Police v Wilson [2017] WSSC 71 (30 May 2017)

THE SUPREME COURT OF SAMOA
Police v Wilson [2017] WSSC 71

Case name:	Police v Wilson
Citation:	[2017] WSSC 71
Sentence date:	30 May 2017
Parties:	POLICE (Prosecution) v ELLIEALBERT WILSON male of Alafua 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 sexual connection and sentenced to 4 months imprisonment. Any time spent in custody is to be deducted. The name of the victim is permanently suppressed.
Representation:	F Ioane for Prosecution T Leavai for the accused
Catchwords:	Aggravating features of the offending – sexual connection with a young person under 16 years – age disparity between the accused and the victim – maximum penalty – starting point for sentence – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.59(1)
Cases cited:	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

ELLIEALBERT WISON male of Alafua
Accused

Counsel:
F Ioane for Prosecution
T Leavai for the accused

Sentence: 30 May 2017

S E N T E N C E

THE NAME OF THE VICTIM IS SUPPRESSED.
The charge

1. The accused appears for sentence on one charge of sexual connection with a young person under 16 years pursuant to section 59(1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
2. He pleaded guilty to the charge on 27 April 2017.

The offending

3. The Prosecution summary of facts admitted by the accused says the accused and the victim met at a fashion show. They exchanged phone numbers. On 7 October 2016, the accused contacted the victim to meet him at SNPF plaza. The victim went and waited for the accused to finish work. Then they went to Harbour Light Motel. They got a room. When they went inside the room, the accused removed his clothes and then removed the victim’s undergarments. He lay the victim on the bed and spread her legs. He got on top of the victim and inserted his penis into the victim’s vagina and had sex until he ejaculated. At 9pm, the accused and a friend dropped the victim home.
4. The accused and the victim were in a relationship at the time of the offending.

The accused

5. As shown in the pre-sentence report, the accused is 25 years old, single with one child and lives with his family at Alafua.
6. He has reached tertiary level having started a degree which remains incomplete due to time constraints.
7. He has been on a church mission for LDS.
8. He has been employed with Digicel as a retail executive, a job he has not been able to maintain due to this matter.
9. He is now a part time artist in a Contemporary Dance Group.
10. His father told probation that the accused is an obedient and intelligent person.
11. There are testimonials from his previous supervisor, his village mayor and Bishop in his favour. All say that he is a hard working and reliable.
12. The accused says of the offending that he and the victim had courted on the phone for a month prior to the offending. This led to their face to face meeting when they went to Harbour Light Hotel and had sex.
13. There has been no reconciliation between him and the victim’s family.
14. He has expressed his remorse to Probation saying that he wants to apologise to the victim and her family, but he is fearful and his bail conditions prevent him from contacting the victim.
15. He is a first offender.

The victim

16. The victim impact report was provided by the victim’s mother and tells of her distress since the offending. Although the Victim impact report is not directly in relation to the victim, this does not necessarily mean that she was not psychologically affected by the offending.
17. She confirms that the victim is 14 years old and that there has been no reconciliation.

Aggravating features of the offending

18. The first aggravating feature is that there is 11 years age disparity between the accused and the victim. As such the accused is much older and more mature than the victim, and he took advantage of this.
19. He planned this offending as he asked the victim to meet him at SNPF plaza which is outside his workplace.
20. Another aggravating feature is the vulnerability of the victim because of her age. She is 14 years old.

Mitigating Factors

21. His good character according to his father, previous work supervisor, village mayor and Bishop is taken into account in his favour, as well as his clean record and his remorse. Even if there has been no reconciliation, it is because he is prevented by his bail conditions.
22. His guilty plea to the charge is a mitigating factor.

Discussion

23. This is a serious charge as reflected in the maximum penalty of 10 years imprisonment.
24. The Court’s attitude to this kind of offence is well established.
25. 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’.
26. 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.
27. The sentences imposed by the Court have usually been custodial. Tuatagaloa J in Police v Lunai [2015] WSSC 176 has said that sentences of the Court have usually been custodial where the age gap between the accused and victim is 10 + years.
28. The sexual intercourse in this case may have been consensual as the accused and the victim were in a relationship, but this is not a defence or a mitigating factor. It 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.
29. In this case, even if the victim had gone to the workplace of the accused and waited for him, the accused is 25 years and should have known better, to send her home or inform her family. Deterrence is needed in this case so that a message is sent to men that this type of behaviour is unacceptable. Unfortunately for this talented young man with a promising future, his sentence will be custodial.
30. In Police v Niko[2010] WSSC 26, this Court remarked that “the sort of penalty that applies in this case ranges from 12 months to 2 years where a defendant has pleaded guilty and is a first offender”.
31. Prosecution has submitted that a term of imprisonment is appropriate in this case with a starting point of 12 months.
32. Having taken into account the aggravating features of the offending, in particular the age disparity of 11 years, I find that the starting point is 12 months imprisonment. I deduct 6 months for his otherwise good conduct as evident in his clean record, the testimonials in his favour and his remorse. I deduct 2 months for his guilty plea.

The result

33. The accused is convicted of sexual connection and sentenced to 4 months imprisonment.
34. Any time spent in custody is to be deducted.
35. The name of the victim is permanently suppressed.
    

JUSTICE TAFAOIMALO TUALA WARREN