Police v AG [2024] WSSC 95 (9 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v AG [2024] WSSC 95 (09 September 2024)

Case name:	Police v AG
Citation:	[2024] WSSC 95
Decision date:	09 September 2024
Parties:	POLICE (Informant) v AG (Accused)
Hearing date(s):	14 August 2024
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:	On all charges, you are convicted and sentenced to 9 months imprisonment concurrent.
Representation:	H. Apisaloma for Prosecution D. Roma for Accused
Catchwords:	Consensual – victim underage – victim became pregnant – 11 year age gap – occurred multiple times – family connection (via adoption) – previous good character – apology – guilty plea – custodial sentence.
Words and phrases:	“Sexual connection with a young person under 16 years” – “village fine imposed and paid”.
Legislation cited:
Cases cited:	Police v Solia [2018] WSSC 114; Police v Tasele [2017] WSSC 167; Police v Wilson [2017] WSSC 71.
Summary of decision:

THE NAME OF THE VICTIM, HER FAMILY, SCHOOL AND VILLAGE ARE SUPPRESSED. DETAILS OF THE ACCUSED’S VILLAGE IS ALSO SUPPRESSED SO AS NOT TO LEAD TO IDENTIFICATION OF VICTIM.

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

AG

Accused

Counsels H. Apisaloma for Prosecution
D. Roma for Accused

Sentence Hearing 14^th August 2024
Decision 9^th September 2024

SENTENCE

1. AG, you appear for sentence on three (3) charges of sexual connection with a young person under 16. The maximum penalty for each charge is up to 10 years imprisonment.

The Offending:

2. According to the Summary of Facts dated 5^th August 2024, you and the victim are distantly related, your father and her grandmother being cousins. Between the 1^st January 2023 and 1^st February 2023, you called out to the victim to come to your house. She came and you had sexual intercourse with her in your home.
3. Between 1st February 2023 and 1^st March 2023 when your parents were not home, the victim came to your home and you had sexual intercourse with her there. Between 1^st March and 1^st April 2023, you again had sexual intercourse with the victim when she came to your home. Your offending only came to light when the victim became pregnant.
4. It goes without saying that all incidences were consensual.

The Accused:

5. You are a 26 year old male of [x-village] and are unemployed. You grew up in [y-village] and reached year 12 at school. You stayed home helping on the family plantation before later finding work with [**Company]. You share a son with the victim.
6. You are described by your mother as reliable, obedient and introverted. You support your family with the household chores and assisting your ailing father by taking him to the hospital for his check-ups and also home care given his condition. You have positive character testimonials in support of your character and have no prior convictions.

The Victim:

7. The victim is now 17 years of age but was 15 at the time of your offending. At the time of the offending, she was in year 10. In her Victim Impact Report, she says that the child has been given to her uncle to care for. She forgives you and says that when this occurred between you both, it was consensual and you were in a relationship. The victim’s mother confirms that your parents have apologised, the apology has been accepted and that a village fine of $2,000.00 was imposed and paid.

Aggravating and Mitigating Factors:

8. The aggravating features of your offending are:
   • (a) the 11 year age disparity between you and the victim;
   • (b) the multiplicity of offending;
   • (c) the victim became pregnant and gave birth to a child; and
   • (d) your family relationship, via adoption.
9. I accept in mitigation:
   • (a) your prior good character;
   • (b) the apology made and accepted by the victim’s family as well as your genuine remorse;
   • (c) the fine imposed and paid by the village; and
   • (d) your guilty plea notified prior to trial after service of trial documents.

Discussion:

10. Prosecution seeks an 18 month sentence start point. Your counsel accepts that a custodial sentence is warranted and suggests a start point of between 14 to 18 months imprisonment.
11. AG it is unlawful to engage in sexual intercourse with a young person under 16. The law is there to not only protect young girls from being taken advantage of by older men, but also to protect young girls from themselves because of their lack of maturity and good judgment to give informed consent or understand the potential consequences of their actions. This is one such case. The victim became pregnant and is now a mother at a very young age, herself, still a child in the eyes of the law when you had sex with her. She cannot care for the baby and as a result, the child has been given to her uncle to care for.
12. AG, you were 26 years old and the victim at school and 15 years of age at the time of the offending. Your counsel suggests that although you were aware that the victim was still in school, her build and appearance made her look older. I do not at all accept that you were not aware that she was underage. You are both from the same village and are related. Your counsel also says that the two of you had been in a boyfriend and girlfriend relationship since 2021. The victim would have been about 13 at the time and you 24. You would have been well aware of her young age. What you as a 24 year old were doing dating a 13 year old girl is precisely what laws of this type were made to stop.
13. Having considered the authorities referred to me as well as Police v Solia [2018] WSSC 114; Police v Tasele [2017] WSSC 167 and Police v Wilson [2017] WSSC 71, I adopt an 18 month sentence start point. From that start point, I deduct 2 months for your prior good character, 3 months for the apology and your remorse, 2 months for the village penalty paid and from the balance, 2 months for your guilty plea leaving an end sentence of 9 months imprisonment.

The penalty:

14. On all charges, you are convicted and sentenced to 9 months imprisonment concurrent.

JUSTICE CLARKE