Police v XM [2017] WSSC 157 (26 October 2017)

IN THE SUPREME COURT OF SAMOA
Police v XM [2017] WSSC 157

Case name:	Police v XM
Citation:	[2017] WSSC 157
Decision date:	26 October 2017
Parties:	POLICE (Informant) and XM, male (Defendant)
Hearing date(s):
File number(s):	S1119/17, S1182/17, S1183/17 and S1184/17
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	Order prohibiting publication in news media, internet or any other publicly accessible database the names and village details of the accused and victim. On the charge of sexual conduct with a dependent family member contrary to section 56(1) of the Crimes Act 2013 (S1119/17 you are convicted and sentenced to 250 hours community work and to 18 months supervision on the standard conditions and with the following special conditions: (i) you are to complete a program of spiritual counselling of not less than 8 weeks with the SVSG; and (ii) any other programs as directed by the Probation Service. On the charges of three charges of indecent assault with or on a family member contrary to section 56(6) of the Crimes Act 2013 (S1182/17, S1183/17 and S1184/17), you are convicted and sentenced to 120 hours community work on each charge, to be served concurrently with the 250 hours above.
Representation:	O Tagaloa and R Masinalupe for Prosecution MG Latu for the Defendant
Catchwords:	sexual conduct with a dependent family member
Words and phrases:
Legislation cited:	Crimes Act 2013 section 56(1), 56(6), Family Safety Act 2013) section 17(1),
Cases cited:	Police v XY [2017] WSSC 86 (30 May 2017) R v AM (CA27/2009 [2010] NZCA 114; [2010] 2 NZLR 750, R v Calder [1989] NZCA 113; (1989) 5 CRNZ 159, 161 <160;v v King (unrep, 18/7NSWCCASWCCA, R v Radic
Summary of y of decisdecision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

XM, male.
Defendant

Counsel:
O Tagaloa and R Masinalupe for Prosecution
MG Latu for the Defendant

Sentence: 26 October 2017

SENTENCING OF CLARKE J

1. XM, you appear for sentencing on one charge of sexual conduct with a dependent family member contrary to section 56(1) of the Crimes Act 2013 (S1119/17). You also appear for sentencing on three charges of indecent assault with or on a family member contrary to section 56(6) of the Crimes Act 2013 (S1182/17, S1183/17 and S1184/17). All four charges carry a maximum penalty of up to 14 years imprisonment.
2. You entered an early guilty plea to the charges before the Court.

The Offending

3. According to the Summary of Facts accepted by you through counsel, the victim was living with you and your family at [X]. You accept paragraph 3 of the Summary of Facts that you and your family took the victim “in as one of their children and supported her financially.”
4. According to the Summary of Facts, on Wednesday the 26^th July 2017 at [A], the victim was at home with your youngest son. You arrived home from work and told the victim to prepare lunch, which she did while you slept. A while later when you woke up, you had lunch and then walked to a nearby faleo’o where you rested again. At the time, the victim was lying on a bed inside the house. You walked in to the house and sat on a bed not far from the victim’s bed.
5. You both started talking about your previous relationships while the victim was playing on your phone. You then took the cell phone away from the victim and told her to close the door. The victim stood up, closed the door and went back and lay down on her bed. You then approached the victim on her bed, lay down beside her and removed her panty. You then told the victim to remove her top but she took off her bra whilst she kept wearing her t-shirt.
6. You then ‘suckled’ the victim’s left breast according to the Summary of Facts while you also rubbed her right breast with your right hand. You then rubbed her vagina with your right hand. After 4 – 5 minutes, you got on top of her, inserted your penis into her vagina and had sexual intercourse with her.
7. The victim felt pain. After 3 – 4 minutes you got up and walked straight into the shower.
8. You accept the Summary of Facts paragraph 14 that you treated the victim as your own daughter but that you could not resist your feelings towards her.

The Accused

9. You are a 43 year old married man with 4 children. You are the oldest child of your parents. You did not complete secondary school. You have held various jobs but you are now the head of security for Craig Construction earning $600.00 per fortnight. You are the main bread winner for your family.
10. You are described by your wife as reliable, hardworking and dutiful. Despite what has occurred, she says that she still loves you but she understood that your offending was “because of the devil working his way where it got [you here] today.”
11. You have various testimonials. Francis Craig, your employer describes you as a diligent worker, the first to arrive and the last to leave. You are trustworthy and reliable. [B] speaks of you having faithfully attending church services, being attentive especially around the extended family and respectful of the belief of others. The Pule-nu’u of [C] speaks of your humble and diligent in respect of village matters and you attend to the village matters and work hard in the Church. A similar reference is provided by the Pule-nu’u of [A].
12. In your Pre-Sentence Report, it records your view of the victim as “[h]e saw that she was already a cheeky girl due to the way she dressed and acted. She was already a promiscuous kind of girl.” You also told the Probation Service that “this situation felt wrong” but the report continues that “[i]n a spur of the moment he was tempted and he asked her if she wanted to have sex with him, which she agreed to.” You told the Probation Service that the victim “appears to be a seductress.”
13. You are described as expressing deep regret over your actions, that your actions ruined your family and your reputation in the village and you are ashamed of your actions as head of your family and you are sorry for your wife.
14. You are a first offender.

The Victim

15. The victim is a 19 year old female of [D]. She is your niece by marriage. She is your wife’s sister’s daughter. She was living with you.
16. In her Victim Impact Report, she says that your wife was angry with her thinking that she had made up the allegations against you.
17. She has now found employment in Apia, says she is happy with her job and able to forget what occurred.

