Police v BF [2018] WSSC 14 (9 February 2018)

IN THE SUPREME COURT OF SAMOA
Police v B.F [2018] WSSC 14

Case name:	Police v B.F
Citation:	[2018] WSSC 14
Decision date:	02 February 2018
Parties:	POLICE (Informant) and B.F, male of Faleula (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:	The young offender is convicted and sentenced to 3 years imprisonment for each sexual connection committed under s.58(1). For the indecent act under s.58(3) he is convicted and sentenced to 2 years imprisonment. All sentences to be concurrent. Less time spent in custody.
Representation:	A.G for Prosecution M Soonalole for the Defendant
Catchwords:	Sexual offending – indecent act – name suppression – two victims – victims very young – 18 year old offender – defendant/victims family – custodial sentence – no apology – breach of trust – sentencing bands – guilty plea – pre-meditated – vulnerability – occurred multiple times
Words and phrases:
Legislation cited:	Crimes Act 2013 ss.58(1); 58(3) Sentencing Act 2016 ss.5; 6
Cases cited:	Key v Police [2013] WSCA 3 (28 June 2013) Police v Lua [2015] WSSC 156 (6 July 2015) R v AM [2010] NZCA 114; [2010] 2 NZLR 750
Summary of decision:

NOTE: SUPRESSION ORDER FROM PUBLISHING NAMES OF THE VICTIMS AND THE DEFENDANT

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

B.F, male of Faleula
Defendant

Counsel: A.G for Prosecution
M Soonalole for the Defendant

Sentence: 09 February 2018

SENTENCING OF TUATAGALOA J

The charges:

1. The young offender is charged with three counts of sexual offending pursuant to section 58(1) of Crimes Act 2013 which penalty for each offending is life imprisonment; and one count of indecent act pursuant to section 58(3) which penalty is maximum 14 years’ imprisonment.
2. The offending against two young victims aged 5 and 6 years’ old is as follows:

Against the 5 year old:

(i) Sexual connection of penis to vagina between 30 April – 1 June 2017;
(ii) Sexual connection of penis to vagina between 30 April – 1 October 2017;
(iii) Sexual connection of hand to vagina between 30 April – 1 October 2017.

The sexual connection in (i) – (iii) were non-penetrative.

Against the 6 year old:

(i) Indecent act of sucking the young offender’s penis between 30 April – 1 October 2017.

The facts:

3. The summary of facts was read out and confirmed by the young offender of the sexual offending as follows:
   1. The first sexual connection took place while the young offender sat on a swing. He unzipped his pants, took the 5 year old’s panties off and made her sit on him while they swing;
   2. The second sexual connection was in the bathroom where he unzipped his pants, sat on the toilet lid, took off the 5 year old’s panties and again made her sit on him.
   100. The third sexual connection was when he went to collect cocoa with the 5 year old. He pulled down the 5 year olds shorts and rubbed her vagina.
   4. The indecent act was committed against the 6 year old in the bathroom when he followed the 6 year old; he exposed his penis and told the 6 year old to suck it which she did.

The young offender:

4. The young offender from the summary of facts was 18 years old at the time and was attending Year 12 at Levaula College. He is described by his father in the PSR (pre-sentence report) as a, “Good natured and quiet son.” The father pleads for a second chance for his son. Additional character testimonies are provided by his Associate Pastor of the Worship Centre that he is in their bible study group. A letter from the offender’s village pulenuu of Faleula confirming that the young offender has never been in trouble and/or sanctioned by his village.

The young victims:

5. The young victims and the young offender are first cousins. They young victims are sisters and live on the same land but different household with the young offender.
6. They are looked after by the young offender’s mother while their mother goes to work.

Victim Impact Report:

7. The mother of the two victims said in the victim impact report (VIR) that the young offender had done it before but was never reported because his mother apologized and they settled it within the family and forgave the young offender. But it has happened again and this time she is pressing on with the charges.
8. The mother blames herself for what happened to her daughters. She should not be, she was right to think that something like this could not happen to her daughters within the family and especially by the young offender whom she said is like a brother to her daughters.
9. She said that there has been no apology made by the young offender or his parents for the current offending.

