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Police v TT [2011] WSSC 157 (4 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

"TT"
Defendant

Counsels: Ms T.Toailoa for prosecution
Mr J Brunt for defendant

Sentence: 04 November 2011

SENTENCE

This defendant appears for sentence on 13 counts of having sexual intercourse with his step daughter. Each count carries a maximum penalty of 7 years in prison. In respect of the details of the complainant in this matter if one has not been issued there will issue a suppression order prohibiting publication of the details concerning her, and by necessity this will have to include the defendant who is her step father. That extends to the villages of the parties.

The police summary of facts relates that the defendant is a 50 year old male and is married to the mother of the complainant. The couple have seven children. The complainant is the eldest of the children and is 21 years of age but at the time of the first offence in this matter was 17 years of age. At all material times she was living in the same household as the defendant under his care and control as head of the family. The defendant is said in the summary to be unemployed and the family lives off the proceeds of selling produce from their plantation at the market and elsewhere. The selling of the plantation produce was usually attended to by the mother.

It appears that all instances of sexual intercourse occurred at the family home. The first one occurred in January 2007. That was the only incident in 2007 there was nothing in 2008. But then in 2009 occurred 12 instances of intercourse. In respect of 2009 the summary states that these were on nights when the complainants mother spent the night away from the family home. The only people at home were the complainant, her younger siblings and the defendant. The summary also says that the result of this offending was that in 2009 the complainant felt pregnant to the defendant who told her to lie and blame it on another male.

In 2010 the complainant left the family home, lived with her grandmother and gave birth to a baby boy. It was the grandmother who reported this matter to the police. Leading to the defendants appearance today after he pled guilty to all 13 charges against him.

There have been a number of cases of fathers having sex with their step-daughters that have come before the court particularly as of late. The penalty in every case has been one of imprisonment because of the seriousness of such offending and because of the gross misuse of the defendants position that such offending usually involves. This case appears no different. The defendant as a father took advantage of his position as head of the family to satisfy his lusts. The end result of the offending is that the family has been torn apart and an unwanted pregnancy has occurred. The complainants victim impact report says she is going to give the baby up for adoption because she cannot care for him and she cannot return to her family. The victims of this kind of offending are never limited to just the complainant. Which is one reason why such offending is regarded by the court as serious and deserving of serious treatment.

The defendant is considerably older than the complainant. There is approximately a 30 year age difference between the parties. The offending is not a one-off offending, it spanned a period of 12 months during 2009 and appears to date back to 2007 when the first encounter took place. In Police v Semeatu [2008] WSSC 48 my brother Justice Vaai made the observation quite appropriately that this sort of behaviour is regarded in our custom and tradition as deplorable and indeed is commonly referred to as "mataifale." Young girls who are the usual victims of this sort of offending are entitled to look upon their father, whether it be their biological father or their step-father as protector and provider and to look at their home as a place for security and harmony and not as a reminder of immoral wrong doing. As observed in Semeatu the sentence to be imposed must reflect the seriousness of the offending and must convey societys intolerance of sexual abuse of young girls.

There has been an attempt by the defendant to blame the young girl for this offending by his statement to the probation office that the first sexual encounter was initiated by her coming clad only in her bra and panties and sleeping in his bed. That reasoning was also surprisingly advanced by his counsel. It is not unusual in sexual cases for defendants to try and blame complainants. But let us be clear, consent by a complainant to any sexual relationship or encounter is irrelevant to this kind of offending. And the offending is aimed at the actions of the father not at the actions of the younger complainant. Even if what the defendant says is true which I doubt, as a mature individual 30 years older than the complainant the onus was on him to behave rationally and properly towards his step daughter.

Prison is the only appropriate penalty for this kind of offending. But in fixing an appropriate period of imprisonment I have taken into consideration what your lawyer has told the court and what is contained in your favour in the probation office pre-sentence report as well as other material before the court. You are also given credit for your guilty plea which has saved the courts time and spared the complainant the ordeal of testifying. And I have taken into consideration the fact that you are a first offender. The penalties for this sort of offending in similar cases have been around the 3 to 4½ year bracket. For this matter the court taking into account all relevant factors issues the following penalty: in respect of the 12 charges involving the year 2009 when the complainant was 19 years of age and which resulted eventually in her pregnancy, you will be convicted and sentenced as a total sentence to 4 years in prison.

In respect of the single offence in the year 2007 S412/11, you will be convicted and sentenced to 3 years in prison. The prosecution have sought that the two penalties be cumulative sentences so that you will serve 7 years in prison like the approach adopted by this court in Police v GT (unreported) 17 November 2011. However I note in that case the complainant fell pregnant twice to her father whose offending continued over a longer period of time. The approach therefore of the court was unusual because of its special factors. I decline the prosecution application and order that the 3 year term for the 2007 instance of intercourse be served concurrently with the 4 year term for the 2009 matters. You will therefore serve a total of 4 years in prison but your remand in custody time awaiting sentence is to be deducted from that.

............................
JUSTICE NELSON