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Police v Purcell [2013] WSSC 117 (23 July 2013)

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

SUPREME COURT OF SAMOA

Police v Purcell [2013] WSSC 117

Case name: Police v Purcell

Citation: [2013] WSSC 117

Decision date: 26 – 27 June 2013

Parties: POLICE (prosecution) and FANUALELEI TOMINIKO PURCELL male of Falefa

Hearing date(s): 23 July 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
R Titi for prosecution
Defendant in person

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, s.54(a)
Criminal Procedure Act 1961, s.113
Community Justice Act 2008, s.6

Cases cited:
Police v Lafaele Paulo [2002] WSSC 1
Police v Utuvai [2008] WSSC 50
Police v Oto [2009] WSSC 53
Police v Finau [2006] WSSC 33
Police v Faalogo [2012] WSSC 26
Key v Police CA 07/13
Attorney General v Mulitalo CA 14/12

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

FANUALELEI TOMINIKO PURCELL male of Falefa

Defendant

Counsel: R Titi for prosecution

Defendant in person

Hearing: 26 – 27 June 2013

Sentence: 23 July 2013

Charge: Indecent Assault (x1)

SENTENCE OF SLICER J

1. Fanualelei Tominiko Purcell has been found guilty of the crime of indecent assault on a young woman, contrary to the Crimes Ordinance 1961, section 54 (a). Other charges were dismissed or withdrawn.
2. The offence occurred on 13 May 2012. He was aged 54 at the relevant time and the complainant was 20 years old.
3. There has been no reconciliation but the defendant was banished from his village and fined 50 boxes of tinned fish, a cattle beast and $1,000.00. On return to his village some months later, he and his family provided a further 30 boxes of tinned fish, a large pig and provided a large meal for his village. Those matters are taken into account in the fixing of a commencing point for this sentence since the original punishment is regarded as punishment already inflicted.
4. There has been no ifoga.
5. The victim was his biological daughter but not a member of his family but one who had stayed with him when she discovered his identity in late 2011.
6. The prosecution has referred to cases such as Police v Lafaele Paulo [2002] WSSC 1, which involved a 12 year old victim and a gross breach of trust, and Police v Utuvai [2008] WSSC 50 which involved an assault on a student by a teacher. Police v Oto [2009] WSSC 53 concerned the indecent assault of a pastor on a member of the congregation. The Court does not regard those cases as providing comparable circumstances.
7. Police v Finau [2006] WSSC 33 (15 months) and Faalogo [2012] WSSC 26 (6 months) are more appropriate. Here the Court accepts that the defendant has already suffered a significant punishment imposed by the fono.
8. The age of the complainant, at the relevant time, is relevant and makes his conduct opportunistic and less predatory.
9. The relevant commencing point is a sentence of imprisonment for a period of 9 months. From that will be deducted the punishment already imposed by the fono. The Court accepts that the tinned fish and feast provided for his return to the village was a benefit for him in return for the removal of the banishment order and does not qualify as prior punishment. He has been in custody since 27 June, so a further period of 1 month will be deducted.
10. That would reduce, before mitigation, to an effective sentence of 5 months.
11. The victim has declined to provide a victim impact report and has returned to live with her family.

Mitigation

12. A pre-sentence report states that he has led a troubled life with his marital and sexual relationships. He is well regarded by his family, village and church. He left school at an early stage to care for his sick father and had little opportunity to advance his career. He has served his village as an orator.
13. The Court regards this case as out of the ordinary in the sense stated by the Court of Appeal in Key v Police CA 07/13. The defendant has been already punished by his fono and the age of the victim relevant.
14. The Court will make use of the provisions of the Criminal Procedure Act 1961 section 113. It will make use of the provisions of the Community Justice Act 2008 section 6 to make a compensation order of $1,000.00 to the victim in the manner suggested by the Court of Appeal in Attorney General v Mulitalo CA 14/12.

ORDERS:

(1) Fanualelei Purcell be convicted of the crime of Indecent Assault.
(2) Fanualelei Purcell pay to the complainant the sum of $1,000.00 within 28 days of the date of this Order; and that
(3) Fanualelei Purcell is to appear for sentence, if called upon to do so, on conditions that:

• (a) he comply with Order (2); and
• (b) he commit no crime or offence of a sexual nature within 2 years of the date of this Order.

(4) The names of the complainant, village where the offence occurred and the relationship between the offender and victim are suppressed.

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

(JUSTICE SLICER)