Police v Malaga [2014] WSSC 83 (24 December 2014)

IN THE SUPREME COURT OF SAMOA
Police v Malaga [2014] WSSC 83

Case name:	Police v Malaga
Citation:	[2014] WSSC 83
Decision date:	24 December 2014
Parties:	POLICE (prosecution) v MU MALAGA (accused)
Hearing date(s):
File number(s):	S3678/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Honourable Chief Justice Sapolu
On appeal from:
Order:	- Convicted and fined $300
Representation:	R Titi for prosecution
	Accused in person
Catchwords:	Bigamy- maximum penalty - psychologically shattered-extra-marital affairs-sentencing approach-mitigating and aggravating features
Words and phrases:
Legislation cited:	Crimes Act 2013.78 (1) and (2) (a)
Cases cited:	Police v Samasoni Roberson (2014) (S1750/14; R v Crowhurst Seed and Stark v R [2007] EWCA Crim 254
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S3678/14

BETWEEN
P O L I C E

Prosecution

A N D
MU MALAGA female of Vaisala, Sataua and Alafua.

Accused

Counsel:
R Titi for prosecution
A Su’a for accused

Sentence: 24 December 2014

S E N T E N C E

The charge

1. The accused Mu Malaga, a 54 year old female of Vaisala, Savaii, appear for sentence on the charge of bigamy, contrary to s.78 (1) and (2) (a) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment. To the charge she pleaded guilty at the earliest opportunity.

The offending

2. The facts of the offending in this case can be gathered from the brief summary of facts, the submissions by counsel, the pre-sentence report, and the victim impact report.
3. The accused and the complainant who is a 47 year old male of Sapapalii, Savaii, were married on 2 January 1991 and they had one son. Prior to their marriage, the accused had a daughter from her previous husband. The accused and her previous husband were not married and he subsequently migrated to New Zealand leaving the accused and her daughter in Samoa.
4. After the accused and the complainant were married in 1991, they lived at the accused’s family at Vaisala. This was convenient for the accused who is a senior registered nurse at the Sataua District Hospital. After five years, the complainant moved back to his family at Sapapalii to care for his mother. According to the accused, the complainant would visit her and her family at least three days a week but for some weeks he would never visit. The accused also says that around this time the complainant’s attitude towards her started to change. He had no sexual desire to cohabit with her as his married wife. Sometimes she would see love bites on the complainant’s neck and chest but when she confronts the complainant about it, he would deny that he was having an affair with another woman. However, when the accused persists, the complainant would become confrontational and physically abuse her or he would tell her that he was just passing time with those other women.
5. As result of the complainant’s unfaithfulness to her, the accused says she would become devastated and depressed. When her depression becomes overwhelming, she would for a period of time spend twenty four hours of every working day at the hospital to keep her mind busy and pre-occupied so that she would not dwell too much on her husband’s extra-marital affairs.
6. Over a period of time, the accused was able to overcome her depression and to withstand the complainant’s extra-marital affairs. She no longer allowed the complainant’s sexual affairs with other women to bother her. At the same time, she felt that she had lost any feelings of intimacy or affection towards the complainant. A heavy load seems to have fallen off from her. The accused says that the complainant must have noticed this for he became suspicious and unreasonably jealous of her. When she felt she has had enough from the complainant, she would demand that they divorce. However, she was always met with physical abuse.
7. The accused told her counsel that she suffered physical, emotional, and psychological abuse from the complainant and she became very confused. It was at this time that she met up again with her previous husband, the father of her daughter. His wife had passed away. They started courting each other again until they got married in Auckland in September 2011. The accused says her re-marriage was not intended as revenge against the complainant for his extra-marital affairs with other women. She was jut confused and emotionally and psychologically shattered. She told the probation service that all she wanted was to find peace and love. Her marriage to her previous husband will also assist their daughter with the processing of her immigration papers for New Zealand.
8. After this matter was brought to the police, the accused apologised to the complainant whose response was for the accused to give him $15,000 and he will then ask the police to withdraw this matter. When the probation service called the complainant, he confirmed that he did tell the accused that the only condition upon which he will withdraw this matter and sign the divorce papers is if the accused pays him $15,000. He is also not in a position to forgive the accused for what she has done.

Victim impact report

9. In the victim impact report, the complainant says that he is very hurt and unhappy because of what the accused has done as he has been a loyal and loving husband. Having given careful consideration to all of the information placed before the Court, I have decided to accept what the accused says and not what the complainant says. If the complainant was a loyal and loving husband then why has he been living with his family at Sapapalii while the accused is living with her family at Vaisala. I find the account given by the accused more credible than the complaint by the complainant.
10. The complainant also says in the victim impact report that he is emotionally hurt and distressed by the loss of her daughter. This is the daughter of the accused from her previous husband whom she purported to marry in Auckland in September this year. The accused strongly denies what the complaint is saying. According to the accused, her daughter has always been staying with her and her family at Vaisala while the complainant is staying with his family at Sapapalii. There was also no close bond of a father and daughter relationship between the complainant and her daughter.
11. The complainant also says that he has been humiliated within his village because of the new marriage by the accused. I do not find this credible given the physical, emotional and psychological abuse that the accused has had to endure from the complainant. But even if it is assumed that the accused truly feels humiliated, then it is humiliation that he has brought upon himself because of the way he has been treating the accused. Counsel for the accused in his submissions poses the question: who is the real victim in this case, the complainant or the accused?
12. The accused had also been demanding a divorce from the complainant because of his affairs with other women and the way he was abusing her. So the complainant must have been aware for some time that the accused no longer loves him and wants to end their marriage. However, the complainant refuses to divorce the accused. How then can it be a deception upon the complainant when the accused decided to re-marry? What was the deception? The answer must be there was no deception. The accused had been telling the complainant for some time that she no longer loves him and wants to divorce him. It is because of the complainant’s continuous refusal that divorce has not yet taken place.

