Police v TAC [2024] WSSC 19 (26 April 2024)

IN THE SUPREME COURT OF SAMOA
Police v TAC [2024] WSSC 19 (26 April 2024)

Case name:	Police v TAC
Citation:	[2024] WSSC 19
Decision date:	26 April 2024
Parties:	POLICE (Informant) v TAC (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court, CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The application for a discharge without conviction is granted. The young offender is discharged without conviction.
Representation:	T. Fesili for Prosecution M. Lemisio for the Defendant
Catchwords:	Young offender – sexual connection with a young person – assault – discharge without conviction – principles of youth justice -
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 59(1); 59(3); 58; 50(b); 52(2); Sentencing Act 2016, ss. 69; 70;
Cases cited:	Attorney General v Stanley & Anor [2022] WSSC 34; Attorney General v Ropati [2019] WSCA 2; Police v Niko Sefo (unreported, 14 August 2018); Police v Totini Simanu [2007] WSSC 4; Police v Viliamu [2019] WSSC 86; R v AEM Snr and Ors [2002] NSCCA 58; Z v R [2012] NZCA 599; [2013] NZAR 142.
Summary of decision:

NOTE: THERE IS AN ORDER SUPRESSING OR PROHIBITING THE PUBLICATION OF THE NAMES OF THE VICTIMS AND THE DEFENDANT

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TAC

Defendant

Counsel: T. Fesili for Prosecution
M. Lemisio for the Defendant

Date: 26 April 2024

SENTENCE OF TUATAGALOA J

The charge

1. The defendant appears for sentence on the following charges:
   • (i) One (1) count of sexual connection with a young person under 16 years pursuant to section 59(1) of the Crimes Act 2013 which carries a maximum penalty of 10 years’ imprisonment, and
   • (ii) Two (2) counts of indecent assault pursuant to section 59(3) of the Crimes Act 2013, which carries a maximum penalty of 7 years’ imprisonment.
2. Counsel for the young offender on the day of sentence informed the Court that they will be seeking for a discharge without conviction and sought an adjournment to file and serve their application.

The offending

3. According to the summary of facts the young victim was in Samoa on vacation with her family visiting relatives in December 2023 to return to New Zealand on 26^th January 2024. On 23^rd January the victim was dropped off with her younger brother by her parents at (**village) to spend some time with their cousins. On this particular night, the victim was sleeping with her younger brother and cousins in the open living room. The summary of facts has it that the defendant at the time had gone out with the victim’s male cousin named Iosua. At around 1am, the defendant went with Iosua to Iosua’s home whereby Iosua went and slept on the balcony while the defendant walked to where the victim was sleeping and lay near her to sleep. The defendant thereafter was said to have penetrated the victim’s genitalia with his finger which woke the victim and she removed his hand and went back to sleep. This did not stop the defendant and he proceeded to kiss the victim and sucked her neck. The victim kissed the defendant back. This led to sexual intercourse between the defendant and victim.

The defendant

4. The defendant is a young offender who at the time of the offending was 18 years old^[1] and was in Year 13 at (**College). He has since the offending stopped attending school for fear of being ridiculed and not being able to focus on his studies pending the outcome of sentence to be imposed. He is described by his father in the PSR (pre-sentence report) as a, “reliable member of their family.” The father has high hopes for his son emphasising his education and that he hopes for his son when he completes his education to serve a mission for their LDS church, which is also a criteria to enter the Brigham Young University for further studies. The father pleads for a second chance for his son. Additional character testimony is provided by the young offender’s Church Minister, who refers to the young offender as a committed member of his church and exhibits good personal character that sets him apart from other members. The, Bishop also seeks leniency from the Court for the young offender to be given a second chance.
5. What the young offender said in his PSR of the offending is in contrary with the summary of facts provided by the prosecution. He said that it was the young victim who initiated the sexual intercourse when she lay next to him and started kissing him.

