Police v Alapati [2016] WSSC 15 (15 March 2016)

SUPREME COURT OF SAMOA
Police v Alapati [2016] WSSC 15

Case name:	Police v Alapati
Citation:	[2016] WSSC 15
Decision date:	15 March 2016
Parties:	POLICE v VANDERPAL ALAPATI male of Vaitele-Fou
Hearing date(s):
File number(s):	S82/16, S87/16
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The accused is given a suspended sentence of 9 months. If he does not reoffend within that time then that is the end of this matter. But if he reoffends within that time, then he will be brought back to Court for sentencing.
Representation:	P Chang for prosecution Accused in person
Catchwords:	Actual bodily harm with intent –sexual violation by unlawful sexual connection– maximum penalty–sentence –early guilty plea – aggravating and mitigating features –domestic offence– rehabilitative education program – previous good character – suspended sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.119 (1)
Cases cited:	R v Appleby [2009] EWCA Crim 269 Police v Niko [2013] WSSC 65
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S82/16, S87/16

BETWEEN

P O L I C E
Prosecution

A N D

VANDERPAL ALAPATI male of Vaitele-Fou.
Accused

Counsel: P Chang for prosecution
Accused in person

Sentence: 15 March 2016

S E N T E N C E

The charges

1. The accused Vanderpal Alapati who is a 30 year old male of Vaitele-Fou appears for sentence on one charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment and one charge of sexual violation by unlawful sexual connection, contrary to s.49 (1) (b) and (3) of the Act, which carries a maximum penalty of 14 years imprisonment pursuant to s.52 (2). To both charges, the accused pleaded guilty at the earliest opportunity.
2. Even though the accused has pleaded guilty to the charge of causing actual bodily harm with intent, the nature of the injuries sustained by the victim suggests that the proper charge should have been one of common assault: refer to R v Appleby [2009] EWCA Crim 2693,para 2 cited in Police v Niko [2013] WSSC 65.

The offending

3. The victim who is 26 years old is the wife of the accused. On 13 January 2016 at around 10:00pm, the victim was at home when the accused arrived heavily intoxicated. He approached the victim in their bedroom and had an argument with her because he had heard rumours that the victim was having an affair with another man. He then punched her on the mouth and strangled her. As a result, the victim sustained a swollen jaw and bruises on her neck. The accused did not stop there. He thrust his fingers inside the victim’s vagina without her consent. When the victim screamed out for help due to the pain, the accused said “this is to pay for what you have done to me” and continued on by again thrusting his fingers into her vagina. The victim begged the accused to stop and he eventually stopped.

The accused

4. The accused and the victim have been married for more than 10 years. They have four children two of whom have started school while the other two are very young. The accused is employed and he is the sole provider for this family.
5. The cause of this offending was due to rumours that the accused had heard from other people about his wife having an affair with another man. He told the probation service that he did those stupid things to the victim to liberate his mind from the rumours he had heard about the victim.
6. The accused is a first offender. The victim told the probation service that this matter has been settled between herself and the accused. She also told the probation service that the accused is a supportive, caring and loving husband and she pleas for leniency on her husband. The testimonial from the catechist of the accused’s church shows that the accused is a regular churchgoer and a gentle, humble, and likeable person. The catechist also says that the family of the accused and the victim has been a happy family and he was surprised when he heard about this incident. The written testimonial from the government ministry where the accused is employed shows him as a motivated and dedicated employee with a professional attitude towards his work. It is also said that this offending is uncharacteristic of the accused. So the accused has been a person of good character prior to the commission of these offences.
7. The pre-sentence report also shows that the accused has successfully undertaken the 6 weeks rehabilitative education program on alcohol consumption provided by the Alcohol and Drugs Court.
8. The accused has also pleaded guilty to the charges against him at the earliest opportunity.

The aggravating and mitigating features

9. The nature of the assault on the victim and the injuries she sustained including the pain that she suffered are aggravating features relating to the offending. On the other hand, the provocation to the accused due to the rumours he had heard about the victim having an affair with another man is a weighty mitigating feature in relation to the offending.
10. In relation to the accused as offender, his previous good character, the fact that this matter has been settled between him and the victim, the victim’s plea for leniency on the accused, and the accused’s plea of guilty to the charges at the earliest opportunity are mitigating features relating to him as offender. The accused is also the sole provider for the victim and their young children.

Discussion

11. This is a domestic offence. It arose because the accused had heard rumours that the victim was having an affair with another man. The fact that the accused was under the influence of alcohol was not conducive to a peaceful solution of this matter. Anyhow, this matter has been settled and the relationship between the accused and the victim is normal again. The accused has also successfully undertaken the 6 weeks rehabilitative education program on alcohol consumption provided by the Alcohol and Drugs Court.
12. In all the circumstances, a custodial sentence will not be appropriate.

Result

13. The accused is given a suspended sentence of 9 months. If he does not reoffend within that time then that is the end of this matter. But if he reoffends within that time, then he will be brought back to Court for sentencing.

CHIEF JUSTICE