Police v Luamata [2013] WSSC 61 (17 July 2013)

SUPREME COURT OF SAMOA

Police v Luamata [2013] WSSC 61

Case name: Police v Luamata

Citation: [2013] WSSC 61

Decision date: 17 July 2013

Parties: Police (prosecution) v Solomona Luamata (accused)

Hearing date(s):

File number(s): S111/13

Jurisdiction: CRIMINAL

Place of delivery: Mulinuu

Judge: Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
F E Niumata and B Faafiti-Lo Tam
J Brunt

Catchwords:
Words and phrases:
Absence of previous convictions
Aggravating and mitigating factors
Good character
Maximum penalties for attempt to commit an offence
Maximum penalty for attempted indecent assault
Victim’s wishes and forgiving attitude

Legislation cited:
Crimes Ordinance 1961

Cases cited:
Aaron Mark Wi v R [2009] NZSC 121
Key v Police [2013] C.A. 07/13: judgment delivered 28 June 2013
R v Falealili [1996] 3 NZLR 664
Police v Nonuimalo [2007] WSSC 8
Police v Saveaalii [2008] WSSC 7
Police v Taueu [2007] WSSC 93
Ryan v R [2001] HCA 21

Texts
Sentencing in Tasmania 2002 2nd ed by Professor Warner

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S111/13

BETWEEN

P O L I C E

Prosecution

A N D:

SOLOMONA LUAMATA male of Tanugamanono.

Accused

Counsel:

F E Niumata and B Faafiti-Lo Tam for prosecution

J Brunt for accused

Sentence: 17 July 2013

S E N T E N C E

The charge

1. The accused had been charged with more serious offences to which he had pleaded not guilty. On the morning of the trial, the prosecution withdrew those charges and substituted them with the less serious charge of attempted indecent assault pursuant to ss. 27 and 54 of the Crimes Ordinance 1961. The accused then pleaded guilty. He now appears for sentence on the charge of attempted indecent assault.
2. Section 54 of the Crimes Ordinance 1961 creates the offence of indecent assault on a woman or girl and provides for a maximum penalty of 5 years imprisonment. Section 27 is a general provision which creates the offence of attempt to commit an offence which would include an attempt to commit an indecent assault on a woman or girl. Neither s.54 nor s.27 provides a penalty for the offence of attempted indecent assault.
3. The general provision in the Ordinance which provides the maximum penalty for an attempt to commit an offence, except for an attempt to commit an offence for which a penalty is provided under the Ordinance, is s.114. Section 114 provides:

“(1) Everyone who attempts to commit any offence in respect of which no punishment for the attempt is expressly prescribed by this Ordinance or by some other enactment is liable to imprisonment for a term not exceeding 10 years if the maximum punishment for that offence is imprisonment for life, and in any other case is liable to not more than half the maximum punishment to which he would have been liable if he had committed that offence.

“(2) Everyone who incites, counsels, or attempts to procure any person to commit any offence, when that offence is not in fact committed, is liable to be same punishment as if he had attempted to commit that offence”.

4. Because the maximum penalty for the offence of indecent assault under s.54 is 5 years imprisonment, it follows that in terms of s.114 (1) the maximum penalty for the charge of attempted indecent assault would be 2½ years imprisonment.

The offending

5. According to the prosecution’s summary of facts, the victim and a female friend were at the Cappuccino Vineyard (CV) bar on the ground floor of the ACC Building at Matafele on Saturday night, 26 January 2013. At about 11:00pm, the victim went by herself to the ladies bathroom which is outside the CV bar but still on the ground floor of the ACC Building.
6. When the victim entered the ladies bathroom it appeared to her that no one was inside the bathroom. On coming out of the toilet, the victim noticed a male of medium build wearing a white shirt with designs. This man was the accused. When the victim proceeded to the basin to wash her hands, the accused approached her from behind. She turned to look over her shoulder but the accused punched her on the mouth.
7. While bleeding from her mouth, the victim pushed the accused away from her and a struggle ensued. When the victim fell to the floor she screamed. This caused the accused to flee. However, he was later caught by some on-lookers and the security staff of the ACC Building. The police who had been called arrived and brought the accused to the Apia police station where he was interviewed the following day and he readily admitted to the offending.
8. As it appears from the pre-sentence report, the accused told the probation service that on Saturday 26 January 2013, his workmates had a party at Tuanaimato from 12noon until later that evening. Alcohol was consumed at the party. Between 6pm and 7pm in the evening he came with some of his workmates to the RSA night club in Apia where they consumed more alcohol. He then crossed the road from the RSA to go to the bathrooms on the ground floor of the ACC Building where this incident occurred. He was heavily intoxicated at the time.

