Police v Paulo [2020] WSSC 64 (6 October 2020)

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Case name:	Police v Paulo

Citation:	[2020] WSSC 64
Decision date:	6 October 2020
Hearing date:

Parties:	POLICE v ICHIKAWA PAULO male of Tuasivi.

File number(s):	S1944/19, S1947/19 and Charging Document/19 .

Jurisdiction:	CRIMINAL

Place of delivery:	Supreme Court Samoa Mulinuu

Judge(s):	Justice Fepulea’i Ameperosa Roma

On appeal from:

Order:	*(i) On the charge of assault with intent to commit sexual violation, you are convicted and sentenced to 5 years and 3 months’ imprisonment;* *(ii) On the charge of unlawful sexual connection, you are convicted and sentenced to 5 years’ imprisonment;* *(iii) On the charge of causing actual bodily injury, you are convicted and sentenced to 5 years’ imprisonment.* *All sentences to be served concurrently, time spent in custody pending sentence to be deducted.*

Representation:	F. Ioane for Prosecution Matafeo G. Latu for Accused

Catchwords:

Words and phrases:	actual bodily har – assault with intent to commit sexual violation – unlawful Sexual connection,

Legislation cited:	Crimes Act 2013 s.53(2), s.52(2) and s.119(1)

Cases cited:	Police v. Mativa [2014] Police v. Visesio [2019]

Summary of decision:

[2] You denied the charges and trial commenced on 2 September 2020 with a voir dire hearing on the admissibility of your cautioned statement. Following the Court ruling on 4 September 2020 that the statement was admissible, you vacated your not guilty pleas and substituted guilty pleas to the charges.

[3] From the prosecution summary which you accept, the offending took place in the evening of 12 October 2019.

[4] Earlier in the evening, you attended a birthday party held at the victim’s house. During the party, the victim’s husband saw that you were intoxicated and chased you home. You left and hung out at the nearby 3-way intersection before you returned to the victim’s house for more alcohol.

[5] You went through the back and saw the victim sleeping on the balcony at the back of the house. She was sleeping with her children inside their mosquito net. You approached her, removed her black tights and proceeded to digitally penetrate her vagina with your fingers. As you told police, you had an erection at the time.

[6] The victim then woke from her sleep and began to call out. You struck her twice with a piece of metal that was inside of the mosquito net. She got up and ran to their other house where her husband was drinking with others. She was half naked and bleeding from her face. She was able to tell her husband that you were responsible before she was rushed to hospital for treatment.

[8] Her wounds were cleaned, sutured and dressed before she was admitted for observation. Because of the nature of the injuries, she further underwent dental and eye review and was subjected to daily check-ups for her unborn child.

[9] The victim is a 31 year old female of Tuasivi. She and you are neighbours. She was pregnant at the time of the offending. As to the physical impact of your offending, she says in the victim impact report that the injuries to her face were multiple and very serious and required suturing. She was hospitalised for a week. The injuries took months to heal and have left permanent marks. For a long time, she has also had trouble eating. The attack also occurred in the late stages of the victim’s pregnancy with her child who is now over 10 months old. It has had a lasting impression on the victim. It also affected her family including her children.

[10] The victim also says that you and your family have not approached her to apologise.

[11] You are a 26 year old male of Tuasivi. The pre-sentence report says that you have been living with your parents, a brother and an adopted sister at Fogapoa. You ended your formal education at Year 11 and worked a number of jobs to assist your family. You have been assessed by an Alcohol & Drugs Clinician as having an alcohol addiction that requires treatment. The testimonials by Rev. Elder Ioane Viliamu Samoa and the pulenuu speak of your involvement in church activities and the service you render to the village.

[12] You have previous convictions for Burglary and Theft in 2015 according to the police summary which your Counsel says are unrelated offences. But the pre-sentence report says that you were also charged for causing grievous bodily injury in 2017 and ordered to complete the Drugs Court programme before being sentenced on 13^th March 2018 to 12 months’ supervision. Clearly that conviction is similar to the present offending and will have an impact on your sentence.

