Police v Sinoti [2014] WSSC 35 (21 July 2014)

SUPREME COURT OF SAMOA

Police v Sinoti [2014] WSSC 35

Case name: Police v Tuane Sinoti

Citation: [2014] WSSC 35

Decision date: 21 July 2014

Parties: POLICE (prosecution) and TUANE SINOTI male of Tufulele

Hearing date(s):

File number(s): S5/14, S6/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
R Titi for prosecution
Accused in person

Catchwords: sexual violation, sexual connection, indecent assault, abduction of a child, threatening words

Words and phrases:
sentence, , mitigating and aggravating factors,

Legislation cited:
Crimes Act 2013 s.53(2) and S59(1), .59(3) and (5), s.131(1)(a)
Police Offences Ordinance 1961

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NO: S5/14, S6/14

BETWEEN

P O L I C E

Prosecution

A N D

TUANE SINOTI male of Tufulele

Accused

Counsel:

R Titi for prosecution

Accused in person

Sentence: 21 July 2014

S E N T E N C E

The charges

1. The accused appears for sentence on one count of assault with intent to commit sexual violation, contrary to s.53(2) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment; one count of sexual connection, contrary to s.59(1) of the Act, which carries a maximum penalty of 10 years imprisonment; one count of indecent assault of a female between the age of 12 years and the age of 16 years, contrary to s.59(3) and (5) of the Act, which carries a maximum penalty of 7 years imprisonment; one count of abduction of a child under the age of 16 years, contrary to s.131(1)(a) of the Act, which carries a maximum penalty of 10 years imprisonment; one count of unlawful entry of a building by night, contrary to s.178 of the Act, which carries a maximum penalty of 5 years imprisonment; four counts of using threats for the purpose of committing indecent assault, contrary to s.62(1) of the Act, each of which carries a maximum penalty of 5 years imprisonment; and four counts of using threatening words whereby a breach of the peace may be occasioned, contrary to s.4(g) of the Police Offences Ordinance 1961, each of which carries a maximum penalty of 3 months imprisonment. To all charges, the accused pleaded not guilty. At trial, he was found guilty as charged.
2. For present purposes, I have to say that to charge the accused with every unlawful act he had committed and then charge him as well with a more serious count which encompasses all those individual unlawful acts would unnecessarily complicate matters without adding anything of real substance to the case. It would be more convenient that the charges be limited to the most serious acts unless the prosecution is genuinely unsure whether the evidence it has is sufficient to establish the charges in relation to those most serious acts. Alternative charges for the relatively minor unlawful acts would then be preferred..

The offending

3. At the conclusion of the evidence in this case, I decided to accept the evidence of the complainant who was 13 years old at the time of the offending. I also decided to accept the evidence adduced by the prosecution which point to the accused being the offender and rejected the evidence of the 30 year old accused which tried to suggest that it was not him who committed the unlawful acts with which he has been charged.
4. The evidence of the victim showed that she, her mother, and her siblings went to sleep inside their house, which is an open house, at about 11:00p.m. at night. While the victim was asleep, she felt being carried by someone. She opened her eyes to find herself being carried by a man under the cocoa trees behind her family’s house with her blue blanket (sheet) still around her. She could not see the man’s face because it was dark. She screamed but the man closed her mouth. He also threatened her that if she screamed again he would kill her. The man then stood the victim down and led her inland by the hand.
5. While leading the victim, the man removed the blanket (sheet) wrapped around her body and told her to remove her clothes. She complied out of fear. The man then tied the dress the victim was wearing around her eyes and continued to lead her by the hand. On their way, the man told the victim to lie down. When the victim laid down, the man fondled with her private part using his fingers. The doctor who subsequently examined the victim found bruises on her private part.
6. The man then continued to lead the blindfolded victim by the hand. After some distance, the man stopped and made the victim sit down. He then told the victim to suck his penis. When the victim did not comply, the man forced his penis into the victim’s mouth and left it there. The victim was very scared and almost vomited.
7. The man and the victim then continued walking until they came to a deserted house which is far inland of the village of Tufulele which is next to the victim’s village of Faleasiu. The house is also situated some distance from the main road of the village of Tufulele. It was inside this house that the man removed the victim’s dress that he had tied around her eyes. The man then laid her down and went to sleep as he was drunk. When the man started snoring, the victim quietly put on her dress and escaped. She did not know where she was as she had been led blindfolded to the deserted house. However, when she got to the main road she started heading seaward. When she reached a shop that she recognised, she realised that she was at the village of Tufulele which is next to her village of Faleasiu. She then ran all the way to her family’s house at Faleasiu.
8. When the victim arrived home, she woke up her mother and told her mother what has happened to her. The victim’s mother testified that when she woke up, her daughter was crying and looked very scared. The time was about 5am in the early morning. The victim, her mother, and other women of her family then walked all the way to the house where the victim said she had been taken by this unknown man. When they got close to the house, they called in some people of Tufulele to assist. The Faleolo police were also called in. They all went with the victim to the deserted house where the victim had been taken by the man.
9. The police found inside the house a man who was soundly asleep and snoring. The victim’s blue blanket (sheet) was also found next to this man. The man was the accused as identified by people of his own village. The police woke him up and took him to the police post at Faleolo. In his evidence, the accused said he was drunk on the night in question as he had been drinking during the day.

