Police v Sosopo [2017] WSSC 62 (7 April 2017)

THE SUPREME COURT OF SAMOA
Police v Sosopo [2017] WSSC 62

Case name:	Police v Sosopo
Citation:	[2017] WSSC 62
Sentence date:	7 April 2017
Parties:	POLICE (Prosecution) v FALEFA FAALEAGAINA SOSOPO male of Lotofaga Safata 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 attempted sexual connection with a child under 12 years and sentenced to 6 months imprisonment. The accused is convicted of doing an indecent act with or on a child and sentenced to 3 months imprisonment. Both sentences to be concurrent. Any time spent in custody to be deducted. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify her. The suppression order does not relate to the defendant
Representation:	F Ioane for Prosecution A Su’a for the accused
Catchwords:	Attempted sexual connection with a child under 12 years - Indecent Act
Words and phrases:
Legislation cited:	Crimes Act 2013 s.58(2) Crimes Act 2013 s.58(3)
Cases cited:	Police v Ulavale [2016] WSSC 88 Police v Vaiasi[2014] and Police v Auvaa [2016] WSSC 205
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FALEFA FAALEAGAINA SOSOPO male of Lotofaga Safata
Accused

Counsel:
F Ioane for Prosecution
A Su’a for the accused

Sentence: 7 April 2017

S E N T E N C E

THE NAME OF THE VICTIM, HER FAMILY, HER SCHOOL AND HER VILLAGE ARE SUPPRESSED.
The charges

1. The accused appears for sentence on one charge of attempted sexual connection with a child under 12 years pursuant to s.58 (2) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment, and one charge of doing an indecent act with or on a child pursuant to section 58(3) Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment.
2. He pleaded guilty to the charges on 5 December 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 22 July 2016 at about 2pm, the victim came home from school and slept while her mother was at hospital. The accused was working with the victim’s brother and cousins in constructing the victim’s family bathroom. The accused sent the victim’s brother to buy him cigarettes when the other workers had left.
4. When the victim’s brother left, the accused went and lay behind the victim and started kissing the victim on her cheeks. He put his hand in the victim’s shorts and touched the victim’s bum while the victim remained motionless. The accused started to pull down the victim’s underwear. The victim slapped his hand away.
5. The victim and the accused are first cousins.

The accused

6. As shown in the pre-sentence report, the accused is 26 years old. He left school after Year 11 to find employment. He stays at home to tend the family plantation.
7. He is the 10^th of 12 children. His parents have both passed away and he and his siblings were looked after by a maternal uncle.
8. His sister told Probation that the accused is an obedient, reliable and supportive person in their family. She says he has been responsible for looking after their adoptive parents.
9. There are also three testimonials from his village mayor, his religious leader and sui tamaitai, all in support of the accused. He is part of the church choir and youth group. He is active in village affairs and is helpful, committed and respectful.
10. The victim’s mother confirms by letter that there has been reconciliation and the accused has apologised to her family and the victim.
11. The accused says of the offending that he had drunk a whole bottle of vodka that afternoon and then fell asleep. When he woke up, he walked inside the house and noticed the victim sleeping alone in the house wearing a short pants. He approached her and tried to remove her pants but she woke up so he immediately walked away.
12. He is a first offender.

The victim

13. The victim is 11 years old and is in year 6.
14. She says she was afraid at the time because her mother was not home so she went to her aunt’s place.
15. She did not suffer any physical injuries.
16. There has been reconciliation.

Aggravating features of the offending

17. It is aggravating that the accused is closely related to the victim, being first cousins with the victim, and an older cousin for that matter. Implicit in this offending is a gross breach of trust. It is aggravating that the offence took place within the context of a domestic relationship. The accused and victim are first cousins and this relationship falls within the definition of a ‘domestic relationship’ contained in section 2 of the Family Safety Act 2013. Section 17 of same Act states that the Court shall consider this fact as an aggravating factor when determining sentence.
18. The victim is a child of 11 years old. She is vulnerable by reason of her age and because she was home alone.
19. The offending was planned as the accused took active steps to ensure that he got the victim alone by sending her brother to the shop.

Mitigating Factors

20. The personal apology by the accused to the victim’s family and the reconciliation between the families is taken into account.
21. I take into account his village penalty. Section 8 of the Village Fono Act 1990 provides that the Court shall take into account in mitigation of sentence the punishment imposed by the Village Fono for the same conduct for which the offender is convicted. This is further reinforced by section 7 of the Community Justice Act 2008 which provides that the Court must in determining the nature of the penalty to be imposed, take into account any compensation or reparation made or due by the offender under Samoan custom and tradition.
22. The testimonials in his favour are taken into account provided by his village mayor, sui tamaitai, his Reverend and his brother.
23. His remorse expressed to Probation and through Counsel is a mitigating factor.
24. His early guilty plea to the charges is a mitigating factor.
25. It is not a mitigating factor according to section 7(3) of the Sentencing Act 2016 that the defendant was affected by the voluntary consumption or use of alcohol at the time of committing the offence.

