Police v MFI [2021] WSSC 70 (1 November 2021)

IN THE SUPREME COURT OF SAMOA
Police v MFI [2021] WSSC 70 (01 November 2021)

Case name:	Police v MFI
Citation:	[2021] WSSC 70
Decision date:	01 November 2021
Parties:	POLICE v MFI
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Keli Tuatagaloa
On appeal from:
Order:	The young offender is discharged without conviction.
Representation:	F. Ioane for Prosecution M. So’onalole for the Defendant
Catchwords:	Young offender – indecent assault – familial connection between defendant and victim – reconciliation – apology carried out – unlawful sexual connection – intervention plan – Teen Challenge Programme – discharge without conviction
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 58(1); 50(a)(1); 58(3); Sentencing Act 2016, ss. 5; 6; 11; 11(1); 69; 70.
Cases cited:	Attorney General v Lua [2016] WSCA 1; Attorney General v Sefo [2018] WSCA 16; Churchward v R [2011] NZCA 511; Key v Police [2013] WSCA 3; Police v Efaraima, 4 November 2016 (unreported); Police v Lua {2016] WSCA 1
Summary of decision:

NOTE: THERE IS A SUPPRESSION ORDER PERMANENTLY SUPPRESSING OR PROHIBITING THE PUBLICATION OF THE NAME OF THE VICTIM AND ANY DETAILS THAT MAY IDENTIFY HER

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

MFI

Defendant

Counsel: F. Ioane for Prosecution
M So’onalole for the Defendant

Sentence: 01 November 2021

SENTENCING OF TUATAGALOA J

The charges

1. Today, the Court sentenced a young offender for the very serious offence of one count of sexual offending pursuant to section 58(1) and section 50(a)(1) of Crimes Act 2013 which penalty is life imprisonment; and one count of indecent assault pursuant to section 58(3) which penalty is maximum 14 years’ imprisonment.
2. This young offender is being sentenced after having undergone monitoring for more than two years according to an Intervention/Safety Plan. This will greatly have an impact in the sentencing of this young offender.

The offending

3. The summary of facts was read out and confirmed by the young offender as follows:
   • The young offender and the victim are first cousins. They live on the same land or family compound but in different houses at Leone.
   • On 14 June 2019, the victim came out of the bathroom and the young offender was standing outside. The young offender grabbed the victim and took her back into the bathroom.
   • The young offender removed the victim’s panties, bent her over and inserted his penis into the victim’s anus.
   • The victim cried out in pain and the young offender covered her mouth with his hand. Afterwards, the young offender was said to have showered the victim and the victim was crying out loud in pain. Upon hearing her daughter cry, her mother called out for her to come to the house.
   • The victim told her mother what the young offender had done to her.

The young victim

4. The young victim was 5 years old at the time of the offending and is first cousins with the young offender. Their fathers are brothers.
5. The mother of the victim said in the victim impact report (VIR) that her daughter was in a lot of pain and she noticed the victim’s anus was all red. The victim suffered constipation and the doctor told the mother that that could have been a result of the forced penetration of the victim’s anus by the young offender. The mother said that she also noticed a change in her daughter’s behaviour.

The young offender

6. The young offender from the summary of facts was 14 years old at the time and was in Year 10 attending Leififi College. According to the PSR, he is the second eldest of seven children (five boys and two girls). His mother was in tears when interviewed and described the young offender as loving and caring and she relayed her sadness and absolute shock over the incident.
7. From the PSR, the young offender was nurtured in a typical ‘communal’ Samoan environment with the extended family where everyone lives in different houses on the same compound, with everyone sharing most things including bathrooms and showers. As any parent would do, the mother pleads for leniency and a second opportunity to be given to her young son.
8. There has been reconciliation within the family with an apology by both the young offender and his parents to the victim’s parents, the paternal grandmother and to the rest of the family. The young offender was removed by his family from the family compound and is currently living with his maternal grandmother in a different village.
9. There are written testimonials provided by the young offender’s faifeau whom he has been reporting to and who has also worked collaboratively with the probation services in monitoring the young offender. The young offender is reported by his faifeau to have been active in church and church programs. He has positively appraised the young offender.

Submissions by Prosecution and Defence Counsels

10. The prosecution identified the very young age of the victim, the involvement of violence and the need for deterrence and advocate for a custodial sentence with a starting point of nine (9) years according to the sentencing bands in Lua (see [12] below). The prosecution also referred to P v Efaraima sentencing decision of the Court involving a young offender and young victim. The difference between the Efaraima case from the present case is the age of the offender involved where the present offender is much younger.
11. The Counsel for the young offender advocated for a non-custodial sentence highlighting the adverse impact or effect a custodial sentence would have on the young offender.

