Police v Semeatu [2017] WSSC 15 (17 March 2017)

IN THE SUPREME COURT OF SAMOA
Police v Semeatu [2017] WSSC 15

Case name:	Police v Semeatu
Citation:	[2017] WSSC 15
Decision date:	17 March 2017
Parties:	POLICE (Informant) and UENI SEMEATU, male of Afega (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:	Convicted and sentenced to 11 years and 6 months imprisonment, less any time in custody. The defendant is to serve 2/3 of his sentence (as opposed to half) which is 7 years and 6 months before he is considered to be eligible for parole. The defendant’s name should also be entered on the Sex Offenders Register when established.
Representation:	F Ioane for Prosecution P Mulitalo for Defendant
Catchwords:	Sexual connection with a child under 12 years – recidivist offender – sentencing bands for sexual connection – rehabilitation for sexual offenders – pre-meditated – breach of trust – 45 year age disparity – sex offenders register
Words and phrases:	Serve 2/3 of sentence before eligible for parole – a need for specialized treatment programs
Legislation cited:	Crimes Act 2013 ss. 58; 58(1); 58(2); 50(a)(i); 50(a)(ii); 50(b). Prisons Parole Board Act 1977 s. 10(3) Sentencing Act 2016 s.68(3)(a)
Cases cited:	Attorney v Lua [2016] WSCA 1 (19 Feb 2016) Key v Police [2013] WSCA 3 (28 June 2013)
	R v AM [2010] NZCA 114; [2010] 2 NZLR 750
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

UENI SEMEATU, male of Afega
Defendant

Counsel:
F Ioane for Prosecution
P Mulitalo for the Defendant

Sentence: 17 March 2017

SENTENCING OF TUATAGALOA J

1. The defendant is Ueni Semeatu a 51 year old male of Afega who pleaded guilty that on 10 November 2013 had sexual connection with a 6 year old child under section 58(1) of the Crimes Act 2013 which carries a penalty of maximum life imprisonment.

The offending:

2. The summary of facts by the prosecution was read out to the defendant. The summary of facts basically says:
   • The victim was 6 years old at the time of the offending.
   • On 10 November 2013 the victim was home with the defendant’s younger children.
   • When the younger siblings were asleep the defendant told the victim to close the door and did the following:
     • - Lay the victim on an ie lavalava and spread her legs;
     • - He took off his clothes, kissed the victim and then sucked her vagina;
     • - He asked the victim to suck his penis but she refused he then inserted his penis in to the victim’s vagina and had sexual intercourse with her;
     • - While having sexual intercourse with the victim, the defendant asked the victim if she was enjoying what he was doing. The victim responded ‘no’ and cried because she was in pain but the defendant ignored her and continued until he was satisfied;
     • - Afterwards the defendant told the victim to go shower.

The Pre-Sentence Report: (PSR)

3. The pre-sentence report was prepared by probation services without the availability of the summary of facts. The PSR provides the educational and family background of the defendant. It also says if there have been any reconciliation with the victim or the victim’s family and any previous convictions that the defendant may have.
4. The defendant denies to probation services the commission of the offence saying that the only reason he pleaded guilty was because the lawyer told him to. Counsel address this issue in supplementary submissions that the defendant’s guilty plea was what he wanted instead of any instructions or encouragement by him and that the defendant signed a note to that effect. This note was confirmed by the defendant in Court.
5. There has been no reconciliation of this matter.

The defendant:

6. The defendant from the PSR is originally from the village of Afega on the north – north western part of Upolu. The summary of facts says that the defendant with his wife and ten children at the time of the offending were leasing at Tufuiopa in Apia. The PSR has them now residing at Vaiusu.
7. The PSR says that the defendant is 6^th of a family of eleven children and grew up in the village of Saleimoa not far from Afega. He completed his education at Year 12 at Nuuausala College and sought employment with a businessman Lutofu Keil and then later on with Ministry of Natural Resources and Environment in 2001. The PSR does not say what he did in those employments. One can only assume with his level of education that it will not be administrative or office work.
8. The defendant has previous convictions of similar offending in 2003 and 2008 where he had sexual intercourse with related girls.

