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Police v Puni [2012] WSSC 129 (21 December 2012)

[THE NAMES OF THE COMPLAINANT, HER FAMILY AND HER VILLAGE ARE SUPPRESSED]

SUPREME COURT OF SAMOA

Police v Puni [2012] WSSC 129

Case name: Police v Le Mamea Emosi Puni

Citation: [2012] WSSC 129

Decision date: 21 December 2012

Parties: POLICE (prosecution) and LE MAMEA EMOSI PUNI male of Tiapapata, Medical Practitioner

Hearing date(s): 29 – 30 May 2012 (Stay of Proceedings), 2 – 6 July 2012 and 20 December 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
P Chang and T Toailoa for prosecution
B Sellars and E Puni for defendant

Catchwords:

Words and phrases:

Legislation cited:
Constitution of the Independent State of Samoa 1960, Article 9

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Prosecution
AND
LE MAMEA EMOSI PUNI male of Tiapapata, Medical Practitioner
Defendant

Counsel: P Chang and T Toailoa for prosecution

B Sellars and E Puni for defendant

Hearing: 29 – 30 May 2012 (Stay of Proceedings), 2 – 6 July 2012 and 20 December 2012

Written Submissions: 27 July 2012

Reasons for Decision: 24 August 2012

Further Written Submissions: 26 November 2012 and 11 December 2012

Sentence: 21 December 2012

Charge: Indecent Act (x1)

SENTENCE OF SLICER J

1. The facts of this matter have been stated and determined by this Court and the Court of Appeal (CA 14/12, 23 November 2012), and require no repetition. The defendant is to be sentenced on the basis of an indecent assault by a medical practitioner on a patient in the course of a professional consultation and physical examination.
2. The defendant is aged 65 and has no previous convictions.
3. The prosecution submits that the appropriate end sentence is one of 3 years imprisonment which, on its position, takes into account the gravity of the conduct, the gross breach of trust and the status of the defendant as a first offender.
4. The defendant submits that a community service order be made, given the long service provided by Emosi Puni (“Puni”) to the community, medicine and teaching.
5. The Court will not follow either of the suggested courses. It will rely on cases such as Paulo [2002] WSSC 1, Finau [2006] WSSC 33, Utuvai [2008] WSSC 50 and Oto [2009] WSSC 53 as a guide. To those sentences should be added the conduct of a medical practitioner and the vulnerability of the patient and the impact on her, and choose as a starting point of custodial term of 3 years before mitigating matters. The defendant is not entitled to the benefit of a plea.
6. The defendant advances ifoga, punishment already imposed, long service to the community, remorse, reconciliation and the undue delay in the completion of these proceedings.

Previous Service

7. The Court accepts the probation and defence summaries of the defendant’s years of service to his family, profession, church and community. Those matters are strong mitigating matters and will be taken into account.

Age and Health

8. His age has been stated and the Court accepts that he is in poor health and will suffer more in prison than a young and fit man. Some weight will be given to those matters.

Punishment Already Imposed

9. Following the finding of this Court that the defendant was guilty of the crime alleged, the village fono met and imposed, through custom, a fine of $7,900 for the shame he had brought on its name. He was the sao of his family which likewise punished him for damaging their reputation by a fine of $3,500.
10. The Court respects the fono and family for their respect of the Constitution Article 9 (3) which provides for the presumption of innocence. It will take into account both matters as punishment already imposed.
11. In addition, Puni, as a public and professional, has fallen from grace and suspended from practice.