The accused

13. The accused has been a registered nurse for more than 33 years. She is now the senior registered nurse at the Sataua District Hospital. She is more than 54 years old and will reach the retirement age of 55 in a few months time. She has had an unblemished record in the nursing profession. She is described as an able and hardworking nurse who is well liked by her peers and her patients. Her family also depends on her for their everyday necessities.
14. The accused is also a first offender. The testimonials from members of her family, the pastor and the pulenuu of her village, and the Ministry of Health all show that she had been a person of good character prior to this offence.

The aggravating and mitigating features

15. Apart from the nature of the offence, there is no aggravating factor in relation to the offending. The accused did not deceive the complainant because she had been telling him that she no longer loves him and wants to divorce him because of his affairs with other women and the abuses he was inflicting on her. These abuses are a mitigating factor relating to the offending because they drove the accused to look for another husband and in the end committing this offence.
16. There is no aggravating factor in relation to the accused as offender but there are several mitigating factors. These are: (a) the fact that the accused at age 54 years is a first offender and had been a person of good character prior to this offence, (b) her long service as a nurse to the health service of this country, (c) her apology to the accused, and (d) her plea of guilty to the charge against her at the earliest opportunity.

The approach to sentencing in bigamy cases

17. In the case of Police v Samasoni Roberson (2014) (S1750/14; unreported judgment of this Court delivered on 11 September 2014), this Court referred to Seed and Stark v R [2007] EWCA Crim 254, para 22, where Lord Chief Justice Lord Phillips of Worth Matravers in delivering the judgment of the English Court of Criminal Appeal said:
    • “These sentencing remarks might suggest that the Judge considered that the offence of bigamy was so serious that it must inevitably attract a custodial sentence and that the circumstances of the offence bear solely on the length of that sentence. That is not the case and we do not believe that the Judge proceeded on this basis, for Mr Blake who appeared for the appellant before the Judge and appears today, confirms that his submissions to the Judge were those that he placed before us, and they include the leading case on sentencing for bigamy: R v Crowhurst (unreported), referred to in Thomas on Sentencing at B4 – 43 A01. Waller LJ is there recorded as saying:
      • “Sentencing for bigamy cases must vary very much with the particular circumstances of the case. In many cases of bigamy it is possible to deal with the case by some sentence which does not involve deprivation of liberty. In other cases there may be a clear deception which has resulted in some injury to the woman concerned in which an immediate custodial sentence must be passed, and the length of that sentence must depend greatly on the seriousness of the injury that has been done”.

Overcrowding in prison

18. As it has come to my knowledge that the prison at Tafaigata is now overcrowded and extra structure have been built to try and accommodate the prisoners and the prosecution is seeking a custodial sentence in this case, I need to say something about prison overcrowding. In Seed and Stark v R [2007] EWCA Crim 254, para 1, the Lord Chief Justice Lord Phillips of Worth Matravers said:
    • “Once again Judges who have to sentence offenders are confronted with the fact that the prisons are full. When they impose sentences of imprisonment – and very often the nature of the offence will mean that there is no alternative course – the prison regime that the offender will experience will be likely to be more punitive because of the consequence of overcrowding and the opportunities for rehabilitative intervention in prison will be restricted. The Strangeways Report of Lord Woolf spells out the consequences of prison overcrowding”.
19. Further on at para 9, the Lord Chief Justice Lord Phillips said:
    • “Unless imprisonment is necessary for the protection of the public the Court should always give consideration to the question of whether the aims of rehabilitation and thus the reduction of crime cannot be better achieved by a fine or community sentence rather than by imprisonment and whether punishment cannot adequately be achieved by such a sentence. We believe that there may have been a reluctance to impose fines because fines are often not enforced. Enforcement of fines is now rigorous and effective and, where the offender has the means, a heavy fine can often be an adequate and appropriate punishment”

And at para 8, His Lordship said:

“We make no apology for emphasising these matters, although we are aware that we are doing no more than repeating the previous exhortations of this Court in the face of prison overcrowding...”

Discussion

20. Having regard to all the relevant circumstances, a custodial sentence will be inappropriate in this case. The accused has suffered enough. A monetary fine as sought by her counsel will be sufficient.

The result

21. The accused is convicted and fined $300.
    

Honourable Chief Justice Sapolu