Police v Misipati [2017] WSSC 102 (7 July 2017)

SUPREME COURT OF SAMOA
Police v Misipati [2017] WSSC 102

Case name:	Police v Misipati
Citation:	[2017] WSSC 102
Decision date:	07 July 2017
Parties:	POLICE (Prosecution) PULUSI MISIPATI a.k.a MISIPATI MISIPATI male of Nono’a Saleimoa and Tuana’i. (Defendant)
Hearing date(s):	-
File number(s):	S2006/16, S2007/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	For the charge of unlawful sexual connection, convicted and sentenced to 5 years 3 months in prison; on the charge of indecent assault, convicted and sentenced to 2 years concurrent term. Any time spent in custody is to be deducted from that term.
Representation:	V Afor for prosecution T Patea for defendant
Catchwords:	Indecently assault – unlawful sexual connection- performing oral sex – suppression order – intellectually disabled – severely intellectually disabled – pleaded guilty – aggravating factors – abusing position of trust or authority – vulnerable – sexual assault – mentally challenged – age disparity – pre-meditated – previous convictions
Words and phrases:	A nations greatness is measured by how it treats its weakest members -
Legislation cited:
Cases cited:	Police v Sipaniolo [2015] WSSC 186
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution
AND:

PULUSI MISIPATI a.k.a MISIPATI MISIPATI male of Nono’a Saleimoa and Tuana’i.
Defendant

Counsel:
V Afoa for prosecution
T Patea for defendant

Sentence: 07 July 2017

SENTENCE

1. The defendant has pleaded guilty to two charges:
   • (i) S2007/16: That at Nonoa Saleimoa on 04 September 2016 he did indecently assault the complainant by touching her breasts; and
   • (ii) S2006/16: That same time, same date, same place he had unlawful sexual connection with the complainant by performing oral sex upon her.
2. As with all cases of this nature, a suppression order will issue suppressing publication of the name and other details of the complainant.
3. Police summary of facts states the defendant is a 44 year old male in a de-facto relationship with four children and is a plumber by trade. The victim is a 17 year old female relative.
4. On 04 September 2016 the complainant was at her house alone when the defendant came to the back door with a plate of food. He placed the dish on the shelf by the back door. The complainant did not open the back door as she was alone. Before he left the defendant called to the victim to open the door for him next time he comes to the house.
5. Later that day around 7.30pm the defendant again went to the house. The victim at that time was outside. When she saw the defendant approach she stood up, walked into the house and sat on her bed. The summary says that at the time, all the light bulbs in the house were not working and the only source of light was from the television set. The victim at the time was still alone, none of her relatives were at home.
6. The defendant entered the house, went to the victim and made sexual advances to her. She told him she is going to report him to her father. The summary says the defendant undressed the victim, touched her breasts and performed oral sex on her private part. At one stage the parties fell onto the floor and the victim was crying. When the victims younger brother came to the front door of the house the defendant desisted in his actions, let go of the victim and left the house.
7. The Prosecution summary is very badly phrased but it significantly omits one very important detail and that is that the victim is an intellectually disabled person. She has been assessed by Dr Parkin, the head of the Mental Health Unit at the Tupua Tamasese Meaole Hospital and his report relevantly reads as follows:
   • (i) The doctor reports he was seeing her in relation to an event where she is alleged to have been sexually abused. She described that she did not want this abuse to occur and that she tried to push the defendant away but she could not. She said she did not want him to do what he did and that she thought he should go to jail for a long time.
   • (ii) The report goes on to record that her aunt would not leave the girl alone at the house because anyone who came to visit would ask her to do things and she would do them. She also mentioned she does not send her to the shops by herself and that the complainant requires constant supervision.
   • (iii) The aunt considered the girl had a mental age of about 10 years and she tends to hang around with children even younger than that. She is allowed to work in the kitchen and handle sharp knives but always under supervision.
   • (iv) In the opinion of Dr Parkin who is a consultant/psychiatrist of considerable qualification and experience, this young girl is “severely intellectually disabled.”
8. The maximum penalties for the offences the defendant has pleaded guilty to are: for indecent assault, five years in prison; for unlawful sexual connection of the type that he committed, 14 years in prison.
9. In setting a start point for sentence the court has regard to the purposes and principles laid out in the Sentencing Act 2016 in particular sections 5, 6 and 7; and because the victim is under 18 years of age, section 8 of the legislation also applies. Of particular application in this case is section 7(1) which relevantly provides that –

“In sentencing a defendant, the Court must take into account the following aggravating factors to the extent that they are applicable in the case: (f) that the defendant was abusing a position of trust or authority in relation to the victim; (g) that the victim was particularly vulnerable because of her age, or health or because of any other factor known to the defendant.”

