Police v EF [2024] WSSC 12 (15 March 2024)

IN THE SUPREME COURT OF SAMOA
Police v EF [2024] WSSC 12 (15 March 2024)

Case name:	Police v EF
Citation:	[2024] WSSC 12
Decision date:	15 March 2024
Parties:	POLICE (Informant) v EF (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	Order prohibiting publication in news media, internet or any other publicly accessible database the name of the victim and accused. The result is that on the charge of assault with intent to commit sexual violation, you are convicted and sentenced to 2 years and 5 months imprisonment less anytime remanded in custody.
Representation:	F. Ioane for Prosecution F. Lagaaia for d Accused
Catchwords:	Custodial sentence.
Words and phrases:	“assault with intent to commit sexual violation” – “application for discharge without conviction”.
Legislation cited:
Cases cited:	Police v Sulusi [2021] WSSC 85; Police v Visesio [2019] WSSC 73; Police v Vitale [2021] WSSC 91.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

EF, male.

Accused

Counsel: F Ioane for Prosecution
F Lagaaia Accused.

Decision: 15 March 2024

SENTENCE

The Charges

1. EF, you appear for sentence on one charge of assault with intent to commit sexual violation. The maximum penalty for this charge is 14 years imprisonment.

The Offending

2. The victim is a twenty seven year old female nurse working at the Moto’otua Hospital. You had previously been in a relationship with her and share a son together.
3. The facts are set out in the Amended Summary of Facts dated 8 February 2024. In summary, around 11.00pm on Wednesday 24^th May last year, the victim was at work. As she was working, you called out to her. When she saw it was you, she asked whether you were there to see a patient and you replied yes. You again called to her and motioned her to come to you. When she came to you at the stairs that lead to the second floor, she asked you who your patient was. You told her to close the door behind her. She again asked who your patient was and you told her you didn’t have a patient but wanted to talk to her. You asked her to go to a private room to talk and she said that where you were, is private enough. You however walked up the stairs and she followed you into the Eye Clinic where you closed and locked the door.
4. The violence then began. You went to the victim, held her up and tried to push her into the bathroom. She resisted and struggled and told you, “soia, se soia EF.” You couldn’t push her into the bathroom so you pushed her against the swinging doors into the Eye Clinic surgery. You then pushed her against a shelf, pressed and hugged her and began kissing her all over her face, which she resisted and tried to avoid by moving her head around. You told her to kiss you back but she continued to move her head around. She screamed and pleaded for you to stop. She kicked the door so someone could hear her scream but this made you angry. You ripped off part of the nurse’s gown she was wearing. You then pushed her to the other side of the room against a wall and held her tightly. She begged you to let her go and was struggling to breathe. You didn’t stop but instead began to complain about her mother.
5. While crying and begging you to let her go, she told you to go see her mother about your complaints. You became angrier. You then told her, “Aluga, kisi mai ia au fakoa e alu loa lea I fafo ma e le koe vaai ia a’u e fa’avavau, mo’i a honestly.” She then kissed you and asked to let her go. You however told her you changed your mind. You then completely ripped off her nurse’s gown, caressed her body touching her breasts and moved your hands to her buttocks. You then lifted up her skirt as she was still crying and asking you to stop. You however continued to try kiss her as she tossed her head around to avoid your kisses. You reached down to her vaginal area outside of her tights and touched her vaginal area. As she continued to beg you to stop, you told her “No, give me that one.”
6. As she continued to push and struggle, she had scissors inside her nurse’s dress. She then stabbed your hand with it. You both fell over and the victim got up and ran out of the room. You however caught up with her, dragged her back and complained about rumours about the victim. You then spoke together and the victim then stood up and was able to leave. You assaulted her with the intention of sexually violating her.

The Accused

7. You are 29 years old. You completed school, attended the NUS and carried out post-graduate study in Fiji. You are a registered nurse having worked at the Eye Clinic at the Moto’otua Hospital. You now are working at the clinic in Tuasivi. You share a son together with the victim. Your relationship with the victim had ended at the time of the offending.

The Victim

8. The victim is now 28 years old. Although the victim suffered no permanent physical injuries from your assault, she speaks in her VIR of the pain she felt during your assault. She is not able to forget what you did to her and that she has developed a fear of males. It is obvious from her VIR that your offending has had a significant impact on her mental health and her feeling of insecurity in her workplace. Though she does not wish to see you again, she forgives you and according to the PSR, seeks leniency in sentencing.

Aggravating features:

9. The aggravating features of your offending are:
   • the vulnerability of the victim. You lured her into the Eye Clinic where you locked the door so she would be alone and vulnerable to your assault;
   • the premeditated and calculated nature of your offending. You deceived her into following you to the Eye Clinic;
   • Your offending was committed within a domestic relationship as defined under the Family Safety Act 2013;
   • Your offending involved actual physical violence inflicted on the victim over a period of time;
   • Your offending took place in the victim and your workplace, the National Hospital, where she was entitled to feel safe. A hospital is also a public place where victims of crime or harm and the public seek medical care. Your actions can undermine public confidence in the safety of our hospitals; and
   • The impact of your offending on the victim as disclosed by the VIR.
10. There are no aggravating factors personal to you as an offender as you are a first offender.

The mitigating features

11. There are no mitigating features in respect of the offending. Mitigating factors personal to you is your genuine remorse, prior good character, the apology extended to the victim’s family by your family and your guilty plea on the date of hearing.
12. I do not accept as mitigating the fact that you and the victim had been in a familial relationship. As the Family Safety Act 2013 provides, this is an aggravating feature of your offending.

Discussion

Discharge Without Conviction

13. The application for discharge without conviction can be dealt with briefly. Your offending was very serious as shown in the aggravating features of your offending. You lured the victim to the Eye Clinic, lying to her to get her there. At the Eye Clinic, you locked the door, assaulted, restrained and detained her there over a period of time despite her screaming, crying and begging you to let her go. You again deceived her by saying you would let her go if she kissed you. After she kissed you, you told her you changed your mind. This then included you sexually assaulting her by touching and grabbing at her breast, buttocks, vaginal area and forcibly kissing her despite her pleas to you to let her go. It was demeaning, cruel, premeditated and calculated.
14. I accept that if convicted, you will lose your job and likely have difficulty travelling overseas. A conviction will also affect your future study plans which seem to include studying a Master’s Degree as well as your reputation within the church. In no way do I find that such consequences would be out of all proportions to the gravity of your offending. These are the natural and least consequences to be expected for offenders such as yourself who behave in this way. The application for a discharge without conviction is dismissed.

Sentence

15. I now turn to the sentence. Your lawyer seeks a non-custodial sentence and submits that no serious injuries were sustained by the victim and that your culpability was at the lower end. As should now be clear, I disagree. What is striking from your case is the brazenness of your acts carried out in the hospital where you and the victim both worked. Your assault of the victim was a serious instance of workplace violence; gross breach of trust; and caused significant deprivation of her liberty. Despite the victim’s continual crying, begging and pleading you to let her go, you restrained her in the Eye Clinic against her will. You assaulted her pushing her around the Eye Clinic, ripped off her nurse’s gown and then also sexually assaulted her. Although she may bear no permanent physical scars, the scars she will carry are those that cannot be seen, mental scars from the trauma you put her through.
16. What you did EF is a classic case of serious domestic violence, far too prevalent in Samoa. What you did to the victim was to demonstrate your complete power and control over her, as if she was your personal property to do with as you will. While I accept that you are remorseful and sorry, it seems on the material before me that you still do not appreciate how completely reprehensible and appalling your actions were and what you put the victim through. A non-custodial sentence is out of the question. A custodial sentence is warranted taking into account the seriousness of your offending, your level of culpability and to denounce your conduct and deter you and others from this type of offending.
17. Prosecution seeks a 3 - 4 year sentence start point. Having regard to the authorities and to the aggravating features of your offending, a higher start point could well be warranted. When compared to Police v Sulusi [2021] WSSC 85 and Police v Visesio [2019] WSSC 73, your assault of the victim was over a longer period of time, was within the workplace (hospital) and involved a gross breach of trust committed within a domestic relationship. It was also more serious than Police v Vitale [2021] WSSC 91. Nevertheless, I have decided to accept the 4 year sentence start point sought by prosecution.
18. From the 4 year sentence start point, I deduct 5 months for your remorse and apology extended on your behalf to the victim and which was accepted. I deduct a further 5 months for your prior good character. I have also decided to make a deduction for the victim’s plea for leniency for the defendant and deduct 3 months for that plea. From the balance, 6 months for your late guilty plea leaving an end sentence of 2 years and 5 months imprisonment.

Continued Employment After Offending

19. Before I formally sentence you, I wish to address a matter of some concern. On the 13^th November 2023, you entered a guilty plea to the charge against you. Despite the serious violent sexual nature of your offending occurring at the National Hospital against a female co-worker, you were relocated and according to your PSR, continued to work at the Tuasivi Hospital - including in December 2023. At Tuasivi, you have been treating the public and working with other staff. Given your violent sexual offending and the facts laid out today, I am at a loss as to how the health authorities have allowed you to continue to work and treat the public. Instead, I see glowing references from your workplace commending you, referring to your remarkable professionalism and dedication to your work with no mention whatsoever of this incident.

Result

20. The result is that on the charge of assault with intent to commit sexual violation, you are convicted and sentenced to 2 years and 5 months imprisonment less anytime remanded in custody.

JUSTICE CLARKE