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Police v OS [2013] WSSC 13 (14 January 2013)

SUPREME COURT OF SAMOA

Police v OS [2013] WSSC 13

Case name: Police v OS

Citation: [2013] WSSC 13

Decision date: 14 January 2013

Parties: THE POLICE v OS

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation:
Ms F E Niumata for prosecution
Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Police v PL [2012] WSSC 22

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution

AND

OS

Defendant

Counsel: Ms F E Niumata for prosecution

Defendant unrepresented

Sentence: 14 January 2013

SENTENCE

As this is a case of sexual offending involving a young complainant there will issue the usual suppression order prohibiting publication of the complainants details. And because the defendant is her father that order will have to also extend to the defendants details. Case to be reported in the case reports as Police v OS.

The defendant is a 46 year old male married man with eleven children. He lived at the time of these offences in the village of his wife where he ran a plantation catering for the needs of his family. He is spoken of as hardworking and reliable by a leading matai of his wifes family who also confirms that no village penalty has been imposed on the defendant for this matter.

The complainant is the defendants 15 year old biological daughter. No apology has been made by the defendant to either the complainant or as far as I can ascertain to anyone else. When the police summary of facts was read to him he confirmed it but had nothing else to say in mitigation. Therefore there has been no expression of remorse or regret by this defendant for his offending.

There are two separate incidents involved. The first occurred on Sunday, 21 October last year. Four charges arise from that incident. Rape, incest, carnal knowledge and indecent assault. Second incident is in respect of what occurred on Friday, 16 November last year. In respect of that there is one count of indecent assault. Dealing with the first incident first.

That Sunday, 21 October 2012 at about 3:00 pm in the afternoon the defendant and the complainant were walking to a store some distance from their home. As they reached a bushy area the defendant suddenly grabbed the victim and dragged her into the bush. The young girl asked her father what he was doing and he replied “ga’o le ku’uifo i ke’i ua ou fasia oe”. The defendant undressed the girl and removed all of her clothing. She cried and begged him to stop but he covered her mouth and laid her on the ground. He got on top of her and instructed her to perform oral sex on him. The girl refused, struggled and tried to fight off the defendant. She was not successful. He was able to penetrate her and had forced intercourse with her until he was satisfied. He then instructed her to get dressed and threatened her with death if she spoke of what happened.

The second incident occurred on the night of Friday, 16 November 2012. When the victim was sleeping at home with her siblings. The defendant and the victims mother were in another room of their house. Early in the morning the mother woke the children prepared them for school and left the house to take them to school. The complainant was still in bed. The defendant crept into the complainants bedroom and started to rub her breasts. The complainant tried to cover her body with her hands but the defendant told her “ku’uifo”. The complainant then said to the defendant “ a faifai a’u ma ou afafige koe fai ai laia ma isi kulaga le kakau.” The defendant asked the complainant to perform indecent acts on him but the girl again refused and began to cry. This caused the defendant to leave the complainants bedroom.

When the complainants mother returned the girl told her about what had happened. These matters were reported to the police and the defendant was arrested and charged. At first mentions he pleaded guilty to all charges against him.

I will deal with the first incident charges first. The most serious being the charge of rape. Rape by fathers of their daughters is sadly coming before the court more and more. As noted in Police v PL [2012] WSSC 22 last year the courts have previously imposed lengthy imprisonment sentences for this offence to reflect the deterrence aspect of the sentence. And to show our communitys sound denunciation of such conduct. Rarely if at all has a sentence for such a rape been less than 10 years. In at least one case the maximum of life imprisonment was imposed.

This was a rape by a father some 30 years older than his daughter. Which occurred in a secluded area where the defendant had dragged the young girl. This was a 15 year old alone and defenceless. The man charged with her protection became her attacker. He not only forcefully raped his daughter but threatened her before and after the acts.

The victim impact report shows the impact this offending has had on the girl. Not only psychologically but also that she lost her virginity as a result of her fathers actions.

Considering all relevant circumstances a starting point for sentence of 18 years is in my view appropriate. But from that you are entitled by law to certain deductions which I will now make. First is for your guilty plea which has saved the complainant having to relive her traumatic experience, it has also saved the courts time and limited resources. But because you have not expressed any remorse for your actions I will only deduct 3 years from the start sentence instead of the normal one-third. That leaves a balance of 15 years. For the fact that you are a first offender I will deduct one year from your sentence leaving a balance of 14 years. There is no normal ifoga or village penalty imposed in this matter. You are therefore entitled to no further deductions from that sentence. For the offence of rape you are convicted and sentenced to prison for 14 years but your remand in custody time awaiting sentence is to be deducted.

On the other charges you will receive the following sentences: for the charge of incest a sentence of 5 years in prison, on the charge of carnal knowledge also a 5 year term of imprisonment. On the charge of indecent assault on a minor you are convicted and sentenced to 3 years imprisonment. All those terns are to be served concurrent to your 14 year term for rape.

In respect of the second incident where you pleaded guilty to indecent assault. For that matter you are convicted and sentenced to 2 years in prison. That term too is to be served concurrent to your term for rape. The end result is your term is 14 years less your remand in custody time awaiting sentence.

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