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Police v X [2007] WSSC 53 (6 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

X
Accused

Counsel: P Chang and M T Lui for prosecution
Accused in person

Sentence: 06 July 2007

SENTENCE

I have decided to grant the prosecution’s application for name suppression of the victims. I have also decided to grant the prosecution’s application for name suppression of the accused so that the victims will not be easily identified through disclosure of the accused’s name. Orders are therefore issued that the names of the victims and of the accused are to be suppressed from any publication in the news media.

The victims will be referred to here as A, B and C. This judgment will appear under the name of Police v X

The charges

The accused appears for sentence on three counts of indecent assault in respect of victim A, three counts of indecent assault in respect of victim B, and one count of indecent assault in respect of victim C. The maximum penalty for the crime of indecent assault is seven years imprisonment. To all counts the accused had pleaded guilty at the earliest opportunity.

The offending

The prosecution submitted three summaries of facts, one in respect of the offending against each victim. The accused confirmed all three summaries of facts after they were translated into Samoan to him.

As it appears from the summaries of facts relating to victim A and victim B respectively, on a date between 28 February 2007 and 1 April 2007, the accused, who is the father of six children, was at his home at Vaiusu-uta with his two daughters victim A who is 9 years old and victim B who is 10 years old. The accused took off his daughters’ clothes. He then lay down victim B, got on top of her, put his penis against her vagina, and moved his buttocks up and down. As the accused was doing that to victim B, he stretched over to victim A and licked and sucked her vagina. When the accused was finished he left.

On another occasion between 31 December 2006 and 1 May 2007, the accused indecently assaulted victim A at their home at Vaiusu-uta by taking off her clothes, spitting on her vagina, and then rubbing his penis against her vagina.

On a previous occasion between 31 December 2005 and 01 January 2007, the accused indecently assaulted victim A at their home at Vaiusu-uta by sucking her breasts, licking and sucking her vagina, rubbing his penis against her vagina, and inserting his index finger inside her vagina.

Apart from the incident between 28 February 2007 and 01 April 2007 as already mentioned, the summary of facts in respect of victim B also shows that on a date between 31 December 2006 and 1 May 2007, the accused indecently assaulted victim B at their home at Vaiusu-uta. That was done by the accused by laying down victim B, sucking her breasts, and licking and sucking her vagina.

On a previous occasion between 31 December 2005 and 01 January 2007, the accused took victim B to his family at Falevao. When they arrived at Falevao, the accused told victim B to go with him to the river behind the house of the accused’s family. There was, however, no river but bushes. When they got to the bushes, the accused took off the clothes of victim B, lay her down and then touched her vagina. He then licked and sucked her vagina before he got on top of her and rubbed his penis against her vagina.

In respect of victim C, the relevant summary of facts shows that victim C is a 15 year old female cousin of the accused who had been living with the accused’s family at Vaiusu-uta under the care of the accused since March 2007. On a Sunday between 31 March 2007 and 24 April 2007 while the accused’s wife and one of his daughters were at church, the accused called victim C over to the house. When victim C got to the house, the accused told her to take off her clothes. She refused and the accused held out a broom and threatened her with it. The accused then lifted the shirt of victim C and sucked on her breasts. When he reached into her shorts to touch her vagina she tried to stop him. However, the accused brushed off her hands with the broom and proceeded to suck and fondle her vagina until he was satisfied.

When these changes were called for mention on 28 May 2007, the accused entered a plea of guilty.

The accused

The accused is a 42 year old male from the village of Samusu, Aleipata. At the times of the present offences he was living with his wife and six children at Vaiusu-uta, the village of his wife.

As the pre-sentence report shows, the accused had a limited education having left school at Year 11. The accused’s father passed away when the accused was at a young age. Due to financial constraints, the accused left school to look for a job to help his family. At the times of these offences, the accused was employed as a carpenter earning $200 a week from his wages.

It also appears from the pre-sentence report that the accused’s wife told the probation service that the accused is a good, hardworking father who always attends to the needs of his family and children. However, he is a heavy user of marijuana and is always under the influence of marijuana when he returns home from work.

During the interview of the accused by the probation service at Tafaigata prison, the accused was too embarrassed to talk about his offending. However, he did admit to the probation service that he indecently assaulted the victims. He gave no explanation for his actions except to show great remorse to the probation service. He also told the probation service that he would like to reconcile with his wife so that they can re-build their family.

