Police v AFM [2024] WSSC 92 (9 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v AFM [2024] WSSC 92 (09 August 2024)

Case name:	Police v AFM
Citation:	[2024] WSSC 92
Decision date:	09 August 2024
Parties:	POLICE (Informant) v AFM (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – 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 to 4 years and 6 months imprisonment less time remanded in custody.
Representation:	MT. Fesili for Prosecution LF. Lagaaia for Accused
Catchwords:	Previous conviction (indecent assault) – digital penetration – family connection.
Words and phrases:	“sexual connection with a child under 12 years of age” – “gross breach of trust” – “huge age disparity”.
Legislation cited:	Crimes Act 2013, s. 58(1).
Cases cited:	Attorney General v Lua [2016] WSCA 1; Key v Police 2013] WSCA 3; Police v FIP [2022] WSSC 62; Police v P.H [2019] WSSC 83; Police v Siaosi [2023] WSSC 69; R v AM [2010] NZCA 114; [2010] 2 NZLR 750.
Summary of decision:

ORDER PROHIBITING PUBLICATION IN NEWS MEDIA, INTERNET OR ANYOTHER PUBLICLY ACCESSIBLE DATABASE THE NAMES, SCHOOL OR VILLAGE DETAILS OF THE ACCUSED AND VICTIM

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

AFM

Accused

Counsel: MT. Fesili for Prosecution

LF. Lagaaia for Accused

Sentence Submissions: 3 July 2024
Sentence Date: 9 August 2024

SENTENCE

The Charges:

1. The accused appears for sentence on one (1) charge of sexual connection with a child under 12 contrary to sections 58(1) of the Crimes Act 2013. The maximum penalty for the charge is life imprisonment.

The Offending:

2. According to the prosecution Summary of Facts dated 10^th June 2024 accepted by the accused through his counsel, the 11 year old victim had been living at (x-village) with her father, her brother, the accused and his family. On the afternoon of 27^th July 2022, the victim had been at home as she was not feeling well. Her father had gone to work but her brother and the accused’s wife were at home. Material on the file shows that the accused’s wife suffered from dementia but is now deceased.
3. The victim had told her brother that she felt unwell and that “tiga lona manava”. The accused overheard this, asked her if her stomach hurts and she said yes. The accused then told her he will massage her stomach but she said no and to wait until her father comes home. Ignoring the victim’s response, he told her to bring the baby oil so he can massage her stomach. He also told the victim’s brother to go outside to attend to some chores and at the time, his wife was in the bedroom.
4. When the victim returned with the baby oil, the accused told the victim to lie down on the tiles. He then pulled up her t-shirt and massaged her stomach. While massaging her stomach, he pulled down the victim’s shorts and took off her panties. The accused then continued massaging down to the victim’s vagina, digitally penetrated her and said to her “e mafua mai ile pi le ma’i lea e tiga ai lou manava.” The victim felt pain in her vagina.
5. The victim’s brother, who was 12 years old based on his statement to police, came into the living room and saw what the accused was doing. The accused removed his hands from the victim’s vagina and told the victim they will continue the fofo another day.

The Accused:

6. The accused is a 65 year old married man with 5 children from (z-village) and (x-village). He is the victim’s father’s uncle. The accused reached school to year 11. He has had various jobs over his life including at a timber company, an oil company and as a truck driver. He has a prior conviction for indecent assault entered on the 8^th December 2021 where he was ordered to come up for sentence within 2 years if called up for sentence. He committed this offending while still under the earlier sentence.

The Victim:

7. The victim is 11 years old. She said that the sexual assault was painful and that she was crying but the accused told her not to make a noise. She wishes to forget what the accused did to her and speaks of fear when recalling what had happened to her and disgusted. The victim’s mother speaks of the changes in the victim since the offending, her sadness and the difficulties she has speaking to her.

Aggravating features:

8. The aggravating features of the accused’s offending that I accept are:
   • the offending was within a family relationship and was a gross breach of trust;
   • the age difference between the accused and the victim of some 54 years;
   • the victim’s vulnerability given her young age and the circumstances of the offending; and
   • the impact of the offending on the victim reflected in her Victim Impact Report.
9. Personally aggravating to the accused is his prior conviction for indecent assault in December 2021 and that he was still under his earlier non-custodial sentence.

The mitigating features:

10. There are no mitigating features in respect of the offending. In terms of the offender, I take into account the following mitigating features:
    • his apology to the complainant’s father, which has been accepted; and
    • his guilty plea on the day of trial on the withdrawal of other charges.
11. Although Mr Lagaaia submits that mitigating is the accused’s remorse, the accused adamantly maintained his innocence to the probation service. There is no proper basis to extend a deduction for genuine remorse. Although this might also mitigate against any value in what might be viewed as a hollow apology, it was nevertheless extended and accepted and a deduction is therefore extended.

