Police v Kum [2000] WSCA 6; 11 1999 (18 August 2000)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 11/99

IN THE MATTER
of The Judicature Ordinance 1961 and The Criminal Procedure Act 1972

AND

IN THE MATTER
of an appeal pursuant to Section 164L of the Criminal Procedure Act 1972

BETWEEN

THE POLICE
Appellant

AND

AFA LEE KUM,
unemployed of Vaitele-uta, Apia
Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 14 August 2000

Counsel: RJ. Schuster for Appellant
J. Brunt for Respondent

Judgment: 18 August 2000

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

The respondent was convicted and sentenced to 9 months imprisonment on two counts of unlawful sexual intercourse with a girl over the age of 12 years and under the age of 16 years not being his wife. The Attorney-General (for the Police) has appealed against this sentence as of right under s.164L of the Criminal Procedure Act 1972 on the grounds that:

(a) the sentence imposed is manifestly inadequate in relation to previous decisions handed down by this Honourable Court against offences of this nature;

(b) the sentence does not fully reflect the seriousness of the offence;

(c) the sentence does not give sufficient weight to the need for general deterrence for this type of offending;

(d) the sentence does not reflect the nature of the criminal act and the role of the Respondent in the circumstances of this matter;

(e) the sentence is not in line with Samoa's international obligations under the Convention on the Rights of the Child ratified by Samoa on the 11th day of November 1994.

Mr Brunt for the respondent raised a preliminary point that the appeal should be struck out because the appeal had been brought after the expiration of 21 days from the date of passing sentence (see s.28 The Judicature Ordinance 1961). However, it appears from the Court file that notice of appeal was filed on 10 April 2000 within 21 days of sentence being passed on 27 March 2000. The Court is not satisfied that the appeal is out of time but if it is, the Court will enlarge the time for filing the notice of motion under s.28. Mr Brunt's application to strike out is refused but he conceded that the respondent had not been prejudiced.

The trial of the respondent was by judge alone in the Supreme Court. The respondent pleaded not guilty and did not give or call evidence in his defence which he conducted himself. The complainant was born on 18 February 1986 so was nearly 14 years of age at the time of the offences against her at the end of January and early February 2000. She had been adopted at an early age by the respondent's daughter and they lived together with the respondent and his wife. The complainant said in evidence that the respondent came to her bed late at night, forced her to lie on the bed while he took off her clothes, jumped on her, sucked her breasts and hurt her when he had sexual intercourse with her. By way of cross-examination the respondent made a statement,

"Witness is wrong. I never went to her and had sex with her."

The respondent was interviewed by Police Officer Latu Latu in the presence of Police Officer Leagae Manu, both of the Criminal Investigation Branch. They gave evidence that the respondent wanted to make a statement after he had been advised of his right to counsel and been cautioned. The signed statement was made at 11.30 am on 16 February 2000. In it the respondent gave his age as 62 years, a married man with 7 children. He continued he did not want to consult a lawyer and had been cautioned. Be said the offences had not just happened. It was what he intended to do having tried to get the chance during Christmas time 1999 but could not find the right time to do it. He said 'A lot of nights when I would go to [the complainant] she would reject me'. Then followed this paragraph in his statement,

"I recall very well, that it was on the last week of January 2000 I got my first chance to have unlawful sexual intercourse with [the complainant]. She was sleeping inside [my daughter's] bedroom with her children and that is when I was able to do what I intended to do. [The complainant] rejected me but she was unable to because I was too strong and so we ended up having unlawful sexual intercourse inside the room. I recall also on Friday 4/2/2000 that I had unlawful sexual intercourse with [the complainant] inside the bedroom of our house. On Saturday 5/2/2000 I tried to get another chance at [the complainant] but my daughter caught me."

The respondent did not cross-examine the Police Officer who produced the statement in evidence but he said,

"I was scared. It was my first time involved with the law and I simply agreed with what Latu was saying. It is not correct. I deny everything in the statement. I didn't do anything."

The statement reads as the respondent's own account of his sexual approaches and intentions over a period of time. It does not read as an account composed by the Police. Furthermore, the statement makes the following clear admissions,

"I feel remorseful for what I have done but why I did it because of the evil temptation."

There can be no doubt of the respondent's guilt and he has not appealed against conviction. As to the appeal against sentence, there is no contemporary record of what the Judge said on imposing sentence but Mr Schuster obtained from the judge the following outline of the factors he considered,

"(a) In Mitigation:

(i) the Defendant's age;

(ii) the Defendant's lack of formal education;

(iii) that the Defendant has caused embarrassment to his whole family and to himself;

(iv) that he is a first offence; and

(v) all matters raised in Probation Report.