Undue Delay

12. Much of the delay was not the responsibility of the prosecution. The defendant was charged in July 2005, and has remained on bail until it was revoked on 26 November 2012. Judges of the District Court disqualified themselves in August 2005 and the matter transferred to the Supreme Court and adjourned until August 2006 when the defence indicated that it was not ready to proceed. The Supreme Court allowed a no case submission in October of that year and the defendant was discharged. In September 2007, the Court of Appeal upheld the prosecution’s appeal and remitted the matter to the Supreme Court. On 29 November 2007, the Court of Appeal upheld the prosecution’s appeal concerning the suppression order. During the period from November into 2008, attempts were made to obtain an overseas judge to undertake the trial. Defence counsel was unable to appear at a conference held for the Court of Appeal in September 2008. In February 2009, counsel were told, in chambers, that an overseas judge would be available in April. Defence counsel claimed that he was not available during that period and sought a postponement until, at least, September 2009. There the matter languished for reasons unknown to this Court.
13. In September 2010, the prosecution sought a hearing before me. I was prepared and available in Samoa to undertake the hearing. In August 2011, counsel for the defendant filed an ex parte motion for the provision of requested information, pursuant to the Constitution Article 9; an application repeated by overseas counsel on 29 September. That application complicated proceedings and presumably is the reason why the matter could not proceed before me. A copy of the order (sic) was forwarded to counsel by the Registrar on 4 November 2011.
14. The matter was recalled in February 2011 but on 28 February, the defendant did not appear. He was overseas in March 2011 and the Court was told that he would seek a stay of proceedings. The matter was adjourned until 5 September 2011 and on 25 September, the defence sought a further adjournment until February 2012.
15. The Court heard the stay of proceedings and dismissed the motion on May 2012, giving reasons which enabled the defendant to appeal the decision to the Court of Appeal which, in turn, determined the appeal on 31 May.
16. The matter was heard by this Court on 29 – 30 May and 2 – 6 July (delay because of overseas witnesses), written submissions provided on 27 July and Reasons for Decision published on 24 August 2012. The defendant appealed the decision; the appeal being dismissed on 23 November. This Court proceeded with the sentencing hearing. The defendant was remanded in custody on 26 November 2012. No allowance is made for delay. The circumstances differ from those considered by the New Zealand case of Williams [2009] NZSC 41 which primarily dealt with ‘stay’ proceedings.

Reconciliation and Remorse

17. The Court has received the Victim Impact Statement of November which makes no reference to remorse. The defendant claimed remorse ‘hit home’ after the decision of the Court of Appeal. The Court has reservations as to whether it was genuine.
18. The defendant claims that on 10 December 2012 his family went to the complainant’s family home (she remained overseas) and effected reconciliation.
19. An account of that meeting is stated by her father in law in the following terms:

“Your Honour, this matter was further adjourned to 14^th December 2012 for the Probation Service to confirm the reconciliation between the defendant’s family and the victim’s family however, the Court was unavailable on the 14^th December 2012 due to cyclone Evan which affected our country.

The write was able to interview A, the father in law of the complainant on the 15^th December 2012. A has confirmed the apology made by the family of the complainant (sic) on the 10^th December 2012, along with envelope they left on the table in which they found $1,000 tala inside.

A added that he really questioned the sincerity of the defendant’s family’s approach as not only were they approached two days prior to sentencing but they also overlooked the significance of cultural protocols where a fine mat must have been warranted. A said that he accepted the apology but will leave this matter entirely to the Court for an appropriate decision.”

20. The Court accepts that Puni was entitled to pursue his legal defence and invoke his constitutional right of the presumption of innocence. It accepts his counsel’s submission that Puni felt unable to approach the complainant or her family until after he had exhausted his right of appeal.
21. The Court has, in common with the father in law, some reservation about the sincerity of the approach rather than an attempt to mitigate punishment but will give some weight to the offer, although it compares the amount provided as against the sums paid to the village and family. It notes the Court has no evidence of the complainant accepting reconciliation.

Conclusion

22. One third of the commencing sentence of 3 years will be remitted through the factors of age, health and previous service to the community. One third will be reduced for the punishment already imposed and the gesture of apology. Further disposition ought remain the province of the Board.

ORDERS:

(1) Emosi Puni be convicted of the crime of Indecent Assault.
(2) Emosi Puni be sentenced to a term of imprisonment for a period of 12 months, such sentence to commence as and from 26 November 2012.

..............................

(JUSTICE SLICER)