Police v Misilagi [2008] WSCA 9; CA 1 of 2008 (19 September 2008)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 1/08

IN THE MATTER:

of an appeal pursuant to Section 164L
of the Criminal Procedure Act 1972

BETWEEN:

THE POLICE
Appellant

AND:

TANIELU MISILAGI a.k.a DAN MISILAGI
of Faleula
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Hearing: 10 September 2008

Counsel: K. Koria and L. Su’a for Appellant
A. Roma for Respondent

Judgment: 19 September 2008

JUDGMENT OF THE COURT

1. The Respondent has been sentenced to a 3 months term of imprisonment upon his conviction for the offence of indecent assault upon a girl aged 3 years contrary to the Crimes Ordinance 1961 (‘The Ordinance’) ss2 (1)(a). At the time of sentence he had been in custody pending trial for that period with the result that he was released upon the making of the order of the court.
   

2. The respondent, unrepresented at the hearing, had pleaded guilty to the offence but disputed some particulars with the result that the court was required to conduct a disputed facts hearing. The Appellant contests one of the findings made by the learned sentencing judge and the inadequacy of the resultant sentence. The maximum sentence prescribed by the ordinance s52 (1)(a) is ‘imprisonment for a term not exceeding 7 years’.

Facts

3. The information alleged that on 2 January 2008 the respondent indecently assaulted a girl under the age of 12 years. The particular relied upon was that he had indecently assaulted the 3 year old girl by ‘inserting his fingers into her vagina’.
   
4. The respondent, aged 19, was at the relevant time, an employee of a business owned, in part by the complainant’s mother. The girl had been entrusted to the care of two women who occupied a home shared with the respondent. The respondent, in turn, was entrusted with some of the daily care of the girl which included her bathing. On the evening of 2nd January she became upset and complained of soreness to her vagina. Examination showed swelling to the vagina and the presence of a white but unidentified substance. The following day the girl, in answer to an inquiry complained that the soreness was caused by the respondent’s touching. On 9th January the respondent was interviewed by police, and admitted responsibility. Significantly in the course of the interview he stated
   

"I do not wish to make a written statement, but I accept I inserted my index finger inside R’s vagina, but not much went in, on Wednesday 2nd January 2008 at S, and this is the only time I had done this indecent assault".

5. The complainant was examined by a medical practitioner whose report dated 6 March was tendered on the hearing and included the summation that:
   

"On examination the child was calm and relaxed. There were no bruises or physical signs of recent sexual contact. Vaginal examination – vaginal orifice is patent and wide i.e. for a three (3) year old, no hymen seen and easily admit one finger without resistance or pain.

In conclusion: findings indicate that vaginal penetration took place".

6. The doctor gave evidence on the hearing. He was unable to identify the date of the examination which became a matter of contention. Dr Penehuro significant expanded on his report relevantly stating.
   

"Witness: that the last sentence means that it states the overall findings from the examination.

Su’a: is this consistent witness the penetration of fingers?

Witness: your Honour I am not able to identify that, all I can say is that the above-mentioned private part has been violated. Your Honour during the examination the girl did not state when she was violated perhaps it was quite a long time from the time they came to the hospital for examination.

His Honour: from your medical observation are you able to tell how long the hymen was torn up to when she was referred for your medical examination?

Witness: Your Honour the hymen that I referred to can also be torn in a situation where children are playing, but the conclusions would suggest that the vagina for some time has not been swollen around the sides and the inside of the vagina, and that there was no tear or injury seen inside.

His Honour: your evidence again it was not swollen nor was it reddish?

Witness: no injuries were present.

The Sergeant of police who interviewed the respondent was unable to advance further the question of the time of examination adding, perhaps unhelpfully.

"... I think it was officer Jacinta .... that took her on the day the complaint was laid perhaps it is on the records."

The respondent gave evidence denying penetration. His account included.

