SUPREME COURT OF SAMOA
Police v Paulo WSSC 64
Case name: 	Police v Paulo	
		
Citation: 	[2020] WSSC 64
	
Decision date:	6 October 2020
	
Hearing date: 		
		
Parties: 	POLICE v ICHIKAWA PAULO male of Tuasivi.	
		
File number(s): 	S1944/19, S1947/19 and Charging Document/19
.	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court Samoa Mulinuu	
		
Judge(s): 	Justice Fepulea’i Ameperosa Roma	
		
On appeal from:		
		
Order:	(i)	On the charge of assault with intent to commit sexual violation, you are convicted and sentenced to 5 years and 3 months’ imprisonment;
(ii)	On the charge of unlawful sexual connection, you are convicted and sentenced to 5 years’ imprisonment;
(iii)	On the charge of causing actual bodily injury, you are convicted and sentenced to 5 years’ imprisonment.
	All sentences to be served concurrently, time spent in custody pending sentence to be deducted.   

Representation: 	F. Ioane for Prosecution
Matafeo G. Latu for Accused	
		
Catchwords: 		
		
Words and phrases:	actual bodily har – assault with intent to commit sexual violation – unlawful Sexual connection, 	
		
Legislation cited:	Crimes Act 2013 s.53(2), s.52(2) and s.119(1)	
		
Cases cited: 	Police v. Mativa [2014] 
Police v. Visesio [2019]	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

ICHIKAWA PAULO male of Tuasivi.
Defendant

Counsel:	
Ms F. Ioane for Prosecution
Mr Matafeo G. Latu for Accused	

Sentence:	06 October 2020

SENTENCING OF JUSTICE ROMA
Charges
[1]	You appear this afternoon for sentence on 3 charges:
(i)	Assault with intent to commit sexual violation, s 53(2) Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment;
(ii)	Unlawful sexual connection, s52(2) Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment; and
(iii)	Actual bodily harm, s119(1) Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.
[2]	You denied the charges and trial commenced on 2 September 2020 with a voir dire hearing on the admissibility of your cautioned statement.  Following the Court ruling on 4 September 2020 that the statement was admissible, you vacated your not guilty pleas and substituted guilty pleas to the charges.
Offending
[3]	From the prosecution summary which you accept, the offending took place in the evening of 12 October 2019.
[4]	Earlier in the evening, you attended a birthday party held at the victim’s house.  During the party, the victim’s husband saw that you were intoxicated and chased you home.  You left and hung out at the nearby 3-way intersection before you returned to the victim’s house for more alcohol.
[5]	You went through the back and saw the victim sleeping on the balcony at the back of the house.  She was sleeping with her children inside their mosquito net.  You approached her, removed her black tights and proceeded to digitally penetrate her vagina with your fingers.  As you told police, you had an erection at the time.
[6]	The victim then woke from her sleep and began to call out.  You struck her twice with a piece of metal that was inside of the mosquito net.  She got up and ran to their other house where her husband was drinking with others.  She was half naked and bleeding from her face.  She was able to tell her husband that you were responsible before she was rushed to hospital for treatment.  
[7]	According to the medical report, she suffered the following injuries:
(i)	Left eye was swollen and tender and unable to open;
(ii)	Multiple lacerations around the facial region including a 4cm laceration above the left eyebrow, a ‘Y’ shaped laceration on the left cheek and on the right temporal region; and a laceration on her lower left lip;

(iii)	Cheeks and neck were swollen.
[8]	Her wounds were cleaned, sutured and dressed before she was admitted for observation.  Because of the nature of the injuries, she further underwent dental and eye review and was subjected to daily check-ups for her unborn child.
Victim
[9]	The victim is a 31 year old female of Tuasivi.  She and you are neighbours.  She was pregnant at the time of the offending.  As to the physical impact of your offending, she says in the victim impact report that the injuries to her face were multiple and very serious and required suturing.  She was hospitalised for a week.  The injuries took months to heal and have left permanent marks.  For a long time, she has also had trouble eating.  The attack also occurred in the late stages of the victim’s pregnancy with her child who is now over 10 months old.  It has had a lasting impression on the victim.  It also affected her family including her children.
[10]	The victim also says that you and your family have not approached her to apologise.  
Accused
[11]	You are a 26 year old male of Tuasivi.  The pre-sentence report says that you have been living with your parents, a brother and an adopted sister at Fogapoa.  You ended your formal education at Year 11 and worked a number of jobs to assist your family.  You have been assessed by an Alcohol & Drugs Clinician as having an alcohol addiction that requires treatment.  The testimonials by Rev. Elder Ioane Viliamu Samoa and the pulenuu speak of your involvement in church activities and the service you render to the village.
[12]	You have previous convictions for Burglary and Theft in 2015 according to the police summary which your Counsel says are unrelated offences.  But the pre-sentence report says that you were also charged for causing grievous bodily injury in 2017 and ordered to complete the Drugs Court programme before being sentenced on 13th March 2018 to 12 months’ supervision.  Clearly that conviction is similar to the present offending and will have an impact on your sentence.
[13]	Again this is another of many matters where prosecution’s record of accused’s convictions has become outdated.  I need not remind prosecution that you have a duty to provide the Court updated and accurate information.  If it were not for the updated record and carefully prepared report by Probation, the Court would have proceeded to sentence you as a first offender.
[14]	As to the offending, you admit your involvement in both the pre-sentence report and submission by Counsel.  You suggest that you were provoked by an assault earlier by a brother in law of the victim who also chased you from the party.  You were unhappy with the victim’s husband and when you returned later and came across the victim, you assaulted her.  That was very cowardly and attracts no weight in the circumstances of your offending.    
Aggravating Factors
[15]	In relation to your offending, the following are the aggravating features:
(i)	Vulnerability of the victim – the victim was sleeping with her children when you entered her home and mosquito net, removed her tights and penetrated her vagina with your finger, and assaulted her further when she woke up;

