Police v LA [2024] WSSC 98 (26 July 2024)

IN THE SUPREME COURT OF SAMOA
Police v LA [2024] WSSC 98 (26 July 2024)

Case name:	Police v LA
Citation:	[2024] WSSC 98
Decision date:	26 July 2024
Parties:	POLICE (Informant) v LA (Defendant)
Hearing date(s):	16th & 18th April 2024 Submissions: 14th May 2024
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	The penalties for the charges are therefore as follows: firstly on the charge of rape you will be convicted and sentenced to 3 years in prison, remand in custody time to be deducted. On the second charge of sexual connection with a person under 16 years of age this is part and parcel of the rape offending for which you are already being penalised. On that charge discharged without conviction. On the charge of sexual connection by way of digital penetration of the complainant you will be convicted and sentenced to 18 months in prison, to be served concurrent to your rape charge. On the final charge of indecent act on a young person by kissing her on the lips, again this is part and parcel of the rape, discharged without conviction.
Representation:	L. Sio-Ofoia for prosecution L. Faasii on behalf of L. Su’a-Mailo for the defendant
Catchwords:	Sexual violation – rape – digital penetration – indecent assault – young defendant – rape sentencing bands
Words and phrases:	“Sexual connection with a person under 16 years of age”
Legislation cited:	Crimes Act, ss. 51(a); 51(2); 51(3); Evidence Act (NZ), s. 9; Evidence Act 2015, s. 103; Sentencing Act 2016, ss. 8; 8(2)(b).
Cases cited:	Cameron v The King [2023] NZCA 157; DH v R [2015] NZSC 35; Keats v R [2021] NZHC 3155; Key v Police [2013] WSCA 3; Kohai v R [2015] NZSC 36; Police v Kome [2008] WSSC 32; Police v MF [2022] WSSC 58; Police v SS [2024] WSSC 27; Police v Taimasa [2014] WSSC 121; Siueva v Attorney General [2020] WSCA 5.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

LA

Defendant

Counsel: L.Sio-Ofoia for prosecution
L. Faasii on behalf of L. Su’a-Mailo for the defendant

Hearing: 16 & 18 April 2024
Submissions: 14 May 2024
Decision: 07 June 2024
Reasons: 26 July 2024
Sentence: 26 July 2024

REASONS AND SENTENCE OF THE COURT

1. The accused faces multiple charges. Firstly that on 07 February 2020 he sexually violated the complainant by raping her. Secondly that on the same date and at the same place he had sexual connection with the complainant who was at the time under 16 years of age. Thirdly on the same date and place he had sexual connection with the complainant by digital penetration of her private part. And lastly same date same place he indecently assaulted her by kissing her on the lips.
2. On 07 June 2024 after a defended hearing, the court found him guilty of all charges. Herein are the Reasons for that decision.
3. As this case involves an underaged complainant and at the time an underaged accused, Suppression Order already issued prohibiting publication of their details or anything that could serve to identify them including the village where this incident occurred is made permanent. The case to be reported in the law reports as Police v LA.

