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Police v TT [2012] WSSC 75 (23 July 2012)

SUPREME COURT OF SAMOA

Police v TT [2012] WSSC 75

Case name: Police v TT

Citation:[2012] WSSC 75

Decision date: 23 July 2012

Parties: POLICE v TT

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):

On appeal from:

Order:

Representation:
Ms F E Niumata for prosecution

Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Informant

AND:

TT
Defendant

Counsel: Ms F E Niumata for prosecution

Defendant unrepresented

Sentence: 23 July 2012

SENTENCE

The defendant in this case is the 49 year old biological father of the complainant. As such a suppression order has been issued prohibiting publication of the details of both him and the complainant including the villages where they live and where these offences occurred.

After a defended hearing the defendant was found guilty of attempting to rape his daughter in 2009 and 2011. And in relation to the 2009 incident uttering the following threatening words “koikiki ou kipia oe i le gaifi.” To keep the girl silent about what he had done to her.

In accordance with the courts decision of 15 June 2012 the 2009 incident occurred during the night in the family home where the complainant was asleep with her mother and younger siblings. She and her younger sister were in one mosquito net and her mother asleep in the other. The defendant had been sleeping in the family faleoo. She said he came to her during the night unclothed her and performed sexual acts on her including oral sex. She tried to scream but he covered her mouth and threatened her with his sapelu. He tried to penetrate her with his private part but could not as she kept her legs tightly closed. She subsequently complained to her mother about what had happened but the defendant denied his actions. Most probably the mother gave him the benefit of the doubt as the matter was not referred to the police.

But in 2011 another incident happened. This time the defendant came and fetched the complainant from her grandmothers house in a neighbouring village. On the way home by way of an “auala kipi” he pulled her into the bushes pushed her down, undressed her and again tried to rape her. Again her squirming and resistance meant the defendant was unable to complete the act of intercourse. Eventually he gave up and they resumed their journey. This time the young girl kept quite about what happened and told no one.

These incidents only came to light in February this year when the police were called because of a dispute between the mother and the defendant. Only then did the young girl speak. When interviewed by the police the defendant told them as follows: “tailo iai pe aisea ua toe aumai ai nei mea na tutupu muamua, ae ua leva na tutupu ma ua mae’a foi ona teuteuina. A’o lea ua avea le mataupu lenei na molia muamua ai a’u ua laga mai ai ma mataupu nei.”

These are serious charges. The complainant was in 2009 only 9 years old and in 2011 11 years of age. She is the eldest of the defendants five daughters. In her victim impact report she said she no longer lives at home because of these unpleasant memories. She is happy where she is presently housed under the care of the Samoa Victim Support Group. A group that does exceptional work in this country in taking care of victims of sexual abuse.

It is difficult to imagine what will happen to this young girl when comes the time for her to leave the Samoa Victim Support shelter and how she would cope. One thing is clear she should certainly not return to any environment in which the defendant is living or plays any part.

The maximum penalty for attempted rape is 10 years imprisonment. Considering all the circumstances of this offending and that the 2009 offence was an attempted rape within the family home a start point of 6 years is appropriate. For the 2011 offending I also adopt a same start point as it was carried out in a secluded area when the complainant was alone, vulnerable and under the defendants control.

To both start points however must be added a further aggravating factor peculiar to the defendant and the complainant namely their relationship. The complainant was the defendants biological daughter. He was given this gift not to abuse but to nurture, care for and protect. Instead he has destroyed her innocence, broken up the family relationship and subjected her to sexual abuse for his own gratification. Because of this the start point should be upgraded to 8 years for each charge.

From that however the defendant is entitled to deductions for any factors in his favour. If he had pleaded guilty to these charges he would have received the normal credit of one-third of sentence as a reduction. But he did not do that. He elected to defend the charges and put the complainant on the witness stand. And he did not spare her in cross examination where he questioned her extensively. There will be therefore no deduction in respect of that matter and the only deduction the defendant is entitled to is to reflect the fact that he is a first offender with a clean police record. For that matter I deduct a period of 1 year from both charges leaving a balance of 7 years each charge. There is no other deduction the defendant is entitled to. In respect of each charge of attempted rape he is convicted and sentenced to 7 years in prison, terms to be served concurrently.

In respect of the threatening words charge I accept the prosecution submission. You will be convicted and sentenced to 12 months in prison on that matter. That term is to be served concurrent to his other terms. His remand in custody time is to be deducted.

JUSTICE NELSON