Discussion:

12. AFM, your nephew’s daughter came home from school feeling unwell. You then offered to give her a “fofo”. Despite her saying to wait for her father, you massaged her stomach, pulled down her shorts, took off her panties and then digitally penetrated her. She was just a 11 year-old child at the time.
13. Your sexual assault of your 11 year old nephew’s daughter, although opportunistic, was very calculated. You told her brother to leave so you could be in the house alone with her. You lured her for a “fofo”. In doing so, you digitally penetrated her telling her “e mafua mai ile pi le ma’i lea e tiga ai lou manava” - trying to also take advantage of her innocence and naivety. Your conduct was reprehensible and disgraceful. This is particularly so given your previous conviction for indecent assault entered in December 2021 which appears from your earlier Pre-Sentence Report to have been against your own grand-daughter. On that occasion, you were given a non-custodial sentence. Today, you will be given a custodial sentence. You learnt nothing from your earlier dealing with the court and your offending has escalated.
14. You are a serious risk to young girls. Young girls are not safe to be around you. Your family and others should under no circumstances leave young children anywhere near you. You prey on young girls.
15. Prosecution seeks an imprisonment start point of between 4 to 5 years imprisonment and submits that your offending falls at the higher end of band 1 to lower end of band 2 as established in Attorney General v Lua [2016] WSCA 1. Your counsel seeks a start point of 3 years imprisonment uplifted by 1 year for your prior conviction. In making this submission, your counsel appears to misconstrue the nature of the sexual connection as involving a touching of the victim’s vagina and that your acts involved “no penetration”.^[1] This is wrong. As the Summary of Facts clearly state, “you digitally penetrated the victim’s vagina...”^[2]
16. The confusion appears to arise from a misunderstanding of the bands established in Attorney General v Lua not applying to digital penetration of a child under 12. This confusion arises from the bands established in Key v Police 2013] WSCA 3 (28 June 2013) and Attorney General v Lua [2016] WSCA 1 (19 February 2016) and how they have been described by the Court of Appeal to apply. In Attorney General v Lua, the Court of Appeal stated that the “rape bands” in Key v Police is to apply to the extended definition of rape (per R v AM [2010] NZCA 114; [2010] 2 NZLR 750) “where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects” and that “it is appropriate to expressly adopt the extended definition and include these particular penetrative sexual connections in the Peti Key rape bands.”^[3] (my emphasis added) The Court of Appeal went on to state that “the bands in Peti Key are now to be applied whenever the lead offence involves a penetrative act of the kind defined in the previous paragraph.”^[4] (my emphasis added)
17. The penetrative acts to which the bands in Key v Police does not, as described by the Court of Appeal, extend to digital penetration but to “penile penetration of the mouth or anus, or violation involving objects”. The Court of Appeal in Attorney General v Lua explained that digital penetration is however included in the sentencing bands established for sexual offending against children under 12 stating at paragraph [26]:
    • “Band three will attract the worst cases, for example involving sexual connection against generations of children with the presence of serious aggravating factors. We anticipate that such cases may prove to be rare because, regrettably, such offenders often commit penetrative violations as well. Then, the lead offence will fall to be dealt with under the Peti Key guidelines. It follows that the most serious acts covered under this guideline will be digital penetrations.”^[5](emphasis added)
18. I do not accept that your offending falls within band one. Your sexual assault of the then 11 year old victim cannot be said to be at the lower end of the spectrum of sexual offending against children. It did not involve for example skin on skin touching of the victim’s genitalia but digital penetration of the victim’s vagina. The Court of Appeal expressly referred to such penetration as “the most serious acts covered under this guideline...”
19. I have reviewed the authorities referred to me by counsel. Although they are not directly on point as they do not relate to cases involving digital penetration of a child under 12, they are instructive insofar as they provide some guidance to the court’s sentencing approaches to sexual abuse cases involving children under 12.
20. In Police v Siaosi [2023] WSSC 69 (2 November 2023) involving 8 charges, 4 of digital penetration and 4 of other acts of sexual connection on a 7 year old girl, a 10 year sentence start point was adopted. In Police v FIP [2022] WSSC 62 (1 December 2022) involving one occasion where the defendant kissed and then sucked the 6 year old girl’s vagina, a 5 ½ year start point was adopted. In Police v P.H [2019] WSSC 83 (20 September 2019) involving the touching of the 5 year old victim’s genitalia and the licking of her vagina by her 65 year old neighbour, a 4 year start point was adopted.
21. The circumstances of this case are not as grave as Police v Siaosi. The offending was brief and on a single occasion. What however makes your offending very serious is that you digitally penetrated the victim’s vagina. In my view, having regard to the bands in Attorney General v Lua, this case falls within the lower end band 2 of between 5 to 6 years imprisonment. I will however adopt the 5 year recommended by prosecution and uplift that by 1 year for your prior conviction for similar offending and the fact you committed this offending while under your earlier sentence. From that 6 year sentence, I deduct 6 months for the apology and from the balance, 12 months for your late guilty plea leaving an end sentence of 4 years 6 months imprisonment.

Result:

22. Accordingly, you are convicted and sentenced to 4 years and 6 months imprisonment less time remanded in custody.
    

JUSTICE CLARKE

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^[1] Amended Sentencing Submissions for the Defendant and Plea in Mitigation, 3^rd July 2024 at paras [6], [13] and [22].
^[2] Summary of Facts dated 10^th June 2024 at para [16].
^[3] Attorney General v Lua at paras [21] and [22].
^[4] Attorney General v Lua at para [22].
^[5] The confusion seems to arise from the discussion where the Court of Appeal refers to “penetrative violations” resulting in those cases falling under the Key bands. The Court of Appeal however then refers separately to “digital penetration” as the being “the most serious acts covered under this guideline”. Digital penetration is also a “penetrative violation” by its very nature, but it is covered “under this guideline” (Attorney General v Lua). This application of the Attorney General v Lua bands was also applied for example in Police v Siaosi [2023] WSSC 69 (2 November 2023).