Aggravating features:

18. The aggravating features of this matter are as follows:
    • breach of trust with the accused committing his offending within a familial relationship that was a domestic relationship recognized by law (see: R v AM (CA27/2009) [2010] NZCA 114; [2010] 2 NZLR 750; section 17(1), Family Safety Act 2013); and
    • the age disparity between you and the victim.

The mitigating features

19. The mitigating features are your early guilty plea and your apology and ifoga to the victim’s family which included the presentation of a fine mat, $1,000.00, 3 boxes of corned beef cans, food, bicycles and suit cases of clothes – none of which it would seem on the PSR that the true victim of your offending in fact received. Nevertheless, this is a mitigating factor. I also take into account your prior good character.
20. I must say that I do not accept that you are genuinely remorseful for your offending. I accept that you are remorseful for the predicament that you find yourself in, the pain you have caused your wife and that you feel that your offending has ruined your family and your reputation in the village. You however expressed no remorse for the victim but in fact simply sought to shift blame to her as a ‘cheeky girl due to the way she dressed and behaved’ and that she appeared ‘to be a seductress’. For that you should be ashamed. You are the uncle and in a position of authority and trust.

Discussion

21. In his oral submissions, counsel for the prosecution submitted that the age difference between the accused and the victim was an aggravating factor of the offending. Counsel added in making this submission the inexperience of the victim, apparently a reference to alleged sexual inexperience, and the experience of the accused in these matters.
22. In response, your counsel submitted that the victim was not a “vestel virgin” and that your description of her “as a seductress” in the PSR had been unchallenged. This submission relied on what you yourself told the Probation Service, is self-serving and blame shifting. The victim in her victim impact report in fact says that this is the first time “having sex with anyone.”
23. With respect to both counsel, the victim’s alleged prior sexual history is of no relevance to sentencing today for the charges in which you appear. It is also inappropriate to focus on her alleged prior sexual conduct or to characterize her manner of dress or behavior as you have said to the Probation Service XM as provocative and as somehow contributing to the commission of the offence (R v Radenkovi (unr/p, 6/3/90, N90, NSWCCA); R v;King (unrep, 18/7/91,7/91, NSWCCA cited in Sentencing Bench Book, Judicial Commission of New South Wales)). Furthermore, in New Zealand in relation to the offence of sexual intercowith a girl under the age oage of 16 involving a younger girl engaged in prostitution, the fact that the victim was sexually promiscuous was not relevant as mitigating (R v Calder [1989] NZCA 113; (1989) 5 CRNZ 159, 161). I therefore reject entirely any relevance of the victim’s alleged prior sexual experience in mitigation of your sentence for your actions for which you appear today. is relevant in this context is the impact of your offendingnding on the victim, which I will turn to shortly. As is patently clear from the Summary of Facts and the Pre-Sentence Report, you asked the victim to engage in the sexual intercourse, though you knew it was wrong. This is the same niece that you accept through the Summary of Facts you treated as your own daughter but you could not resist your feelings towards her.
24. I would add in response to what your wife had said to the Probation Service - you are here not because of any work of the devil but a decision entirely of your own choosing. She should dispel herself of such a wrong view.
25. It was submitted that your offending did not involve a breach of trust on your part against your 19 year old niece but if it did, it was minimal. You are the victim’s uncle by marriage, you took her into your home and you accept that she was treated as your own daughter whilst she stayed with you. You clearly breached the trust invested in you not only by the victim, but the family trust invested in you as an uncle to care and protect her. As the New Zealand Court of Appeal stated in R v AM (CA27/2009) [2010] NZCA 114; [2010] 2 NZLR 750:

“[50] Breach of trust cognised ined in s 9(1)(f) of the Senng Act asct as a factor which increases the culpability of the offender. Offending withe fal relationship involves a breach of trust and offending by a parent against his ohis or herr her child is particularly serious. Other relationships of trust may arise where a person has assumed some responsibility in relation to the victim, for example, the neighbour who regularly babysits the child or the school sports coach.”

26. As I have said in a number of cases involving sexual offending against family members such as in Police v XY [2017] WSSC 86 (30 May 2017):

“It should also therefore be made quite clear to the accused and others like him that what is expected from the men of their families is that their role to protect the young and vulnerable members of their families from harm and abuse, not to be the perpetrators of those crimes against them. To do so as the accused has done in this case is not only a serious breach of family trust but runs against our fa’a Samoa.”

27. I accept, as does prosecution, that the sexual offending was consensual. I also accept that your offending has had no ongoing adverse impact on the victim as set out in her VIR that she “is able to forget what happened with all the time she spends at her workplace.”
28. The victim was 19 years of age and engaged with you in a consensual sexual act. It was entirely inappropriate but it has had no material ongoing effect on her and it was an isolated one-off incident that gave rise to these charges. The question is whether a custodial or non-custodial sentence is imposed. I have determined that a non-custodial sentence be imposed in all the circumstances and after having regard to the authorities cited.

The penalty:

29. On the charge of sexual conduct with a dependent family member contrary to section 56(1) of the Crimes Act 2013 (S1119/17 you are convicted and sentenced to 250 hours community work and to 18 months supervision on the standard conditions and with the following special conditions:

(i) you are to complete a program of spiritual counseling of not less than 8 weeks with the SVSG; and

(ii) any other programs as directed by the Probation Service.

30. On the charges of three charges of indecent assault with or on a family member contrary to section 56(6) of the Crimes Act 2013 (S1182/17, S1183/17 and S1184/17), you are convicted and sentenced to 120 hours community work on each charge, to be served concurrently with the 250 hours above.

JUSTICE CLARKE