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Police v AV [2017] WSSC 130 (24 October 2017)

SUPREME COURT OF SAMOA
Police v AV [2017] WSSC 130

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AV male defendant
Defendant

Counsel:
A Matalasi for prosecution
T P Mulitalo for defendant

Sentence: 24 October 2017

SENTENCE

1. The defendant has pleaded guilty to one (1) count of rape and eleven (11) counts of incest. The victim is his biological daughter. There will accordingly issue a permanent suppression order prohibiting publication of her details and for protection of her identity this extends to the defendants details. I would also remind everyone that this suppression order encompasses all forms of social medial including Twitter, Whatsapp and the like. This case will be reported in the law reports as Police v AV.
2. In relation to the rape charge it is stated in the information that this occurred between the 31^st of May 2009 and 01^st January 2010, while the defendant was living on family land with his family. This is the first occasion in which the defendant and the complainant engaged in sexual intercourse. The complainant at the time was 17 years of age.
3. No victim impact report has been filed with the court. But her statement to the Police indicates that on the night in question the defendant came home drunk and called her to his bed. As a dutiful daughter she complied and sat on the bed. He removed her clothes and began masturbating her. She said she found this was a painful experience and she cried. Despite this the defendant continued with his actions culminating in full sexual intercourse over the protests of the young girl. Afterwards he told her not to tell anyone about what had happened especially her brothers. The victim at the time had no mother as her mother had passed away some years earlier in 2006.
4. From then on it seems this became a regular occurrence during the years 2009 and 2010. The defendant would come home drunk late at night and have sex with her. It appears from what she told the Police that eventually she went past the point of resisting him. In 2009 she fell pregnant to the defendant and had their first child in 2010. When questioned by her brothers she confessed to them the defendant was the father of the baby. When confronted, the defendant denied this was the case.
5. The conflict however led to one of their older uncles banishing the defendant and his family from the family land and they relocated to the village of the complainants natural mother. The defendants behaviour did not cease and continued through 2010, 2011 and in 2012 the girl again became pregnant. The family again relocated to another village where the complainant had her second child in 2013.
6. After this birth the family then moved to Falelauniu to the land of an uncle who was a pastor. The relationship still continued leading to the complainants third pregnancy and birth of a third child in 2015. The complainant told the police there was another child after a fourth pregnancy but she aborted it because she wanted this to end.
7. In 2016 the girl took a husband hoping this would deter the defendant. She says this caused her father much displeasure and anger. But the relationship did not end because her father came to her again on a night in February 2017 where they had sexual intercourse for the last time while her husband was at work.
8. This led to a family meeting but still the defendant persisted in his denials. The family however determined this matter should be reported, they advised their pastor uncle and it was referred to the Police leading to us all being here today. And resulting in the one count of rape and eleven counts of incest against the defendant although obviously more incest charges could have been laid.
9. This is a horrendous and tragic tale of sexual abuse of a young girl whom the defendant seemed to treat as his plaything. It beggars belief how a father can do this to his own flesh and blood and produce children from his own daughter. This sort of behaviour is culturally unacceptable, we all know what it is called and what it means. It is also contrary to the laws of our community.
10. It is also deeply disturbing that such abuse was apparently tolerated by the family of this young girl for so long. They seemed to be more concerned with their own reputation but not the welfare and wellbeing of the victim or the children that were being brought into this world as a result of the relationship. If incest is to eradicated in our community, this culture of silence must end. If those who know of such things do not speak, who then speaks for those too afraid too ashamed too humiliated to speak for themselves? It is often said that for evil to flourish, it is only sufficient that good men do nothing. This is a classic case of this kind, of perverse behaviour being permitted to continue while the family stood by ........... silently.
11. There is no question such conduct must be soundly and clearly condemned as not acceptable to our society. And that a strong deterrent sentence of imprisonment is required as a personal deterrence to the defendant. And as a general deterrent to all fathers who would fail their parental duty to love and nurture their offspring in this fashion.
12. In respect of the rape charge the maximum penalty is life imprisonment. Sentencing is governed by the Key v Police [2013] WSCA 3 sentencing bands established by the Court of Appeal. In this case there is only one count of rape that by the defendant on his then 17 year old daughter. Section 7 (1) (f) of the Sentencing Act 2016 also applies and this mandates the court to take into account “that the defendant was abusing a position of trust or authority in relation to the victim.” Likewise section 7 (1) (g) which provides for the situation where “a victim is particularly vulnerable because of her young age.” The age difference between the parties is also an aggravating factor, some 38 years separate the defendant and his daughter.
13. Prosecution have also submitted other aggravating factors such as the impact of the offending, premeditation, the extensive period of the offending and the fact that it occurred in the sanctity of the home. I agree with the last one, young girls are entitled to treat their homes as safe spaces, not one where they would be subject to such violation. But I cannot agree with the other factors for example the impact of the offending. The court cannot say in the absence of a victim report what impact this offending truly had on the young girl. I do not know for example if the girl was a virgin who was deflowered by her father. Without a victim impact report I do not know for sure the real trauma she would have suffered as a result of what this man did to her. The absence of a victim report also means the court has no idea about the views of the victim which previous cases such as the Court of Appeal decision in Fetuao v National Prosecution Office [2016] WSCA 10 make clear is a relevant consideration.