Discussion

26. Prosecution submits that a starting point of 4 years imprisonment is appropriate for the lead charge of attempted sexual connection with a child under 12 years and a starting point of 12 months imprisonment is appropriate for the charge of doing an indecent act.
    
27. In relation to the authorities relied upon by the Prosecution, the level of violence and extent of the sexual connection in those cases are not comparable to the facts before me now, as those cases involved offenders with a higher level of culpability( Police v Ulavale [2016] WSSC 88 involved a moderate level of violence; Police v Vaiasi[2014] and Police v Auvaa [2016] WSSC 205 both involved actual touching and fondling of genitalia).
28. Defence submits that a starting point of 2 years is appropriate for the lead charge of attempted sexual connection as per Band one of Attorney General v Lua [2016] WSCA 1(19 February 2016). In the alternative, defence Counsel submits that a non custodial sentence is appropriate.
29. Defence submits that a sentence of supervision is appropriate for the indecent act charge and relies on the case of Police v Vaela’a Iloa, 31 March 2016 per Justice Tuatagaloa. That case involved indecent assault on a girl under 16 years with a maximum penalty of 7 years imprisonment and indecent assault on another adult victim with a maximum penalty of 5 years imprisonment. Therein lies the first basis of distinction. The case before me now is concerned with an indecent act on a child under 12 years old, a charge which attracts a maximum penalty of 14 years imprisonment. The second is that the victim in this case is under 12 years old. That fact alone calls for greater protection by the law of young and vulnerable victims. The younger the victim of a sexual offence the greater the need for protection. This proposition was stated by the New Zealand Court of Appeal in R v Hamiltllace (CA #160;49/79, 14 Aug979, Wood Woodhouse, Richardson and Somers JJ) to be so self-evident as to need no authority. I do not find that the case of Police v Vaela’a Iloa is particularly helpful to the before me now.
30. I agree with Defence Counsel that the case of Attorney General v Lua is helpful here. A guideline for unlawful sexual connection offending against children under 12 years old was established by the Court of Appeal in that case. It is a guideline which applies to all sentencing decisions for unlawful sexual connection offending against children under 12 years. The Court remarked that the guidelines ‘do not place the sentencing judge in a straight-jacket” and acknowledged that “ sexual connection against children covers a wide spectrum, from the most serious penetrative acts to fleeting skin on skin touching of the genitalia or anus”.
31. Useful guidance is provided by the New Zealand Court of Appeal case of R v AM (CA 27/2009, CA 32/2009). The Court of Appeal set sentencing bands for offending involving sexual violation and provided two sets of guidelines. For the purposes of this sentencing, I take heed of the unlawful sexual connection guidelines (USC guidelines). The guidelines are usefully provided to assist in determining the starting point, keeping in mind the uplift in the terms of imprisonment because of the difference in maximum penalty.
32. Three bands were considered appropriate for sexual connection offending against children under 12 years. The bands are;
    

Band one: 2-6 years(appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features or their presence is limited);

Band two: 5-12 years (where the offending is of moderate seriousness and involves two or three aggravating features); and

Band three: 11 years-life imprisonment (where the offending is the most serious of this kind, for example it involves offending against multiple victims over a significant period in the presence of serious aggravating features).

33. The Court of Appeal remarked that “there may be exceptional cases that require a starting point below the lower end of the range of 2 years set in band one. Such cases will be rare and clear reasons will be required to explain the departure”.
34. Defence Counsel has stressed that rehabilitation should take precedence in this sentencing. I find that deterrence should be paramount given the sexual nature of the offending against a young victim. I find that this case calls for a custodial sentence. It will deter grown men from preying on young girls. It will also send a strong message to the community to be more vigilant when it comes to their children as sexual offending against children is on the rise.
35. I find that this offending falls within the lower end of band one where the offending is at the lower end of the spectrum and the presence of aggravating features is very limited. I note the observation made by the Court of Appeal in Attorney General v Lua “the band one has a range from 2-6 years reflects the diversity of sexual connection offending. The least culpable offending will comprise a single skin on skin touching of the genitalia or anus which is of 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”.
36. This offending falls within the lower end of band one because it was of limited duration, the victim did not suffer any physical injuries, there was an absence of violence and the accused stopped when the victim slapped his hand away. To reflect the intrinsic seriousness of the crime, including aggravating features of gross breach of trust, the domestic relationship, the premeditation and young age of the victim, I would place the starting point at 2 years imprisonment.
37. I deduct 6 months for his apology, the reconciliation and his remorse. I deduct 6 months for his village penalty. I deduct 3 months for his character testimonials which tell of an otherwise helpful and respectful young man. Finally I deduct 1/3 or 3 months for his early guilty plea.

The result

38. The accused is convicted of attempted sexual connection with a child under 12 years and sentenced to 6 months imprisonment.
39. The accused is convicted of doing an indecent act with or on a child and sentenced to 3 months imprisonment.
40. Both sentences to be concurrent.
41. Any time spent in custody to be deducted.
42. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify her. The suppression order does not relate to the defendant.

JUSTICE TAFAOIMALO TUALA WARREN