Witness: I deny that part but I accept that I gave the girl a bath on the day of the offence against me."

His Honour: you played with the girl’s private part?

Witness: yes, I tickled the girl’s stomach and I pinched the girl’s private part.

His Honour: yes

In cross-examination he stated:

"Sua: You heard that evidence and he said that there was evidence of vagina penetration and you also heard the evidence of police officer who said that during the interview you stated that you inserted your finger inside the victim’s vagina, are you saying that they are lying?

Witness: the statement by the doctor is a lie and likewise with the statement by the senior sergeant who prepared my information.

Sua: are you asking the court to disbelieve two witnesses and believe your evidence?

Witness: your honour the correct statement I made to senior sergeant or the officer is that I uga (pinch) the girl’s private part but these other statements that I put my fingers inside her private part is a lie.

His Honour: you uga (pinch) it how?

Witness: I uga (pinch) it like this your honour, I pinched around her private part.

His Honour: the meaning of uga (pinch) that you are referring to is you grab it and squeeze, squeeze it like so?

Witness: I did not squeeze her private part really hard. I did not put any of my fingers inside her private part, I uga (pinch) her private part and that is what I meant I was playing.

Basis of Appeal

7. The prosecution has appealed on the following grounds.
   

1. TAKE NOTICE that I, MING C LEUNG WAI Attorney General of Samoa, am desirous to appeal to the Court of Appeal against his Honour Chief Justice Sapolu’s decisions that:

(a) the respondent only touched the victim’s vagina but did not insert his fingers

in her vagina and / or

(b) the three (3) months the respondent spent in custody was considered as time served for this charge.

2. THE appeal against decision (a) is based on the grounds that his Honour erred in fact and in law in:

(i) Failing to give due weight to a confession that was made by the respondent in a cautioned statement, which was tendered as Exhibit "P2".
(ii) Drawing the wrong conclusion from the medical evidence that because the victim’s hymen had been long torn, there is doubt that the respondent inserted his fingers in her vagina.
(iii) Failing to consider evidence of aggravating factors.

3. THE appeal against decision (b) is based on the grounds that his Honour erred in fact and in law in imposing a sentence that was:

(1) highly inconsistent with sentences imposed by the Honourable Supreme Court in previous Indecent Assault cases.
(2) manifestly inadequate having regard to the circumstances of the offending.
(3) highly unreasonable and not supported by the evidence, particulars of which will be set out once the full written decision is available.

8. The learned Chief Justice dealt with the issue of penetration on the following manner.
   

"I’m also in a doubt counsel as to whether it was the accused who was responsible for the hymen of the victim been torn because the doctor said ua leva (a long time), but it’s not clear from the prosecution’s evidence when the doctor examined the victim, if said the victim as charged by the police was indecently assaulted on the 2nd January and she was examined by the doctor on the 3rd January. I’m just assuming that in the absence of any specific evidence then the doctor’s evidence that what he found ‘ua leva le masae lea (the tear happened a long time ago), I think the more reasonable inference to draw is that the tear of the hymen did not occur the previous day so it could not have been the accused who caused it, it must have occurred well before the victim was examined by the doctor, the doctor also said didn’t notice any injuries or any redness to suggest that the victim might have been indecently assaulted a short time before the examination so even of that I am doubted whether it was the accused who was responsible for the hymen gone missing.

