Police v Afioga [2012] WSSC 106 (19 June 2012)

SUPREME COURT OF SAMOA

Police v Afioga [2012] WSSC 106

Case name: Police v Afioga

Citation: [2012] WSSC 106

Decision date: 19 June 2012

Parties: POLICE and SKIPPY AFIOGA, male of Fagalii

Hearing date(s): 7, 8, 11, 12 June 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Slicer

On appeal from:

Order: (Sentence)

Representation:
R Titi and P Valoia for the prosecution
Defendant in person

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961

Cases cited:
R v AM [2010] NZCA 114
Police v Sione [2011] WSSC 128
Police v Filipo [2011] WSSC 127
Sentencing in New Zealand, Hall (1987),
(Mill v R [1988] HCA 70; (1988) 166 CLR 59
Griffiths v R [1989] HCA 39; (1989) 167 CLR 372).
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

A N D:

SKIPPY AFIOGA, male of Fagalii

Defendant

Counsel: R Titi and P Valoia for the prosecution

Defendant in person

Sentence: 19 June 2012

SENTENCE

1. Skippy Afioga has been found guilty, unanimously by assessors, of the crime of Rape. He took advantage of a woman who needed money to obtain a driver’s licence. He turned a casual meeting on an autobus into an offer to provide assistance. He deceived her into believing that he was employed by Samoa Shipping Corporation and had a bank account. She accompanied him to a bank, at which he had no account, and attempted to borrow money. He lied to her saying that the bank computerized system was down. He then promised to take her to a person, whose name she knew, whom he said owed him money and its repayment would enable him to help the woman. He lied and instead took her to a different village claiming that the ‘friend’ kept two houses. He also falsely stated his name.
2. The woman was taken to the fale of his friend which was isolated; its only access a rough road which required the crossing of two rivers. She was effectively held captive for 2 nights; raped and sexually molested during that period. He lied to her promising to return her to Apia if she had sex with him. The verdict of the assessors means that there was no consent to the sexual act.
3. The woman escaped at night crossing a flooded river at great risk to her safety. She managed to avoid being captured by the offender who was pursuing her. She found refuge with a kind couple who lived a fair distance away, helped her recover from her ordeal and notified the police.
4. The shocking experience terrified the woman who had initially believed the lies told by her abductor.
5. Skippy Afioga was arrested on 21 January and remained in custody for this matter until 29 July 2011. Ordinarily he would be entitled to have that period taken into account in the determination of his sentence. But it appears from the court record that the time spent in custody was taken into account on 29 July 2011.
6. The prosecution suggests a starting point of 12 years imprisonment given the nature of the crime. The prosecution then seeks an additional term of 3 years to take into account the aggravating matters of prior record, the previous sexual misconduct and the length of time the woman was held captive. I would prefer to adopt the model as stated in R v AM [2010] NZCA 114, which was applied by the Court in Police v Sione [2011] WSSC 128 and Police v Filipo [2011] WSSC 127, and places the starting point within the higher point of Band 3 as provided in AM (supra), and will chose 15 years as the appropriate commencing point. To this should be added the prolonged time of the abduction and detention of an initially trusting woman. A further aggravating matter is the extensive record of the offender. His conviction form states his age as 27 years. Since September 2006, he has been convicted of:

Burglary and Theft 3

Receiving Stolen Goods 1

Drunkenness 4

Use of Insulting Words 1

Throwing Objects 1

Escape from Custody 1

7. On 29 July 2011, he was sentenced to a term of imprisonment for a period of 6 years and 6 months ‘concurrent with remand in custody time to be deducted.’ The sentence involved sexual misconduct with a woman with a disability contrary to the Crimes Ordinance 1961 section 57. Those aggravating matters result in an appropriate sentence of 18 years imprisonment.
8. However, there remains consideration of the totality principle in sentencing. In the words of the English author Thomas in his Principles of Sentencing 2 Ed. (1979):

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.”

9. Applying the principle sentences which are proper and not excessive when considered alone have been considered in total to be manifestly excessive. It is often referred to as a crushing sentence and except in the most extreme cases to be avoided. The approach as stated by Thomas has been accepted in New Zealand (Sentencing in New Zealand, Hall (1987), page 195) and Australia (Mill v R [1988] HCA 70; (1988) 166 CLR 59, Griffiths v R [1989] HCA 39; (1989) 167 CLR 372). The principle applies when an offender is serving a sentence imposed on a previous occasion (Postiglione v R [1997] HCA 26; (1997) 189 CLR 295) and will be applied here.
10. Skippy Afioga is already serving a sentence of 6 ½ years and since this sentence will be cumulative rather than concurrent the 18 years warranted by this crime will be reduced to 15 years, the original commencing point.
11. I have used a different approach to that taken by the prosecution and allowed for the matters stated in paragraphs 8 and 9 above. However, I reach the same conclusion as that stated by counsel. I also agree that the method used by the prosecution is as equally valid as mine except for the principle of totality.

ORDERS:

(1) Skippy Afioga is convicted of the crime of Rape.
(2) Skippy Afioga is sentenced to a term of imprisonment for a period of 15 years, such sentence to be cumulative to that imposed on 29 July 2011.

(JUSTICE SLICER)