Police v Siafolau [2023] WSSC 34 (12 June 2023)

IN THE SUPREME COURT OF SAMOA
Police v Siafolau [2023] WSSC 34 (12 June 2023)

Case name:	Police v Siafolau
Citation:	[2023] WSSC 34
Decision date:	12 June 2023
Parties:	POLICE (Informant) v MALILI SIAFOLAU, male of Faleatiu (Accused)
Hearing date(s):
File number(s):	S881 per Charging Document dated 8/8/22 S805 per Charging Document dated 8/8/22 S803 per Charging Document dated 8/8/22
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	On the charge of unlawful sexual connection, you are convicted and sentenced to 4 years’ imprisonment. On the charge of common assault, you are convicted and sentenced to 6 months’ imprisonment. On the charge of being armed with a dangerous weapon, you are convicted and discharged. The custodial sentences for unlawful sexual connection and common assault are to be served concurrently, less time that you have spent in custody pending sentence.
Representation:	V. Faasii for the Prosecution L. Sio for the Accused
Catchwords:	Unlawful sexual connection – common assault – armed with a dangerous weapon – pre-meditation – accused was intoxicated – first offender – reconciliation – apology – custodial sentence.
Words and phrases:	“threw an object at victim” – “strangled victim”.
Legislation cited:	Crimes Act 2013, ss. 49(1)(b); 50(b); 52(2); 123;
Cases cited:	Police v. Faatoto [2015] WSSC 144; Police v. Misipati [2017] WSSC 102; Police v. Sipaniolo [2015] WSSC 186.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

MALILI SIAFOLAU male of Faleatiu

Accused

Counsel: V. Faasii for the Prosecution

L. Sio for Accused
Sentence: 12 June 2023

SENTENCE OF JUSTICE ROMA

Charges

1. You appear this afternoon for sentence on 3 charges. Firstly, one of unlawful sexual connection contrary to section 49(1)(b), 50(b) and 52(2) Crimes Act 2013. The maximum penalty is 14 years’ imprisonment. Secondly, one of common assault under section 123. The maximum penalty is 12 months’ imprisonment. Thirdly, a charge of being armed with a dangerous weapon. The maximum penalty is 12 months’ imprisonment. Following a defended hearing on the 1st and 2nd May 2023, I found you guilty of all 3 charges on the 5th May 2023 and remanded you in custody for sentence.

Offending

2. From the evidence heard in court the offending occurred inland of Faleatiu on the 22nd July 2022. The victim was a 25 year old mother who was alone with her 2 year old son at home at around 8pm when you paid them a visit. Earlier in the day, her husband had gone to his home at Fasitootai with their other 2 children. That evening you were intoxicated, you asked the victim for her husband’s whereabouts then engaged in a conversation with her. She told you to leave as they were preparing to go to sleep but you refused demanding that you have sex with her first. You then threw an object at her, it hit her on the back of her head. She screamed but you held her by the neck and strangled her. She struggled to resist and felt helpless. She pleaded with you to let go and that she would do as you wanted. You then got off and she tried to calm her son who had been crying and put him back to sleep.
3. Afterwards when she got up to go to the bathroom, you pulled her towards you, pulled down her panties and proceeded to lick her vagina as she tried to push you away. She managed to get up to try and put her son back to sleep but you begged her for one more. You grabbed her by the legs, pulled her towards you and again proceeded to lick her vagina.
4. Eventually you left and not long after, she gathered her son and walked seaward close to midnight stopping at the first house with lights on. The owner is your cousin. The victim told him what happened. He then called his mother to bring your wife and your mother. When they came, the victim told them what happened. Police were then informed and the victim was taken to Leulumoega hospital for examination. In the pre sentence report you repeat your testimony at trial which I had rejected, that your meeting that evening was pursuant to a plan you made with the victim and that what happened was consensual.

Victim

5. The victim according to the material before me was 25 years of age at the time of the offending. She is a mother of 3 young children, the youngest being her 2 year old son she was with when your offending took place. In the victim impact report, she explains as she told the court at trial feeling scared and helpless when you inflicted harm and sexually abused her in the presence of her 2 year old son. They have since moved away from Faleatiu, and the incident had also caused differences between her and her husband. She says further in the VIR that no reconciliation has been made.

Accused

6. You are now 44 years of age. You are the eldest of 10 children having ended your formal education at Year 11 level at Aana College. You are married and have an 8 year old son. You have been the breadwinner for your family through your plantation and seasonal employment overseas. The testimonials by your pastor of the Samoan Assembly of God Church at Faleatiu, the sa’o of your family and pulenuu speak highly of your character. Whilst the pulenuu and sa’o of your family say the matter has been addressed and settled between your families and in the village council in accordance with custom, they do not provide any details of what was involved, what penalty was imposed and what was presented by your family if any. You are a first offender.

Aggravating Factors

7. The aggravating features of your offending are:
   • (i) it involved the use of an object or weapon to inflict actual violence. You threw an object at the victim which struck her on the head, you then strangled her stopping only when she pleaded with you to stop and she would do what you wanted;
   • (ii) there is some element of premeditation - you knew the victim was home alone with her youngest son. You consumed bottles of taula at your shelter nearby and approached the victim’s house when it was dark in the evening;
   • (iii) vulnerability of the victim - the victim was alone with her 2 year old son in the dark. It was further inland and the closest house was yours. You refused her demands for you to leave insisting that she had sex with you first;
   • (iv) the need for deterrence.
8. There are no aggravating factors personal to you as offender.

Mitigating Factors

9. There are none in relation to the offending.
10. Personal to you as offender, I consider:
    • (i) the apology and the reconciliation as well as the penalty although details are not provided in the pre sentence report and sentencing documents;
    • (ii) your personal circumstances which I have referred to earlier including your first offender status.

Discussion

11. As I have said before, the charge of unlawful sexual connection attracts an imprisonment term with a maximum of 14 years. In your case I consider the need for deterrence and denunciation as primary purposes for sentencing. A custodial sentence will serve those purposes. Prosecution seek a starting point of 3 years on the most serious charge of unlawful sexual connection. They cite Police v. Faatoto [2015] WSSC 144 where the court adopted 3 years as starting point; Police v. Misipati [2017] WSSC 102 where the court adopted 8 years as starting point; and Police v. Sipaniolo [2015] WSSC 186 where the court adopted a starting point of 2 years and 3 months. I have carefully considered the circumstances of those cases in relation to yours.
12. Your Counsel submits that I consider a community based sentence in addition to time that you have already spent in custody. I do not accept that submission. This is a serious case of unlawful sexual connection involving actual violence on an adult woman in the presence of her young child. For that reason alone, it is in my view more serious than Faatoto’s case which prosecution rely on and which your counsel distinguishes in her submission.
13. In view of the aggravating features of your offending, I adopt 6 years as the appropriate start point. I deduct 4 months for the penalty imposed by your village details of which have not been provided. I deduct a further 4 months for the apology and reconciliation, the details of which have not been provided. I make a final deduction of 16 months for your personal circumstances including your previous good character and first offender status. The end sentence is 4 years.

Result

14. On the charge of unlawful sexual connection, you are convicted and sentenced to 4 years’ imprisonment. On the charge of common assault, you are convicted and sentenced to 6 months’ imprisonment. On the charge of being armed with a dangerous weapon, you are convicted and discharged. The custodial sentences for unlawful sexual connection and common assault are to be served concurrently, less time that you have spent in custody pending sentence.
    

JUSTICE ROMA