The victim

10. As already mentioned, the victim was 13 year old at the time of the offending. She also attends school.
11. It is clear that the victim has been psychologically affected by this incident. It was a most fearful and distressful ordeal for her. It is likely to remain with her for a very long time if not for the rest of her life. According to the victim impact report, the victim can hardly sleep at night since this incident as she always thinks of what had happened to her. This incident is also affecting her school work and concentration on her studies as she finds it difficult to keep it out of her mind. It is still something that weighs heavily in her mind.

The accused

12. As already pointed out, the accused was 30 years old at the time of this offending. He has a wife and two young children. He finished school at Year 13 and was then employed in various jobs. At the time of this offending, he was staying home tending to his own plantation.
13. As it appears from the pre-sentence report, the accused still maintains his innocence. This is a sign of lack of remorse.
14. The accused was convicted and discharged in the District Court in 2012 for obstruction and giving false information. He has been banished from his village as a result of this offending.
15. The pre-sentence report shows that the accused told the probation service that his family has performed a ifoga to the family of the victim and it was accepted. This was denied by the victim’s mother to the probation service.

The aggravating and mitigating features

16. The offending in this case involves several very serious aggravating features. In the first place, this offending involved home invasion at the late hours of the night while the victim and her family were soundly asleep. The accused then carried the victim away in her sleep. This is the type of offending we in Samoa call moetolo which is a very serious offence as it always involves home invasion late at night while a victim is asleep. Furthermore, what happened here was tantamount to abduction.
17. The indecencies committed on the victim, the tying of her dress around her eyes so that she would not know where she was being led to, and the long distance she was made to walk to the deserted house from where she escaped, are also aggravating features relating to the offending. Likewise, were the threats made on her. This was a very bad ordeal for this young girl.
18. The fear and the distress suffered by the victim during the time of the offending are also aggravating features relating to the offending. Likewise the psychological impact of this offending on her. There is no mitigating feature of the offending.
19. In relation to the accused as offender, there is no aggravating feature. I would not take the accused’s previous convictions for what were different types of offences as aggravating features personal to him. As for mitigating features, the only mitigating feature which is personal to the accused is the fact that he has been banished by his village council.

Discussion

20. This type of offending clearly calls for a deterrent sentence not only as a general deterrence to those men who are minded to commit this type of offending but also as a special deterrence to the accused personally so that he would not commit this type of offending again.
21. Having regard to the need for deterrence in this type of case and the aggravating features of this offending, I will take 10 years as the starting point for sentence on the lead charge of assault with intent to commit sexual violation as recommended by the prosecution. I will deduct one year for the banishment imposed by the village council on the accused. That leaves 9 years.

The result

22. On the charge of assault with intent to commit sexual violation, the accused is sentenced to 9 years imprisonment.
23. On the charge of abduction of a child under the age of 16 years, the accused is sentenced to 7 years imprisonment.
24. On the charge of sexual connection with a female under the age of 16 years, the accused is sentenced to 5 years imprisonment.
25. On the charge of indecent assault of a female between 12 and 16 years, the accused is also sentenced to 5 years imprisonment.
26. On the charge of unlawful entering of a building by night, the accused is sentenced to 2 years imprisonment.
27. On each of the four counts of using threats for the purpose of committing indecent assault, the accused is sentenced to 2 years imprisonment.
28. On each of the four counts of using threatening words whereby a breach of the peace may be occasioned, the accused is discharged without conviction.
29. All of the sentences are to be concurrent so that the accused will serve a total sentence of 9 years imprisonment. The time that the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.

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CHIEF JUSTICE