The victim

9. The victim is a 25 year old female. She is single and employed. As a result of this incident, she was bleeding from her mouth because of a cut on her upper lip which remained swollen for two days and kept her away from work.
10. In the victim impact report, the victim says that she wants to forget about this whole incident and does not want to be questioned about it as it upsets and unsettles her. She looks forward to the future and wants to move on with her life.
11. The victim also says that the accused and his family have apologised to her and her mother and sought their forgiveness and she has forgiven the accused. She also says that the accused’s family were upset and some of them were crying. The accused himself appeared sad and remorseful. So there has been a reconciliation and settlement between the victim and the accused and between their respective families.
12. The victim also told the probation service that she had written to the police to withdraw this matter. For the purpose of sentencing, she is now seeking through the probation service leniency on the accused.

The accused

13. The prosecution’s summary of facts also shows that the accused is a 25 year old male. He is single and employed. The pre-sentence report also shows the accused to be a well-educated person and to have graduated with a certificate in fitting and machinery from the Samoa Polytechnic Institute. Since 2008 he has been employed as a fireman at the Fire and Emergency Services Authority.
14. 14. In respect of the accused’s character, the accused’s father told the probation service that his son is the sole provider of financial assistance for their family and is a very trustworthy person in their family. The testimonial from the accused’s employer shows that the accused is a hardworking, honest and dependable employee who also adheres to the regulations and guidelines which apply to his work. The testimonial from the pastor of the accused’s church shows the accused as a peaceful person with a pleasant personality. The testimonial from the pulenu’u of the accused’s village also shows the accused as a peaceful person with a pleasant personality and that he plays for his village rugby team. He has also not breached any village regulation. The accused is also a first offender.
15. The pre-sentence report also shows that the accused and his family performed an apology to the victim and her family which was accepted. The apology was accompanied by a presentation of money and food.
16. Counsel for the accused in his plea in mitigation also submitted that this was not a pre-meditated offence. The accused was seriously intoxicated and alcohol must have weakened his self-control and made him succumb to human frailty. Being at the wrong place at the wrong time, he did what he had done and is now truly remorseful for his actions.

First offender status, absence of previous convictions, and good character in the sentencing process

17. In a number of sentencing decisions of this Court, the status of an accused as a first offender is treated as a mitigating factor. May be this is because the first offender status of the accused has been seen as a reflection of his previous good character. In a number of other cases, this Court has expressly given as a mitigating factor the fact that the accused is a first offender and had been a person of good character prior to the commission of the offence for which he is appearing for sentence. Evidence of the accused’s previous good character is usually provided in the pre-sentence report and any accompanying testimonials. In the recent decision of the Court of Appeal in Key v Police (2013) (C.A 07/13; judgment delivered on 28 June 2013), the Court said:

“The fact that the convicted person is a first offender is not a mitigating factor. At most, it is neutral. Previous convictions are aggravating factors. Previous good behaviour is, of course, a relevant mitigating factor”.

18. The above statement in Key v Police is in line with the relevant jurisprudence in New Zealand. In R v Falealili [1996] 3 NZLR 664, 667, the majority of the New Zealand Court of Appeal said:

“We think there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person’s good character. It may be a factor in assessing good character, but standing on its own it is generally neutral. A person of bad repute may well have no convictions”.

19. In the subsequent case of Aaron Mark Wi v R [2009] NZSC 121, para [2], Tipping J in delivering the judgment of the New Zealand Supreme Court said:

“[The] Kant Court emphasised that in Falealili the lack of previous convictions was regarded as no more than a factor in assessing good character and, by itself, was ‘generally neutral’. The expressed rationale was that a person of bad reputation might well have no convictions”.