The victim

6. There is very little information provided of the victim. According to the summary of facts the victim was 15 years old at the time of the offending. She was in Samoa from New Zealand on vacation with her family and has since returned. The victim’s mother is hurt and angry with what had happened but has decided as a way forward for her daughter (victim) to focus on her studies. She asked the court to impose a just and right sentence so as to prevent the defendant from doing this to another young victim.

Submission for Discharge without conviction

7. Counsel for the young offender seeks for a discharge without conviction submitting that a conviction would have a disproportionate impact on the young offender with future studies and meaningful employment. He identified the following in favour of the young offender:
   • (i) Gravity of the offending falls on the lower end of the scale as there was no violence;
   • (ii) Young age (18 years);
   • (iii) He has left school to await the outcome of this matter but still dreams of continuing with his education;
   • (iv) Having a record as a sexual offender will greatly impact on future prospects to do well in life;
   • (v) First offender;
   • (vi) Early guilty plea; and
   • (vii) Truly remorseful.
8. Counsel for the young offender referred to the case of Police v Viliamu [2019] WSSC 86 (25 October 2019). A case of very similar circumstances where the Court granted a discharge without conviction.

The Prosecution

9. The Prosecution initially before counsel for the young offender filed its application for discharge without conviction sought for a custodial sentence with a starting point of 12 months’ imprisonment. The Prosecution has since changed their position and concedes to a discharge without conviction after having assessed the circumstances of the offending or the gravity of the offending for the following reasons:
   • (i) The gravity of the offending falls on the lower end of the scale – the offending was consensual and it did not involve force or coercion;
   • (ii) Although, there are no evidence adduced to prove any direct or indirect consequences of a conviction on the young offender, a conviction will no doubt ‘have a profound and multifaceted impact on the future of a nineteen (19) year old, affecting his educational opportunities and future career prospects.
   • (iii) Therefore, the consequences of a conviction will be out of all proportion to the gravity of the offending.

Sexual Offending under section 59

10. The offending by definition falls under section 50(b) of the Crimes Act 2013 as “connection between the mouth or tongue or any part of the body of any person and any part of the genitalia or anus of any other person.” Section 59 is the offence provision with sexual conduct with young person under 16. Unlawful sexual connection generally is punishable by up to 14 years’ imprisonment under s. 52(2) whereas s. 59(1) is maximum 10 years’ imprisonment.
11. Offences under section 58 and section 59 are unlawful sexual offences. The law makes it unlawful simply for the age of the victims are below 12 years (s58) or below 16 years (s59). The victim’s consent to these offences is not a requirement. That is, a defendant cannot come to the court and say that the young victim consented or that she initiated sexual activity that took place. The purpose of these provisions as reiterated by the Court is not only to protect young girls from being taken advantage of by mature and older males but also to protect young girls from themselves because of their lack of maturity and necessary judgment to give or make fully informed consent to sex and its potential consequences.
12. The seriousness or the gravity of this offence is reflective of the penalty imposed under the law. The Prosecution refers to Z v R^[2] which held that the expression ‘gravity of the offending’ “means the gravity of the offence committed, not the gravity of the offending compared with other cases involving the same offence. The assessment of the gravity of the offence should take into account the aggravating and mitigating factors relating to the offending...”
13. Penetrating the young victim’s genitalia with a finger is defined as sexual connection pursuant to section 50(b) of the Crimes Act 2013. The two counts of indecent assault are the defendant kissing the victim on the lips and sucking her neck originating from the single event that resulted in the sexual intercourse that took place.
14. I turn now to consider the law in relation to the offending, the law in relation to discharge without conviction, the Sentencing Act 2016 and the principles of youth justice under the UN Convention on the Rights of the Child Charter to which Samoa is a signatory.

