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Police v SF [2024] WSSC 91 (8 October 2024)

IN THE SUPREME COURT OF SAMOA
Police v SF [2024] WSSC 91 (08 October 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SF

Defendant

Counsel: L. Sio for Prosecution

J. Brunt for the Defendant

Sentence: 8 October 2024

SENTENCING OF TUATAGALOA J

1. The accused appears for sentence on two charges of rape^[1] involving two sisters committed on separate occasions as follows:
   • (i) That on or between 31 December 2016 and 1 January 2018 at [village], the defendant SF committed sexually violated ............., female of [village] and [village] by raping her.”
   • (ii) That on 27 June 2020 at [village] the defendant, SF sexually violated ..............., female of [village] and [village] by raping her.”
2. The offence of rape carries the maximum penalty of life imprisonment.
3. The two victims are the defendant’s biological daughters. This is an aggravating factor which is also an offence.^[2]
   

The offending

4. The defendant confirms the Summary of Facts (SOF) by the Prosecution which basically says that:

First incident:

• On or between 31 December 2016 and 1 January 2018, the victim went to the outside bathroom behind their house to take a shower when the defendant followed her into the shower, removed her clothes and had sexual intercourse with her without her consent.
• The victim’s brother went to use the bathroom and saw the defendant (his father) naked on top of his sister (victim). Accordingly, the defendant jumped off the victim and asked the brother (his son).
• The victim was only 18 years old at the time.

Second incident

• On 27 June 2020, the mother and the brother of the second victim were watching television at the neighboring house. The victim was sleeping at home when the defendant removed her shorts and panties, got on top of her and had sexual intercourse with her without her consent.
• According to the summary of facts the brother went home from watching television at a neighbor’s house and saw his father (defendant) naked on top of his sister (victim). The defendant saw his son, quickly jumped off the victim and wrapped his lavalava around him. The matter was reported to the Police by the victim’s brother and mother.
• The victim was only 14 years old at the time.

5. It was when the second incident was reported that the first incident also came to the fore when the first victim, who is the eldest daughter of the defendant also spoke up as to what happened to her.

The defendant

6. The defendant at the time of the first offending was between 69 and 71 years old and was 72 or 73 years old when the second offending took place. He is married with ten (10) children (including the victims). The first incident took place while the defendant and his family were living in [village] with his family; the second incident took place when they moved and lived with his wife’s family at [village]. The Pre-Sentence Report (PSR) says the accused finished his education in Year 12. His main source to provide for his family was through the plantation.
7. The defendant’s sister, the village mayor of [village] and [Church Leader] of his church provided character testimonials in support of the defendant describing him as a hardworking and committed man to his family and church.

The victims

8. The Victim Impact Reports (VIR) from the victims have the victims say the following:
   • The first victim is the eldest of the two victims. She was 18 years old at the time. She said that she felt scared at the time and that she asked her father (the defendant) not to do it, but he did not. She never thought that her father would ever do such a thing because he attends church and does not drink alcohol. She blamed her mother for having left and left them to be raised by their father at his family at [village]. She has forgiven her father because he is still her father regardless of what he did. This victim is now 22 years old.
   • The second and younger victim spoke about her ordeal in the VIR. She wants nothing to do with the defendant (father) and will never forgive him for what he did.

The aggravating factors

9. The offending of rape is a serious offence, reflected in the penalty of life imprisonment. It is inherently violent, for it is non-consensual and therefore would involve the use of force. It is most aggravating when the relationship between the defendant and the victim is one of parent-child. At present, the victims are the biological daughters of the defendant. This is wrong on all levels; and this relationship encompasses all other aggravating factors noted by the prosecution in their submissions.
10. Our society is structured around our cultural values and great emphasis is placed on the importance of family. Our young children should feel safe when amongst family, especially in the hands of parents. Aside from the loving, nurturing nature of a relationship between a parent and child, trust and respect are also essential to a healthy parent and child relationship. Unfortunately, this was not the case for the young victims as the trust was severely breached by their father. The brother of the victims who saw the father twice naked on his two sisters and reported the offending, was also victimized to some extent having to witness such an ordeal.
11. The first incident that happened with the older daughter was either premeditated or opportunistic in that the defendant followed the victim into the shower when she went to have a shower. The second rape of the younger daughter was more opportunistic. This does not make it any less aggravating than if premeditated. The Court of Appeal in Key v Police^[3] said of offending that is opportunistic:
    • We accept that in this case, there appears to have been no element of planning in the rape, although one could not say that about the attempted rape. But as the Court continued in that decision:
    • ...offenders who show predatory sexual behavior may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.
12. This offending is inherently violent, especially so where biological relationship is involved.
13. Victims of sexual offending must live with the long-term emotion and psychological scars that remain, as well as the negative stigma attached to such a traumatic experience. The younger the victim the more vulnerable. Sadly, in this case the perpetrator was the victims’ own father, the person they looked up to and trusted.

The mitigating factors

14. I have difficulty reconciling the person the older daughter refers to as a devout Christian; and the person that he is who could carry out such a despicable act on his own daughters. A devout Christian (in my view) would not have acted or behaved so impulsively as the defendant did; and as a father he should not have done such harm to his own two daughters.
15. The defendant was of prior good character for 69 years.
16. The defendant although he admitted in his caution statement what he did withdrew his guilty plea originally entered prolonging this matter for about two years. He again changed his plea to ‘guilty’ prior to hearing set for 26 August 2024.^[4] Changing his plea to guilty is the defendant finally accepting that what he did was wrong and will be considered as mitigating factor by the Court.
17. For his late guilty plea, the Court gives a 10% discount and not the normal 25% discount given for early guilty plea.

Discussion

18. The reason behind the law is because of the need to protect young girls from people like the defendant. The safety of our young vulnerable girls from predatory behaviors of older males needs to be vigilantly protected. For a country that places a lot of emphasis on family, culture and religion, the increase in the number of sexual violations and abuse against young girls in villages and especially within families’ shows a breakdown in our society and on the innate shared understandings pertaining to our cultural values. It is from our culture that we place importance in the status of our children, our women and overall, our aiga (family). It is with a heavy heart that such values are very much being threatened.
19. Our community needs to play a part in advocating against these kinds of crime. The three pillars of society that encompass our existence as Samoans – family, culture and religion need to step beyond the “shared understanding,” “knowing what is right from wrong,” and really go that extra mile and ACTION these thoughts.
20. The biological relationship between the victims and the defendant makes these offending very serious and at the high end of the scale. It does not matter whether it was done once or a couple of times, the fact that such a callous act even occurred is repulsive.
21. A custodial sentence is most appropriate. The only question is how long. I agree and reiterate the remarks by Vaai J in Police v Pauesi^[5]:
    • In considering the sentence for sexual offences particularly rape the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. The sentence is also to convey condemnation by society of such criminal conduct.

The case of Key v Police^[6] provides the sentencing bands guideline for rape which are:

(a) Band 1: 8 -10 years – Appropriate where the offending is at the lower end and where there is an absence of aggravating features, or their presence is very limited.
(b) Band 2: 9 – 15 years – Where violence and premeditation are moderate.
(c) Band 3: 14 -20 years – Aggravating features at a relatively serious level.
(d) Band 4: 19 – life imprisonment – As well as the aggravating features in Band 3 it is likely to consist of multiple offending over a considerable time. Repeat family offending would fall into this band.

22. The prosecution refers to sentencing decisions of this court in similar circumstances and recommends 19 years starting point in the lower end of Band 4.
23. In the circumstances of this offending, taking into account the aggravating factors I take as appropriate the starting point of 15 years as in the top end of Band 3 and lower end of Band 4 in Key^[7]. I deduct 24 months for the first offender status. This leaves 13 years (156months) to which a 10% discount of 16 months is given for guilty plea. The end sentence is 11 years and 6 months. I further deduct 6 months for mercy due to health problems that the defendant may suffer due to old age.

Conviction and sentence

24. The defendant is convicted and sentenced to 11 years’ imprisonment for each offence of rape.
25. The sentences are to be cumulative for the offending was on two separate occasions with two years apart involving two victims.
26. The defendant is to serve 22 years’ imprisonment less any time in custody.
    

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, ss49(1)(a) and 52(1)
^[2] Crimes Act 2013, section 55
^[3]see Key v Police [2013] WSCA 3 (28 June 2013)
^[4] The matter was set for hearing on 26 August 2024 for three days. On 26 August defendant indicated wanting to change his plea. This was formally entered on 28 August 2024.
^[5] Police v Pauesi [2008] WSSC 23 (9 May 2008)
^[6] Key v Police [2013] WSCA 03
^[7] ibid