Reasons

4. The prosecution case is simple and relies essentially on the testimony of the complainant who at the relevant time had just turned 14 years of age. The accused was then roughly 16½ years old, he was 2½ years her senior. As will be seen the age of the parties involved is of critical importance.
5. The complainants evidence was that on 28 December 2019 her family who reside in New Zealand visited relatives in Samoa and stayed at an aunties place. She remembers the date as it was the day before her birthday. She said in her testimony it was the day before her 15^th birthday. But it is clear from her passport details that they arrived in Samoa the day before her 14^th birthday.
6. This was when she first encountered the accused. He is the son of her fathers niece, in other words a “kausoga” or cousin in the extended family Samoan sense. In her evidence in chief she was asked when was the first time you met LA? Her answer “I can’t remember the exact date but probably in the first or second week we were in Samoa”. She was asked how did you meet him? She answered “It was kinda more like a mutual connection because all of our cousins were at our house, that’s where we all met each other and started talking”: page 23 of the trial transcript.
7. She went on to say that “Before the incident it didn’t seem like anything creepy or inappropriate. He’s like an introverted person he didn’t really give any weird signs or any hints that he liked me in any way at the time before it happened”. She was asked prior to the incident how often she saw the defendant and she said “pretty often, probably every day because our house is located like at the front of the village that’s where all the village kids would hang out, my cousins yeah we would all hang out at our house”. She described their relationship as it was kind of “like a cousin type of relationship just bantering and small talk”: page 24 of the transcript.
8. She went on to say how the week before her return to New Zealand in February 2020, the accused messaged her on Facebook asking for time for him and his sister to ‘hang out’ with her before she left for New Zealand. Because she was close friends with the accuseds sister she agreed to do this.
9. On the night of the incident he texted her if he could come over after dinner and she said yes as she was “just chilling” before bed time. The accused came to their house but without the sister and entered the house where she was present with some cousins. Her evidence was he “gego” to her with his eyes “ta ō i fafo” to go outside which she did and the two of them went to a faleo’o at the back of the main house. When she asked about the whereabouts of the sister he told her they were waiting for his sister.
10. What happened next is described by the complainant in her examination in chief pages 29 to 32 of the transcript. In her evidence she says things like “It was just as soon as he touched me that’s when I was kinda went into shock”. She was asked what do you mean you kinda went into shock? She said “I just went blank, like blank and just kind of saw where it was going to go”. She talked about being very uncomfortable and scared and feeling “like a statue, kinda froze couldn’t move anything like I was paralysed”. And she described crying, being still and quiet not saying anything, but being overwhelmed by what was happening.
11. Considering her evidence and her answers to questions in cross-examination the court concluded that she was a very credible and believable witness. It was also clear from her evidence she still carries a lot of anger, resentment and pain as a result her experience. But her evidence was sufficient in my view to establish proof beyond reasonable doubt that she did not consent to the sexual intercourse with the defendant as claimed by him.
12. In reaching this conclusion I take particular note of two matters raised by defence counsel in the course of cross-examination: first that the normal physiological and physical response of arousal in a teenage girl in response to sexual manipulation is not necessarily evidence of consent. There are as far as I know no Samoa authorities to that effect. But as indicated to counsels, there is now established New Zealand jurisprudence on the importance and effect of counter-intuitive evidence on these sorts of issues: see the New Zealand Supreme Court decisions in DH v R [2015] NZSC 35 and Kohai v R [2015] NZSC 36 where at para 18(a) it said:
    • “We discuss the general admissibility of counter-intuitive evidence in DH. We will not repeat that discussion here. It is sufficient to note that such evidence will be admissible if the fact-finder is likely to obtain “substantial help” from it in understanding other evidence or ascertaining a fact in issue. Counter-intuitive evidence can be substantially helpful because it corrects erroneous assumptions about the likely conduct of victims of sexual abuse and allows fact-finders to assess a complainant’s credibility free from the influence of these assumptions. Such evidence is generic in nature, and says nothing about whether a particular complainant is or is not telling the truth. The evidence must be relevant to a live issue in the case, so that evidence dealing with features not present in the particular case will not be substantially helpful.”
13. In Keats v R [2021] NZHC 3155 the court obviated the necessity for expert evidence to be actually called observing that:
    • “In DH v R, the Supreme Court considered the ways in which counter-intuitive information may be presented, including specifically by evidence, agreed statements under s 9 Evidence Act 2006 and by jury direction. The court then concluded:
      • We do not think it is appropriate to be prescriptive about how erroneous beliefs or assumptions are best to be countered in criminal trials. Judicial directions, s 9 statements and expert evidence are all possibilities.
