Police v Solia [2018] WSSC 114 (31 October 2018)

THE SUPREME COURT OF SAMOA
Police v Vincent Solia [2018] WSSC 114

Case name:	Police v Vincent
Citation:	[2018] WSSC 114
Ruling date:	19 September 2018
Parties:	POLICE (Prosecution) v VINI VINCENT SOLIA, male of Fasitoo-uta Accused
Sentence date(s):	31 October 2018
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from: Order:	The accused is convicted of sexual connection and sentenced to 7 months imprisonment. Time spent in custody to be deducted.
Representation:	V Faasii for Prosecution Accused Unrepresented
Catchwords:	Sexual Connection with a young person under 16 years
Words and phrases:
Legislation cited:	Crimes Act 2013, section 59(1)(5)
Cases cited:	Police v Lunai [2015] WSSC 176 Police v Imoa [2014] WSSC 144 Police v Niko [2010] WSSC 26
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

VINI VINCENT SOLIA male of Fasitoo uta
Accused

Counsel:
V Faasii for Prosecution
Accused Unrepresented

Sentence : 31 October 2018

SENTENCE

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)(5) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
2. He was found guilty of the charge after a defended hearing on 21 September 2018.

The offending

3. According to the evidence, on the night of 25 November 2017, the accused met the victim on the road as she was going to a church event. He asked her to go with him and she did. He then had sex with her.

The accused

4. According to the pre-sentence report, the accused is 30 years old. He was working prior to being remanded in custody, earning 180 tala per week. He is single.
5. His mother remains supportive of him. His village mayor and church minister speak highly of his service to the village and to the church.
6. The accused accepted his actions to Probation.
7. He is a first offender.

The victim

8. The victim was 15 years old and fell pregnant as a result of the offending. She says that her baby who is now 2 months old is a blessing to her family. Her parents say that even though it was hard to accept what happened to their daughter initially, forgiving the accused has allowed them to move forward and enjoy their grandchild who they see as a blessing within their family. The accused has not himself come to their family to apologise but they forgive him. The mother of the accused apologised and they have accepted her apology on behalf of the accused and his family.

Aggravating features of the offending

9. It is aggravating that the victim was only 15 years old and there is a 14 year age disparity between her and the accused who was 29 years old at the time of the offending.
10. It is also aggravating that the victim fell pregnant as a result of the accused’s actions. She is a child herself and has now has a child. Although the victim herself sees her child as a blessing, it is still considered an aggravating factor given her age and the vulnerability that comes with it, of which the accused took advantage.

Mitigating factors

11. The mitigating factors are his previous good character, serving the family, village and church, the apology by his mother to the family of the victim, and his remorse expressed to Probation and in Court today.

Discussion

12. The law makes it an offence to have sexual connection with a person under 16 years. A young person is defined as a person who is 12 years or over and under the age of 16 years. In this case, the victim did not protest or resist the accused. However, section 51(1)(a) of the Crimes Act 2013 provides that “it is not consent merely because the person does not protest or physically resist the sexual connection or other sexual activity”. This is critically important because a lack of resistance is not consent when it comes to a young person.
13. In the recent Court of Appeal decision of AG v Niko Sefo (25 October 2018) it was recognised that the purpose of this offence provision is twofold. One is society’s recognition that a young woman under 16 years of age requires protection from herself. That is why liability is strict and her consent is not a defence. The other reason is to protect young women from predatory conduct by older males.
14. The Court’s attitude to this kind of offence is well established, in cases where the age disparity between the accused and the victim is significant. 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. Her Honour has also helpfully canvassed the range of sentences imposed by the Court for section 59 offending and has found that ‘the range of sentences imposed vary from supervision and community service to imprisonment term’.
15. The rationale for this attitude is found in the words of Nelson J in Police v Imoa [2014] WSSC 144, who said that “the law is there to protect young girls from mature men taking advantage of them”.
16. The accused is 14 years older than the victim. He is the adult and the victim is a young person. He took advantage of her youth and naivety.
17. 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”. The accused in this case does not get the benefit of an early guilty plea as this matter went to a defended hearing.
18. Prosecution has submitted that a starting point of 18 months imprisonment is appropriate in this case. Probation recommends a community based sentence.
19. For the accused today, it will be a custodial sentence.
20. Having taken into account the aggravating features of this offending, I take the starting point for sexual connection at 16 months imprisonment. I deduct 4 months for the his previous good character evidenced by the references from the village mayor and church minister, 2 months for the apology by his mother to the family of the victim, and 3 months for his remorse expressed to Probation and in Court, and personal circumstances in that he is looking after his elderly grandmother.

The result

21. The accused is convicted of sexual connection and sentenced to 7 months imprisonment.
22. Time spent in custody to be deducted.
23. Name suppression is ordered for the victim. This does not apply to the accused.
    

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN