Police v XR [2018] WSSC 16 (2 February 2018)

SUPREME COURT OF SAMOA
Police v XR [2018] WSSC 16

Case name:	Police v XR
Citation:	[2018] WSSC 16
Decision date:	2 February 2018
Parties:	POLICE v XR male.
Hearing date(s):
File number(s):	S1353/17 & S1354/17.
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- A permanent suppression order prohibiting publication in news media, internet or any other publicly accessible database the names, school or village details of the accused and victim. - Convicted and sentenced on the charge of sexual connection to 4 years and 8 months imprisonment less time remanded in custody. On the charge of incest, you are convicted and sentenced to 2 years and 10 months imprisonment to be served concurrent to your sentence for sexual connection, less time remanded in custody.
Representation:	L Sio for prosecution Accused in person
Catchwords:	Her vulnerability, significant breach of trust, incest, reconcile and remorse.
Words and phrases:	This type of offending has a significant psychological impact on the young victim, cultural concept of “va-tapuia” or sacred covenant between a brother and a sister.
Legislation cited:	Sentencing Act 2016
Cases cited:	Police v Lua [2016] WSCA 1 (19 February 2016) Court of Appeal, (See: Attorney General v Mr A [2012] WSCA 2 (31 May 2012), Police v NN [2012] WSSC 101 (4 December 2012) Nelson J, New Zealand Supreme Court decision in R v Booth [2016] NZSC 127; [2017] 1 NZLR 223 at 240, Young J, Police v Sola [2016] WSSC 143 (3 August 2016), Police v Apiuta [2016] WSSC 202 (24 November 2016), Police v EA [2016] WSSC 216 (4 November 2016), Police v Malaki [2016] WSSC 196 (4 November 2016) and Police v NN and AN [2012] WSSC 101.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

XR male.
Accused

Counsel:
L Sio for prosecution
Accused in person

Sentence: 2 February 2018

S E N T E N C E

1. As is usual in these types of proceedings, a permanent suppression order is issued prohibiting publication in news media, internet or any other publicly accessible database the names, school or village details of the accused and the victim in these proceedings.
2. XR, you appear for sentence on two charges as follows:
   • That on or between 1^st January 20016 and 30^th November 2016, you had sexual connection with the victim, a child under the age of 12 years of age. This charge carries a maximum penalty of life imprisonment; and
   • That on the 25^th September 2017, you committed incest with the victim, your biological sister which carries a maximum penalty of 20 years imprisonment.
     

THE OFFENDING:

3. According to the Prosecution summary of facts accepted by you, between the 1^st of January 2016 and the 30^th November 2016, you told the victim, then 10 years old, to meet you at the back of the house. She followed you to the bushes. There, you told her to take off her clothes. She took off her shorts and you then proceeded to remove her panty. You then knelt down and started to lick and suck her vagina. You then lay her on the grass, told her to touch your penis, which she refused and then you got on top of her and tried to insert your penis into her vagina. You attempted several times, could not, so rubbed your penis against her vagina for a number of minutes. Your father called the victim’s name so you both put your clothes on and left.
4. On the afternoon of Monday 25^th September 2017, you had been watching television with the victim. You then told her to wait for you at the backyard. She refused, you begged her to follow you and you grabbed a machete and left telling a cousin you were going to do chores. The victim went to get ice water from the fridge. She saw you outside, you begged her to come out and she later came out to you. You wrapped your arms around her, hugged and you then began to kiss her on the cheek and lips. You rubbed her breasts while trying to unbutton her shorts. You were told not unbutton her shorts but you did so anyway. You kissed her stomach and pulled down her shorts and panty. You then sucked and licked her vagina and used your index finger to fondle her vagina. You then stood up, placed a lavalava around the victim as she stood. You then knelt down and again started licking her vagina. Your uncle in law was in the area, you saw him and then fled the area with your machete.

THE ACCUSED:

5. You are a 22 year old male of Tuanai. You are single and unemployed. According to your Pre-Sentence Report, you grew up at Tuanai, the second of six children. You stopped attending school at year 11. You worked briefly at a bakery but stopped working due to pay issues.
6. You come from a loving family. Your father addressed the Court emotionally expressing his love for his children and the hurt this has caused. He asked for leniency. The PSR also refers to your mother who is also supportive of you.
7. You are said by Dr Vaimaila Salele, Emergency Registrar that you suffer from epilepsy. I also read the report from Dr Salele handed up to me this afternoon and dated January 31^st 2018.
8. I accept that you are genuinely remorseful for your actions. This was very clear in your address to the Court and your emotional state. The VIR also states that you have also sought forgiveness from your family and your sister and you have apologised.

THE VICTIM:

9. The victim is your now 11 year old sister. She is a school student in year 6. You were raised together. The VIR refers only to the victim being embarrassed by what had occurred but does not specify any ongoing trauma or other psychological effects on her although in this type of offending involving young children, it is accepted that this type of offending has a significant psychological impact on the young victim.

AGGRAVATING & MITIGATING FEATURES:

10. The aggravating features of this matter are the (a) the young age of the victim, (b) her vulnerability, (c) the significant breach of trust, (d) your age difference, and (e) a degree of premeditation.
11. In respect of the mitigating features, I accept you are genuinely remorseful, you have apologized to your family and sister and you have reconciled. I will also give you a deduction for your youth. I will also take into account your early guilty plea to the charges. For the purposes of sentencing, I do not accept your possible medical condition as a personal mitigating factor for the purposes of sentencing.