    • In relation to the use of directions, O’Regan J (in DH v R) referred to the Crown Court Bench Book issued by the Judicial Studies Board of England and Wales in March 2010, which contains a number of model directions dealing with matters such as “avoiding judgments based on stereotypes” and “late reporting”. O’Regan J set out one of the model directions (concerning delayed complaint) and continued:
      • We can see the benefit in a direction of this kind being given, and therefore obviating the need for expert evidence. But the area of delay in reporting is less controversial than some other areas such as retractions or normalization, as is reflected by the inclusion in s 127 of the Evidence Act (NZ) of a direction on delay”.
14. The court concluded that the trial Judge “was justified in directing himself on those matters without evidence from an expert or production of a statement under s.9 of the Evidence Act (NZ)”. In other words, self-direction on such matters in a judge alone case is acceptable unless the judge misdirects himself.
15. Recently in Cameron v The King [2023] NZCA 157 the New Zealand Court of Appeal reaffirmed this approach saying:
    • “Consequently, if a defendant in a sexual case advances an argument that employs a misconception or stereotype, or risks by the conduct of their defence, misconceived or stereotypical thinking on the part of the jury, a trial judge is obliged to give, obviously in a balanced way, directions that address the misconception or stereotype. Furthermore, because sexual cases so frequently involve behaviours on the part of a complainant that attract misconceptions or stereotypical thinking, trial judges have a responsibility to give directions addressing those misconceptions or stereotypes, again in a balanced way, so the trial is fair to everyone. All this may be thought elementary in 2023.”
16. Another such misconception unsuccessfully relied upon by defence counsel in the instant matter was the failure of the complainant to complain or raise this incident with anyone until almost 2 years later. This too is extensively discussed in the New Zealand authorities referred to above; see also our own s.103 of the Evidence Act 2015.
17. The second issue of note is that the failure to resist or cry out is never evidence of consent. This is specifically provided for by section 51(a) of the Crimes Act 2013. And it is because the will of a complainant can become so overborne by a defendants actions and what is happening that the capacity to resist becomes overwhelmed. This is particularly critical in cases that involve inexperienced young victims.
18. Defence counsel also raised in closing submissions a defence of honest and reasonable belief under section 51(3) of the Crimes Act that the defendant believed the complainant consented. In this regard counsel pointed out that nowhere in the complainants evidence did she say she did not consent to the sexual intercourse. Counsel further submitted that the prosecution have failed to prove that the defendant did not believe on reasonable grounds that the complainant was consenting.
19. The difficulties with this argument are two-fold: firstly the defendant for his defence relies essentially on what is contained in his cautioned statement to the Police. Which maintains that what occurred was an agreed secret liaison with the complainant arranged through text messages. And that the indication of the complainants active participation and reasonably believed consent was her removing his singlet and her own pants and then lying down with him naked on the floor of the faleo’o.
20. However that is not all that is in the cautioned statement. Because the statement goes on to state that when the defendant penetrated the complainant she complained of pain. And the statement says nevertheless he kept trying and when he succeeded, he kept going for about 10 minutes “pe a ma se 10 minute o o’u oso” before he pulled out by which time the complainant was crying and complaining of pain in her private part “ae ua tagi R fai mai ua tiga lana pi”.
21. As noted earlier, a sexual complainants failure to protest or physically resist the sexual intercourse “or other sexual activity” is not to be taken as evidence of consent: section 51(3). Neither is it evidence that could lead a reasonable person in the shoes of the defendant to reasonably believe considering all the circumstances that there was consent: this is provided for in section 51(2).
22. What was however clear and should have been so to the defendant was the complainant was crying and was in pain and he therefore should stop. In his own words in his cautioned statement what he did was to nevertheless continue with his actions “for about 10 minutes”. Ignoring what would have been the obvious distress of the complainant, a young girl barely 14 years of age. It can also be said that any consent that may have been given initially would have been withdrawn by this stage and this should have been readily apparent to the defendant. Consent initially given can be withdrawn at any time by a complainant thereby converting an act of consensual intercourse to rape.
23. The second difficulty with the defendants argument is it is difficult to accept on the evidence available which for the defendant is only the cautioned statement because he chose not to give evidence. It is difficult to assess then just how honestly he held any belief that the complainant consented to the sexual intercourse. It is an essential ingredient of the defence that the defendants belief in consent not only be based on reasonable grounds but be honestly and genuinely held by him. It is noteworthy that nowhere in the defendants statement to the Police does he say he thought the complainant was consenting to the intercourse.
24. The court much prefers the compelling evidence of the complainant which explains the picture of what happened in its totality, including her subsequent struggles with what occurred. And her being unable to talk about this experience until some two (2) years had elapsed. There is nothing unusual in raped complainants being unable to revisit the trauma of their experience until years later. Because of the trauma such events cause in particular to a young persons psyche. The defence accordingly failed.

