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Police v LTT [2022] WSSC 46 (2 August 2022)

IN THE SUPREME COURT OF SAMOA
Police v LTT [2022] WSSC 46 (02 August 2022)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

LTT
Defendant

Counsel: V. Faasii for the Informant
K. Koria for the Defendant

Sentence: 2 August 2022

ORAL SENTENCE OF JUSTICE ROMA

Charges

1. Before I pass sentence, I grant the application by prosecution to withdraw 3 alternative charges of having sexual connection with a young dependent family member and dismiss all 3 charges.
2. You now appear for sentence on the 3 remaining charges of sexual violation by rape contrary to ss49(1)(a) & 52(1), Crimes Act 2013. Each charge attracts a maximum penalty of life imprisonment. According to the record you entered guilty pleas to the charges at the earliest opportunity on the 30^th May 2022.
3. The victims are your step daughters. There will accordingly be a suppression order prohibiting the publication of their details and names and for the protection of their identities that order extends to your details also. This case will therefore be reported as Police v. LTT.

Offending

4. According to the amended summary of facts of the 7^th July, the offending involved 3 separate incidents which occurred in 2021. There are two victims involved. They are twin sisters and daughters of your wife from a previous relationship. They were 15 years old at the time of the offending.
5. The first incident occurred one evening in June 2021. At about 9pm the first victim left the bingo game early to go home. Her mother and 2 other siblings were still playing. At home she was lying on a sofa in the living room watching TV when you entered the house and went into the bedroom. You called her to fetch you some water which she did before she went back to watch TV. You called her a second time to come into the bedroom. You told her to lock the room. She closed the door and you asked her twice if she wanted to have sex with you. She said no. You came out of the room before you went back in and locked the door. You then told her to remove her clothes. You spread a lavalava and instructed her to lie down. You removed your towel, laid on top on her, kissed her on the lips and chest and inserted your penis inside her vagina and had sexual intercourse without her consent.
6. The second incident occurred in October 2021. It also concerned the first victim. At about 7pm, she was at home with her younger brother. Her mother and sister were again playing bingo. At about 9pm you arrived home from work, the first victim was watching TV and her brother was sleeping. You went straight to the bedroom and called the victim to come. Like the previous incident you asked if she would like to have sex with you. Again she said no. But you continued to kiss the victim on the lips; you walked out to check if anyone was looking before you returned to the bedroom and turned off the light. You instructed her to remove her clothes, you removed your lavalava, laid on top of her and forcefully had sex without her consent. She told you she was in pain but you continued until you ejaculated.
7. The third incident occurred two months later in December 2021. It concerned the second victim and twin sister of the first victim. She was at home with her siblings whilst their mother attended a church function. You arrived home from work and drank an ‘olioli’ inside the bedroom. Late in the night whilst the second victim and siblings were sleeping in the living room you woke her up and told her to come with you inside the bedroom. She followed and out of fear complied with your demands to remove her clothes before you laid on top and inserted your penis inside her vagina and had sexual intercourse without her consent. The sex continued until you ejaculated.
8. In January 2022 the victim’s mother (your wife) noticed changes in the first victim’s appearance. She questioned her and was told that the first victim was pregnant as a result of your offending. The second victim also told her what you did to her. The matter was then reported to police.

The Victims

9. The victims are twin sisters. They are your step daughters and were 15 years of age at the time of the offending. The first victim says in her victim impact report that she became pregnant as a result. She now has a two month old baby. She is ashamed of what happened and has been a subject of ridicule by some people. The mental and psychological impact of what you did sill stay with her for a long time. She does not want to see you again.
10. The second victim in her victim impact report says that she felt a lot of pain and desperately tried to stop you but could not. She is scared and does not want to see you again. The mental and psychological impact she has suffered will last a long time. Both victims confirm that reconciliation has taken place. They say your family came to apologise.

Aggravating Factors

11. These are the aggravating features of your offending:
    • (i) vulnerability of the victim given their age and your relationship with them;
    • (ii) age disparity - you were 38 and the victims 15, the age disparity was 23 years;
    • (iii) nature of the offending – it involved breach of the sanctity of the home where the victims should and must have felt safe and protected;
    • (iv) an element of premeditation but to a lower degree;
    • (v) your familial relationship to the victims;
    • (vi) breach of trust in view of that familial relationship;
    • (vii) multiple offending - there were 3 incidents of rape which would likely have continued had the first victim not become pregnant and their mother discovered what was happening;
    • (viii) there were two victims involved;
    • (ix) impact of your offending - As I have said before there will be a lasting impact on the victim mentally and psychologically. One became pregnant and gave birth to your child who will become a constant reminder of what you did to her.
12. There are no aggravating features personal to you as offender. You are a first offender.

Mitigating Factors

13. There are none relating to the offending. But I consider these matters personal to you as offender:
    • (i) your pleas of guilty entered at the earliest to all charges;
    • (ii) the apology confirmed in the pre sentence report by the victims’ maternal grandmother. She told probation there will be no lasting impact on the victims. I do not agree. As to banishment, you told probation that you were banished from Fuailoloo Mulifanua. But the report also says that the pulenuu of Fuailoloo Mulifanua denies any such banishment. In fact, he was unaware of the matters before the court. Therefore, I will not consider banishment as a mitigating factor;
    • (iii) your personal circumstances - from the material before me, you are a father of 38 years of age. You have 5 children - 2 from your previous relationship and 3 including the both victims from your wife’s previous relationship. The report also says that you shared one child with your wife but sadly, she died at birth in 2020. Your formal education ended at Year 10 level. You have been overseas on seasonal work for 2 years in the past. You are an electrician by trade. You were employed by Samoa Airport Authority when you were charged. You have been dependent upon to support your family including your old aged mother. You have also been separated from your wife as a result of this matter. The testimonial by your mother Rasela Talouli and Rev. Satala Sa’u speak highly of your service to the family and church. They seek the court’s leniency in passing sentence. You are a first offender.

Discussion

14. The charge of rape attracts the highest penalty available under our criminal law and that is life imprisonment. It speaks of the seriousness with which Parliament and society has viewed and must view this type of sexual offending.
15. This is another sad case involving serious sexual abuse by a step father of his step daughters whilst the mother was out playing bingo. And despite the Court responding with long custodial sentences usually of 10 years or more, the frequency with which this type of offending continues to come before the Court is too high.
16. Considerations of retribution deterrence and denunciation must nevertheless continue to be given more weight than those of rehabilitation. Sentencing in rape is determined in accordance with the sentencing bands set out in the judgment of the Court of Appeal in Key v. Police [2013] WSCA 03 (28 June 2013). In their supplementary sentencing memorandum, prosecution submit that your offending falls under Band 4 where the sentences range from 19 years to life imprisonment. They argue that a starting point of 25 years is appropriate. Your counsel rightly concedes in my view that your offending falls under Band 4.
17. I have reviewed all cases cited by prosecution. Some are referred to in the submission by your counsel. I apply the totality principle and adopt 20 years as the appropriate starting point. I make these deductions. I deduct 18 months for your apology, the reconciliation and your remorse. I deduct a further 18 months for your personal circumstances including the testimonials provided in support of your previous good character; and your first offender status. After those deductions, the remainder is 17 years. I make a final deduction of 3 years for your guilty pleas entered at the earliest opportunity. The end sentence is 14 years.

Result

18. On each of the 3 counts of rape you are convicted and sentenced to 14 years’ imprisonment. All sentences are to be served concurrently. Time in custody to be deducted.
    

JUSTICE FEPULEA’I A. ROMA