Police v LP [2022] WSSC 55 (27 October 2022)

IN THE SUPREME COURT OF SAMOA
Police v LP [2022] WSSC 55 (27 October 2022)

Case name:	Police v LP
Citation:	[2022] WSSC 55
Decision date:	27 October 2022
Parties:	POLICE (Prosecution) v LP (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	- Accordingly, you are convicted and sentenced as follows: charge G, 4½ years imprisonment less time remanded in custody; charges (c) and (e), 2 ½ years imprisonment on each charge, concurrent; and all remaining charge, 15 months imprisonment on each charge, to be served concurrently with other charges. - Accordingly, 4 ½ years imprisonment, less time remanded in custody. - Interim suppression orders were issued on the 14th October 2022 suppressing the publication of the name and details of the victim and Defendant. I hereby issue permanent suppression orders suppressing the name, village, school and any other details that may identify the victim from publication in any media or publicly accessible database. I also issue prohibition orders prohibiting the publication of the name and village of the Defendant in any media or publicly accessible database.
Representation:	V. Faasi’i for Prosecution C. Vaai & L. Stevenson for the Defendant
Catchwords:	Sexual connection with a child – occurred multiple times – vulnerability of victim – breach of trust – pre-meditation – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 58(1).
Cases cited:	Attorney General v Lua [2016] WSCA 1 (19 February 2016); Police v A [2022] WSSC 29 (8 June 2022); Police v Mataafa [2017] WSSC 166 (12 December 2017); Police v P.H [2019] WSSC 83 (20 September 2019).
Summary of decision:

THERE IS A SUPPRESSION ORDER SUPPRESSING AND PROHIBITING THE PUBLICATION OF THE NAME OF THE VICTIM AND DEFENDANT AS SET OUT IN PARAGRAPH [25].

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

LP
Defendant

Counsels: V. Faasii for Prosecution
C. Vaai and L. Stevenson for the Defendant

Sentence: 27th October 2022

SENTENCE

1. LP, you appear for sentence on 7 charges of sexual connection with a child contrary to section 58(1) of the Crimes Act 2013. The maximum penalty for each charge is up to life imprisonment.
2. You entered an early guilty plea to the charges.

The Offending

3. According to the Summary of Facts accepted by you through counsel, you first sexually assaulted the victim sometime in November 2021. Between midnight and 5am, the victim had been sleeping with you and three cousins in the family living room. When the victim was awake, you kissed her lips and fondled her vagina.
4. The next sexual assault occurred in December 2021, again between 12am and 5am in the family living room while she was sleeping there with her cousins. The victim was awake, you kissed her kips, fondled her breasts and inserted your hands inside her pants and panty and fondled her vagina.
5. The third incident occurred in March 2022 between 12am and 5am while you were sleeping with the victim and her cousins in the family living room. The victim was awake and you were both talking. You started kissing her lips, removed her shorts and panty and licked her vagina.
6. In April 2022 between 12am and 5am, you were again sleeping with the victim and her cousins in the living room and committed the fourth sexual assault of the victim. You were talking with her. You kissed her lips and fondled her breasts. You then removed her panty and fondled her vagina.
7. In April 2022 between 12am and 5am, you again sexually assaulted the victim for a fifth time while you were sleeping with the victim and her cousins in the family living room. You inserted your hands into the victim’s t-shirt and fondled her breasts. You then removed her shorts and panty and licked her vagina.
8. On the sixth occasion again in April 2022 between 12am and 5am, you again sexually assaulted the victim in the living room as you slept there together with her cousins. On this occasion, you kissed the victim, fondled her breasts under her t-shirt and then inserted your hand inside her shorts and panty and fondled her vagina.
9. The final incident also occurred in April 2022 in the same circumstances in the family living room as you slept there with the victim and her cousins. You were kissing the victim, fondled her breasts under the t-shirt and licked her vagina.
10. Your offending came to light when messages between you and the victim were discovered. The victim was then confronted by her mother and the victim admitted to having been in a “relationship” with you.

The Defendant

11. You are a 23 year old woman. You are single and unemployed. You completed school to year 12. You were formerly employed at a bar in 2017. You have positive character references from your Parish Minister who speaks of your good-standing with the Church. Although the Pre-Sentence Report refers to you having a prior conviction for assault occasioning actual bodily harm, the accepted Summary of Facts prepared by prosecution states you have no prior convictions. I sentence you on the basis of the Summary of Facts and that you are a first offender.
12. According to your Pre-Sentence Report, you came to be staying at [village] as you were invited to stay there with a team colleague to occupy the house whenever family members were travelling and to also look after the children, including the victim. In the PSR, you refer to “dating” the victim and you claim that your sexual contact with the victim was initiated by the victim.