The accused has seven previous convictions going back to 1985 when he was about 20 years old. One of these previous convictions was for manslaughter in 1998 and the accused was sentenced to 3 years and 9 months imprisonment. In 1999 while the accused was still serving his sentence for manslaughter, he was twice convicted of possession of narcotics, namely, marijuana and was given custodial sentences of 4 and 3 months imprisonment respectively. These previous convictions for possession of narcotics are consistent with what the accused’s wife told the probation service that the accused is a heavy user of marijuana. None of the accused’s previous convictions was for a sexual offence.

During the accused’s plea in mitigation he had very little to say except to express remorse and embarrassment for his actions.

The victims

As mentioned earlier, victim A is a 9 year old daughter of the accused, victim B is a 10 year old daughter of the accused, and victim C is a 15 year old female cousin of the accused.

At the times that the present offences were committed on victim A she was attending primary school. She is still attending school. Likewise, at the times the present offences were committed on victim B she was attending primary school. She is also still attending school. In respect of victim C, she was at the material time living in the accused’s family under the care of the accused and his wife.

Victim impact reports

The victim impact report on victim A shows that as a consequence of the indecencies committed by the accused on this victim, she is now very scared of men. She no longer wants to go anywhere alone unless she is accompanied by her mother. She also feels deeply embarrassed when people ask her about what happened between her and her father. She now hates her father for what he did to her.

The victim impact report on victim B shows that as a consequence of the indecencies committed by the accused on this victim, she would at times notice rashes on her vagina. After the commission of one of the indecencies on her, she noticed blood in her urine when she went to the toilet. The medical report on this victim shows that she has lost her hymen.

The victim impact report on victim B also shows that she is now scared of boys and men in general and refuses to go to the shop when sent by her mother because she is scared. She has also become scared to stay at home by herself anymore in case something like what her father did to her happens again. She also feels embarrassed as people have come to know of what her father has done to her and the embarrassment gets worse when people ask her about it. Her feelings towards her father now are one of fear and hatred.

The victim impact report on victim C shows that as a consequence of the indecencies committed by the accused on her; she has become scared of the accused and does not want to see him again. According to the mother of victim C, since this incident involving the accused and her daughter, she has observed that her daughter (a) has lost her sense of joviality and does not want to play the usual games she used to play, (b) tends to be lost in thought and seems troubled about something, (c) often appears distant and ignorant of her surroundings, and (d) has become unusually quiet.

Aggravating factors

All the relevant aggravating factors in this matter have been set out and discussed in detail by counsel for the prosecution in their helpful sentencing memorandum. Those aggravating factors are: (a) gross breach of trust, (b) the vulnerability of the victims, (c) the young age of the victims, (d) the age difference between the accused and each victim, (e) premeditation on the part of the accused, (f) multiple victims, (g) multiple offending, (h) the overall gravity of the offending, and (i) the consequences or impact of the offending on the victims.

Mitigating factors

The mitigating factors in this matter are the accused’s plea of guilty at the earliest opportunity and his expression of remorse to the Court during his plea in mitigation and to the probation service.

Plea of guilty as a mitigating factor in sexual cases

A plea of guilty by an accused in a sexual case is often a significant mitigating factor. The reasons for this are not often expressed though well understood by many lawyers. They are based on public interest. It is in the pubic interest to give a ‘meaningful discount’ for a plea of guilty in a sexual case because it spares the victim the ordeal of a trial and of having to re-live the unpleasant experience she had been though, it spares other witnesses the tension and strain of waiting for a trial and then having to give evidence, it saves the State time and expense that a trial always entails, and it may provide evidence of acceptance by an offender of his wrongdoing and of genuine remorse or contrition.

In the New Zealand case of R v Carlos Namana [2000] NZCA 348, Thomas J in delivering the judgment of the New Zealand Court of Appeal, states at para [36]:

"The principle that it is usually appropriate to make some reduction in what would otherwise have been the correct sentence where an offender has pleaded guilty has been recognised in numerous cases... The reduction is not made as a boon or favour to the offender. It is made in the public interest. As Edmund Davies LJ stated in R v de Haan [1968] 2 QB 108, at 111:

"‘A confession of guilt should tell in favour of the accused person, for that is clearly in the public interest.’ (Emphasis added)’

"The public interest is served if offenders accept responsibility for their wrongdoing and this acceptance can be fostered by discriminating between offenders who show evidence of genuine remorse or contrition and those who do not. The public interest is also furthered by encouraging pleas of guilty so as to reduce pressure on the Police and justice system and avoid the expense of lengthy trials. Finally, it is served by sparing victims the harrowing ordeal (especially in cases involving sexual offending), and witnesses the tension and strain of waiting for a trial and then having to give evidence. Because of this public interest, the reduction in what would otherwise be the appropriate sentence is frequently substantial."

