Police v Sipaniolo [2015] WSSC 186 (23 November 2015)

SUPREME COURT OF SAMOA
Police v Sipaniolo [2015] WSSC 186

Case name:	Police v Sipaniolo
Citation:	[2015] WSSC 186
Decision date:	23 November 2015
Parties:	POLICE v AFA SIPANIOLO a male of Vaoala and Safotu.
Hearing date(s):
File number(s):	S2563/14-S2770/14
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 1 year and 8 months imprisonment. I will make no deduction for the times the accused was kept in custody following the execution of the warrants of arrest that were issued against him for his non appearances when this matter was called.
Representation:	R Titi for prosecution L R Schuster for accused
Catchwords:	sexual violation by having unlawful sexual connection – maximum penalty – guilty plea – breach of trust – aggravating features relating to the offending – sexually attacked – impact of the offending – place of offending – mitigating features relating to the accused as offender – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.49 (1) and (3, s.52 (2)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2563/14-S2770/14

BETWEEN:

P O L I C E
Prosecution

A N D

AFA SIPANIOLO a male of Vaoala and Safotu.
Accused

Counsel:
R Titi for prosecution
L R Schuster for accused

Sentence: 23 November 2015

S E N T E N C E

The charge

1. The accused Afa Sipaniolo, a 38 year old male of Vaoala and Sili, Savaii, appears for sentence on one charge of sexual violation by having unlawful sexual connection with the victim, contrary to s.49 (1) and (3) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment under s.52 (2). He initially pleaded not guilty to all the charges against him but after some of the charges were withdrawn he pleaded guilty to the remaining charge for which he is now appearing for sentence.

The offending

2. As shown from the prosecution’s summary of facts accepted by the accused, at the time of the offending the victim was 17 years old and does not go to school. Her step father, the current husband of her mother, is the accused’s brother and they were living together in one family.
3. Sometime between 31 March 2014 and 1 May 2014, the victim was alone in the kitchen doing her morning chores when the accused approached her from behind, embraced her, and laid her on the floor. The victim screamed for help but her step grandfather who was in the house could not hear her as it was pouring rain. The accused then kissed the victim and felt her body. The victim struggled but the accused held her down with his hands and managed to take off her pants and undergarments. The accused then started to lick her vagina with his tongue. The victim cried out but the accused blocked her mouth and swore at the victim. As the accused was trying to take off his pants, the victim kicked him on the stomach and ran away. She went straight to her church minister and relayed what the accused has done to her. The victim was then taken to the Samoa Victim Support Group by her church minister and this matter was reported to the police.

The accused

4. As shown from the pre-sentence report, the accused was 37 years old at the time of this offending but he is now 38 years old. He had a low level of education having left school at Year 8 due to financial difficulties faced by his family. He has been employed as a biscuit factory worker and then as a carpenter in a building construction company. At the time of this offending, he was employed as a linesman by the Electric Power Corporation.
5. The accused’s father told the probation service that his son is obedient and a reliable member of the family. His son has also apologised to the victim’s parents and their family. His only weakness is alcohol. The accused is also a first offender.

The victim

6. As earlier pointed out, the victim was 17 years old at the time of the offending. The victim impact report shows that she is very hurt and disgusted by what the accused did to her. She cannot seem to get this incident out of her mind and at one time she thought of committing suicide. She also says that she had trusted the accused because he had treated her like his own daughter but he has breached that trust.
7. The pre-sentence report also shows that the victim told the probation service that even though the accused has apologised to her parents and family and they have forgiven him, she herself has not forgiven the accused.

The aggravating features relating to the offending

8. I consider the following features as aggravating of this offending:

(a) Breach of trust

9. The victim had trusted the accused as her uncle and someone who had treated her as his own daughter. What the accused did to her was a serious breach of that trust.

(b) Vulnerability

10. The victim was in a vulnerable position because of her trust in the accused as her uncle who was living with her and her family in the same home.

(c) Place of offending

11. The victim was entitled to feel safe in her family’s home but she was sexually attacked by the accused in their family’s home.

(d) Impact of the offending on the victim

12. The impact of this offending on the victim as set out in the victim impact report is another aggravating feature of this offending.

(e) Age difference

13. The age difference of 20 years between the accused and the victim is also another aggravating feature relating to the offending.

Mitigating features relating to the accused as offender

14. The following are the mitigating features relating to the accused as offender:

(a) Apology

15. The apology by the accused to the victim’s parents and the family is a sign of remorse but in the circumstances I will give it limited weight.

(b) Previous good character

16. The accused’s only weakness is alcohol as his father told the probation service. Other than that, he seems to have been a person of previous moderately good character. I say this because there are no references from the accused’s church pastor or village pulenuu to show the type of person he is in his church or village. The accused had also failed to appear twice when this matter was called and warrants had to be issued for his arrest.

(c) Guilty plea

17. The accused’s plea of guilty is a mitigating feature relating to him as offender. However, he had initially pleaded not guilty to the charges against him on 20 October 2014. He then did not meet with his previous counsel to give her full instructions. As a result, the accused’s previous counsel withdrew from continuing to represent him. Mr Schuster was then assigned to represent the accused. Some of the charges against the accused were then withdrawn and the accused pleaded guilty on 23 March 2015 to the remaining charge for which he is now appearing for sentence. The matter was then adjourned to 27 April 2015 for a pre-sentence report and a summary of facts. It was further adjourned to 4 May 2015 for defence counsel to obtain further instructions. When this matter was recalled on 4 May 2015, the accused did not appear and a warrant was issued for his arrest. This is a different warrant to arrest from the first warrant of arrest that was issued against the accused when he was represented by his previous counsel.

Discussion

18. Having regard to the offending, I will take 2 years and 3 months as the starting point for sentence. I will deduct 2 months for the accused’s apology and previous moderately good character. That leaves 2 years and one month. I will deduct 1/5 or 5 months for the guilty plea. That leaves 1 year and 8 months.

The result

19. The accused is convicted and sentenced to 1 year and 8 months imprisonment. I will make no deduction for the times the accused was kept in custody following the execution of the warrants of arrest that were issued against him for his non appearances when this matter was called.

CHIEF JUSTICE