(b) The Aggravating Factors were:

(i) the Victim was a grandchild of the Defendant;

(ii) that the Defendant has not shown any remorsefulness but that may be due to his obvious limited intellect and therefore his lack of appreciation of the seriousness of the offence;

(iii) that despite being formed guilty after a trial by a judge sitting alone, the Defendant still maintained he was not guilty in his Probationary Report but again I put it down to your obvious inability to appreciate the charge. Unfortunately legal aid was not granted to you; and

(iv) the young age of the Victim.'

The Probation Report described the respondent as,

"... not a wise person. He left school on his own after Standard three. Upon leaving school he stayed home rendering a service of tautua to his family, the village and the church. He said that he has not had any formal employment his whole life.

He was bestowed with a matai name of Latu from the village of Faga Savaii and is now looking after the extended family."

He is described by his wife as,

"... a good, quiet, kind and loving father. He is a hard working person, a matai of the family and all family members respect him. He serves the family and the church and she relies on him in developing the family."

The report concluded,

"In conclusion sir, the offender is a sixty two year old father and is responsible for a family. He is appearing on his first offence. The offence is very serious as it involved a young girl who was raised by the offender as his daughter. This type of offence and its circumstances is not new to the court and it does happen in our society. The court usually deals with these types of sexually related offences in terms of imposing custodial sentences. The offender sir has a clean record and is an elderly father responsible for a family. This service therefore is respectfully asking for the court's leniency on the offender Lee Kum."

In his submissions for the appellant, Mr Schuster stressed the seriousness of this type of offence which carries a maximum sentence in Samoa of 7 years imprisonment. He called for a deterrent sentence and stressed Samoa's international obligation to protect the interests of children under the Convention on the Rights of the Child ratified in 1994. As Cooke P. (as he then was) said in Tavita v Minister of Immigration [1994] 2 N.Z.L.R. 257, 266, Samoa's ratification of the convention should not merely be 'window dressing'. This Convention was referred to in Police v Howard Maumasi CA 07-1999. Judgment of this Court was delivered by Lord Cooke of Thorndon on 27 August 1999 and included the statement,

"All Samoan Courts should have regard to this Convention in cases within its scope."

The Convention requires protection of the child from sexual abuse while in the care of parents and any other person who has the care of the child. The preamble recognises that a child 'should grow up in a family environment, in an atmosphere of happiness, love and understanding.' The judge in this case has not 'had regard to this Convention' on sentencing in a case 'within its scope.' The Court should send out a strong message, where appropriate as in this case, that offences of this nature by a grandfather on a granddaughter in his care will not be tolerated and will be met with a sentence of imprisonment sufficient to mark society's denunciation of such conduct. The sentence of nine months imprisonment is manifestly inadequate to condemn such conduct, punish the offender and serve as a deterrent to the offender and others.

Mr Schuster produced to the Court in his submission a list of 12 cases of a similar nature in the last year. In July 1999 Sapolu C.J. on imposing a sentence took into account the seriousness of the charge and the prevalence of unlawful sexual intercourse especially where the victim lives with the defendant. More recently, in January 2000, the Chief Justice again had occasion to draw attention to the seriousness of the offence, the high degree of prevalence and the need for deterrent measures to be imposed. A sentence of nine months imprisonment falls far short of an appropriate sentence in this case.

Mr Brunt for the respondent admitted that these were serious offences but drew attention to the limited education of the respondent and that he had not offended previously. We are not persuaded that for these reasons the sentence was appropriate. The respondent was not of limited intelligence and was well aware of the unlawful nature of his intentions: He set about to find the right time to force his sexual desires on his granddaughter, did so twice, and would have done so again but for the intervention of his daughter.

Although the medical examination of the child did not reveal physical injuries, it is inevitable that this girl of 14 years would have suffered mental trauma. Her home life has been disrupted and she is no longer attending school. More consideration to her plight should have been given by the judge on sentencing. Furthermore she has suffered the distress of being required to give evidence.

The list of aggravating factors in this case refers to the victim being a grandchild of the defendant but does not refer to the fact that she was brought up from a very early age in his home and in his care. His offending is a gross breach of trust for which the sentence is manifestly inadequate.

Mr Schuster in his concluding submissions called for the Court to consider five years imprisonment for this type of offending. This would be a big jump from sentences of two years imposed in the past, usually on pleas of guilty. Furthermore, as the cases show, the facts vary very widely and the base would be difficult to apply. However, we are satisfied that the sentence in this case in all the circumstances was manifestly inadequate.

For the reasons give the appeal is allowed, the sentence of 9 months imprisonment is quashed and in lieu therefore the sentence of this Court is three years imprisonment.

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