In the later case of R v Mark David Coronno [2001] NZCA 369, Robertson J in delivering the judgement of the New Zealand Court of Appeal states at para [8]:

"The question of discount was recently considered by this Court in R v Woolley CA 02/01, 23 July 2001 where it was noted:

"‘A plea of guilt has long been recognised by this Court as ordinarily mitigating culpability and justifying a reduced sentence. In R v Taylor [1968] NZLR 981, 987 this Court quoted with approval the statement of Edmund Davies LJ in R v Haan [1968] 2 QB 108, 111 when he said that: ‘a confession of guilt should tell in favour of an accused person for that is clearly in the public interest.’

"This Court confirmed that recognition of the discount for a plea of guilty in R v Ripia [1985] 1NZLR 122, 128 where R v Roberts [1982] 1WLR 133 (CA) and R v Fraser (1982) 4 Cr App R (S) 254 are also cited.

" These reasons for the reduction were expressed in R v Strickland [1989] NZCA 395; [1989] 3 NZLR 47, 51 by Richardson J (as he then was) as:

"‘It spares the victim the ordeal of giving evidence; it saves the State the time and expense of a defended hearing; and it may be evidence of the offender’s acceptance of responsibility for wrongdoing and contrition.’

"What that allowance will be will depend on the particular circumstances including the nature of the offences, the strength of the Police case, the length of the trial which is obviated, the stage at which the guilty plea is entered and whether the plea is considered by the Court to reflect genuine remorse. In R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, 176 this Court said that ‘pleading guilty should attract a meaningful discount’ but noted that the Court:

"‘Has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered. Generally, however, it is accepted that the earlier the plea the more the discount.’ "

Convention on the Rights of the Child

Counsel for the prosecution in their sentencing memorandum also refer to the Convention on the Rights of the Child which has been ratified by Samoa and in particular Articles 19 (1) and 34. Article 19 (1) states (as quoted by counsel):

"States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse while in the care of parent (s), legal guardian (s) or any other person who has the care of the child."

Article 34 of the Convention then states:

"States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

"(a) the inducement or coercion of a child to engage in any unlawful sexual activity;

"(b) the exploitative use of children in prostitution or other unlawful sexual practices;

"(c) the exploitative use of children in pornographic performances and materials."

In Police v Howard Maumasi [1999] WSCA 1, Lord Cooke in the Court of Appeal said that the Samoan Courts should have regard to the Convention on the Rights of the Child in cases within its scope. This is, of course, in line with the provisions of the Crimes Ordinance 1961 on sexual offences committed on under-aged girls. It was applied in the sentencing remarks of this Court in Police v Taivale [2000] WSSC 45 where the accused was sentenced to 3 years imprisonment on the charge of indecently assaulting his 11 year old daughter.

Concurrent and cumulative sentences

The prosecution has sought from the Court a total sentence based on the combined application of the cumulative and concurrent sentencing devices. This is to be achieved on the basis that the offences against victim A are to be placed in a different category of their own. Likewise, the offences against victim B. A leading sentence is then fixed for each category and the sentences imposed for the other offences in the same category are to be made concurrent thereto. After that, the leading sentence in each category is to be made cumulative to each other as well as to the separate sentence to be imposed for the one offence against victim C. In other words, the leading sentence in respect of victim A which is to be determined on a concurrent basis, the leading sentence in respect of victim B which is also to be determined on a concurrent basis, and the separate sentence in respect of victim C are to be all made cumulative. On that basis, the prosecution seeks a total sentence of 12 years imprisonment. Alternatively, the prosecution in their sentencing memorandum seeks a total sentence of the maximum term of 7 years imprisonment provided for the offence of indecent assault.

