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

supreme court of samoa
Police v Siafausa [2012] WSSC 128

Case name: Police v Mulitalo Siafausa
Citation: [2012] WSSC 128
Decision date: 20 December 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 s.113
Community Justice Act 2008 ss.6, 104(6), 113(2), 165, 166
Cases cited:
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
Appeal Decision:	23 November 2012
Re-Sentence:	20 December 2012
Charge:	Indecent Act (x10)

reasons for decision and sentence of slicer j
1.	On 19 July 2012, this Court found the defendant guilty of 10 acts of Indecency with Intent to Assault, contrary to the Crimes Ordinance 1961 section 45.  The maximum penalty for each act is 2 years imprisonment.  On 25 July, it imposed non-custodial orders which included the undertaking of community service, a bond under the Criminal Procedure Act 1972 section 113, and a compensation order in favour of the complainant.  It referred the validity or otherwise of the compensation order to the Court of Appeal.  On 23 November, the Court of Appeal answered the question in the negative, quashed the compensation order and remitted the matter ‘to pass such sentence as it considers appropriate in the light of this judgment’.
2.	The circumstances giving rise to the findings of guilt are set out in the Reasons for Decision of 19 July following at 5 day trial.  They do not require restatement.  The complainant rebutted the first approach by the defendant for sexual favours but later acquiesced to his insulating demands in order to retain her employment.  She quit her job after one week of his improper conduct.
3.	The defendant has paid the $3,000 ordered as compensation.  He has served the requisite hours of community service.  He remains liable to appear before this Court if called upon to do so within a period of 2 years and remains under supervision of the probation service for a further 13 month period.
4.	The Court accepts the payment of $3,000 as akin to a fine or punitive measure.  It notes the advice of the Court of Appeal that other provisions of Samoan legislation namely, the Community Justice Act 2008 section 6 and the interrelationship of sections 104 (6), 113 (2) with sections 165, 166, although the latter confines any order to compensation for loss or restitution of property.  Section 104 (6) operates upon a discharge order and section 113 (2) might require more detailed examination and interpretation.  It is not necessary here for this Court to undertake that examination.
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 be on good behaviour for a period of 2 years from the date of this Order.
(4)	The names of the complainant, members of her family and her village are suppressed.

…………………………
    (JUSTICE SLICER)