The victim:

9. The victim from the summary of facts was 6 years old at the time of the offending.
10. The victim and her mother at the time were living with the defendant, his wife and children at Tufuiopa, Apia. The victim and her mother are not related to the defendant or his wife by blood or marriage. The victim and her mother are from Savaii.
11. The victim’s mother from her statement to the police is said to be at work when the offending took place.

The Prosecution’s submission:

12. The prosecution’s stance in sexual offending of this nature and especially where victims are young is a custodial sentence. At first they advocated for a starting point of 7 years in Band 2 in Attorney v Lua^[1] and later on reviewed their stance and submitted for 20 years starting point at top end of Band 3 in Key v Police^[2]. The prosecution submitted the following aggravating factors:
    1. Vulnerability of the victim
    2. Impact of the offending on the victim
    3. Age disparity
    4. Premeditation
    5. Breach of trust
    6. Familial Relationship

The submissions for the defendant:

13. Counsel for the defendant in his submissions although mindful of the defendant’s previous convictions of similar if not same offending stressed the need of rehabilitation for this defendant because despite the defendant having been incarcerated twice for committing same offences it has not deterred the defendant from again committing the same offence the third time.
14. Counsel for the defendant submits that rehabilitation can still be done while the defendant is incarcerated and asks for a shorter incarceration of 2 years and a longer supervision term of 3 years to facilitate full rehabilitation. However, counsel reviewed its stance and filed supplementary submissions (referred to in paragraph 27).

Discussion:

(a) The law

15. Section 58 is specific to sexual connection against children under 12 years old.
16. Sexual connection could be by penile penetration (section 50(a)(i)) or penetration by object(section 50(a)(ii)) or by digital penetration or connection between the mouth or tongue with the genitalia or anus of the victim (section 50(b)).
17. Section 58(1) is sexual connection by way of penetration while section 58(2) will be non-penetrative.

(b) The decision in Attorney General v Lua

18. Their Honors 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 ’

19. As such their Honors in Lua provide 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] .
20. In the same decision their Honors 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(a) of the Crimes Act 2013. Their Honors in the same paragraph extend the sentencing bands in Key to children under 12 years where there is penetration.
21. 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.

(c) The submissions

22. I agree with Counsel for the defendant that specialized treatment and therapy by trained professionals is much needed and that rehabilitation plays such a vital role to lessen reoffending thereby reducing the crime rate for the safety of our people and society in general.
23. The question is do we have the expertise and facilities to rehabilitate this type of defendant? Is society especially, young girls, safe if the defendant is placed on supervision to undergo rehabilitation as submitted by his counsel?
24. I am not aware of any specialized treatment programs and therapy by trained professionals to provide such services here in Samoa or any facilities (not prison) to keep or house these people while undergoing rehabilitation.
25. Given the lack of specialized treatment and trained professionals Counsel for the defendant in his supplementary submissions then strongly advocated for a longer custodial sentence with a starting point between 14 years and 20 years imprisonment in Band 3 (14-20 years) of Key on the following grounds:
    1. The victim was subdued to violence and fear;
    2. Premeditation on the part of the defendant;
    3. Age gap of 45 years shows the level of subjugation and powerlessness the victim was placed under;
    4. The offending on the very young victim was intolerable and an act of cowardice.
26. I turn now to consider the appropriate aggravating features of this offending as submitted by the prosecution and defence counsels.

The aggravating features:

27. The defendant’s previous convictions and the fact that this is the third time he has committed the same or similar offending is treated as aggravating factors personal to the defendant.
28. I accept the following as aggravating features of the offending:
    1. The age disparity of 45 years between the defendant’s age of 50 years old and the victim’s 6 years old also go to the vulnerability of the victim. The bigger the disparity in age the more vulnerable the victim is and the more serious the offending is.
    2. The offending could be premeditated because the defendant committed the offending when there was no one older at home except for the victim and younger children and especially so when the younger children were asleep. If opportunistic then the defendant’s behavior is predatory^[5].
    3. The victim although not related to the defendant by blood or marriage simply living with the defendant and his family means that she is part of the defendant’s family. The victim would see the older defendant as an uncle or parent and there is the existence of ‘trust’ which trust the defendant had breached.
    4. There is always violent inherent in any sexual offending. In this case the huge disparity in age and vulnerability of the victim made this offending very violent.
    5. Sexual offending of this nature on very young victims will always have an impact either mentally or socially on the victims. Some of these impacts will become noticeable (or not) when they become older.
    6. Offending of this nature on very young victim will always have an impact upon young victims’ lives in years to come.
29. The defendant’s previous conviction record has the sexual offending in 2008 committed after the defendant has served a 5 year imprisonment term for the same offence he was sentenced for in 2003. The offending he is to be sentenced on was committed in 2013 about two years after he had served three years imprisonment term for 2008 offending.

The mitigating features:

30. There are no mitigating features to the offending. The only mitigating feature to the defendant as offender is his guilty plea.

Decision:

31. Given the circumstances of this offending and the lack (or none) of specialized treatment for rehabilitation of sexual offenders and the previous convictions of the defendant of similar offending it is my view that a longer custodial sentence is most appropriate. The Samoan society especially the young girls or vulnerable females are not safe from the defendant.
32. The defendant is charged with having sexual connection with a child under 12 years pursuant to section 58(1). The charge or information does not say what the sexual connection is committed by the defendant. Section 50 defines sexual connection. The summary of facts refers at paragraph [7] to sucking the victim’s vagina and sexual intercourse. The act of sexual intercourse is a penetrative act under section 50(a)(i) while the act of sucking the victim’s genitalia is non-penetrative under section 50(b). As such, the sentencing bands in Key would apply to penetrative acts and Lua would apply to non-penetrative acts.
33. The prosecution has reviewed their stance and have asked for the sentencing bands in Key

To apply which therefore means that they have taken the penetrative act as the sexual connection committed.

34. This is the 3^rd time the defendant has committed the same type of offending. The victims of his previous offending are those living with him or he is related to. I can only assume that the victims of his prior sexual offending were much younger than him. The defendant is very dangerous to society especially around young girls. He is said to have ten children and if any are girls, his own daughters are very much at risk.
35. In the circumstances of this offending the court finds that a starting point of 12 years of Band 2 (9-15years) in Key as appropriate. The starting point is uplifted with 12 months for previous convictions. I give a 10% discount for his change of plea. The defendant did not plead guilty in the first opportunity or at any time after when his matter was called before the court several times, however his change of plea although late has nevertheless saved the young victim from going through the ordeal of giving evidence in court and be subjected to an intimidating environment.
36. The defendant is convicted and sentenced to 11 years and 6 months imprisonment, less any time in custody.
37. Pursuant to section 68(3)(a) of the Sentencing Act 2016 the defendant is to serve 2/3 of his sentence (as opposed to half) which is 7 years and 6 months before he is considered to be eligible under section 10(3) of the Prisons Parole Board Act 1977 (as amended) for parole.
38. The defendant’s name should also be entered on the Sex Offenders Register when established.
39. I urge the Corrections and Prisons Authority to develop their services to better deliver rehabilitation programs in prisons to address a valid point raised by counsel for the defendant.
40. The victim’s identity is to remain anonymous.

JUSTICE TUATAGALOA

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^[1] [2016] WSCA 1 (19 Feb 2016)
^[2] [2013] WSCA 3 (28 June 2013)
^[3] [2010] 2 NZLR 750
^[4] [2013] WSCA 03
^[5] R v AM[2010] 2 NZLR 750 at paragraph [37]