10. It is clear from the pre-sentence report the defendant knew of the victims psychological disorder. This was also conceded by his counsel in his oral sentencing submissions last time this matter was called.
11. Prosecution have suggested a start point for sentence of 2 years imprisonment based on Police v Sipaniolo [2015] WSSC 186 a case involving a sexual assault upon a 17 year old victim in her home by a defendant 20 years her senior. But the facts of that case are quite different and arguably the nature of the assault there was more serious given its physicality. More importantly the start point does not take into account the special vulnerability of the victim due to her condition and being home alone at night in a house where no lights were functioning.
12. The vulnerable in our society require special protection especially the mentally challenged. Too often they are ignored and their plight is not fully recognized diagnosed or addressed. The great Mahatma Gandhi said: “A nations greatness is measured by how it treats its weakest members.” Hubert H. Humphrey a Vice-President of the United States put it thus: “The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”
13. Creation of a Mental Health Unit is a significant step in the right direction however it remains but a first step. Its doctors often speak about the lack of resources and the many other problems they have to endure to service the ever growing needs and increasing number of the mentally challenged in this country.
14. The court must also play its part and in my respectful view, should not hesitate to issue deterrent sentences of imprisonment against offenders who take advantage of the weak and vulnerable. In an effort to extend to them some measure of protection against those who would prey upon them.
15. It is also apparent from the victim impact reports filed that the defendant had trusted access to the family property. The fathers victim impact report relates “It never crossed my mind that the defendant was planning something like this. I had treated him like a brother even though we are not really related.” The victims report says “The defendant is my fathers friend. He used to come to my house and we treat him as family, I did not expect something like this from him.”
16. Considering all these matters including also the age disparity between you Pulusi and the victim, because you were more than twice her age; plus the pre-meditated nature of the offending in that you told the victim to open the door next time you come and you returned to the house in the evening probably with full knowledge that she was alone.
17. On the primary charge of unlawful sexual connection which carries a maximum penalty of 14 years’ imprisonment, I consider 8 years an appropriate start point for your offending. As for deductions you are entitled to in mitigation, normally the court makes one for a defendants good background, character and lack of criminal record. But you have two previous convictions, this is not your first appearance in the courts of this country, albeit I acknowledge they are for different kinds of offending. And I note they occurred at different periods of time in your life, in 1999 and again in 2012. I do not propose to hold that against you. However, it means I cannot make a deduction for previous good character. There are also no outstanding aspects canvassed in your background as per the pre-sentence report from the Probation Office meriting mitigatory recognition.
18. However I do note you have been banished from your village of birth as a result of this matter. I therefore make a deduction for that penalty of 6 months from your start point for sentence, leaves a balance of 7½ years in prison.
19. A traditional apology “ifoga” has already been conducted. Although it is apparent from the victims fathers victim impact report the defendant did not personally take part in this, I will nevertheless accord the formal custom the recognition it deserves and in acknowledgment of the actions of the family on your behalf. For that I deduct 6 months, leaves 7 years in prison.
20. You are finally entitled as your counsel has quite appropriately pointed out to a deduction for the guilty plea you entered to the charges. A plea you entered once the charges were finalised and which resulted in saving the courts valuable time and limited resources and obviated the need for the victim to appear and testify. I give you full credit for your guilty plea, one quarter deduction from your sentence, that is a period of 1¾ years leaving a balance of 5¼ years in prison. There are no other deductions that can be made from your term.
21. For the charge of unlawful sexual connection, convicted and sentenced to 5 years 3 months in prison; on the charge of indecent assault, convicted and sentenced to 2 years concurrent term. Any time spent in custody is to be deducted from that term.

JUSTICE NELSON