14. For the rape the prosecution suggested I take into account the period of the offending. The problem with that is there is only one rape charge. The period of offending relates to the incest charges not to the rape. There is also insufficient material before me to decide if the defendants rape was premeditated or an opportunistic spur of the moment action by an intoxicated man.
15. It is also important for the court to bear in mind that the rape should be considered separately from the incest charges. While there is a relationship between the rape and the subsequent incests, they are in my view separate and distinct offendings and should be so treated.
16. Considering all the circumstances I am of the view the rape falls into the B-2 category of Peti Key. A period of 9 to 15 years must be where we seek a start point for sentence given the vulnerability of the victim and her young age. Also to be factored in is the fact that there does not seem to have been a high degree of violence involved. I consider a start point mid-range is appropriate, we will start sentence at 12 years imprisonment.
17. From that a deduction should be made to account for the defendants previous good character and record of service to his family and his first offender status. For that I deduct 6 months, leaves 11½ years.
18. In respect of whether there has been a apology or reconciliation, the pre-sentence report indicates the defendant continued with the pattern of denial exhibited since the beginning. In the report he tries to blame his counsel for his guilty plea and maintains he is innocent of all these allegations. I have little difficulty in rejecting that. The only semblance of an apology is contained in a letter dated 11 September 2017 attached to his counsels submissions in mitigation. There for the first time the defendant acknowledges his guilt and proffers a kind of apology. I have no doubt that was motivated by the fact that judgment day was coming. There is nothing genuine or sincere in such a last minute gesture. I give it no weight whatsoever.
19. As for banishment or a formal customary penalty, there is no evidence before me of any such decisions having been directed towards the defendant. Clearly the family moved from village to village but that seems to have been occasioned by their own choice. No doubt probably as a result of talk and gossip. There is no mitigation to be found there.
20. The only mitigating factor of real value is the defendants guilty plea. It has saved some of the precious time and limited resources of the court and most importantly it has spared the complainant having to come to court and relive this whole experience. The court file indicates his guilty pleas were entered on the day the charges were finalized by the prosecution. The defendant is entitled to the full benefit of a deduction for his guilty plea. I will deduct 3 years from the balance of his sentence which represents about one-quarter of the balance. That leaves 8½ years in prison.
21. On the one count of rape the defendant is accordingly convicted and sentenced to 8½ years in prison.
22. I come now to the incest charges, each of which is punishable by a maximum penalty of 20 years in prison. Previously the maximum penalty under the old crimes legislation was 7 years. It has been substantially increased by Parliament to 20 years. An indication of the concern of the lawmakers of our country at the frequency with which charges of this kind are being brought before the court. The courts themselves have expressed concern at the increased rate of incest cases coming before it. And has reflected Parliaments concerns in increased penalties since the new Crimes Act was brought into force in 2013.
23. This is a bad case of incest. The defendants actions began with a rape of his 17 year old biological daughter and then continued on and off over a period of some 8 years, 2009 to 2017. Needless to say what happened dramatically altered this complainants life. The defendant would come home drunk late at night and use his position as her father and head of the household to submit her to his will. It is difficult to imagine how she would have felt every time the defendant went out as she waited for the time when he came home.
24. From this relationship have come three children, born without choice into a world where we all know as Samoans they are liable to be mercilessly shamed and teased about their origins. They are blameless but they are the product of an ignonimous relationship of “mataifale.” You have sir by your actions forever tainted if not cursed the lives of these innocents.
25. Your conduct was immoral, unlawful and despicable. Your sentence must as the court has stated on at least one previous occasion (Police v SP [2014] WSSC 140) reflect the seriousness of the offending, it must mark the significance of the cultural taboos that you have broken and must reflect the sustained nature of the offending and the fact that it was carried out in the confines of the family environment.
26. Taking all relevant factors into consideration and having due regard to the purposes and principles of sentencing as outlined in the Sentencing Act 2016. In particular to hold you accountable for the harm done to the victim and to the community by your offending, to promote in you responsibility and a sense of acknowledgement of the harm caused by what you did, to denounce your conduct and to send a strong deterrent message to all fathers of the potential consequences of this kind of action, I will start sentencing at 18 years in prison.
27. Following a similar process as with the rape I deduct 6 months for your previous good character and clean record plus an appropriate deduction of about one-quarter of the remaining balance for your guilty pleas. I arrive at an end sentence of just over 13⅛ years.
28. On each charge of incest you are accordingly convicted and sentenced to that term. Each term is to be served concurrently.
29. You have now been sentenced to 8½ years for the rape and 13 and a bit years for the incests. But as noted, these are separate and distinct offences, not only in nature but in the manner of their commission. You began with the non-consensual rape and then you undertook over a lengthy period of time an incestuous relationship with a young daughter bound to you by custom loyalty and duty. That means in my respectful view these terms must be made cumulative. Which means a total term of around 21¾ years in prison. In consideration of your age and as a gesture of leniency I will round that off to 21 years in prison as a total term.
30. From the perspective of totality of sentence I am satisfied a 21 year term for rape of your 17 year old daughter followed by an 8 year illicit relationship with her which produced three children is an appropriate sentence for your actions. Any time you have spent in custody in respect of this matter is as per normal to be deducted from that 21 year term.
    

JUSTICE NELSON