Police v Viliamu [2019] WSSC 86 (25 October 2019)

IN THE SUPREME COURT OF SAMOA
Police v Viliamu [2019] WSSC 86

Case name:	Police v Viliamu
Citation:	[2019] WSSC 86
Decision date:	25 October 2019
Parties:	POLICE (Prosecution) and ETEUATI VILIAMU male of Tulaele (Accused)
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 accused is discharged without conviction.
Representation:	F Ioane & T Sasagi for Prosecution H Wallwork for the Defendant
Catchwords:	discharge without conviction – sexual connection with a girl under 16 years of age – consensual – multiple sexual encounters.
Words and phrases:	accused and victim in a relationship – gravity of offence (lower end) – conviction would mean accused automatically put on Sex Offenders Register.
Legislation cited:	Crimes Act 2013, ss. 58; 59; 59(1); 59(3)
	Sentencing Act 2015, ss. 69; 70. Sex Offenders Registration Act 2017.
Cases cited:	Attorney General v Ropati [2019] WSCA 2 (15 April 2019); Attorney General v Sefo [2018] WSCA 18.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

ETEUATI VILIAMU male of Tulaele

Accused

Counsel: F Ioane & T Sasagi for Prosecution
H Wallwork for the Defendant

Sentence: 25 October 2019

SENTENCING OF TUATAGALOA J

A sentence of discharge without conviction had already been handed down on 25 October 2019. The Prosecution having recommended for a supervision term did not oppose or object to the submissions of counsel for the accused for a discharge without conviction for reasons she provided in her written sentencing submissions. Counsel for the accused has asked for a written sentencing decision as there has not been a written sentencing decision of the Supreme Court since the Court of Appeal decision of Attorney General v Niko Sefo (25 October 2018). This is the written sentencing decision for this matter.

1. The accused appears for sentence on four charges of having sex with a girl under 16 years old^[1] which penalty is maximum 10 years’ imprisonment and one charge of indecent assault with maximum penalty of seven years.^[2]

The offending

2. The four sexual encounters between the accused and the victim although consensual is however unlawful under the law due to the age of the victim.
3. The accused at the time of the offending was 17 years old and was no longer in school. He was working for the victim’s family food catering business called F.C.
4. The accused says in the Pre-Sentence Report (PSR) that it was while working for the victim’s family business that he and the victim became boyfriend and girlfriend. It was shortly after that they had sexual encounters that he is charged with. The victim’s family was alerted of the relationship when the victim’s brother reported to the mother that the victim was seen with the accused on a bus during school hours. The mother went to the victim’s school the next day and found out that the victim was not at school. The accused is reported in the PSR to have said that the victim told him that she was suspended from school for not having plaited her hair properly and that her parents were not aware of the suspension. The victim continued with the façade of attending school daily, yet it was during this time she would meet up with the accused.
5. The accused was reportedly beaten by the victim’s brother and cousin.

The victim

6. The victim from the prosecution’s summary of facts was 13 years' old at the time attending Pesega Middle School. The victim confirms in the Victim Impact Report (VIR) of the boyfriend – girlfriend relationship with the accused and that the sexual encounters with the accused were consensual.
7. The young victim as a result stayed with Samoa Victim Support Group (SVSG) for about two months. I fail to see why it was necessary for the young victim to have been removed from her family, away from the security and care of her parents and family and placed in the care of SVSG when the offender is not a member of the young victim’ s family.
8. The young victim says she was warned to sever all contact with the accused and has not since the accused since he was charged. The accused himself from his Counsel’s submissions have not attempted to contact the victim nor he intends to since he was charged.
9. The prosecution highlighted a number of aggravating factors such as the vulnerability of the victim given the age difference; there were multiple sexual encounters (4x) and that the sexual encounters were planned.
10. The prosecution had no doubt taken into consideration the circumstances of this particular case and originally recommended for a supervision term instead of custodial.
11. Defence Counsel for the accused advocated for a discharge without conviction^[3] saying that the ultimate test for the Court is whether a conviction for the accused would be out of all proportion to the gravity of the offence.^[4] Counsel noted the three step approach:
    • (a) The gravity of the offending – the gravity of the offence is at the lower end;
    • (b) The direct and indirect consequences of the conviction – a conviction would automatically have the young offender registered as a sex offender pursuant to the Sex Offenders Registration Act 2017; and
    • (c) Whether the consequences are out of all proportion to the gravity of the offence. The accused is not only a very young offender but a first offender as well. Being on the sex offenders’ registry for fifteen years and subjected to the stringent reporting requirement and restrictions would be out of proportion to the gravity of the offence.
12. Counsel for the accused also submits the following as mitigating factors in favour of the accused: that he co-operated with the Police from the outset; he pleaded guilty and is a first offender which goes to his good character.