Discussion

12. There are no sentencing bands or guidelines for unlawful sexual connection where penetration is involved under s. 58 with regards to victims under 12 years of age. The case of Police v Lua provides for sentencing guidelines (bands) for non-penetrative sexual connection against victims under 12 years (s. 58); whereas Key v Police provides sentencing bands for rape for all age groups.
13. 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. This calls for the need for rehabilitation programs to educate the perpetrators of the adverse impacts of such behaviour on young girls, especially so where very young offenders are involved.
14. In passing sentence on a young offender, rehabilitation rather than retribution or deterrence is usually the primary objective. It is desirable to keep young offenders in the community as far as that is practicable. However, the court can impose a sentence of imprisonment if that is necessary to achieve the purposes of sentencing but first we need to look at the circumstances of the offending.
15. Although the offence is of a very serious nature, the Court is mindful of the very young age of the offender; the fact that he is still attending school and that an imprisonment term will not facilitate any rehabilitation to this young offender.
16. The accused is a ‘young offender’ under the Young Offenders Act 2007. Youth justice principles should apply to this young offender. Our Young Offenders Act was no doubt legislated on principles of youth justice as encapsulated in the UN Convention on the Rights of the Child (CRC); therefore, such principles should underlie considerations of any sentence of a young offender.
17. The Court of Appeal in Churchward v R discussed the following considerations that will influence the Court whether to allow a discount for youth:
    • (i) There are neurological differences between young people and adults (often referred to as an undeveloped brain in a young person), which makes a young person more impressionable and impulsive.
    • (ii) It is recognized that longer prison sentences tend to have a greater negative impact on young people.
    • (iii) Young people are generally more able to be rehabilitated and reintegrated into the community.
    • (iv) For young people, offending is often a short-lived thing with offenders growing out of a tendency to offend.
    • (v) Criminal convictions when a person is young may have a disproportionately greater effect on the person’s future prospect.
18. The Sentencing Act provides the Court with flexibility as to sentences to impose. The Court to take into account the defendant’s personal, family, community and background or other means with a partly or wholly rehabilitative purpose where such sentences (amongst others) would promote a sense of responsibility in the defendant and an acknowledgement of the harm done and where it would assist in the defendant’s rehabilitation.
19. A psychological report on the young offender was sought from Dr. Julia Ioane, a consultant psychologist who was working with the Ministry of Justice and the Courts at the time. Dr. Ioane assessed the young offender as follows:
    • “It is (our) opinion that the (young offender) is at medium risk of sexual offending and requires an appropriate intervention to manage his risk. The risk is based on the possibility of having sexual arousal to prepubescent children, an attitude (Dr. Ioane) says is supportive of his sexual offending, the absence of a safety plan and current access to younger female peers in the home environment. However, this risk can be mitigated with appropriate supervision, participation in a relevant intervention programme and maintenance of his prosocial activities”.

Special Intervention: (The Safety/Intervention Plan)

20. On 18 March 2020 the young offender was referred to counselling and other programs provided by the Teen Challenge for rehabilitation in accordance to a Safety or Intervention Plan devised by the probation services and consultant psychologist Dr. Julia Ioane. The young offender has been judicially monitored via the probation services for the last two years with progress reports provided every three months from the Teen Challenge Program, reports from school, from his family and from his faifeau. It is proposed that a holistic approach is undertaken to support and monitor the young offender’s progress.
21. The proposed outcomes of the Intervention Plan are:
    • (a) To prevent any further risk of sexual recidivism;
    • (b) To maintain active involvement in education;
    • (c) To participate on a regular basis in mentoring;
    • (d) To participate in sports activities with school or village community;
    • (e) To participate in village duties;
    • (f) To attend and engage in church activities and events;
    • (g) To maintain all aspects of the Safety plan in all areas.

Monitoring/Progress Reports

22. In the last two years a collaborative and partnership approach has been undertaken by appropriate agencies and networks involved in the care of the young offender. The young offender was removed to live with his maternal grandmother in a different village away from the young victim and other young girls within the father’s family compound; the Teen Challenge Program provided counselling, mentoring and psycho-educational support while the young offender’s faifeau provide spiritual counselling and guidance to the young offender. The young offender was throughout monitored by all these key players and also by the Court via the probation services.
23. There is nothing in the reports in the last two plus years to put the Court on notice that the Safety/Intervention Plan put in place is not working (or has not worked) for the young offender. Various Progress Reports were provided (quarterly) in the last two (2) years by all those involved and the young offender has been continuously monitored. These Reports speak of good changes in the young offender and the noticeable maturity in him – “ ua i ai le initiative e faasoa saoloto mai ai ma ua iloa foi faatagata matua i lana faasoa ma ua iloa ai foi le matua o lona olaga”(Leatuolo Mabel-Toilolo, Program Manager of Teen Challenge, 10 September 2021).
24. The Teen Challenge has also been working collaboratively with the young offender’s school who reported that the young offender is no longer late to school (unlike before), has good attendance and although struggling academically he is still making progress and will be sitting the School Certificate exams. This is an opportunity that the young offender would have missed if he had been sentenced to an imprisonment term. His maternal grandmother and mother also reported a good change in him of maturity and being responsible.