In deference to the well prepared and well argued submissions from counsel for the prosecution, I have decided to address this aspect of the case in some detail. The general common law approach to concurrent and cumulative sentences is now reflected in the provisions of the New Zealand Sentencing Act 2002. It would be helpful to set out the relevant provisions. Section 84 of the Act provides:

"84. Guidance on use of cumulative and concurrent sentences of imprisonment

"(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind whether or not they are a connected series of offences.

"(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

"(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the Court may consider –

"(a) the time at which they occurred; or

"(b) the overall nature of the offending; or

"(c) any other relationship between the offences that the Court considers relevant.

"85. Court to consider totality of the offending

"(1) Subject to this section, if a Court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

"(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

"(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences must be preferred.

"(4) If only concurrent sentences are to be imposed, -

"(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

"(b) each of the lesser offences must receive the penalty appropriate to that offence."

At common law, whether the Court is mindful of passing a concurrent or consecutive sentence or a combination of the two in the case of multiple offences, the final sentence must not offend the totality principle. That is to say, the final sentence arrived at must fairly and justly reflect the total criminality of the offending. This is the approach which has been followed in other jurisdictions like New Zealand and Australia. In the New Zealand case of R v Bradley [1979] NZCA 33; [1979] 2 NZLR 262 where the Court had to deal with what should be the appropriate sentence for multiple offences, the Court of Appeal said at p. 263:

"Where the sentence is wrong in principle is in its apparent disregard or minimising of what is described in Halsbury’s Laws of England (4th ed) vol 11 para 495, as the general rule that consecutive sentences should not be such as to result in an aggregate term wholly out of proportion to the gravity of the offences, viewed as a whole. The authority cited in support in that work is a decision of the Court of Appeal in England, R v Bocskei (1954) 54 Cr App R 519. Numerous other cases in which the principle has been applied are collected by Mr DA Thomas in his book on Principles of Sentencing (2nd ed, 1979) pp 56-61. That author suggests at (pp.57-58) that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects. We would hesitate to attempt to refine the principle or to evolve rules of thumb for its application. For our purposes it is sufficient to say that undoubtedly it is crucial in arriving at a sentence for several offences, after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour."

In the recent case of R v Xie and Others [2006] NZCA 201, the New Zealand Court of Appeal after referring to s.84 of the Sentencing Act 2002 states in paras [15] to [18]:

"The totality principle has long been ‘a standard principal of general application’ and has variously been described as ‘the established judicial approach to sentencing for multiple offences’ (R v Strickland [1989] NZCA 395; [1989] 3 NZLR 47 at 50 (CA) and a recognised principle of sentencing formulated to assist the Court when sentencing an offender for a number of offences (Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 62). See generally Hall’s Sentencing at [SA 85.2]. The principle has been carried over to the Sentencing Act and is now enshrined in ss.84 and 85.

"[16] The fundamental tenet of the totality principle is that the final sentence must reflect ‘the totality of the offending’. How the total sentence is made up has never been important. We cite what this Court said in R v Williams CA 91/00 31 May 2000:

"‘We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment. Sometimes there is advantage in imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters with concurrent sentences imposed.’

"[17] That passage from Williams was cited with approval in R v Barker CA 57/01 30 July 2001. In that case, this Court, at [10] reiterated the key principles when sentencing for multiple offending:

"‘(a) With multiple offending the sentences must reflect the totality of the offending;

"‘(b) In respect of multiple offences, the Court will not insist that the total sentence be arrived at in any particular way; and

"‘(c) The total sentence must represent the overall criminality of the offending and the offender.’

"[18] These principles survived the enactment of the Sentencing Act and indeed are endorsed by it. Having endorsed it, Parliament then goes on in ss.84 and 85 to describe when concurrent sentences and cumulative sentences are ‘generally appropriate’. The guidelines do not have the effect of trumping the central principle of sentencing for multiple offending namely, that the total sentence must represent the overall criminality of the offending and the offender."

In Australia the same approach to sentencing for multiple offences has been adopted. In Mill v R (1988) 166 CLR 56, the High Court said of the totality principle at p.62:

"The totality principle is a recognised principle of sentencing formulated to assist a Court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing 2nd ed (1979) pp. 56-57, as follows:

"‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms. ‘When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total just to see whether it looks wrong’: ‘When...cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’"

In Jarvis v The Queen (1998) 20 WAR 201, Ipp J explained the totality principle at p.207 by saying:

"While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (1981) 4 A Crim R 238 at [301] by O’Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigating force.