The Victim

13. The victim is now 12 years old. At the time of your offending, she was 11 years old. According to a VIR submitted to the Court through the Office of the Attorney General, your offending has had a significant impact on the victim with confusion over her own sexuality, the nature of her relationship with you, loss of self-confidence and her relationship with family members. As a child, this is not surprising in the least.

Aggravating features:

14. The aggravating features of the offending are as follows:
    • Vulnerability of the victim given her young age and the age disparity between you and her;
    • The serious breach of trust committed by you. You were welcomed into the home of the victim’s family members and allowed to sleep amongst children;
    • Your offending was premeditated and planned; and
    • The scale of your offending involving multiple sexual assaults over approximately a 6 month period with serious impacts on the victim.
15. There are no aggravating features personal to you as an offender. According to the Summary of Facts, you are a first offender.

The mitigating features

16. There are no mitigating features to your offending. I accept however as mitigating to you personally:
    • your prior good character;
    • your remorse expressed through counsel; and
    • your early guilty pleas.

Discussion

17. The Summary of Facts refers to the victim stating that she was in a relationship with you. This is also reflected in the VIR furnished to the Court. In your PSR, you also refer to starting to “date” the victim. The characterization of what occurred between you and the victim as a “relationship” or dating to suggest there was something normal about what you did is entirely wrong. The victim was 11 years of age. There was no “dating” or a courting “relationship” but a relationship of sexual abuse where you took advantage of a child over a number of months. The victim could not possibly understand what was occurring or the ramifications of her actions. It was destructive sexual abuse. In doing so, you breached the immense trust vested in you by the victim’s family when they allowed you to stay with them, and to do so sleeping in close proximity to their children - a parent and family’s greatest treasure.
18. In Attorney General v Lua [2016] WSCA 1 (19 February 2016), the Court of Appeal established sentencing guidelines for sentencing in relation to the crime of unlawful sexual connection with a child under 12. The Court of Appeal established three sentencing bands, which I am bound to apply when sentencing you. The Court of Appeal relevantly also noted that the bands “apply when unlawful sexual connection is the lead offence (and there is no penetrative act as earlier defined)...” In terms of Band 1 and 2 of the Sentencing Guidelines, the Court of Appeal observed at paragraphs 24 and 25:
    • “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.
    • Band two: 5 – 12 years
    • Where the offending is of moderate seriousness and involves two or three aggravating features.
    • ...
    • ...That Band one has a range from 2 to 6 years reflects the diversity of sexual connection offending. The least culpable offending will comprise a single skin on skin touching of the genitalia or anus which is of limited duration.”
19. In considering the appropriate sentencing start point, I have also taken into account the sentencing authorities referred to by prosecution as well as Police v A [2022] WSSC 29 (8 June 2022) where a 6 year sentence start point was adopted on the charge of sexual connection with a child under 12; Police v P.H [2019] WSSC 83 (20 September 2019) where a 4 year start point was adopted; and Police v Mataafa [2017] WSSC 166 (12 December 2017) involving 2 victims and a start point of 8 years adopted.
20. Your counsel seeks a 3 year sentence start point. No authorities are cited in support of that submission. Prosecution seeks a sentencing start point of 5 years imprisonment and submits that your offending falls within the lowest band established by the Court of Appeal in Attorney General v Lua.
21. With respect to both counsel, I do not agree. This is not a Band 1 case. Your offending is not at the lower end of the spectrum of this type of offending. Not only was there multiple acts involving the fondling of the victim’s breasts and genitalia, there were also three acts of oral sex where you licked the victim’s vagina. You committed these sexual acts on her over a lengthy period of approximately 6 months and in doing so, also betrayed the generosity, kindness and significant trust of the victim’s family who took you in to their home. Your offending in my view falls within band 2 involving offending of moderate seriousness. I view a 7 year sentence start point as appropriate.
22. I adopt charge G on Charging Document dated 9 September 2022 as the lead charge on a totality basis. From a 7 year sentence start point, I deduct 6 months for your prior good character and 6 months for your remorse expressed through counsel. From the balance, I deduct 18 months for your early guilty plea leaving an end sentence of 4½ years imprisonment.

The penalty

23. Accordingly, you are convicted and sentenced as follows:
    • (i) charge G, 4½ years imprisonment less time remanded in custody;
    • (ii) charges (c) and (e), 2 ½ years imprisonment on each charge, concurrent; and
    • (iii) all remaining charge, 15 months imprisonment on each charge, to be served concurrently with other charges.
24. Accordingly, 4½ years imprisonment less time remanded in custody.
25. Interim suppression orders were issued on the 14th October 2022 suppressing the publication of the name and details of the victim and Defendant. I hereby issue permanent suppression orders suppressing the name, village, school and any other details that may identify the victim from publication in any media or publicly accessible database. I also issue prohibition orders prohibiting the publication of the name and village of the Defendant in any media or publicly accessible database.
    

JUSTICE CLARKE