[13] Again this is another of many matters where prosecution’s record of accused’s convictions has become outdated. I need not remind prosecution that you have a duty to provide the Court updated and accurate information. If it were not for the updated record and carefully prepared report by Probation, the Court would have proceeded to sentence you as a first offender.

[14] As to the offending, you admit your involvement in both the pre-sentence report and submission by Counsel. You suggest that you were provoked by an assault earlier by a brother in law of the victim who also chased you from the party. You were unhappy with the victim’s husband and when you returned later and came across the victim, you assaulted her. That was very cowardly and attracts no weight in the circumstances of your offending.

[16] As Offender, an aggravating factor is your previous and related conviction for grievous bodily harm on 13^th October 2018 where you completed the Alcohol and Drugs Court programme and was handed a community based sentence.

[19] This is another case of a male attacking a female sexually and physically in the sanctity of her home where she is expected to and should feel safe. You have a recent conviction for a violence related offending for which you were granted the Court’s leniency in terms of a community based sentence. You now appear for sentence on more serious charges. The only appropriate penalty is that of imprisonment. It should also serve the purposes of sentencing under s5, Sentencing Act 2015.

[20] Prosecution seeks a starting point of 9 years on the more serious charge of assault with intent to commit sexual violation. They rely on Police v. Mativa [2014] WSSC 136 (16 May 2014) where the accused had attacked an elderly, intoxicated and unaccompanied female in a dark area on the seawall with an obvious intent to rape her. She suffered bruising and swelling to her head and face but the consequences would have been severe had it not been for the intervention of 2 males who passed by.

[21] Mr Latu submits that despite your guilty plea, the charge under s53(2) is misconceived because it is appropriate in circumstances where an assault is committed before and in order to facilitate the act of sexual violation, whereas the assault in your case took place after the act of sexual connection. Whilst clear that s53(2) requires the act of assault to be committed with intent to commit sexual violation, I do not agree that the assault must necessarily occur before the act of sexual connection or an attempt to commit sexual violation. What is important is that the offending is viewed in totality and in the circumstances in which they occurred, irrespective of the sequence in which they occurred.

[22] In any event, Prosecution submits that the assault complained of is your act of taking off the victim’s tights before you committed sexual connection on her. In my view, the act of sexual connection itself may also be viewed as the assault for purposes of the charge under s53(2). Your guilty plea to the charge and acceptance of the police summary must not also be taken lightly.

[23] I have reviewed the 2 sentencing decisions referred to in prosecution’s sentencing memorandum: Police v. Visesio [2019] WSSC 73 where the Court adopted a 4 year starting point and Mativa where it adopted a 9 year starting point. The circumstances in Mativa are close to yours except that your offending took place in the sanctity of the victim’s home whilst she was heavily pregnant and sleeping with her children. Like Mativa, you have a previous conviction for violent offending.

[24] Taking into account the gravity of your offending, I adopt a starting point of 8 and ½ years and uplift it by 6 months for your previous violent offending. From that 9 years, I deduct 18 months for the penalty imposed by the village council. I deduct a further 6 months for your family’s attempts to apologise, though not accepted by the victim’s family. That leaves a term of 7 years. I deduct 21 months being 25% of that term leaving a balance of 63 months or 5 years and 3 months.

[25] On that charge, you will be convicted and sentenced to 5 years and 3 months imprisonment.

[26] You penetrated the victim’s vagina with your fingers whilst she was heavily pregnant and sleeping in the mosquito net with her children. When that woke her up, you struck her face twice with a hard object.

[27] On that charge, you will be convicted and sentenced to 5 years imprisonment.

[28] This was a serious assault on a pregnant woman in the sanctity of her home and presence of her children. It followed your sexual assault of her and involved the use of a piece of metal that caused serious and multiple injuries which have left permanent marks on her face. Further, it was committed months after you were convicted of another violence related offending for which you completed a rehabilitative programme and were handed a community based sentencing.

[29] I bear in mind that the maximum penalty is 7 years imprisonment. On that charge, you will be convicted and sentenced to 5 years imprisonment.

[31] All sentences to be served concurrently, time spent in custody pending sentence to be deducted.

Supreme Court of Samoa

Police v Paulo [2020] WSSC 64 (6 October 2020)