"The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender’s conduct...

"What than is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."

In Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner, it is stated at pp. 240-241:

"It has long been recognised in Tasmania that when sentences are being imposed for multiple offences the sentencer is required to have regard to the overall or total effect of the sentence. The dangers of an excessive aggregate term of imprisonment from the imposition of cumulative sentences have been emphasised. This principle has come to be known as the totality principle and Thomas’ statement of it has often been repeated.

"In Thomas’ words Principles of Sentencing (1979) 2nd ed at pp. 57-58]:

"‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offences for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate.’

"Applying this principle, sentences which are proper and not excessive when considered alone have when considered in total been held to be manifestly excessive. A ‘crushing sentence, not in keeping with the offender’s record and prospects’ is to be avoided. The totality principle has been endorsed by the High Court on a number of occasions. In [Mill v R [1988] HCA 70; (1988) 166 CLR 59] the above passage from Thomas was cited and in Griffiths [1989] HCA 39; (1989) 167 CLR 372 at 393, Gaudron and McHugh JJ said:

Comparable cases

There is really no reported Samoan case which is comparable to the present case where the accused is charged with the commission of indecencies on several victims. The nearest reported Samoan case to this case would be Police v Z (2005) where a father was charged with ten counts of rape and other sexual offences all of which involved his daughters and grand-daughters. A total sentence of life imprisonment was imposed. The offending in the present case does not involve the crime of rape.

In the circumstances, I have decided to look at the types of sentences which have been imposed by the New Zealand Courts in cases of indecent assault in which more then one victim is involved. I should add here that in New Zealand, the maximum penalty for the offence of indecent assault of a girl under 12 years is 10 years imprisonment and the maximum penalty for the offence of indecent assault of a girl aged between 12 and 16 years is 7 years imprisonment.

In the recent New Zealand case of R v H [2006] NZHC 132, the accused appeared for sentence on 13 charges of sexual offences which involved eight victims, all girls ranging in age from 6 months to 15 years. The offending took place over a period of 15 years. The charges against the accused were:

(a) Two charges of sexual violation by unlawful sexual intercourse for which the maximum penalty is 20 years imprisonment.

(b) Two charges of attempted sexual violation by unlawful sexual connection for which the maximum penalty is 10 years imprisonment.

(c) Six charges of indecent assault of a girl under 12 years for which the maximum penalty is 10 years imprisonment.

(d) Three charges of indecent assault of a girl aged between 12 and 16 years for which the maximum penalty is 7 years imprisonment.

Of the eight victims in that case, one was the accused’s 6 months old daughter and one was a female cousin. In passing sentence Allan J after referring to the aggravating circumstances and the mitigating circumstances including the accused’s plea of guilty at the earliest opportunity, imposed a
sentence of 5½ years imprisonment on the charge of sexual violation by the accused of his 6 months old daughter. Lesser sentences of imprisonment were then imposed for the other charges and made concurrent to the sentence of 5½ years imprisonment. So, effectively, the total sentence that was passed was 5½ years imprisonment.

In R v H, the Court in passing sentence referred to previous similar New Zealand cases which involved multiple victims and multiple sexual offences committed over a period of time. In the case of R v Cheesman HC ham T020158, 1 August 2002, a 64 year old accused appeared for sentence on 26 charges of sexual offences which involved eight victims all of them young girls at the time. The charges ranged from indecent assault to rape. The offending took place over a period of some 50 years. After taking into consideration the aggravating circumstances and the accused’s guilty plea, a total sentence of 12 years imprisonment was imposed.

In R v Turner CA 113/04, 4 October 2004, the accused appeared for sentence on 11 charges of indecencies which included unlawful sexual connection by oral sex. The victims were five boys aged between 11 and 16 years. The New Zealand High Court, after considering the aggravating circumstances and the mitigating circumstances including the accused’s plea of guilty, imposed a sentence of 6 years imprisonment. On appeal, the Court of Appeal reduced the sentence to 5½ years imprisonment.

