[the names of the complainant, her family and her village are suppressed]

supreme court of samoa
Police v Siafausa [2012] WSSC 113

Case name: Police v Mulitalo Siafausa
Citation: [2012] WSSC 113
Decision date: 25 July 2012  
Parties: police (prosecution) and mulitalo siafausa male of Vaimoso-uta and Sinamoga
Hearing date(s): 24, 25, 28, 29 May 2012 and 29 June 2012
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
L Taimalelagi for prosecution
R Schuster for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961 s. 45
Criminal Procedure Act 1972 ss.113, 164(G)
Community Justice Act 2008 ss.5, 6, 9
Cases cited:
Attorney General v Mr A and Ms B (31 May 2012) [2012] WSCA 2
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
mulitalo siafausa male of Vaimoso-uta and Sinamoga
Defendant

Counsel:	L Taimalelagi for prosecution
R Schuster for defendant
Hearing:	24, 25, 28, 29 May 2012 and 29 June 2012
Reasons for Decision:	19 July 2012
Sentencing Hearing:	25 July 2012
Sentence:	25 July 2012
Charge:	Indecent Act (x10)

ex tempore sentence and referral to the court of appeal
1.	On 19 July 2012, the defendant was convicted of offences under the Crimes Ordinance 1961 section 45, on ten Informations.
2.	The Court is aware that the nature of the offences differed significantly from what would ordinarily come before a court as a case of indecent assault.  There is no doubt that the complainant consented to the acts of intimacy, at least those which followed an attempted kiss whilst he was in the shower.  The Court does not believe that the conduct warrants a term of imprisonment but nevertheless, accepts that some form of sanction is necessary because of the affront to the complainant.
3.	The Court therefore intends to take an unusual course in determining the appropriate penalty.  It would make use of both the Community Justice Act 2008 and the Criminal Procedure Act 1972 section 113, in imposing a composite sanction on the defendant and in addition, it will refer a question of law, subsequent to its orders, in accordance with the Criminal Procedure Act 1972.
4.	In relation to Informations S1637, 1638, 1729, 1731 and 1733 of 2009, the Court will pay regard to the Community Justice Act 2008 sections 5 and 6, and although the law permits punishment by imprisonment, the Court is required to have regard to the desirability of keeping offenders in the community so far as that is practical and consistent with the safety of the community, and the Court notes the provisions of section 6.
5.	The Court is aware that the defendant has long served his community and has long served his village, and has no prior history of conduct of the nature alleged.  Accordingly, in relation to the above Informations, the Court will impose, in accordance with the powers afforded by the Community Justice Act 2008 section 9, an alternative penalty to imprisonment and orders that he serve a sentence of community work of 26 hours to be performed within a period of 6 months and be subject to supervision by a Probation Officer for a period of 18 months.
6.	In relation to Informations S1735, 1737, 1740, 1742 and 1744 of 2009, the Court will exercise power under the provisions of the Criminal Procedure Act 1972 section 113 and orders that the offender appears for sentence if called upon to do so within a period of 2 years; on condition that he pay directly to the complainant the sum of $3,000 within a period of 4 months from the date of this Order.
7.	The Court believes that the use of the Criminal Procedure Act 1972 section 113 is subject to difficulty.  In the case of the Attorney General v Mr A and Ms B, the Court of Appeal delivered a judgment on 31 May 2012, which related to the appropriate sentence which ought to have been imposed on the father of an adult woman who had committed the crime of incest.  The original Court had used Section 113 as a vehicle not to impose imprisonment but to order that compensation be paid to the complainant.  The Attorney General did not appeal that order but simply contended that the sentence as a whole was manifestly inadequate and accordingly the Court of Appeal imposed a sentence of imprisonment.  In doing so, it set aside the original order but specifically excluded the Section 113 payment from its order and stated in its judgment that it set aside the order of the Court except for what can be called the compensation order.
8.	My use of Section 113 raises a question of public importance namely, whether a criminal Act or Ordinance can be used as a vehicle for the making of an effective civil compensation order.  It may be that as a matter of policy, the Court should not be encouraged to use criminal legislation without an express wish of Parliament to combine a civil compensation order at the same time. 
9.	The Court believes that Section 113 is wide enough to carry the burden of such an order since, on its reading; it uses the words ‘on such conditions as the Court thinks fit’.  Here the prosecution consistent with the view it took in the case of Mr A and Ms B (supra) does not contend that a compensation order is precluded by Section 113 and in their written submissions, accept that Section 113 is wide enough to carry such an order.
10.	I believe that it would be appropriate for the Court of Appeal to either accept or reject that contention.  And accordingly, in accordance with the Criminal Procedure Act 1972 section 164 (G) it poses the following questions subsequent to trial and reserves those questions to the Court of Appeal for determination. 
11.	The Court refers the following questions of law to the Court of Appeal, namely 
(1) 	Does the wording of the Act section 113, in the context of the Act, permit a sanction, in whole or in part, of the making of the compensation order to a victim of a sexual offence; and 
(2) 	In the case of multiple convictions, does the Act section 113 permit a sanction in addition to the matters punished and otherwise, make an order on other concurrent convictions?  
ORDERS:
(1)	Mulitalo Siafausa is convicted of ten counts of the crimes of Indecent Acts with Intent to Insult or Offend, contrary to the Crimes Ordinances 1961 section 45.
(2)	In relation to Informations S1637, 1638, 1729, 1731 and 1733 of 2009, Mulitalo Siafausa:
(a)	undertake 26 hours of community service; and
(b)	is subject to the supervision of a Probation Officer for a period of 18 months.
(3)	In relation to Informations S1735, 1737, 1740, 1742 and 1744 of 2009, Mulitalo Siafausa is to appear for sentence, if called upon to do so, within a period of 2 years; on condition that he pays directly to the complainant the sum of $3,000 within a period of 4 months from the date of this Order.
(4)	The names of the complainant, members of her family and her village are suppressed.
(5)	The Court refers the following questions of law to the Court of Appeal, namely 
(1) 	Does the wording of the Act section 113, in the context of the Act, permit a sanction, in whole or in part, of the making of the compensation order to a victim of a sexual offence; and 
(2) 	In the case of multiple convictions, does the Act section 113 permit a sanction in addition to the matters punished and otherwise, make an order on other concurrent convictions?

…………………………
    (JUSTICE SLICER)