Attorney General v Siafausa [2012] WSCA 19 (23 November 2012)

COURT OF APPEAL OF SAMOA

Attorney General v Siafausa [2012] WSCA 19

Case name: Attorney General v Siafausa

Citation: [2012] WSCA 19

Decision date: 23 November 2012

Parties: ATTORNEY GENERAL (Appellant) and MULITALO SIAFAUSA male of Vaimoso-uta and Sinamoga (Respondent)

Hearing date(s): 21 November 2012

File number(s): CA 14/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Salmon

On appeal from:

Order:

Representation:
P Chang and R Titi for appellant
R Schuster for respondent

Catchwords:
“sanction”

Words and phrases:

Legislation cited:
Criminal Procedure Act 1972

Cases cited:
Attorney General v Mr A & Ms B CA15/11

Summary of decision:

COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO. CA 14/12

BETWEEN

THE ATTORNEY GENERAL

Appellant

AND

MULITALO SIAFAUSA male of Vaimoso-uta and Sinamoga

Respondent

Coram:
Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Salmon

Counsel:
P Chang and R Titi for appellant
R Schuster for respondent

Hearing: 21 November 2012

Judgment:23 November 2012

JUDGMENT OF THE COURT

[1] This matter has reached the Court of Appeal by way of a case stated by Slicer J.

[2] The case itself contains effectively nothing but the two questions which this Court is asked to answer. One would normally expect a case stated to contain background details leading to the questions asked.

[3] However in this case we have been provided with the Judge’s sentencing remarks which adequately provide the necessary background.

Background

[4] The defendant was tried in the High Court on 10 charges of indecent assault and 10 charges of unlawful intimidation. The unlawful intimidation charges were dismissed. The defendant was found guilty of all charges of indecent assault. The charges involved indecent exposure and a request for acts which the complainant felt obliged to perform on the defendant.

[5] At sentencing the Judge, imposed a community service sentence on five of the charges and in respect of the remaining five he ordered, relying on s115 Criminal Procedure Act 1972, the defendant to appear for sentence if called upon within a period of 2 years on condition that he paid the complainant the sum of $3000.

[6] The questions posed in the case stated are:

“1. Does the wording of the Act section 113, in the context of the Act, permit a sanction, in whole or in part, of the making of a compensation order to a victim of a sexual offence?; and

2. In the case of multiple convictions, does the Act section 113 permit a sanction in addition to the matters punished and otherwise on other concurrent convictions?

[7] It appears from the wording of the questions that the word “sanction” is used to distinguish a compensation order from the punishments provided for the offences.

[8] The Judge relied on s113 of the Criminal Procedure Act to make the order for payment of compensation. That section provides:

“ (1) Any Court by or before which any person is convicted of any offence, or before which any person appears for sentence, may, having regard to the circumstances, including the nature of the offence and the character of the offender, instead of passing sentence, order the offender to appear for sentence if called upon to do so, on such conditions as the Court thinks fit.

“(2) The making of an order under this section shall not limit or affect the power of the Court, under any enactment applicable to the offence, to make any order for the payment of costs, damages or compensations, or for the restitution of any property, despite that the offender is not sentenced on conviction, and the provisions of every such enactment shall apply accordingly.

“(3) Any person in respect of whom an order is made under this section may be called upon to appear for sentence within any period specified by the Court in the order, being a period not exceeding 3 years from the date of the conviction, or, if no period is so specified, within 1 year from the date of the conviction.

“(4) Where any person is brought up for sentence under this section, any Judge or Fa’amasino Fesoasoani having jurisdiction to deal with offences of the same kind, whether or not he or she is the Judge or Fa’amasino Fesoasoani before whom the case was heard, may, after inquiry into the circumstances of the case and the conduct of the offender since the order was made, sentence or otherwise deal with the offender for the offence in respect of which the order was made.

[9] The Judge considered that the words at the end of ss(1) “on such conditions as the Court thinks fit” provided the necessary jurisdiction for the compensation order.

[10] In making the order the Judge took some encouragement from the decision of this Court in Attorney General v Mr A & Ms B CA15/11 and CA8/12 Dec. 31/5/2012. In that case a non- custodial sentence was replaced by one of imprisonment but an unchallenged order for payment of compensation was left intact. The issue of the legal appropriateness of that order was not raised.

[11] We now turn to answer the first question

[12] Compensation orders are a feature of the criminal law in a number of Commonwealth jurisdictions. Indeed in Samoa s6 of the Community Justice Act 2008 provides for payment of compensation in the circumstances there outlined. So far as our experience goes compensation orders made as part of a criminal sentencing process always rely on specific statutory authority. The issue then is whether the wide words used in s113 allow such an order to be made.

[13] The power to make conditions cannot be entirely open-ended. We are satisfied that the words providing the power must be interpreted in the context of the Act in which they appear. In this regard we note that the Criminal Procedure Act does contain provisions for compensation. Sections 165 and 166 allow orders, including for compensation, to be made in relation to property. We also note that s104 (6) and s113 (2) preserve powers to order payment of compensation provided for under other enactments.

[14] We have concluded that these specific provisions and the absence of any specific power to order payment of compensation in relation to offences of indecent assault, mean that the broad terms of s113 (1) should be interpreted so as to exclude an order for compensation in this case. To put it another way the legislature has provided for the circumstances in which compensation can be ordered, and the nature of that compensation, and that places a limitation on the power given by the subsection.

The answer to question 1 is no

[15] The second question raises a broader issue. In our view the question does not arise out of this case and it would be inappropriate to attempt to answer it other than to say that a Judge may impose one form of sentence in relation to some offences and another form for the remainder. In doing so the Judge must bear in mind the totality principle.

[16] Having answered question 1 in the way we have, the issue arises as to the procedure we should now follow.

[17] The power for a Judge to state a case arises under ss(7) of s164 of the Criminal Procedure Act. That section is included in Part VII A of the Act which deals with criminal appeals from the High Court.

[18] S164J provides the powers of the Court of Appeal where the appeal is on a question of law. Although s164J does not refer specifically to cases stated we are satisfied that it is intended to apply to such cases. Indeed ss(1) which provides that this Court may restate a case suggests this is so.

[19] Subsection (2) of s164J provides as follows:

“(2) Upon the hearing of any appeal under the preceding provisions of this Part, other than section 164B, the Court of Appeal may:

(a) confirm the ruling appealed from; or

(b) if it is of the opinion that the ruling was erroneous, and that there has been a mistrial in consequence, direct a new trial; or

(c) if it considers the sentence erroneous pass such a sentence as ought to have been passed, or set aside any sentence passed by the Court below, and remit the case to the Court below with a direction to pass the proper sentence; or

(a) if it is of the opinion, where the accused has been convicted, that the ruling was erroneous, and that the accused ought to have been acquitted, order that the conviction be set aside, which order shall be deemed to be an acquittal; or

(b) make such other order as justice requires.

[20] In this case in exercise of the powers given by clause (c) of ss(2) we set aside the order made under s113 and remit the case to the Supreme Court to pass such sentence as it considers appropriate in the light of this judgment.

[21] Order accordingly.

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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Salmon