls from older men and from their own urges until they are old enough to know better and make rational judgments for themselves.
38. The sentences imposed by the Court have usually been custodial. Tuatagaloa J in Police v Lunai [2015] WSSC 176 said that sentences of the Court have usually been custodial where the age gap between the accused and victim is 10 + years.
39. This case remains what it is, sexual intercourse with an underage girl. As Nelson J said in Police v Fetu [2013] WSSC 105 (9 September 2013), this is a classic case of a young immature female making wrong decisions about her sexual partners. It is the very sort of young female that the law of carnal knowledge is designed to protect.
40. In this case, even if the victim approached the accused, he being a grown man of 56 years, with his own grown children, should have known better and directed her to someone who could help, as he was well aware she was young.
41. Deterrence is needed in this case so that a message is sent to grown men that this type of behaviour is unacceptable. There is 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. Sadly this type of offending against young girls is becoming prevalent within our society.
42. Prosecution has submitted that a term of imprisonment is appropriate in this case with a starting point of 4 years.
43. Defence Counsel concedes that an imprisonment term is the appropriate sentence but with a starting point of 3 years imprisonment.
44. Having taken into account the aggravating features of the offending, I find that a custodial sentence is appropriate in this case. The starting point for each charge of sexual connection in this case is 4 years imprisonment. I add 2 months for his previous convictions for sexual offending which occurred 31 years ago. I deduct 17 months for his belated guilty pleas.

The result

45. The accused is convicted of each charge of sexual connection and sentenced to 2 years and 9 months imprisonment for each. These are to be served concurrently.
46. Any time spent in custody is to be deducted.
47. The name of the victim and her family is suppressed.

JUSTICE TAFAOIMALO TUALA WARREN