FT v Police [2023] WSCA 5 (27 November 2023)

IN THE COURT OF APPEAL OF SAMOA
FT v Police [2023] WSCA 5 (27 November 2023)

Case name:	FT v Police
Citation:	[2023] WSCA 5
Decision date:	27 November 2023
Parties:	FT (Appellant) v POLICE (Respondent)
Hearing date(s):	20 November 2023
File number(s):	CA02/23
Jurisdiction:	Criminal
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Justice Fisher Justice Blanchard Justice Young
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is allowed. The sentence of 18 years is quashed. In its place we impose a sentence of imprisonment for 13 years less time spent in custody prior to the sentencing in the Supreme Court.
Representation:	A K Su’a for the Appellant E Lam & L I Atoa for the Respondent
Catchwords:	Rape – appeal against sentence – incest – no apology – no reconciliation – gross breach of trust – pre-meditation – sentencing bands (rape).
Words and phrases:
Legislation cited:
Cases cited:	Key v Police [2013] WSCA 3; Police v AV [2017] WSSC 130; Police v EF [2016] WSSC 159; Police v Lemalu [2022] WSSC 41; Police v ML [2018] WSSC 91; R v AM [2010] NZCA 114; 2 NZLR 750.
Summary of decision:

CA 02/23

IN THE COURT OF APPEAL OF SAMOA

BETWEEN:

FT

Appellant

AND:

P O L I C E

Respondent

Coram: Justice Fisher
Justice Blanchard
Justice Young
Hearing: 20 November 2023

Counsel: A K Su’a for appellant

E Lam and L I Atoa for respondent

Judgment: 27 November 2023

JUDGMENT OF THE COURT

Introduction

1. Following a trial by assessors the appellant was found guilty of rape against his 14-year-old biological daughter. On 7 February he was convicted and sentenced to 18 years’ imprisonment less time in custody. In this court he appeals against sentence only.
2. In the Supreme Court the Judge made a permanent suppression order prohibiting publication of the details of the victim and the appellant. The Judge also directed that the case be reported as Police v FT. We make the same orders in this Court.

Factual background

3. The appellant lived with his wife and six children on a family farm. One of the children was his biological 14-year-old daughter, the victim.
4. On 1 February 2020 while the victim’s mother was at work the appellant approached the victim. He removed her clothing, parted her legs and licked her vagina. Her attempt to push him away was unsuccessful. He lay on top of her and raped her. He warned her not to tell anyone.
5. In July 2020 the appellant gave the victim a beating for reasons unrelated to the rape. The victim then told her mother what had happened. The mother, the victim and other members of the family, parted company with the appellant and have not lived with him since.
6. The victim suffered pain and bleeding during the rape. She felt angry and wanted to run away from the family. She cannot bring herself to forgive her father. When asked three years later she said “it’s always on my mind”. Although she has since married she has not told her husband about it. As the sentencing Judge commented, the effects of the offending will probably last a lifetime.

Proceedings in the Supreme Court

7. Although the assessors found the appellant guilty of rape he has since continued to maintain his innocence. In preparing a pre-sentence report the probation officer recorded:
   • [The appellant] relayed that he has already reconciled with his ex-wife and daughter in regards to this matter. He added that his ex-wife and daughter approached him after his case was called and apologized for blaming him in regards to this matter. His daughter [name given] who was also the victim for this matter hugged him and apologized for blaming the accused for this matter.

The victim and her mother flatly reject that account. The appellant has made no approach to apologise or reconcile. Nor are they open to a reconciliation. The appellant is entitled to no credit for remorse.

8. At the sentencing hearing the prosecution contended for 22 years’ imprisonment as the appropriate starting point. The defence advocated 10 years.
9. In her sentencing remarks the Judge noted that the aggravating factors included the gross breach of trust in abusing his own daughter, the age difference (she 14 and he over 40), the premeditation in waiting for the mother to go to work and younger siblings to fall asleep, and the extent of the harm to the victim. The only mitigation consisted of three references testifying to his good character. They were from his uncle, sister and an acquaintance.
10. The Judge noted that deterrence was the paramount consideration. The need for deterrence was reinforced by the Samoan covenant of va tapuia (trust and respect) between a parent and child. In addition to deterrence there was the need to hold the appellant accountable for the harm done to the victim, to promote in him a sense of responsibility for that harm, and to provide for the interests of the victim.
11. For guidance on the length of imprisonment the Judge appropriately turned to the Court of Appeal decision Key v Police^[1] which set sentencing bands for this country. We will set out the four bands shortly. The Judge considered that the present case was at the upper end of rape band three (14-20 years) where the aggravating circumstances were relatively serious. She took 20 years as the starting point and deducted two years for his personal circumstances.
12. The result was her sentence of 18 years imprisonment less time in custody.

The Appeal

13. The appellant relies on essentially two grounds of appeal:
    • (a) Inconsistency with the Key rape bands.
    • (b) Insufficient regard to the appellant’s personal circumstances.

We deal with these in turn.

Inconsistency with Key rape bands

14. Without diminishing the seriousness of rape in any form, comparisons between different levels of seriousness are unavoidable for sentencing purposes. The decision of this Court in Key set tariffs for rape sentencing in this country adapting bands drawn from the New Zealand Court of Appeal decision in R v AM.^[2] After adaptation to Samoan requirements the bands we set were:
    • Rape band one: 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);
    • Rape band two: 9 - 15 years (Where violence and premeditation are moderate);
    • Rape band three: 14 - 20 years (Offending where there are aggravating features at a relatively serious level); and
    • Rape band four: 19 years to life (As well as the aggravating features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band).
15. But as we said in Key, when applying these bands three considerations are to be borne in mind:
    • (a) Key must be read in conjunction with R v AM, particularly the discussion of culpability assessment factors at [29] to [62] and the rape bands at [65] to [108] of R v AM.^[3]
    • (b) Listing relevant factors and setting out bands in the way we have done does not remove the need for judgment. A mechanistic approach is not appropriate.^[4]
    • (c) However if a Judge departs from the guidelines clear reasons should be given for such departure.^[5]
16. Mr Su’a submitted that the sentence ought to have been between the higher end of rape band one (8 - 10 years where offending at lower end and no or limited aggravating features) and the middle of rape band two (9 - 15 years where violence and premeditation moderate). On that basis he contended for a starting point of 10 years.
17. By comparison with other rape cases the significant factors in the present one are as follows:
    • (a) The victim was 14 years of age.
    • (b) The appellant was the victim’s biological father and head of the household in which she lived.
    • (c) It was a single incident.
    • (d) There was a low level of planning and premeditation.
    • (e) The rape was not accompanied by violence additional to the serious violence inherent in every rape.
18. Had the case been confined to the last three factors it would have fallen within band one. Her age and the parental relationship put it into a far more serious category. Whereas she should have been able to look to her father for trust, guidance and protection, he exploited her vulnerability for his own pleasure. The question is how far above band one such cases require.
19. R v AM gives very helpful explanations and examples as to the way in which the rape bands are to be applied in most situations. Unfortunately the decision provides neither guidance for, nor examples of, cases involving the rape of an under-age family member on a single occasion. The only intra-family rapes discussed in R v AM are those extreme cases involving repeated rapes of very young children over a period of years.^[6] Unsurprisingly they are placed in band four. They provide no guide to the sentence appropriate for the rape of a young teen-age daughter on a single occasion.
20. In arriving at an appropriate sentence a major consideration is the prevalence of, and concern over, intra-family sexual offending in Samoa. In Police v ML Tuala-Warren J provided a helpful summary of the problem. She said:^[7]
    • In relation to incest, Nelson J said in the case of Police v EF [2016] WSSC 159(2 May 2016) that
      • “this kind of offending is also an infringement of the customary va tapuia between a father and a daughter. It results from a father taking advantage of his position in the household to satisfy personal lust.”
    • In similar case of rape of a biological daughter (Police v AV [2017] WSSC 130) Nelson J said:
      • There is no question such conduct must be soundly and clearly condemned as not acceptable to our society and that a strong deterrent sentence of imprisonment is required as a personal deterrent to the accused and as a general deterrent to all fathers who would fail their parental duty to love and nurture their offspring in this fashion.
    • In the same case Nelson J said that “...sentence ...must mark the significance of the cultural taboos that you have broken”.
    • Sexual offending in our community has been topical recently. In yesterday’s editorial in the Samoa Observer Mata’afa Keni Lesa wrote “The sad reality is that this is just one of so many similar cases surfacing in Samoa.” Unfortunately this is yet another case which will continue to highlight the prevalence of sexual offending in our community and sadly within families.
    • Today the Court will impose a sentence which denounces and deters this type of offending, and provides for the interests of the victim of this offending.
21. We place heavy weight on those concerns. Although the concerns are by no means peculiar to Samoa, we respect the view of Judges who are in a position to know the extent of the problem here. Denunciation and deterrence must play a particularly prominent part in the approach to such sentences in this country.
22. Three decisions were cited in argument by way of analogy. They can be summarised in abbreviated form as follows:
    • (a) Key itself. Offender (O) originally sentenced to 14 years for rape of 16-year-old victim A (V), plus attempted rape of victim B and resisting police and assaulting police; V vulnerable due to serious intoxication; deception used to lure her into van and to get rid of a young man trying to help her; V left with bruising and soreness in the chest, body and vagina; sinister similarities with attempted rape of B; no mitigating features; sentence reduced to 11 years on appeal.
    • (b) Police v ML.^[8] Rape of O’s 15-year-old biological daughter on one occasion; no violence beyond that inherent in rape; starting point taken to be at lower end of rape band 4 (which is 19 years to life); 22 years adopted as starting point with deduction of 8 years for mitigation.

(c) Police v Lemalu.^[9] Rape of O’s 17-year-old stepdaughter on one occasion achieved by threat with knife; starting point of 12 years representing higher end of band 2; deduction of 3 years for mitigating factors.

23. We do not find Key particularly helpful as an analogy for the present case. The abduction, violence and distinct incidents were worse than we have here. But Key did not involve the exploitation of a young family member. That is the critical factor in the present case.
24. The facts in Police v ML are analogous and the discussion of prevalence and need for deterrence helpful. However the appropriateness of a high starting point – whether it be 20 or 22 years - for the rape of an under-age family member on a single occasion is the point of principle this Court is called upon to decide for the first time.
25. The third suggested analogy was Lemalu. It involved the rape of a 17-year-old stepdaughter on a single occasion accompanied by the threat of violence with a knife. The knife threat is absent in the case before us but this is more than counter-balanced by the younger age and biological relationship in our case. At this stage in life the difference between 14 and 17 years of age is significant.
26. Taking all those considerations into account we think that the starting point for the rape of a teen-age daughter on a single occasion without violence beyond that inherent in rape will normally be at the upper end of band two. The upper end of band two is 15 years. It overlaps with band three which runs from 14 to 20 years. Obviously careful attention will be required to the details in the particular case.
27. In the present case a father raped his 14-year-old biological daughter. We adopt 15 years as the starting point before any deduction for mitigation and personal circumstances.

Insufficient regard to the appellant’s personal circumstances

28. The additional ground of appeal was expressed as follows:
    • The excessive sentencing of the Defendant without any discretion to the direct and indirect consequences of a conviction on the personal circumstances of the Defendant must be reviewed and reconsidered
29. This was developed in the written submissions as follows:
    • The substance of our argument on this ground is on the culpability of the Appellant’s offending compared to the facts of the referred case authorities that this submission is referring to in paragraphs 8 to 13. Again, the assessment by the trial Judge of the Appellant’s sentencing against the context of Keys case and its guideline has obviously pointed out the excessiveness of her imposed sentencing in light of the facts of the current matter.
30. Mr Su’a did not explain this ground in his oral submissions. If it is a reference to the way in which the Judge applied the Keys case it is ground already covered. If it is a reference to a deduction for personal circumstances we note that the Judge deducted two years on that account. Having heard nothing further on that subject we do not propose to interfere with the deduction of two years. The end sentence is therefore 13 years’ imprisonment.

Result

31. The appeal is allowed. The sentence of 18 years is quashed. In its place we impose a sentence of imprisonment for 13 years less time spent in custody prior to the sentencing in the Supreme Court.

JUSTICE FISHER
JUSTICE BLANCHARD
JUSTICE YOUNG

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^[1] Key v Police [2013] WSCA 3 (28 June 2013).
^[2] R v AM [2010] NZCA 114; [2010] 2 NZLR 750.
^[3] Key at [22] to [25], [31] and [32].
^[4] R v AM at [35] adopted in Key at [23].
^[5] Key at [33].
^[6] R v AM at [109].
^[7] Police v ML [2018] WSSC 91 (22 June 2018).
^[8] Police v ML, above.
^[9] Police v Lemalu [2022] WSSC 41 (9 September 2022).