Discussion

13. The reason behind the law is the need to protect young girls not only from people performing sexual acts against them but also protecting young girls from themselves, that is, making decisions consenting to having sex. Thus, the reason why it is strict liability for such offences against young girls^[5] under the law. Although consent is no defence it is nevertheless relevant in assessing the gravity of the offence. There is no need to refer to various decisions where the Court has awarded discharge without conviction as each case depends on its particular or special circumstances.^[6]
14. In combatting the problem with sexual offending and for the safety of women and young girls (and boys) a Sex Offenders Act 2017 was passed to keep track of predatory sex offenders. Unfortunately, (and I agree with Counsel for the accused) this legislation did not anticipate that it ‘would entrap young people engaging in consensual underage sex, albeit unlawfully’.^[7]
15. The consequences of the Sex Offenders Act was first considered by Vaai J in Police v Niko Sefo (unreported oral sentence, 14 August 2018) a case similar to the present matter involving a young offender and his underage girlfriend. The Court considered that being registered as a sex offender for 15 years was out of proportion to the gravity of the offending in that case. This decision was upheld by the Court of Appeal that automatic entry of an offender’s name on the sex offender’s register would be severely disproportionate to the offending.^[8]
16. A sentence of discharge without conviction to be imposed does not mean that the court is giving the green light (so to speak) or in a way sending out the message to young men or boys that they can have sexual relationships with young or underage girls and not be penalized or have their offending not recorded. That is not the intention of the Court or the message to be sent out by the Court in view of this decision. Each offender is to be sentenced or dealt with according to the special circumstances of each case.
17. I accept that both the accused and the victim are immature young people and both were likely to have been impulsive and not thinking of the consequences of such actions, especially on the accused part. The sexual encounters, in my view, could be planned or opportunistic. Both the summary of facts and PSR say that the accused and the victim would plan to meet up the next day and that they would spend the day together to which they eventually ended up having sex. Secondly, the minimal age disparity distinguishes the accused from that of other defendants, most of whom are sentenced to terms of imprisonment and often lengthy terms at that.
18. It is for all of those reasons that I find this criminal behaviour to also fall at the lowest end of the scale. It is behaviour, in my view, more reflective of immaturity and perhaps ignorance than reflective of true criminal conduct.
19. I also take into account the following in consideration of the application for discharge without conviction:
    • (i) The accused was 17 years old at the time;
    • (ii) Early guilty pleas;
    • (iii) The victim consented albeit unlawful;
    • (iv) Culpability of the accused was very low;
    • (v) Gravity of the offending was very low;
    • (vi) The accused was a first offender;
    • (vii) The accused assisted and co-operated with the Police in their investigation.
20. For all of those reasons and the particular circumstances of this offending, I agree that a conviction would result in the automatic entering of the accused name on the sex offenders’ register which would be disproportionate to the gravity of his offending.
21. The accused is discharged without conviction.
22. I invite the Attorney General’s office to review the Sex Offenders Act 2017 and address the issue(s) in regards to young offenders in light of the circumstances of this case and that in AG v Sefo.
    

JUSTICE TUATAGALOA

---

^[1] Crimes Act 2013, section 59(1)
^[2] Crimes Act 2013, section 59(3)
^[3] Sentencing Act 2015, section 69
^[4] Sentencing Act 2015, section 70
^[5] Crimes Act 2013, sections 58 (sexual conduct with child under 12); section 59 (sexual conduct with girl under 16);
^[6] Attorney General v Ropati [2019] WSCA 2 (15 April 2019)
^[7] Sentencing Submissions for the Accused, paragraph [15] lines 4-5
^[8] AG v Sefo [2018] WSCA 18