Jurisdiction to Discharge without Conviction

15. I reiterated what is said by Justice Vaai in AG v Khamtahn Stanley & Lomalasi Laufili^[3] as to the law at paragraphs [18] - [20]:
    • “[18] Section 69 of the Sentencing Act 2016 confers jurisdiction on a Court to discharge an offender without conviction. Section 70 provides guidance. The Court must be 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 before discharging a defendant without conviction.
    • “[19] The Court of Appeal in Attorney General v Ropati ^[4]discussed the correct approach to section 69 and 70. A four step approach is provided:
      1. Assess the gravity of the offence, a task which includes consideration of all the aggravating and mitigating factors relating to the offender and the offender;
      2. Identify the direct and indirect consequences of conviction for the offender;
      100. Consider whether those consequences are out of all proportion to the gravity of the offence;
      4. If the Court determined they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge.
    • “[20] The Court’s discretion to discharge without conviction under section 69 exists only if the Court is satisfied that the section 70 threshold has been met. Section 70 provides a gateway through which any discharge without conviction must pass.
16. The threshold test in section 70 is not a matter of discretion, but rather a matter of fact requiring judicial assessment.

Aggravating factors

17. I accept the following to be the aggravating features of the offending
    • Vulnerability of the victim – victim was only 15 years old at the time;
    • Age disparity of 3 years between 18 years and 15 years old; and
    • Familial connection between the young offender and victim.

Mitigating factors

18. I accept the following to be the mitigating factors of the offending and those personal to the offender are:
    • The young age of the offender at 18 years old at the time of the offending;
    • First offender;
    • Early guilty plea;
    • The victim consented albeit unlawful;
    • Truly remorseful;
    • No violence involved.
    • Gravity of the offending falls to the low end of the scale;
    • Culpability of the young offender was low.

Principles of Youth Justice

19. The defendant although not a ‘young offender’ under the Young Offenders Act 2007 is under the UN Conventions on the Rights of the Child a young offender at 18 years of age. Therefore, 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 CRC; therefore, such principles should underlie considerations of any sentence of a young offender. Such principles are encapsulated in the New Zealand Court of Appeal in Churchward v R which 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.
20. The Sentencing Act 2016 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.