In R v Salt CA 353/04, 4 March 2005, the accused was charged with four counts of sexual offences. These were for indecent assault of a girl under 12 years, indecent assault of a girl aged between 12 and 16 years, and unlawful sexual connection with a girl aged between 12 and 16 years. The three victims in that case were young girls. One of them was the accused’s daughter. All the victims were vulnerable and the offending had a lasting impact on them. The offending against one of the victims occurred over a period of 2 years. The accused pleaded not guilty to all charges. He was, however, found guilty at the trial. The Court also found that there was a degree of premeditation on the part of the accused and that there was little by way of mitigation. The accused was given a total sentence of 6 years imprisonment. On appeal, the Court of Appeal upheld the sentence of 6 years imprisonment.

In respect of the sentences passed in cases of multiple sexual offences where more than one victim is involved in the Australian State of Tasmania, I refer to Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner. At p. 319 of that text, the learned author states:

"Most of the sentences for indecent assault – more than 80% - were imposed in cases where the victim was a child or young person under the age of consent. The longest sentence of this nature, one of 4 years, was imposed on a schoolteacher convicted of 15 counts of indecent assault on nine of his 11 year old students, committed both in the classroom and their bedrooms: Randell 13/8/1999."

The learned author then goes on to say at p. 320:

"Global sentences of 2 years were imposed on a man who over a period of 27 months sexually assaulted young girls [aged from 9 to 14 years] who were regular visitors to his farm at weekends: Crowden 2/9/1991 and on a man who indecently assaulted two children over a period of 5 years, Marwick 21/6/1996."

I have referred to the levels of sentences imposed in New Zealand and Tasmania in cases of multiple sexual offences involving indecent assaults committed on more than one victim over a period of time, not because the sentencing policies in other jurisdiction are binding on this Court, but because New Zealand and Australian cases have been providing most useful guidance in many areas of Samoan law.

The decision

In passing sentence, I take into account all the aggravating circumstances set out in detail in the helpful sentencing memorandum by counsel for the prosecution. I accept that the offending by the accused involved a gross breach by a father of the trust of his own daughters. Victims A and B had a right to expect parental love, affection, and protection from the accused as their father. What they got was sexual abuse. Their own father preyed on them for his own selfish sexual gratification. Their young age and natural dependence on the accused as their father made them particularly vulnerable to him and the accused exploited that vulnerability not once but three times in relation to each victim. Victims A and B were also entitled to live and grow up in a happy and safe home environment. However, that has been spoiled for them by their own father. The same may be said of victim C who lived under the care of the accused and his wife. She was entitled to expect safety and protection from the accused as her cousin. However, she was not spared by the accused. She, too, got sexually abused by him. I am confident that the psychological effects of the accused’s wrongdoing as set out in the victim impact reports will continue to affect the victims for a very long time if not for the rest of their lives. Each of them is most likely to remember what the accused has done for the rest of her life.

I also take into account what was said by counsel for the prosecution about the increased frequency with which sexual cases are coming before the Courts and the increase in the level of sentences imposed in rape cases particularly where there is a breach by the accused of the victim’s trust. I also take into account the primary objective of criminal sentencing which is the protection of the public.

On the other hand, I would also have to take into account the accused’s plea of guilty at the earliest opportunity and his expression of remorse as mitigating factors. As the accused is not a first offender, I give him no credit in that regard.

I also take into account the fact that in previous cases of indecent assault which involved only one victim, the sentences imposed by this Court have ranged from 15 months to 3 years imprisonment. I also have in mind as providing useful guidance the cases of multiple sexual offences in other jurisdictions as earlier referred to in this judgment.

I must also bear in mind the legal principles already referred to in relation to concurrent sentences, cumulative sentences, and the totality principle.

In all the circumstances, the accused is sentenced to 3 years imprisonment on each of the three charges in respect of victim A. All of those sentences are to be concurrent. Likewise, the accused is sentenced to 3 years imprisonment on each of the three charges in respect of victim B. All of those sentences are also to be concurrent. In respect of the one charge in relation to victim C, the accused is sentenced to 2 years imprisonment. Applying the totality principle and bearing in mind that the total sentence must be fair and appropriate and should properly reflect the totality of the offending, I will make the sentence of 2 years imprisonment in respect of victim C concurrent with the total sentence of 3 years imprisonment imposed in respect of victim A. The total sentence of 3 years imprisonment in respect of victim A is then made cumulative to the total sentence of 3 years imprisonment in respect of victim B. The end result of this is that the accused will serve a total sentence of 6 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution