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Police v ST [2009] WSSC 59 (20 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

"ST"
Accused

Counsels: Ms T. Faumuina for the prosecution
Defendant unrepresented

Sentence: 20 May 2009

SENTENCE

The defendant appears for sentence on thirteen (13) counts of rape and two counts of indecent assault committed on his biological daughter over the months April to August 2008. At the time of the offending the complainant was 13 years of age and the defendant 44 years of age. I remind the press that there is a suppression order that has already been made in respect of the complainants name and details and for the better protection of the complainant that order is now extended to the details of her father, the defendant. Case report of this case will be amended to read Police v "S T".

The summary of facts which the defendant has admitted shows that initially the defendant began with acts of indecent assault. He did this by on the first occasion related in the summary of facts kissing and groping the complainants breast before his wife intervened and stopped him. This happened at night while the complainant and her younger siblings were asleep. On the second occasion related in the summary of facts it consisted of the defendant lying on the complainant sucking her breast and undressing her and trying to have sex with her. On both occasions he secured the complainants silence by threatening her. Shortly after these incidents it appears that the defendant and his wife separated and the mother left the household leaving the children with the defendant. Not a very wise or parental thing to do. And why she did not report the incidents to the police is not clear from the material and documents before me. What does emerge from the material before me is that once she left the offending escalated.

The defendant went from indecent assault to full blown intercourse leading to the thirteen counts of rape committed mostly in isolated parts of the family plantation. Only one instance of rape is described in any detail in the prosecution summary of facts and it relates to an incident that occurred not in the plantation but in the family home. It is stated that while the complainant was asleep in bed with her younger siblings the defendant undressed her and positioned himself on top of her, kissing her lips and breasts. He then penetrated her with his penis and despite efforts by the girls younger brother to intervene he continued his actions until he was satisfied.

The majority of the other incidents which are the subject of the other rape charges are said to have occurred when the defendant took the victim to an isolated part of the plantation on the pretext of collecting firewood. While the defendant told the probation office that on all occasions he seduced his daughter and she became a willing partner to the sexual intercourses, I do not accept that because the defendant has pleaded guilty to all the charges of rape. And having seen and heard the defendant present a plea in mitigation I am well satisfied he understood exactly what he was pleading guilty to.

This is indeed a sad case not only because of the seriousness of the offending but also because it appears from the probation office report the defendant comes from a family where his own father had an incestuous relationship with the defendants sister. In fact it was the defendants sister who reported the matter to the police. This shows how damaging a culture of sexual abuse in a family context can become. Such that it leaps generations and the sins of the father become visited on the children. This case also demonstrates the importance of how something additional to sending offenders to prison needs to be done to address sexual offending in the family context.

This court sees day in and day out fathers, uncles and even recently a mother appear on charges of sexual abuse of young children of the family. The court has a role to play but too often it comes too little, too late to save the vulnerable who are being preyed upon by the very people that are supposed to protect them. These are crimes like that of domestic violence deserving of no less attention and deserving of no less special treatment and special units such as exist in the police department with domestic violence offending. There must be a recognition by those who walk the corridors of power that imprisonment alone cannot fix the problem and that today it is someone elses child but tomorrow it could be yours.

The relevant sentencing principles and approach is correctly summarized in the prosecutions written submission where they refer to the United Nations Convention on the Rights of the Child to which Samoa is a signatory, discussed at length in Police v Faiga [2008] WSSC 9 and how imprisonment is the only penalty available for the offence of rape. As was stated by Vaai J. in Police v Folau [2007] WSSC 81:

"It is common knowledge that imprisonment is the only sentence available to be imposed for your offending simply because considerations of retribution and deterrence take priority over rehabilitation in rape cases to reflect the gravity of the offence and to send a deterrent message to the offender and to those who may be tempted to follow the path of the offender." The appropriate penalty is clear the real question is how long is appropriate for this particular case.

The aggravating factors are correctly highlighted in the prosecution submission. The breach of trust because the defendant is the complainants father and his job is to care and nurture his child not use her for satisfaction of his sexual depredations; how the offending was calculated and pre-meditated because the defendant maneuvered the complainant in most of these counts into a situation where she was alone and isolated in the bush where he could have his way unchallenged; and in those instances where it occurred at home how he used his position as the father of the family to keep everyone quiet and not intervene with what he was doing. The nature of the offending is also relevant and the effects it has had no doubt on the complainants other siblings who were without a mother and under the sole care and control of this defendant. The prosecution also correctly refer to the loss of the young girls virginity which is a prized possession to be given to a person of her own choice not to be forcefully ripped from her; the young age of the complainant, she was thirteen when these offences occurred; the age difference between her and the defendant of over thirty years; the use of threats by the defendant has also been referred to.

It is also relevant that this is a case involving multiple offences over a relatively short period of time. It is clear that in the absence of the mother the defendant used the complainant as an object to satisfy his lust as and when it overtook him with no regard for anything or anyone else. The defendants offending has had consequences as fully outlined in the victim impact report which speaks of how the victim the first time this happened was shocked, afraid, upset, embarrassed and humiliated by what her father was doing to her; how when they went to the plantation she suspected what the defendant wanted to do and her feelings were mixed fear and anger to the point that she wanted to kill her father; how she was tired of being raped and wanted to run away but was too afraid to leave the family; how the defendant told her if she were to run away he would come and get her back and how she felt helpless and wanted to commit suicide because she felt there was no other way to escape her fathers attentions. The report speaks about how this affected not only her life but her schooling. She is now relieved and happy, she no longer lives with her father and she never wants to see him again and never wants to remember what he did to her.

This sort of offence is also a very prevalent one. And the courts will not shirk in their duty to do what needs to be done to try to combat it.

Sentences for this kind of case where fathers have been involved in raping their biological daughters have ranged from the top end of life imprisonment Police v "Z" (unreported) 13 July 2005 and 20 years in Police v Niupulusi (unreported) 22 July 2005 down to 7 and 8 years at the bottom end of the scale. The range of sentences reflects the differences in circumstances of the various cases.

The prosecution in this case in seeking a substantial imprisonment sentence have submitted this case is analogous to Police v "P" [2009] WSSC 16, also a case of rape by a father of his daughter. The fact that there are more charges in this case is perhaps counter balanced by the fact that in that case the guilty plea entered was delayed whereas you entered a guilty plea at the first available opportunity. I also take into account you are a first offender. Considering all matters I am of the opinion a similar sentence to what was imposed in Police v "P" is applicable to the circumstances of your case, you will be convicted and sentenced on each charge of rape to 16 years imprisonment, all terms to be served concurrently. On the charges of indecent assault you are convicted and sentenced to 4 years imprisonment on each charge, all terms to be served concurrent with the rape terms.

JUSTICE NELSON