Attorney-General v Ioane [1994] WSCA 20; 07 1993 (31 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 7/93
BETWEEN:

THE ATTORNEY GENERAL

Appellant

AND:

PAOPAOALII SAGATO IOANE

Respondent

Coram: The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 31 March 1994

Counsel: M.B. Edwards for Appellant
P. Fepuleai for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

This is an appeal by the Attorney General under s. 4(2) of the Criminal Procedure Amendment Act 1992/1993 against the sentence of 12 months imprisonment followed by 12 months probation imposed on 6 July 1993, the respondent having pleaded guilty and been convicted of the offence that on 5 January 1992 he had sexual intercourse with a named girl who is under the age of 21 years and being his step-daughter, who at the time of intercourse was living with him as a member of his family.

The ground for the appeal is that the sentence is manifestly inadequate. The maximum penalty for this offence is 7 years imprisonment. According to the summary of facts the respondent is a 38 year old married unemployed man. In the early hours of Sunday, 5 January 1992 after his wife had gone to the market, he went to the back of the house where his step-daughter was sleeping. When he got to the place where she was sleeping, he laid down on top of her and forcibly removed her clothes. He then had sexual intercourse with her. Despite the crying of the victim he continued until he was satisfied. He then told the girl not to tell her mother of his actions. She was bleeding from her private part after the intercourse as she had been a virgin until that time. Despite being told not to tell her mother about the incident, she did so. The mother is the respondent's wife. At the time of the offence, the girl was 13 years of age. The Probation Officer's report said that there had been four children of the respondent's marriage, whose ages ranged from 3 years, 6 years, 8 years to 11 years and the girl against whom the offence was committed was a child of the wife's first common law husband. The respondent's wife said that she strongly relied on her husband in looking after and taking care of her and the young children, he being the bread winner of the family. In a letter provided by the mayor of the village he speaks highly of the respondent as a person reliable in the village and church life, a member of the village committee and the church and the person relied on in cultural traditions because he understood the customs and traditions of Samoa. In this case the report revealed that the respondent was penalised by the village council in regard to this offence. He was fined 10 sows and a 100 taros. The respondent mentioned to the probation officer that he contributed four sows, three cartons of tinned fish, two cartons of turkey tails and 100 taros. This was accepted by the village. The respondent also expressed his deep remorse. The penalty paid to the village is one which the Court must have regard to under s.8 of the Village Fono Act of 1990. We do not have the sentencing notes of the sentencing Judge but we were told from the Bar that he took this penalty into account as indeed he must do and also this Court must also do.

Mr Edwards has pointed to the correct approach of the Court to appeals by the Attorney General against what is submitted to be an inadequate sentence namely that the Court will not increase a sentence more than is essential and will be more reluctant to increase a sentence than to reduce it on the appeal by a prisoner.

In this case there are the following aggravating features. There is the sexual violation of a 13 year old virgin by a man of 37, 25 years her senior. There was the breach of the trust by a step-father to his step-daughter living with him as one of his family. And there are the circumstances in which the offence was committed as already recounted involving force and injury. There is the mitigating factor that the respondent pleaded guilty and saved the child the further embarrassment of a trial and saved the State some expense. He must be given credit for that plea of guilty. And of course, there is the penalty already paid to the village which must be taken into account. The sentences in other cases cited to us, admittedly for incest which is a more serious offence although it carries the same maximum penalty of 7 years imprisonment, ranged around the 3 year mark. One must be cautious in comparing sentences in other cases as the facts can vary so much.

Lord Justice Lawton in R v Taylor & Others [1977] 3 All ER 527 instanced at p.529, three categories of case. The least serious case of unlawful sexual intercourse is where there is a virtuous friendship which leads to sexual intercourse. Then there is the case where a young man picks up a girl of loose morals at a dance, takes her out in the local park and, behind the bushes has sexual intercourse with her. But then, when he comes to deal with the most serious situation, he refers to a man in a supervisory capacity who abuses his position of trust for his sexual gratification. This case falls into that category.

We have been told that this type of offence is prevalent and calls for a deterrent sentence. We were referred to the case of Aki Tauiliili v Police which came before a differently constituted Court of Appeal on 13 November 1992. A 41 year old man had been found guilty of carnally knowing a 14 year old girl. He was sentenced to 2 years imprisonment. On the hearing of the conviction appeal, the sentence appeal was abandoned but the Court expressed the view that that was a proper step for counsel to take which in effect marked the Court's approval of such a sentence in that case.

Mr Edwards cited the following passage from the judgement of Mr Justice Lee in Herman's case, 37 A. Crim. R. 440. We adopt what he said and repeat it here:

"In the present case the cardinal fact is that the girl was entitled to expect that within the family unit she would grow to maturity unmolested and undefiled by the lust of the man who was living with her mother. That was her right and the Court must protect that right".

On the summary of facts, this could not be said to be a case in which the girl was a consenting party or even to have passively submitted. Consent is not a relevant issue in proving the offence but it is relevant on sentence as it would reduce the seriousness of the offence if the girl were a willing party. Had the respondent, wished to challenge the summary of facts, he should have called evidence to support that challenge. Accordingly we must proceed on the summary of facts and view this case without the mitigating circumstance of consent by this young girl.

The sentence of the Court in a case such as this must be adequate to mark society's denunciation of this conduct and to punish the offender for his abuse of trust towards this young girl in his family circle. After taking into account the penalty paid to the village and his plea of guilty for which he must be given credit, in our view the sentence in this case is manifestly inadequate.

The appeal is allowed, the sentence of 12 month's imprisonment followed by 12 month's probation is quashed and in lieu thereof, the sentence of this Court is two year's imprisonment. By the Offenders Probation Act, probation can only follow a term of imprisonment of less than 12 months.

Solicitors:
Attorney-General's Office, Apia for Appellant
Fepuleai, Apia for Respondent