20. In the High Court of Australia in Ryan v R [2001] HCA 21, paras 23-25, McHugh J said:

“23. It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing Judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing Judges refer to the offender’s ‘previous’ or ‘otherwise’ good character.

“24. If an offender’s character was determined by reference to the offences for which he or she is being sentenced, he or she would seldom be of ‘good character’...

“25. Second, if the offender is of otherwise good character it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing Judge is bound to take that into account in the sentence that he or she imposes. The weight that must given to the prisoner’s otherwise good character will vary according to all of the circumstances”.

Victim’s wishes and forgiving attitude

21. In a passage from Sentencing in Tasmania (2002) 2nd ed by Professor Warner at para 3.420, which has been cited by this Court in Police v Saveaalii [2008] WSSC 7, Police v Nunuimalo [2007] WSSC 8, and Police v Taueu [2007] WSSC 93, the learned author stated:

“A victim’s wishes or forgiving attitude cannot be given priority or be allowed to prevail over broader community interests. And fairness suggests a sentencing outcome should not depend on whether a victim is vengeful or forgiving. However, in some cases Courts have been prepared to give a forgiving attitude some weight. In McGhee (1994), a case of attempted murder, where the victims had indicated they had forgiven the offender and did not want him to be punished, Green CJ said the victim’s attitude and wishes ‘whilst not determinative are factors which militate against giving much weight to considerations of retribution and denunciation. R v F (1998) was a case of indecent assault where the victims were daughters of the offender. Their ambivalent response to the offender-emotional hurt on the one hand and sadness and concern for him on the other – was considered by Slicer J to be a significant factor in the determination of sentence and one which permitted some amelioration of the penalty. In other jurisdictions, Judges have sometimes given considerable weight to victim forgiveness in cases of marital rape. But this is controversial. At most, a victim’s wishes and forgiveness should only moderate the sentence to a limited degree and only when the sentence further aggravates the distress of the victim.”

22. It would appear from the above passage that Judges have treated a victim’s wishes or forgiving attitude as a mitigating factor for the purpose of sentencing. However, the learned author of Sentencing in Tasmania takes a restricted view of the use of such a mitigating factor in the sentencing process.

Aggravating and mitigating factors

23. The aggravating factors in this case are (a) the use of violence by the accused and the nature of that violence, (b) the physical and limited psychological impact of the offending on the victim, and (c) the place where this offending occurred. All of these aggravating factors relate to the offending.
24. On the other hand, the mitigating factors are (a) the accused’s plea of guilty, (b) the fact that the accused is a first offender and had been a person of good character prior to the commission of this offence as shown from the pre-sentence report and the written testimonials on him, (c) the apology by the accused and his family to the victim and her family which was accepted, (d) genuine remorse on the part of the accused, and (e) the victim’s forgiveness and her plea for leniency on the accused as conveyed to the probation service. All these mitigating factors relate to the accused as offender. I also take into consideration in this connexion the relatively young age of the accused and his other personal circumstances as set out in the pre-sentence report.
25. The only mitigating factor relating to the offending is the absence of pre-meditation as submitted by counsel for the accused. The offending was opportunistic rather than pre-meditated and was committed while the accused was seriously intoxicated.

The decision

26. As already pointed out, the maximum penalty for attempted indecent assault is 2½ years imprisonment. Having given careful consideration to the aggravating and mitigating factors as well as the Court’s discretion to show mercy where appropriate, I have decided to give the accused the opportunity to redeem himself while he is still a relatively young man with his future still before him. This means that the starting point approach to sentencing which applies where the Court is mindful of imposing a custodial sentence is not appropriate in this case.
27. The accused is sentenced to 18 months probation. As a special condition of his probation, he is to perform 100 hours of community service as directed by the probation service.
28. Before leaving this matter, I must warn the accused that if he appears before the Court again for committing this kind of offence then he is likely to go to prison. So let this case be a lesson and a solemn warning to him.
    

CHIEF JUSTICE

• Solicitor
• Attorney General’s Office, Apia for prosecution
• Brunt Lawyers for accused