Sentence:

25. I will deal firstly with the most serious of the charges that of rape. As counsel well-knows the maximum penalty for rape is life in prison. But sentencing for rape in this jurisdiction is governed by the Bands set by the Court of Appeal in Key v Police [2013] WSCA 3 namely B-1: 8 to 10 years, B-2: 9 to 15 years, B-3: 14 to 20 years and B-4: 19 to life.
26. It is for the trial judge to determine after considering all relevant aggravating factors where the offending properly lies. Before doing that I have had to consider and give due regard to Defence Counsels forceful argument that a non-custodial option needs to be considered given inter alia the young age of the defendant at the time of the offending.
27. The answer to that submission lies in Police v Taimasa [2014] WSSC 121 a case that involved a 17 year old sex offender which should have been reported as Police v MT given the age of the parties involved. There the court said:
    • “In weighing all matters out an imprisonment sentence for the offending cannot be avoided for the reason that the court must express by its penalty societys disapproval of the defendants actions. It must also deter the defendant so that he will never do this sort of thing again. And it must send a message to other young men of his age if you do this sort of thing this is likely your fate”.
28. Similar statements were expressed by the court in Police v Kome [2008] WSSC 32 a case involving a 17 year old sex offender and a young complainant. There my brother Vaai, J said:
    • “The sentence should convey to you and other likeminded men like you that this sort of offending will not be tolerated by society. I accept that you are only 17 years of age and that you are also remorseful. But for this type of offence although you are young and remorseful and although this is your first appearance before the court a custodial sentence must nonetheless be imposed to reflect the seriousness of the offence”.
29. The court must also have due regard to section 8 of the Sentencing Act 2016 as this matter involves violence against a person under 18 years of age, “violence” already being interpreted in our jurisdiction as including sexual violence: see Police v MF [2022] WSSC 58 and other cases. And we are all well aware of how sexual offending against young complainants is a huge problem and issue in this country, to the point that is reaching what has been described as “epidemic standards”. As this court noted in Police v SS [2024] WSSC 27:
    • “Epidemics of dengue fever and other diseases come and go in Samoa but the epidemic of sexual offending by older men on innocent young females continues to hold this country in its grip.”
30. Acceding to the submission and pronouncing a non-custodial penalty would in my view plainly send the wrong message to the defendant, to the young men of our community and to the general public. The damage that the defendants actions also caused to the complainant as is apparent from her Victim Impact Report must also be factored into the equation as provided for in the above-referred section 8(2)(b). A sentence of supervision would distill the nightmarish experience that the complainant has suffered because of the defendants actions. Trauma that she continues to live with and that will probably only ever pass or be alleviated by the passage of time.
31. In weighing up where in the Sentencing Bands your offending belongs I am satisfied it rests mid to upper end of B-1 because of the following factors: the particular vulnerability of the young, naïve and inexperienced complainant who by incident time was well-known to you; and the aspect of pre-meditation on your part in conniving to be alone with her late at night when all her family were asleep; there is also the trust the defendant engendered in the victim over the short time span of their acquaintance which trust the defendant manipulated to suit his purposes.
32. However I will start sentence at the lower end of the scale, it will have a start point of 9 years in prison. That accurately reflects in my view the criminality of your offending.
33. Defence Counsel has also correctly highlighted the deductions available to you from this start point for mitigating factors. Firstly you are a first offender with a good pre-sentence report and many people have vouched for your previous good character and service. Usual deduction of 6 months applies for those factors.
34. Defence Counsel has also argued for a deduction for ifoga, despite the fact that the complainant and her parents who are relatives of your parents refused to accept the ifoga and returned the fine mat accompanying the ifoga presentation. The law allows a deduction for ifoga and reconciliation but only for one that is properly and duly completed in accordance with our “tu and aganuu fa’a-samoa”. It makes no allowance for deduction for an attempted ifoga or an incomplete reconciliation or ‘fa’aleleiga’ process. While the defendant and his immediate family are to be commended for making the effort to heal obvious wounds there can be no credit given for the unsuccessful ifoga and fa’aleleiga.