Discussion

21. Where the defendant is a young offender, greater emphasis should be given to the possibility of rehabilitation and less to deterrence depends on the age of the young person, the circumstances of the offence and particularly if the defendant is a first offender. However, there comes a point at which the seriousness of the offending by a young offender, where violence is so great that punishment and deterrence will take precedence over rehabilitation normally given emphasis to young offenders. (my underline)
    • "It is well accepted that in the case of youth, general "deterrence and public denunciation usually play a "subordinate role to the need to have regard to "individual treatment aimed at rehabilitation." However, important is that principle, it cannot "defeat the primary purpose of punishment nor in "circumstances where young offenders conduct "themselves in a way which an adult does, can it "stand in the way of the need to protect society. (R v AEM Snr and Ors [2002] NSCCA 58 at [97]-[98])
22. The approach when passing sentence on young first offenders has long been established and explained in Police v Totini Simanu [2007] WSSC 4 where this Court said:
    • "In passing sentence on a young first offender, the age of the offender is "a most significant mitigating feature. Rehabilitation rather than "retribution or deterrence is usually the primary objective. The reason "for this is the concern of the Courts that a custodial sentence is likely to "expose a young first offender to corrupting influences and therefore the "risk that such an offender will be worse off at the time he comes out "compared to what he was when he went in, and that may cause him to "embark on a path of crime. In consequence, a non-custodial sentence "such as a term of probation is usually imposed in the case of a "young first offender. However, there are cases where the gravity of the "offence is so great that the only appropriate sentence in the "circumstances is one of imprisonment, notwithstanding the youth of the "offender and his previous good character."
23. I adopt and follow the above reasoning and approach with this young offender.
24. The age of the young offender (apart from other factors) is a crucial factor in the consideration of a custodial or non-custodial sentence and whether there should be a conviction entered against the young offender albeit a non-custodial sentence is being imposed.
25. Counsel for the young offender rightfully referred to a similar case of Police v Viliamu [2019] WSSC 86 (25 October 2019). A case of very similar circumstances where the Court granted a discharge without conviction. The Court in Viliamu in considering the application to discharge without conviction placed much weight on the Sex Offenders Registry where the name of any person convicted of a sexual offence would be registered as a sex offender and remain so for fifteen (15) years. The circumstances of this offending and the age of the young offender as in Viliamu (supra) and in Police v Niko Sefo (unreported, 14 August 2018) makes a conviction severely disproportionate to the offending.
26. I accept that both the offender and the victim are very young (18 and 15 years) and very much susceptible to their impulses without thinking of the consequences. It is behavior “more reflective of immaturity and perhaps ignorance than reflective of true criminal conduct.”^[5] I find that any violence involved to be at very low level to non-existing. I also take into account the following in consideration of the application for discharge without conviction:
    • (i) The young age of the offender at the time of the offending of 18 years;
    • (ii) Early guilty pleas;
    • (iii) The victim consented albeit it was unlawful;
    • (iv) Gravity of the offending falls on the lower end of the scale;
    • (v) Culpability of the offender was low to medium for he initiated the offending by first digitally penetrating the victim which woke up the victim.
27. In passing sentence^[6] on a, application to discharge without conviction, the Court of Appeal in Attorney General v Sefo^[7] observed that “A Judge must exercise his or her statutory discretion to discharge without conviction by balancing the direct and 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.” I also bear in mind the principles as I have set out.
28. I take into account the mitigating factors both personal to the young offender and to his offending. I place great emphasis that the defendant is a young offender. He was in school but has since no longer attend school attest to the adverse impact this offending has already on this young offender. At the time of the offending the young offender was in Year 12 at Pesega College. His father’s hopes of the young offender serving his church mission which would also provide him with a pathway to study at BYU in Hawaii, the possibility of that happening will no doubt be adversely affected by a conviction. However, “... it is not necessary for the court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real risk and appreciable risk that such consequences would occur.”^[8]
29. Although not raised, I am also very aware and mindful of the Sex Offenders Registration Act 2017 which provides for the registration of convicted sex offenders on the Sex Offender Registry for fifteen (15) years. This was first considered by Vaai J in Police v Niko Sefo (unreported, 14 August 2018) a case also involving a young offender and victim of similar ages. I agree with Vaai J that being registered as a sex offender for fifteen years is out of proportion to the gravity of the offending. This will be a direct and indirect consequence of a conviction against this young offender.
30. Would a conviction be disproportionate? Having given careful consideration to the aggravating features, mitigating features, circumstances of the offending, the consequences of a conviction will be hugely disproportionate to the future of this young offender. An imprisonment term will not facilitate any rehabilitation to this young offender and would greatly impact on future studies and the possibility of a bright and better future.
31. Let this be a lesson or message to young males that having sex with underage girls regardless of consent is unlawful and is an offence under the law.

Conclusion

32. The application for a discharge without conviction is granted.
33. The young offender is discharged without conviction.

JUSTICE TUATAGALOA

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^[1] Under the Young Offenders Act the accused falls outside the definition of a young offender being the age of between 11-17 years. According to the UN definition, a young offender is a person up to 18 years.
^[2] Z v R [2012] NZCA 599; [2013] NZAR 142 at [31]
^[3] Attorney General v Stanley & Anor [2022] WSSC 34.
^[4] Attorney General v Ropati [2019] WSCA 2.
^[5] Police v Viliamu [2019] WSSC 86 (25 October 2019)
^[6] Section 10 of the Sentencing Act 2016 operates to treat a judicial order discharging a defendant without conviction as a sentence: Attorney General v Sefo [2018] WSCA 16 (25 October 2018)
^[7] Ibid, note [6] at [15]
^[8] Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34] referred to in Police v Lauina [2017] WSDC 5 (12 May 2017)