Discussion:

10. Sexual offending is very prevalent in our society across all ages of the male gender. Despite imprisonment terms being imposed it does not seem to deter the commission of this offending. What is most highlighted is the need for rehabilitation programs by way of educating the perpetrators of the adverse impact of such behavior on young girls and women. Such educational programs to be available in prison.
11. In the present case, the young offender is first cousins with the two victims. They all live on the same land but in different households. The young victims are usually taken care of by their aunty (the mother of the young offender). The very same environment that the young victims should be most protected, they are indeed being preyed upon. It can be said that the close familial environment provided the young offender with easy access to his younger victim cousins. The close familial connection provides the “trust” factor of the young victims to the offender who is their first cousin. This trust has been severely breached by the young offender.
12. The Prosecution advocated for starting point of 11 years imprisonment (Band 3) Police v Lua^[1] on the following aggravating factors:
    • Breach of Trust;
    • Pre-meditation;
    • Vulnerability of victims/age difference;
    • Two victims involved;
      • ∗ First victim: 4 times.
      • ∗ Other sister: indecent act.
    • Familial connection – goes with breach of trust.
13. The Prosecution only identified the guilty plea to the charges by the young offender as mitigating factor but not his young age.
14. Counsel for the young offender submits for a starting point of 6 years. Counsel submitted the following mitigating factors for the Court to consider – young age of the defendant, remorseful, his education has been affected, first offender and his guilty pleas to the offences.
15. There may be two victims involved but the offending against each was of a different nature. Because the sentencing bands in Lua are to apply, this means there was no penetration otherwise it will be the sentencing bands in Key v Police^[2]
16. Three sexual connection (non-penetrative) of penis to vagina on two occasions and one of rubbing the vagina the young offender committed against the 5 year old victim which penalty under s. 58 is Crimes Act 2013 is life imprisonment.
17. The sexual offending against the 6 year old victim is one of indecent act of the young offender allowing his penis to be sucked by the 6 year old on his instructions which penalty under s. 58(3) is maximum 14 years’ imprisonment. This was the only sexual offending against the 6 year old and it was the one time.
18. All these were said to be committed within a period of 2 months which if compared to the context referred to in R v AM^[3] of a number of years is very minimal. In the Samoan context I will place it at low-moderate level.
19. There is no associated violence which would have increased the culpability of the young offender from violence inherent to the offending itself. There was also no physical harm evident such as bruises or cuts suffered by the victims that would have increased the seriousness of the offending. The victim impact report does not mention any psychological harm or indication of such harm noticed of the victims’ behaviour.
20. Except for vulnerability, all the other aggravating factors are low-moderate seriousness. At [36] of R v AM^[4] the Court says, “What is required is an evaluation of all the circumstances. Listing relevant factors and setting out bands in the way we have done does not remove the need for judgment. A mechanistic approach is not appropriate.”
21. I do not accept the recommendation by the Prosecution of a starting point of 11 years.
22. Taking into account the purposes [section 5] and principles of [section 6] provided in the Sentencing Act 2016 and the circumstances of this offending. I consider a starting point in Band 2 of 6 years.
23. I then make the following deductions:
    • 18 months for his young age;
    • 6 months for previous good character.
    • This leaves 4 years. I give 25% discount for his guilty plea although not earlier but he nevertheless with the benefit of counsel made available through legal aid changed his plea to the charges saving the Court time and the two victims from giving evidence and reliving what happened to them.
    • The 25% discount amounts to a further 12 months. The end sentence is 3 years imprisonment.
24. The young offender is convicted and sentenced to 3 years imprisonment for each sexual connection committed under s.58(1). For the indecent act under s.58(3) he is convicted and sentenced to 2 years imprisonment. All sentences to be concurrent. Less time spent in custody.
    

JUSTICE TUATAGALOA

ADDENDUM:

The reason why the defendant’s name is suppressed is due to his close familial connection to the victims. Publishing his name may identify the victims.

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^[1] Police v Lua [2015] WSSC 156 (y 20l5)^[2] Key v Police [2013] WSCA 3 (28 June 2013)
^[3] R v AM [2010] 2 750[4] Ibid.