Attorney General v Mr A [2012] WSCA 2 (31 May 2012)

Court of Appeal of Samoa

Attorney General v Mr A [2012] WSCA 2

Case name: Attorney General v Mr A

Citation: [2012] WSCA 2

Decision date: 31 May 2012

Parties: ATTORNEY GENERAL v Mr A and Ms B

Hearing date(s): 25 May 2012 (C.A. 15/11A) and 28 May 2012 (C.A. 08/12)

File number(s): C.A. 15/11 A; C.A. 08/12 B

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):

Honourable Chief Justice Sapolu

Honourable Justice Baragwanath

Honourable Justice Fisher

On appeal from:

Order: ORDER SUPPRESSING PUBLICATION OF NAMES OF MR A AND MS B AND ANY PARTICULARS THAT MIGHT LEAD TO THEIR IDENTIFICATION

Representation:

P Chang and T Toailoa for appellant

K L Enari for Mr A

S Ponifasio for Ms B

Catchwords:

Words and phrases:

“Greek for Green”

Legislation cited:

Punishment of Incest Act 1908:

Samoa Act 1921 (NZ) s136

Homosexual Offences and Prostitution (Cmd 247 (1957))

Cases cited:

R v Lawson and Begg [1982] NZLR 219

R v Tuia NZCA 312/02,

R v Bridger [2003] 1 NZLR 636 (CA)

R v J (1982-3) 45 ALR 331

R v Scc [1989] ACTSC 53

R v Murphy (1981) 3 Cr App R (S) 285
R v Accused (CA 291/90) [1991] 3 NZLR 405

Summary of decision:

ORDER SUPPRESSING PUBLICATION OF NAMES OF MR A AND MS B AND ANY PARTICULARS THAT MIGHT LEAD TO THEIR IDENTIFICATION

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A. 15/11 A

C.A. 08/12 B

BETWEEN

ATTORNEY GENERAL

Appellant

AND

MR A

First respondent

AND

MS B

Second respondent

Coram:

Honourable Chief Justice Sapolu

Honourable Justice Baragwanath

Honourable Justice Fisher

Counsel:

P Chang and T Toailoa for appellant

K L Enari for Mr A and S Ponifasio for Ms B

Hearing: 25 May 2012 (C.A. 15/11A) and 28 May 2012 (C.A. 08/12)

Judgment: 31 May 2012

JUDGMENT OF THE COURT

Introduction

1. Mr A and Ms B are father and daughter who were convicted and sentenced on counts of incest with each other. Ms B pleaded guilty to seven charges alleging offences committed in August 2009 and May 2011 when she was 36 and 37 and her father 57 and 59. She was convicted and sentenced by Nelson J to imprisonment for three years. Mr A pleaded not guilty and three of the eight charges against him were withdrawn as a result of alibi evidence from passport stamps showing that he was out of Samoa on the dates alleged. No evidence was adduced on three further charges and, on the evidence of Ms B, he was convicted on the remaining two. He was sentenced by the trial judge, Slicer J, to pay $5,000 to Ms B in order to secure release from prison and a further $5,000 within 15 months. The Attorney General appealed against the sentence on the grounds of disparity with that of Ms B and of inadequacy. At the hearing we extended time for Ms B to appeal against her sentence, directed the Registrar to appoint counsel to represent her, and directed that the matter be called before us on 28 May 2012.

Ms B

The facts

2. Ms B is the only child of her mother and was brought up in Samoa by her maternal grand-parents with no knowledge of her parentage. Growing up she experienced difficulties trying to cope with school work and looking after her grand-mother. She was about 12 when her mother told her for the first time of her father’s identity. Having left school after Year 10 she married and is a loving and caring mother of a number of children.
3. In 2009 she met her father for the first time. According to the evidence of Mr A’s brother Ms B was looking for her father and she rang him in Australia. They agreed to meet on his next visit. He promised her a birthday gift. Following his arrival one of Ms B’s uncles took her to see him. On the day of her 36^th birthday her father was staying in Ms B’s family home. She told her probation officer that about midnight he woke her and said he was going to take her somewhere. He urged her to have sex with him and she agreed. She said they had sexual intercourse almost every night before he returned to Australia. At some point they were found together by Ms B’s husband. For an undefined period Mr A paid her money for shopping and for her children. In 2011 Mr A returned to Samoa. Mr A called and asked Ms B to meet him at the airport and he and Ms B stayed with a friend of Mr A. There was a sexual episode on 23 May 2011. On Ms B’s husband’s complaint the police intervened and the charges resulted. Ms B expressed remorse for what had happened; apologised to her husband and promised there would be no recurrence.

Counsel’s submissions

4. Ms B’s counsel submitted to Nelson J that her father had come to Samoa to look for her, wanting to meet and to build a house for her and her family. She cared for him as a father and looked to him for support and guidance like any other daughter, even though they had just met. She was the victim of the offending by her father who had apologised to her. She accepted the apology and offered forgiveness. He had sent her money from Australia to support her family and for family fa’alavelave (extended family events). These payments may have induced Ms B both to engage in and to continue with the sexual relationship. Ms B agreed to give evidence at her father’s trial. Although complying with part of the penalty imposed by her village, providing 5 cartons of herring, for failure to provide as well 20 pigs she was ostracised by her village and had to live elsewhere. Counsel submitted her client had no previous convictions and should receive a non-custodial sentence.

Sentence

5. Nelson J found it difficult to understand what drove a woman to have sex with her own father; especially a married woman with what appears an otherwise stable family. One could only surmise that it might have been born out of misguided love and affection denied to the parties for many years.
6. Counsel argued that the real victim was Ms B, suggesting that the older, more mature father using promises of continuing financial support and pecuniary reward lured or seduced her into the incestuous relationship.
7. The Judge accepted that might well be so but it did not absolve this 36 year old married woman from moral or criminal responsibility for her actions. She well knew he was her father and offended deliberately and callously, the majority of offences being committed in her family home. The offending was committed on and off over a period to two years. Her actions have impacted on the lives of her husband and children, her extended family and villagers.
8. It was not in the public interest to treat such behaviour lightly or appear to condone it by imposing a non-custodial sentence. The sanctity of the father-daughter relationship must be respected as much by daughters as by fathers. That is the message the Court must by its penalty send.

Mr A

The facts

9. Slicer J having discharged Mr A on all except two charges found he had offended on 4 August 2009 and 23 May 2011.

Submissions

10. The prosecution cited four Samoan Supreme Court decisions where sentences of between three and six years were imposed for offences of incest and submitted that parity required a sentence of no less than four years imprisonment.

Sentence

11. Slicer J emphasised that the offending took place between consenting adults. He cited Professor Warner’s text Sentencing in Tasmania (Foundation Press 2 ed 2002) which at 11.431 draws a clear distinction between cases involving consenting adult siblings on the one hand and cases which involve a victim under the age of consent. He declined to follow the decision in respect of Ms B as failing to recognise that distinction. He adjourned the sentencing to allow Ms B to speak to the Court on a letter from her sister which, while recognising his offending, expressed deep love for him. At the adjourned hearing the Judge described Ms B as strong and courageous, giving compelling evidence of her pain, forgiveness a wish that her father not be destroyed in the process. She said she still loved her father. In answer to a question from the Judge whether he should put him in prison for as long as her she still loved her father and the Judge should not put him in prison for as long as, she said no. The prosecution told the Court in her presence that she had said she felt a bit aggrieved as she was the one carrying the burden for their wrongs. That statement was not challenged. He expressed particular concern for the well-being of Ms B, possible reconciliation, and the possibility that Ms B would feel some unhappiness at the fate of her father. He decided that reparation should be to the victim rather than to the State.

Submissions on appeal

12. The submissions on appeal emphasised the arguments made to the Supreme Court in both cases. Mr A supports the decision of Slicer J.

Discussion

...a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance for the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute...public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly... [T]he test is whether a reasonably minded independent person aware of all the circumstances would think that something had gone wrong with the administration of justice

R v Lawson and Begg [1982] NZLR 219.

13. We agree with the Attorney General that this is a case of unacceptable disparity. The essential question is what approach should be taken by the courts of Samoa to sentencing the parties to incest between a father and his mature daughter.
14. The starting point is s49 of the Crimes Ordinance 1961 which defines incest as sexual intercourse between parties which include parent and child where the person charged knows of the relationship. Criminal law is the expression of the State’s standards of morality: R v Tuia NZCA 312/02, 27 November 2002; R v Bridger [2003] 1 NZLR 636 (CA). But proof of breach of such standards does not answer what here is the vital question of the penalty to impose by way of response. We must examine why incest is punishable and where the conduct of Mr A and Ms B fits into the spectrum of criminality.
15. We are grateful to counsel for the Attorney General who at our request provided comparative materials from the jurisdictions to which the courts of Samoa are accustomed to refer when considering what standards are most in keeping with the Constitution, which both recites Samoa’s basis of Christian principles and Samoan custom and tradition and its law as including the English common law (Article 111).
16. Despite Leviticus 18:6, incest was not a crime at common law: Bailey and Blackburn “Punishment of Incest Act 1908: a Case Study of Law Creation” [1979] Crim LR 708. Although in theory punishable by the ecclesiastical courts, their powers had fallen into disuse by the middle of the 19^th century. Incest was criminalised in England by the 1908 Act and in Samoa by the Samoa Act 1921 (NZ) s136 and by the present Ordinance.
17. In R v J (1982-3) 45 ALR 331 the Full Court of the Federal Court of Australia emphasised what in R v Scc [1989] ACTSC 53 at 13 Miles J called:

the wide range of conduct encompassed by the crime of incest and...the diversity of considerations (religious, moral, eugenic, psychological, physical) that may be taken into account in assessing the nature of a particular incestuous relationship for the purposes of punishment.

Toohey J for the Full Court said (at 335):

...incest has been regarded as morally wrong and an offence against religion. It involves risk that certain diseases are more likely to occur. It is destructive of the family relationship. It involves a breach of the trust reposed in a parent to care for and protect his children...

18. In our assessment two principal themes are relevant to sentencing for incest. The first, which we regard as dominant, is the protection of family members who, because of the trust placed in a loved one, are vulnerable to abuse. The second, which overlaps the first and is more complex, is infringement of the moral standards of the society.
19. The first theme supports the distinction made by Slicer J between the unhappily familiar case of a father abusing a young daughter, and that of sexual relations between consenting adults. In Attorney General’s Reference (No 1 of 1989) [1989] 3 All ER 571, 573 Lord Lane CJ cited as to the function of the criminal law in the field of sexual offences the report of the Wolfenden Committee on Homosexual Offences and Prostitution (Cmd 247 (1957)):

To preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence.

In that case the Court of Appeal set out a range of offending, with:

At one end of the scale...incest committed by a father with a daughter in her late teens or older who is a willing participant and indeed may be the instigator of the offences. In such a case the court usually need do little more than mark the fact that there has been a breach of the law and little, if anything, is required by way of punishment.

(at 574)

The point was elaborated:

Generally speaking a range from three years’ imprisonment down to a nominal penalty will be appropriate depending...on whether force was used and on the degree of harm, if any to the girl, and...on the desirability...of keeping family disruption to a minimum. The older the girl the greater the possibility that she may have been a willing or even the instigating arty to the liaison...the lower the degree of corruption, the lower the penalty.

An example of such approach is R v Murphy (1981) 3 Cr App R (S) 285 where the same court reduced to three months a sentence imposed on a man who pleaded guilty to two counts of incest with his 30 year old married daughter after he had previously offended.

20. In New Zealand however, with which Samoa enjoys especially close links including common populations, a stricter line was taken in R v Accused (CA 291/90) [1991] 3 NZLR 405. There a father had committed incest with his daughter just before her 16^th birthday. Further regular sexual intercourse took place between then when she was in her mid-twenties and, with her own daughter, was living with the accused after separating from her husband. The Court of Appeal considered that for the latter offending a term as short as the three months in Murphy might not be seen as an adequate response; taken by itself it might have warranted a 12 month term.
21. The second theme is that of infringing moral standards. We do not share the view of some writers that a simple application of another Wolfenden formula, what consenting adults do in private is not the law’s business, may be applied here. (We make no comment on its use in the context of that report). We prefer in the present context the more nuanced insight of Plato: that the good society is created by and sustains the virtue of individuals. (See Richard Seaford “Greek for Green” The Times Literary Supplement May 11 2012 p5.) The law of Samoa prohibits incest of every type. But it does not follow that all who commit that crime should receive the same treatment.
22. Mr A, for whatever reason, had removed himself from his daughter’s life by the stage of her birth when he was 27. His decision to re-enter her life was that of a mature man. He must have known very well that he his return would be momentous for her and that she would be emotionally affected by his display of a love that had never been exhibited. He took advantage of what we are satisfied must have been an acute vulnerability, when he was a guest in her house. While we do not doubt his own emotional reaction to the first encounter with his daughter, his conduct was predatory and gravely reprehensible.
23. The maturity in years of his daughter, which weighed heavily with Nelson J, is not without relevance. But it is heavily outweighed by her vulnerability. Deprived throughout her life of paternal love and support, ultimately having it expressed in the perverted form of her father’s sexual interest, she is entitled to the protection of the law which her father defied. He can plead no mitigation for such upwelling of love as he may have experienced; throughout her life it had always been in his power to create a normal relationship with her.
24. It is necessary for the protection of the vulnerable that deterrent sentences be imposed upon those who abuse them. We give full weight to the fact of Ms B’s being a mature woman who gave her consent; in those respects this case is well removed from that of an under-age girl. But because of her vulnerability we accept Slicer J’s assessment of her as a victim; this is not a case of the true equality that would warrant consideration of a non-custodial sentence.
25. The starting point for sentencing in this case must be no less than two years. That this is an Attorney General’s appeal, that a Judge must be allowed reasonable scope to exhibit mercy, that there has been some element of ifoga, and that $5,000 has been paid to Ms B are factors that go in mitigation. We set aside the order of the Supreme Court save for the unchallenged order for payment of the $5,000 to Ms B and sentence Mr A to a term of 12 months imprisonment. He is to present himself forthwith to this Court to commence his sentence.
26. Turning to the case of Ms B, we have recorded that, deprived throughout her life of any conventional expression of a father’s love; she was suddenly offered it in a perverted form to which she was vulnerable. We have the greatest sympathy for her husband whose strength and loyalty are an impressive feature of this very sad case.
27. We earlier identified two principal themes as relevant to sentencing for incest. In terms of the first and dominant theme, the protection of family members who, because of the trust placed in a loved one, are vulnerable to abuse, Ms B is a victim. We have reflected on the second, of infringement of Samoa’s moral standards. We have concluded that had the two cases come for sentence before a single Judge the moral responsibility would have been found rest substantially on Mr A rather than on his daughter. The Judge would have found it unnecessary for reasons of deterrence to impose a prison sentence upon a victim, despite her own candid admission that she had broken the law.
28. The circumstances of this case are quite exceptional: her father’s abandonment of her, his taking criminal advantage of her welled-up love for him, her prompt admission of guilt, her support for him at his sentencing despite what had happened to her, her ostracism from her village, and the eight months she has spent in prison. We have concluded that Ms B has more than paid her debt to society. We set aside her sentence of imprisonment and order that she be convicted and discharged without further penalty.
29. There is an order suppressing publication of the names of Mr A and Ms B and any particulars that might lead to their identification.

Honourable Chief Justice Sapolu

Honourable Justice Baragwanath

Honourable Justice Fisher