DISCUSSION

12. XR, sexual acts on a child is always a very serious offence, but particularly so where they are very young as was the case for your sister. Young children are young and vulnerable and the younger the child, the greater the need for protection. Your actions also constitute a serious breach of trust perpetrated against your sister.
13. In Police v Lua [2016] WSCA 1 (19 February 2016) the Court of Appeal set out the sentencing bands appropriate for sexual connection offending against children under 12 years. The Court of Appeal stated:

“The bands below apply when unlawful sexual connection is the lead offence (and there is no penetrative act as earlier defined):

1. 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.
2. Band two: 5 – 12 years
   • Where the offending is of moderate seriousness and involves two or three aggravating features.

100. 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.”
       

14. When sentencing for incest, there are also two principle themes relevant to sentencing. The Court of Appeal stated:

“In our assessment, two principal themes are relevant to sentencing for incest. The first, which we regard as dominant, is the protection of family members who, because of the trust placed in a loved one, are vulnerable to abuse. The second, which overlaps the first and is more complex, is infringement of the moral standards of the society.” (See: Attorney General v Mr A [2012] WSCA 2 (31 May 2012).

15. In terms of incest, as Nelson J stated in Police v NN [2012] WSSC 101 (4 December 2012) stated:

“...this court spoke of the cultural concept of “va-tapuia” or sacred covenant between a brother and a sister...We are all aware the brother - sister relationship in our faasamoa is one of special significance. Nowhere is it better illustrated than in the saying “o le loimata o le tuagane o lona tuafafine.” It is a relationship valued and respected by custom. Thus sexual contact between brother and sister is taboo. Those who voluntarily engage in such conduct bring ridicule and shame upon themselves, their families and their village. And are given the special and derogatory tag of “mataifale” meaning to cast one’s eyes upon one’s own dwelling.

Cases like this bring with it therefore their own punishment on offenders in terms of social ostracism and disgrace. That endures far longer than any sentence the court can impose. This is a factor that I bear in mind.”

16. Prosecution seeks cumulative terms of imprisonment. Section 55 of the Sentencing Act 2016 (“the Act”) provides guidance on the use of cumulative and concurrent sentences of imprisonment. The two offences for which you are being sentenced are of a similar kind and nature, occurred at your home involving the same victim and in the years 2016 and 2017. I will therefore apply a concurrent sentence. In doing so, I bear in mind section 56 of the Act which relevantly also provides for the application of the principles of totality in sentencing (section 56(4)).
17. In imposing a concurrent sentencing approach applying the principles of totality, in the New Zealand Supreme Court decision in R v Booth [2016] NZSC 127; [2017] 1 NZLR 223 at 240, Young J stated in terms of concurrent and cumulative sentences:

“[44] When an offender is sentenced to imprisonment for more than one offence, the sentences can be imposed either concurrently (so that they are served togetor cuively (so that they are served one after another). ...

[45] < T160;These ons apply in twon two situations. In the first, an offender is sentenced on one occasion (and thus by one judge) in respect of multiple offences. In the second,ffendready sentenced to, and serving, a prison sentencntence is e is sentenced on a separate occasion for other offending. Despite the clumsiness of the expressions, I will refer to the first situation as “single occasion sentencing” and the second as “separate occasion sentencing”.

[46] In both situations – that is, single and separate occasion sentencing – the sentencing judge is required to have regard to the “totality” of the offending. The ll see imposed must reflect the seriousness of that toat totalittality and this is so irrespective of whether the sentences are structured as concurrent or cumulative. So if concurrent sentences are imposed, the most serious offence receives the sentence appropriate for the totality of the offending. For cumulative sentences, it is the length of the sentences, when added together, which reflect that totality. Therefore, the practical effect of the totality principle is that the effective sentence of imprisonment will be the same irrespective of whether the sentences are structured cumulatively or concurrently.” (emphasis added)

18. In respect of the charge of sexual connection with a child under 12 which I adopt as the lead charge, prosecution submit that your offending falls within band 2 and seek a 10 year start point for sentence, that is towards the higher end of band 2 and is 1 year less than the bottom end of band 3. I have also reviewed the authorities referred to by prosecution as well as other sentences including Police v Sola [2016] WSSC 143 (3 August 2016) adopting a 5 year start point for sentence, Police v Apiuta [2016] WSSC 202 (24 November 2016) adopting a 6 year start point, Police v EA [2016] WSSC 216 (4 November 2016) adopting a 6 year start point and Police v Malaki [2016] WSSC 196 (4 November 2016) applying a 4 year start point. These authorities involved a single incident giving rise to the charges and in some instances include breach of trust as an aggravating feature and a family relationship, though not siblings.
19. As I have said, I accept you are genuinely remorseful, you have apologized to your family and sister and you have reconciled. I will also give you a deduction for your youth. I will also take into account your early guilty plea to the charges.
20. I accept that your offending falls within band 2. In applying section 56(4) of the Act and the totality approach to sentencing, I also consider an 8 year start point for sentence appropriate. This is mid-range band 2. I deduct 6 months for your remorse and 3 months for your apology and the reconciliation. That leaves 7 years and 3 months imprisonment. I deduct 3 months for your youth leaving 7 years imprisonment. I deduct 1/3 for your guilty plea which leaves 4 years and 8 months imprisonment.
21. In relation to the charge of incest, prosecution seeks a start point of 5 years imprisonment and distinguishes and relies on Police v NN and AN [2012] WSSC 101. I adopt 5 years imprisonment start point for sentence. I deduct 4 months for remorse and 4 months for your apology and reconciliation and 2 months for your youth. That leaves 4 years and 2 months imprisonment. I deduct 1/3 from the balance leaving 2 years and 10 months imprisonment.
22. You are convicted and sentenced on the charge of sexual connection to 4 years and 8 months imprisonment less time remanded in custody. On the charge of incest, you are convicted and sentenced to 2 years and 10 months imprisonment to be served concurrent to your sentence for sexual connection, less time remanded in custody.

JUSTICE CLARKE