(ii)	Use of a weapon – the assault that followed the unlawful sexual connection involved strikes with a piece of metal that caused serious lacerations to her face;
(iii)	Several blows – your sexual assault of the victim was followed by strikes to her face when she woke up; 
(iv)	By entering the victim’s home without authority, you breached its privacy and sanctity and assaulted her sexually and physically whilst sleeping with her children;
(v)	Victim’s pregnancy and risk on her unborn baby – she was in the late stages of her pregnancy when she was sexually and physically assaulted;
(vi)	Impacts of the offending – including the serious facial injuries that required treatment and have left permanent marks; and the psychological impacts as clear from the victim impact report.
[16]	As Offender, an aggravating factor is your previous and related conviction for grievous bodily harm on 13th October 2018 where you completed the Alcohol and Drugs Court programme and was handed a community based sentence. 
Mitigating Factors
[17]	There are no mitigating features of your offending.
[18]	The mitigating factors personal to you as Offender are:
(i)	Substituted guilty plea to the charges following the Court ruling admissible your cautioned statement to police;
(ii)	Your parents’ attempts to apologise to the victim’s family following the incident whilst the victim was hospitalized and you were held in police custody.  Understandably, those attempts were rejected;
(iii)	Fine of $2,000.00 imposed by the village council and paid by your family as stated in the pre sentence report; 
(iv)	Personal Circumstances which I have earlier referred to.
Discussion
[19]	This is another case of a male attacking a female sexually and physically in the sanctity of her home where she is expected to and should feel safe.  You have a recent conviction for a violence related offending for which you were granted the Court’s leniency in terms of a community based sentence.  You now appear for sentence on more serious charges.  The only appropriate penalty is that of imprisonment.  It should also serve the purposes of sentencing under s5, Sentencing Act 2015.
Assault with intent to commit sexual violation
[20]	Prosecution seeks a starting point of 9 years on the more serious charge of assault with intent to commit sexual violation.  They rely on Police v. Mativa [2014] WSSC 136 (16 May 2014) where the accused had attacked an elderly, intoxicated and unaccompanied female in a dark area on the seawall with an obvious intent to rape her.  She suffered bruising and swelling to her head and face but the consequences would have been severe had it not been for the intervention of 2 males who passed by.
[21]	Mr Latu submits that despite your guilty plea, the charge under s53(2) is misconceived because it is appropriate in circumstances where an assault is committed before and in order to facilitate the act of sexual violation, whereas the assault in your case took place after the act of sexual connection.  Whilst clear that s53(2) requires the act of assault to be committed with intent to commit sexual violation, I do not agree that the assault must necessarily occur before the act of sexual connection or an attempt to commit sexual violation.  What is important is that the offending is viewed in totality and in the circumstances in which they occurred, irrespective of the sequence in which they occurred.
[22]	In any event, Prosecution submits that the assault complained of is your act of taking off the victim’s tights before you committed sexual connection on her.  In my view, the act of sexual connection itself may also be viewed as the assault for purposes of the charge under s53(2).  Your guilty plea to the charge and acceptance of the police summary must not also be taken lightly.
[23]	I have reviewed the 2 sentencing decisions referred to in prosecution’s sentencing memorandum: Police v. Visesio [2019] WSSC 73 where the Court adopted a 4 year starting point and Mativa where it adopted a 9 year starting point.  The circumstances in Mativa are close to yours except that your offending took place in the sanctity of the victim’s home whilst she was heavily pregnant and sleeping with her children.  Like Mativa, you have a previous conviction for violent offending.
[24]	Taking into account the gravity of your offending, I adopt a starting point of 8 and ½ years and uplift it by 6 months for your previous violent offending.  From that 9 years, I deduct 18 months for the penalty imposed by the village council.  I deduct a further 6 months for your family’s attempts to apologise, though not accepted by the victim’s family.  That leaves a term of 7 years.  I deduct 21 months being 25% of that term leaving a balance of 63 months or 5 years and 3 months.
[25]	On that charge, you will be convicted and sentenced to 5 years and 3 months imprisonment.
Unlawful sexual connection
[26]	You penetrated the victim’s vagina with your fingers whilst she was heavily pregnant and sleeping in the mosquito net with her children.  When that woke her up, you struck her face twice with a hard object.
[27]	On that charge, you will be convicted and sentenced to 5 years imprisonment.
Actual bodily harm
[28]	This was a serious assault on a pregnant woman in the sanctity of her home and presence of her children.  It followed your sexual assault of her and involved the use of a piece of metal that caused serious and multiple injuries which have left permanent marks on her face.  Further, it was committed months after you were convicted of another violence related offending for which you completed a rehabilitative programme and were handed a community based sentencing.
[29]   I bear in mind that the maximum penalty is 7 years imprisonment.  On that charge, you will be convicted and sentenced to 5 years imprisonment.
Summary
[30]	In summary, you are sentenced as follows:
(iv)	On the charge of assault with intent to commit sexual violation, you are convicted and sentenced to 5 years and 3 months’ imprisonment;
(v)	On the charge of unlawful sexual connection, you are convicted and sentenced to 5 years’ imprisonment;
(vi)	On the charge of causing actual bodily injury, you are convicted and sentenced to 5 years’ imprisonment.
[31]	All sentences to be served concurrently, time spent in custody pending sentence to be deducted.   
JUSTICE FEPULEA’I A. ROMA