Discharge without conviction

25. In light of all that has been said and what the young offender has done in the last two years, I now come to consider whether a discharge without conviction should be given to this young offender. Counsel in later submissions seeks for a discharge without conviction on the basis that the young offender has been under monitoring for more than two years and having reviewed the progress reports that clearly shows the young offender excelling in the different phases of the Intervention Plan done specifically for the young offender.
26. Section 11 of the Sentencing Act 2016 provides for the Court to consider in every case the possibility of a discharge . Section 11(1) recognizes a situation where a discharge without conviction is the more appropriate way of dealing with a defendant than “entering a conviction and imposing a sentence” .
    • 11. Discharge or order to come up for sentence if called on (1) If a defendant is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the defendant would be more appropriately dealt with by:
    • (a) Discharging the defendant without conviction under section 69; or ...
27. Sections 69 and 70 of the Sentencing Act 2016 provide:
    • 69. Discharge without conviction -(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the defendant without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
    • (2) A discharge under this section is taken to be an acquittal.
    • (3) A court discharging a defendant under this section may:
    • (a) make an order for payment of costs or the restitution of any property; or
    • (b) make an order for the payment of any sum that the court thinks fair and reasonable to compensate person who, through, or by means of, the offence, has suffered -
    • (i) loss of, or damage to, property; or
    • (ii) physical harm; or
    • (iii) loss or damage consequential on any physical harm or loss of, or damage to, property; or
    • (c) make an order that the court is required to make on conviction.
    • (4) If the court is considering making an order under subsection (3)(b), it may order a reparation report to be prepared under section 25 as if the court were considering imposing a sentence of reparation.
    • (5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any physical harm, or loss or damage consequential on physical harm, unless the person who suffered the physical harm is a person described in paragraph (a) of the definition of “victim” in section 2.
    • 70. Guidance for discharge without conviction - The court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.
28. A Judge must exercise his or her statutory discretion to discharge without conviction by balancing the direct or indirect consequences of a conviction to a defendant against the gravity of the offending. It is a judicial assessment of proportionality which in its nature is inherently fact specific.
29. The starting point is the gravity of the offence. Parliament has recognized the offence of unlawful sexual intercourse with a young girl (12 or 16 years and under) as serious by providing a maximum penalty of life imprisonment following conviction. The law provides strict liability for unlawful sexual intercourse where consent is not a defence. The purpose is to protect young girls from predatory conduct by older males.
30. The facts of this offending shows no premeditation on the part of the young offender but an opportunistic offending. The young offender said in his Pre-Sentence Report (PSR) that he walked past the shower and saw the young victim and he felt aroused and wanted to have sex with the young victim, which he did by inserting his penis in her anus. He said that as soon as this happened the young victim screamed and ran off. The summary of facts by the prosecution says otherwise that the young offender covered the young victim’s mouth with his hand. The behaviour of the young offender in acting out his feelings without having regard to the consequences shows immaturity and very young age of this offender. On the scale of gravity his culpability level is medium to high.
31. The ultimate question is whether the consequences of a conviction will be out of proportion to the offending that was considered to be at medium on the scale of gravity but with intervention (prior to sentencing) the young offender is now (in my view) of low risk to the community.
32. Dr. Julia Ioane (psychologist) assessed him to be of medium risk to the community and that such risk(s) could be addressed. I believe that the risks have been addressed and can safely be said that this young offender does not warrant a degree of attention, and society does not require this level of protection from him.
33. Reconciliation has been effected between the families The young offender was removed from the family environment where he was living on the same compound as the young victim to live with his maternal grandmother to date in a different village; he is truly remorseful and through intervention is fully aware of the consequences and the impact of his offending on the victim and their family (young offender and young victim are first cousins). He is a first offender at a very young age who has pleaded guilty is a sign of acceptance of his wrong behaviour and taking responsibility for his actions.
34. The young offender has made encouraging improvements and from the progress reports does not harbor any pressing risks regarding sexual offending behaviour. The reports say that it is highly unlikely he will reoffend. A criminal conviction will also mean automatic entry on the register of sexual offenders’ registry. This in my view will be disproportionate and will derail the purposes and principles relating to rehabilitation of young offenders.

On the sexual offenders’ registry, their Honours in Attorney General v Sefo

“...we appreciate that Parliament has expressly listed the offence of sexual intercourse with a young woman under the age of 16 years as a qualifying offence for entry on the sex offenders register. The statutory purpose is to require certain sexual offenders to keep the police informed of their whereabouts in order to reduce the likelihood of reoffending and “to facilitate investigation and prosecution” of any future offences which they commit. The overriding purpose is one of protection against sexual offenders who are a real risk to the community”.

35. The consequences of a conviction to this particular offender given his age and circumstances or factors already discussed would (in my view) have a disproportionate impact on the ability of the young offender to gain meaningful employment and may also sabotage future ability for overseas studies. I am satisfied that in the circumstances of this particular case and the intervention that has been ongoing in the last two years a discharge without conviction is warranted.
36. It has been shown what an opportunity or second chance could do to a young person’s life. This young person has stayed in school this whole time and has made it to Year 11 to sit the School Certificate exams.
37. I am satisfied that the young offender is no doubt remorseful of his behaviour and that he has learnt a big lesson that will deter him from again re-offending in the future with any kind of offence. It is imperative the accused be given the opportunity to continue with his educational studies so he can fulfil his potential.

Conclusion

38. The young offender is discharged without conviction.
    

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 victim.