Police v Amiga [2023] WSSC 30 (25 May 2023)

IN THE SUPREME COURT OF SAMOA
Police v Amiga [2023] WSSC 30 (25 May 2023)

Case name:	Police v Amiga
Citation:	[2023] WSSC 30
Decision date:	25 May 2023
Parties:	POLICE (Informant) v FESI AMIGA, male of Vailele & Satitoa Aleipata (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:	For the offending of being in possession of 1 joint of marijuana, I impose a non-custodial sentence of 6 months’ supervision and 40 hours’ community service with the following conditions: (i) To reside with your family at Vailele-uta; (ii) To be involved in village work and any policing of village curfew and report to the village pulenu’u, Togia Amiga Fa’amoe once a week. The village pulenu’u Togia Amiga Fa’amoe refers in his written character reference of you as a person: “E faamaopopo i so’o se mea fai i totonu o le nu’u...” (iii) To attend church service of your denomination on Sundays and report to your faifeau; (iv) To serve your community hours with the pulenu’u when doing and attending village work; and also with your faifeau. The supervision term to follow the custodial sentence.
Representation:	V. Faasii for the Informant D. Roma for the Defendant
Catchwords:	Indecent assault – incident occurred on bus – possession of narcotics – marijuana joint – custodial sentence & supervision term to follow.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 60; Narcotics Act 1967, ss. 7(1)(a); 18.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

FESI AMIGA, male of Vailele & Satitoa Aleipata

Defendant

Counsel: V Faasii for the Informant
D. Roma for Defendant

Sentencing: 25 May 2023

ORAL SENTENCING OF TUATAGALOA J

1. You appear for sentence on two counts of indecent assault by touching the victim’s breasts and touching her vaginal area through her school uniform. This incident occurred on 01 March 2023 on the bus when the victim was on her way to school and had to sit on your lap as the bus was full.
2. The second offence is being in possession of narcotics, namely, 1 marijuana joint found on you 11 days later according to the summary of facts when a body search was carried out by police. You said in the pre-sentence report that you bought the marijuana joint from a ‘pusher’ or dealer in front of your workplace, Sula’s Supermarket. Your actions show that:
   • You are obviously a user of narcotics;
   • You know this ‘pusher’ or dealer;
   • You have no regard for the law because 11 days after being charged with indecent assault, you were found in possession of narcotics.
3. I am going to sentence you separately for the offending’s are different and were committed on different dates and are of different jurisdictions as well.
4. The offence of indecent assault pursuant to section 60 of the Crimes Act 2013 has a maximum penalty of 5 years’ imprisonment and falls within the jurisdiction of the District Court while possession of narcotics pursuant to sections 7(1)(a) and section 18 of the Narcotics Act 1967 with a maximum penalty of 14 years placing it in the jurisdiction of the Supreme Court.
5. I find the circumstances of the indecent assault offending gross, uncultured and ill mannered. I find your actions and behavior callous and disrespectful. As is the normal practice on our buses in Samoa, when the bus starts to fill up, younger members would vacate their seats for older members and resort to sitting on another person’s lap. You took advantage of this practice observed as being ‘faaaloalo’, and you as a Samoan male should have shown ‘respect’ to the victim, not only as a female but someone you are not related and given up your seat for her. Instead, you used this opportunity to indecently touch her in a bus full of passengers. You did not even care. You need to take responsibility for your actions and face the consequences of such behavior.
6. The young girls and women using public transport are not safe if such behaviour on public transport is not strongly sanctioned by the arm of the law. The Courts will take a strong stance against such behaviour for the safety of the young girls and women from inappropriate acts done while commuting on public transport.
7. I agree that a custodial sentence should be imposed. I find appropriate as a starting point 12 months’ imprisonment for each count of indecent assault; less 8 months for first offender status and young age being 18 years old. This leaves 4 months’, to which I give a discount of 25% for your early guilty plea amounting to 4 weeks (1 month). The end sentence is 3 months’ imprisonment.
8. You are convicted and sentenced to 3 months’ imprisonment for each charge of indecent assault to be served concurrently, less any time in custody.
9. For the offending of being in possession of 1 joint of marijuana, I impose a non-custodial sentence of 6 months’ supervision and 40 hours’ community service with the following conditions:
   • (i) To reside with your family at Vailele-uta;
   • (ii) To be involved in village work and any policing of village curfew and report to the village pulenu’u, Togia Amiga Fa’amoe once a week. The village pulenu’u Togia Amiga Fa’amoe refers in his written character reference of you as a person: “E faamaopopo i so’o se mea fai i totonu o le nu’u...”
   • (iii) To attend church service of your denomination on Sundays and report to your faifeau;
   • (iv) To serve your community hours with the pulenu’u when doing and attending village work; and also with your faifeau.
10. The supervision term to follow the custodial sentence.

JUSTICE TUATAGALOA