Police v A.I [2023] WSSC 93 (18 December 2023)

IN THE SUPREME COURT OF SAMOA
Police v A.I [2023] WSSC 93 (18 December 2023)

Case name:	Police v A.I.
Citation:	[2023] WSSC 93
Decision date:	18 December 2023
Parties:	POLICE (Informant) v A.I (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	I adopt the same approach in your case and make these orders: (i) you will complete 60 hours of community work under the direction of the Probation Service or any community justice supervisor that they may appoint; (ii) you will continue to reside with your uncle FSL; (iii) you will go back to school in 2024; (iv) you will also attend counselling with Father IP of the Catholic Church of (y-village); (v) you will attend Sunday School or Youth Group of the religious denomination you attend at (y-village); (vi) you will appear in court on the 28th March 2024 at 12.30pm for judicial monitoring and a report from Probation. This Court is giving you an opportunity to be a better young person. I suggest you use it wisely and comply with the conditions I have imposed. Your end sentence will be dependent on it. I will see you back on the 28th March 2024 at 12.30pm.
Representation:	T. Fesili for Prosecution L. Su’a-Mailo for the Defendant
Catchwords:	Young offender – sexual connection with a child – familial connection (defendant and victim).
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 58(1).
Cases cited:	Police v TF (Unreported, 13 May 2022).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

A.I

Defendant

Counsel: T. Fesili for Prosecution
L. Su’a - Mailo for Defendant

Sentence: 18 December 2023

SENTENCE

Charge

1. You are a 15 year old male of (x-village) and (y-village) appearing this afternoon for sentence on one charge of sexual connection with a child under s58(1) Crimes Act 2013. The maximum penalty is life imprisonment. You had denied the charge but on the 25th October 2023 when trial was to commence, you vacated your denial substituted by a guilty plea to the charge.

Offending

2. Between late October and early November 2022, you travelled from Savaii with your grandfather and lived at (x-village) with your aunt. You were 14 years of age at the time. The victim who was 6 years of age and a cousin of yours was also visiting her father’s side of the family at (x-village) to spend time with her grandparents. During that time, the offending occurred.
3. The victim was lying in her aunt’s room one afternoon when you entered and sat on the bed beside her. You left and came back a second time. You told the victim that she needed to go and play outside with the other children. You again left the room. On the third occasion when you entered and found the victim still in the room, you approached her and removed her shorts, then placed your mouth on her vagina and licked it. You then exited the room.
4. At the end of January this year when the victim was back with her parents at (z-village), her mother saw her scratching her private part. She questioned the victim if anything had happened to her, she told her what you did to her. The incident was reported to police and led to the charges against you. You admitted to Probation removing the victim’s shorts while she was asleep. But you do not say what you did except that when the victim woke up and asked what you were doing before you quietly left the room.

The Victim

5. The victim is 7 years of age but 6 at the time of the offending. She is your cousin. In the victim impact report, her mother explains the changes she had noticed in her behaviour. Since the incident, she has been more careful in having people look after her or around her. She confirms that your uncle had come to apologise. She seeks that the court sentences you for your offending.

Aggravating Factors

6. I consider these aggravating factors:
   • (i) Vulnerability of the victim given her young age;
   • (ii) the age disparity of 8 years;
   • (iii) there was an element of premeditation - you entered the bedroom three times before you committed the offending;
   • (iv) the familial relationship between you and the victim and consequent breach of trust;
   • (v) the impact of your offending on the victim physically, mentally and psychologically.

Mitigating Factors

7. I consider the following:
   • (i) Your plea of guilty to the charge though entered late in the morning of the hearing;
   • (ii) the apology and reconciliation;
   • (iii) your young age;
   • (iv) the age disparity between you and the victim is lower compared to the majority of cases that have come before the court;
   • (v) your personal circumstances. You are 15 years of age and the youngest of your natural parents’ 3 children. Your parents separated at your young age and you have since been raised by your uncle. There is a letter before me by the Principal of XY-College confirming that you attend XY-College and the subjects you have been taking this year. I have also read the testimonials by your uncle FSL, the pulenuu ML, and Bishop AL. They all speak highly of your character.

Discussion

8. Make no mistake A.I, this is a serious charge which attracts a life imprisonment term as penalty. But I am guided in sentencing by the Young Offender Act 2007 because you were a young person at the time of the offending, you are a young person now. The emphasis for sentencing young offenders under the Act and from previous sentencing decisions of the court is on rehabilitation and their reintegration into the community. Imprisonment is imposed only as last resort.
9. I have considered the sentencing authorities cited by prosecution and your counsel who both recommend a non-custodial sentence. I accept their recommendation as to the appropriate sentence. But I intend to impose conditions in accordance with the sentencing provisions of the Act and subsequently sentence you depending on your compliance with the said conditions. The same approach was adopted by this Court in the unreported case of Police v TF (13 May 2022) which prosecution and your counsel referred to. I adopt the same approach in your case and make these orders:
   • (i) you will complete 60 hours of community work under the direction of the Probation Service or any community justice supervisor that they may appoint;
   • (ii) you will continue to reside with your uncle FSL;
   • (iii) you will go back to school in 2024;
   • (iv) you will also attend counselling with Father IP of the Catholic Church of (y-village);
   • (v) you will attend Sunday School or Youth Group of the religious denomination you attend at (y-village);
   • (vi) you will appear in court on the 28^th March 2024 at 12.30pm for judicial monitoring and a report from Probation.
10. This Court is giving you an opportunity to be a better young person. I suggest you use it wisely and comply with the conditions I have imposed. Your end sentence will be dependent on it. I will see you back on the 28^th March 2024 at 12.30pm.

JUSTICE ROMA