35. What you are entitled to is a considerable deduction for your age and immaturity at the time of the offending. This been recognised in many previous decisions of this court most recently by the Court of Appeal in Siueva v Attorney General [2020] WSCA 5 where it said:
    • “There has been a growing judicial recognition in recent years of the effect of youth in criminal offending and its interrelationship with sentencing principles. In R v Churchward the New Zealand Court of Appeal comprehensively reviewed the principles relating to youth offending .... the Court identified a number of important factors:
    • (a) There are age related neurological differences between young people and adults. Cognitive, emotional and psychological immaturity can contribute to a breach of the law. While this leads to a reduction in culpability, it does not excuse a young person from taking responsibility for his or her offending;
    • (b) Imprisonment can have a greater effect on young people than on mature adults and long sentences may be crushing for them. A sentence which might otherwise be appropriate for an adult can become disproportionately severe for a young person. There is evidence that adolescents experience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour while in prison. Recognition of this factor preserves the principle of mercy in sentencing.
    • (c) Offending by young people is frequently a phase which passes fairly rapidly and thus a well-balanced approach is necessary to avoid alienating them from society by the imposition of a lengthy term of imprisonment. Young people have a greater capacity than adults for rehabilitation, particularly given their undeveloped characters. They should not be regarded as beyond help, even after serious offending, unless there is no escape from that conclusion.
    • (d) On the other hand, where the offending is grave, the scope for taking account of youth is limited if the offending raises concerns about public safety. The requirement for deterrence and denunciation is also relevant”.
36. I accept your counsels submission in this regard and consider a deduction from the start point of sentence of 4 years is warranted. This is the same deduction given on reconsideration of sentence by the Supreme Court in Siueva which was a case involving an 18 year old defendant on a charge of rape. This leaves a balance of 4 years and 6 months in prison.
37. But I believe there is a final factor meriting separate consideration which is touched upon in cases such as Siueva in (b) above. This concerns the effects as outlined of a long term of imprisonment on a young offender.
38. As we all know Samoan prisons are nothing like prisons in New Zealand or Australia. The conditions are harsher here especially for the younger inmates who must be subservient to the appointed elders of their cell block. Elders who are usually senior prisoners and likely matais. The potential for prisoner abuse is high and complaints to the Prison Authorities are common place.
39. Unfortunately there is no longer a separate facility such as that which existed in the Oloamanu Rehabilitation Center at Mulifanua for young offenders and adolescents. Something the courts of this country decry and are continually lobbying to re-establish in order to promote rehabilitation of young offenders such as yourself who would benefit from specifically tailored rehabilitation programs. We will not give up in this struggle but currently the courts choices are limited. What is abundantly clear is sending young people and adolescents into a harsh prison environment is not conducive to anything constructive.
40. For the reasons earlier given, I have no option but to impose a prison term for your matter. But I do have the ability to make a further deduction on the balance of your sentence to reflect these matters. I will make a final deduction of 18 months from your 4½ year sentence reducing your total sentence to 3 years in prison.
41. The penalties for the charges are therefore as follows: firstly on the charge of rape you will be convicted and sentenced to 3 years in prison, remand in custody time to be deducted.
42. On the second charge of sexual connection with a person under 16 years of age this is part and parcel of the rape offending for which you are already being penalised. On that charge discharged without conviction.
43. On the charge of sexual connection by way of digital penetration of the complainant you will be convicted and sentenced to 18 months in prison, to be served concurrent to your rape charge.
44. On the final charge of indecent act on a young person by kissing her on the lips, again this is part and parcel of the rape, discharged without conviction.
45. O le aotelega o le fa’aiuga o lau mataupu LA o lea ua e solofua i isi moliaga e lua. A’o le moliaga autu lea o le faiaiga fa’amalosi o lea ua fa’amaonia lau solitulafono 3 tausaga e te nofo sala ai i le toese. Fa’amaonia foi lau solitulafono lea na a’afia ai ou tama’ilima na ulufia ai le tamaitai sa a’afia, e 18 masina le fa’asalaga mo le mataupu lena ae tuli fa’atasi ia fa’asalaga ia. O lona uiga e 3 tausaga lou taimi atoa e tatau na tuli i le toese. Ae tatau na aveese mai le 3 tausaga lena le taimi lea na e nofo taofia ai e fa’atalitali le fa’aiuga o le mataupu lenei.
    

SENIOR JUSTICE NELSON