Police v Vitale [2021] WSSC 91 (4 May 2021)

IN THE SUPREME COURT OF SAMOA
Police v Vitale [2021] WSSC 91 (04 May 2021)

Case name:	Police v Vitale
Citation:	[2021] WSSC 91
Decision date:	04 May 2021
Parties:	POLICE (Informant) v PILI VITALE, male of Vaivase-tai (Defendant)
Hearing date(s):	17th & 18th March 2021
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa Mulinuu
Judge(s):	Justice Niavā M. Tuatagaloa
On appeal from:
Order:	For the offence of assault with intent to commit sexual violation, 15 months or 1 year and 3months imprisonment; for the two offences of indecent assault I consider 8 months’ imprisonment appropriate for each count. The defendant is convicted and sentenced accordingly. The terms of imprisonment to be served concurrently. The defendant is eligible for parole after serving half of his sentence.
Representation:	L. Sio for the Informant S. Chan Chui for the Defendant
Catchwords:	Assault with intent to commit sexual violation – indecent assault – occurred in workplace – sexual harassment – lack of respect – pre-meditated – ifoga carried out – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 53(2); 60.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

PILI VITALE, male of Vaivase-tai

Defendant

Counsels: L. Sio for the Informant
S. Chan Chui for the Defendant

Date: 04 May 2021

S E N T E N C E

1. The defendant appears for sentence after having been found guilty on the following charges:
   • (i) Assault with intent to commit sexual violation with a maximum of 14 years’ imprisonment;^[1] and
   • (ii) Two counts of Indecent Assault^[2] of touching the victim’s bottom and vagina by placing his hand through her skirt and panties with maximum penalty of 5 years’ imprisonment.
2. The facts of this case have already been traversed through the hearing which the Court accepts the following:
   • (i) Both the victim and the defendant work for the Samoa Water Authority;
   • (ii) On Friday, 08 May 2020 the victim was working late. The defendant and two other male colleagues left the office around 6pm; they walked past the victim’s desk and said goodbye to her. However, the defendant later returned to the office and found the victim still working by herself. The defendant struck up a conversation with the victim which he asked the victim what turns women on or specifically what turns her (victim) on to which the victim responded that for her it would be touching her back. Shortly after the defendant started feeling the victim’s back to which the victim kept slapping his hand off and telling him to stop but this did not deter or stop the defendant. The victim moved forward in her chair to get away from the defendant but the defendant got hold of the victim’s shirt, pulled it up and put his hand through the victim’s skirt from the back and touched her bottom.
   • (iii) The victim’s phone rang and she talked on the phone for a while and after she thought that the defendant had left so she sat down to save her work before leaving when the defendant again came from behind, boxed her in and with his left hand touched her left thigh. As the victim’s mini skirt hitched up when she sat down, the defendant saw this and put his left hand through the victim’s legs into her panties and touched her vagina. The victim tried to stop the defendant’s hand but he was too strong. This whole time the defendant kept saying to the victim, “E a pe a fai se ta mea se tasi....aua le popole e na te le ta’ua lava i se tasi.”
3. I express some grave concerns with the type of culture that is taken to be acceptable under the guise of ‘tausuaga’ making it ‘ok’ for male employees to treat female colleagues with such callous behaviour and especially in the workplace. Inappropriate conversations or bantering should never be allowed or encouraged instead professionalism and cordial relationship guided by mutual respect should exist within any work environment.
4. I find the defendant’s attitude throughout the hearing disconcerting. What he said and how he referred to the victim gives an impression of his general attitude to women. He also comes across as very arrogant and that he thinks highly of himself.
5. The aggravating factor of his offending is his lack of respect for his female co-worker, the fact that his offending was pre-meditated. He knew that the victim was working late and he returned to the office. I find his culpable level of low to medium.
6. There is confirmation that the defendant’s family has carried out a formal apology (ifoga) to the victim’s parents presenting three large fine mats and cash to the amount of $2,500. The victim was not present as she was in hospital. According to the victim her parents returned the stuff brought by the defendant’s family but the family insisted and left leaving the fine mats and the money with the victim’s family. I understand the culture surrounding these things and the defendant and his family should not take it to mean that the Court will not impose the sentence appropriate for the offences committed. I will however, acknowledge the apology and give discount accordingly.
7. For the offence of assault with intent to commit sexual violation I consider appropriate 3 years as starting point and make the following deductions - 1 year for previous good character and 3 months for the apology. I note the impact the offending has on his children and what they may be going through and for that I will further discount 6 months. This leaves, 15 months or 1 year and 3months imprisonment. For the two offences of indecent assault I consider 8 months’ imprisonment appropriate for each count.
8. The defendant is convicted and sentenced accordingly. The terms of imprisonment to be served concurrently.
9. The defendant is eligible for parole after serving half of his sentence.
   

JUSTICE TUATAGALOA

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^[1] Section 53(2) Crimes Act 2013.
^[2] Section 60 Crimes Act 2013