Police v MM [2016] WSYC 7 (8 September 2016)

YOUTH COURT OF SAMOA
Police v MM [2016] WSYC 7

Case name:	Police v MM
Citation:	[2016] WSYC 7
Decision date:	8 September 2016
Parties:	POLICE v MM male of Luatuanuu and Manono tai
Hearing date(s):
File number(s):	D78/16
Jurisdiction:	Youth
Place of delivery:	In the Youth Court of Samoa, Mulinuu
Judge(s):	Judge Fepulea’i Ameperosa Roma
On appeal from:
Order:	Ordered to complete 60 hours community work under direction and supervision of the Probation within 6 months, with the following conditions: (i) You continue to attend school; (ii) Observe a curfew of 7pm to 6am; (iii) Attend the Youth Development Programme with the SVSG; (iv) Attend Church and Sunday School; (v) Attend any other programme that the Probation may see appropriate and direct. You are to come back to this Court for Judicial Monitoring on 8 December 2016 at 12.30pm.
Representation:	O. Tagaloa for Prosecution T. Tuioti for Young Person
Catchwords:	Indecent assault – aggravating factor – mitigating factor – sentencing principles -
Words and phrases:
Legislation cited:	Crimes Act 2013 s58(3), Young Offenders Act 2007 s15 (1)(b) & 16,
Cases cited:	Police v FST (Unreported, 18 August 2016)Police v. Tamaaoga Fua (Unreported, 24 April 2014) Police Lam Setefano (Unreported, 22 April 2016)),
Summary of decision:

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

MM, male of Luatuanuu and Manono tai
Young Person

Counsel
Mr O. Tagaloa for National Prosecution Office
Ms T. Tuioti for the Young Person.

Sentence: 8 September 2016

SENTENCING REMARKS OF JUDGE ROMA

Charge

1. Defendant, you appear this morning for sentencing on one charge of having done an indecent act on a child under section 58(3), Crimes Act 2013. The maximum penalty is 14 years imprisonment.
2. At first you denied the charge. On 19 May 2016, through Counsel, you sought to vacate your not guilty plea and entered a guilty plea to the charge.

Offending

3. According to the Summary of facts which you accept, the incident from which the charge arises occurred in the afternoon of 24 November 2015.
4. You were in the toilet when the female victim opened the door. She found you inside. You asked her if you could both do something (“pe mafai ga fai se lua mea”) and not tell anyone or you might cry.
5. After closing the door, you removed her shorts and touched her vagina.
6. Realising that the victim had gone for a while, her mother called out for her. She came outside the toilet whilst you remained inside. The victim then told her grandfather what had happened and the matter was reported to Police.
7. In the pre sentence meeting report, you told Probation that you were inside the toilet when the victim knocked wanting to come in and use the toilet. You then sat her on the toilet bowl and she told you to wait so that you could clean her up after. Whilst putting back on the victim’s shorts, you also touched her vagina.
8. Whether or not I accept your version as to how it happened, the undisputed fact is that you touched her vagina. You also knew that what you did was wrong, and you told probation that temptation got the better of you.

Victim

9. The victim was 4 years old at the time of the offending. She is currently attending Manumalo pre - school. Her mother is your relative, and you had been living with the victim and her parents for a month when the incident occurred. In fact, you regarded them as parents according to the pre - sentence meeting report.
10. I have no doubt that the incident has affected the victim physically and mentally. Her father says that she is scared of you, and that was why they decided to leave Luatuanuu where the incident occurred. They are now renting at Vaimoso.

Aggravating features of your offending

11. The following are aggravating features of your offending:
    • (i) Young age and Impact on the victim. She was 4 years old at the time of the offending and most vulnerable. You were 10 years older. Whilst the reports before me refer only to the victim being scared of you, I have no doubt that your actions have affected her a great deal and will have lasting impact on her.
    • (ii) Breach of trust. You were a relative of the victim’s mother. You were living with the victim’s family at the time of the incident. They took you in because your sister’s husband whom you had been living with chased you away. So you regarded the victim’s parents as yours. Yet, you breached their trust and that of the victim because instead of protecting and looking after her, you did a terrible thing to her.

Mitigating features of your offending

12. Compared to other cases of indecent assault and sexual connection, yours involved touching and caressing the victim’s genital area. There is no indication that you held the victim any longer after her mother called out for her.
13. I also accept that your offending was not pre meditated but more of opportunity. As Counsel submits, it was more impulsive than pre meditated.

Aggravating factors relating to you as an offender

14. There are none.

Mitigating factors relating to you as an offender

15. The following are the mitigating factors relating to you as an offender.
    • (i) Guilty Plea. It was not entered at the earliest opportunity. Nevertheless, it has prevented the young victim from having to relive her experience by testifying in Court;
    • (ii) Apology. Understandably, the victim’s father is angry at you because of what you did to his young daughter. You are related to his wife and they took you in as their son. Her daughter is scared and they have had to move away from their own home. But I must still consider that you personally apologised to the victim’s parents and expressed remorse during the pre sentence meeting;
    • (iii) Personal Circumstances. You were 14 years at the time of your offending and attending primary school. Your parents have passed on, and you have since been under the care of your older siblings and relatives. Your Counsel says that you are immatured and yet adventurous because of the influence of easier access to cell phones and internet. You are embarrassed by what you have gone through, and I accept that having experienced the criminal process, you realise the gravity of your offending and the impact on the victim and her parents. You are a first offender and I accept that you are remorseful.

Sentencing Principles

16. I am guided in passing sentence by the provisions of the Young Offenders Act 2007, particularly sections 15 and 16, which promote rehabilitation and reintegration of young offenders into the community. Under those provisions, the Court must firstly decide whether the interests of justice require a defendant’s conviction, before considering the sentencing options referred to therein.
17. Previous relevant sentencing decisions are also helpful. Some of these cases are referred to by your counsel in her submissions. (Police v. Tamaaoga Fua (Unreported, 24 April 2014) & Police v. Lam Setefano (Unreported, 22 April 2016)).
18. Another recent decision is Police v. FST (Unreported, 18 August 2016). The young defendant in that case was your age at the time of the offending. The 2 victims were his sisters but slightly older than the victim of your offending. Whilst the defendant was imposed a non custodial sentence, the more important issue that the Court considered was whether the interests of justice required a conviction against the young defendant’s name.
19. I must also firstly decide that important question in this case.

Discussion

20. Recently in Police v. FST (Unreported, 18 August 2016), I expressed great concern at the increase in sexual offending amongst young offenders. I do so again in your case.
21. But taking into account the circumstances and gravity of your offending, your guilty plea, young age and personal circumstances, I am of the view that to enter a conviction against your name for this type of offending at your age, would have an impact on your chances of successful rehabilitation and reintegration into the community. I am satisfied that the interests of justice do not require your conviction.
22. Pursuant to section 15(1)(b) of the Young Offenders Act 2007, you are ordered to complete 60 hours community work under direction and supervision of the Probation within 6 months, with the following conditions:
    • (i) You continue to attend school;
    • (ii) Observe a curfew of 7pm to 6am;
    • (iii) Attend the Youth Development Programme with the SVSG;
    • (iii) Attend Church and Sunday School;
    • (iv) Attend any other programme that the Probation may see appropriate and direct.
23. You are to come back to this Court for Judicial Monitoring on 8 December 2016 at 12.30pm.
24. MM, I have observed you throughout your court appearances and hopefully I am right that you are genuinely remorseful. You can definitely become a better youth, and this Court just gave you that chance. You must make good use of it.

JUDGE FEPULEAI A. ROMA