9. The learned sentencing judge was dealing with an unrepresented defendant and, quite appropriately, attempting to provide fairness to him through a detailed analysis of the competing propositions, advanced by the prosecution and defendant. But here he was distracted by the evidence of the absence of the hymen. There was but supposition in the estimate of the likely date of the medical examination being 3 January. The complainant had complained of soreness to the vagina on 2 January and a physical examination, although by laypersons, undertaken on the day following the assault, showed evidence consistent with invasion. The respondent had admitted, during interview, penetration by the finger albeit retracted at trial. But the respondent had likewise denied the integrity of the signed admission and the accuracy of the doctor’s findings. The date of the examination was not established by evidence and the conclusion reached by the examining doctor in his evidence that ‘the private part had been violated’ not contradicted. The absence of muscular resistance by the girl during examination could be consistent with other acts of penetration, a matter not raised on the material, or delay between the alleged event and examination. Nor did the learned Chief Justice address the respondent’s plain admission that he inserted his finger in the child’s vagina. Mr Roma, who did not challenge the integrity of the interviewing officer, could not suggest any reason why the respondent would have made such a statement against his interests if it was untrue. Nor can we. We must conclude that the point was overlooked by the learned Chief Justice and that the respondent did insert his finger in the child’s vagina. The finding made by His Honour, understandable as it was, was not supported by the evidence and accordingly erroneous. Ground 2 of the appeal ought to be upheld. Given that the impugned finding impacted on the sentence imposed it follows that the appeal generally ought to upheld.
   

Adequacy of Sentence

10. The sentencing court had the advantage of receiving a Victim Impact Sentence and a Pre-Sentence Report. Neither was relevant on the disputed facts hearing but were so on sentence. The former indicated a change in the sexual behaviour of the child and some degree of emotional disturbance. The latter suggested that the offender had shown no remorse for his actions and had varied his version of events. He had no prior convictions and had been of good character until the death of his mother when in the words of his father ‘started to hang around with the wrong crowd and has not been the same since". The respondent aged 19 resided with his ageing father and been supportive of him.
    
11. Adoption by the State of Samoa of the Convention of the Rights of the child, in particular Articles 19, 34 has been used by the Courts as a basis for and providing consistency in the judicial response to sexual crimes involving children (Police v X 2007 WSC 53, Police v Howard Maumase 1999 WSCA 1, Police v Leasuasu 2007 WSSC 56). Examination of single instance and appellate decision of this court suggest as an approximate guide a commencing figure of 2 years imprisonment subject to aggravating and mitigating matters (Police v Sione Fagai (22 July 2007), Police v W 2008 WSSC 8). Allowing for mitigating matters the range of appropriate sentences is between 9 – 18 months (Police v Isopo 2006 WSSC 24, Police v Faakafa 2005 WSSC 21, Attorney General v Faamate 1995 WSCA 9, Police v Saipele 2006 WSSC 23). Whilst greater emphasis should be given to rehabilitation of youthful offenders, the nature of the crime involving sexual predation on a young child requires a condign judicial response. Here the offender, while young was in a position of trust. Intoxication played a part in his sexual misconduct. The principles of consistency and approbation of sexual abuse of children required a more serious sanction, when, as here there was invasion of the body of a child. Ground 8 of the Notice of Appeal ought be upheld.
    

Time Served

12. The respondent had, at the time of sentence, served 3 months detention awaiting trial or disposition. The sentencing court was entitled to take time served in its calculation of the appropriate sentence. There is no merit in Ground 1 (b) of the Notice of Appeal and it ought be dismissed.
    

Re-sentence

13. This court has been requested to re-sentence the offender rather than remit the matter to the sentencing judge. On the basis of current Samoan sentencing patterns, which were helpfully marshalled by counsel, the appropriate sentence, absent identified mitigating factors ought be one of two years imprisonment. From that there ought be taken into consideration:
    
    • (1) some allowance for the plea of guilty, although less than a simple plea.
      
    • (2) the fact that this is a prosecution appeal and the principle concerning state appeals, applied.
      
    • (3) the respondent has been subject to a period of imprisonment, released and now taken back into custody (Attorney –General v Faavaoga Matalavea CA 05 (2006).
      

Taking into account the above matters, the appropriate sentence ought be one of 15 months imprisonment. The respondent has already effectively served 3 months of that sentence. The order of this court is that he be imprisoned for a period of 12 months less any time in excess of 3 months spent in custody.

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher