IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

AMITUANAI LOMA aka TAMAOAIGA SAKARIA
of Samata-i-uta.
Accused

Counsel: P Chang for prosecution
Accused in person

Sentence: 29 November 2005

SENTENCE

The charges

The accused is charged with four counts of incest under s.49 of the Crimes Ordinance 1961. Incest caries a maximum penalty of seven years imprisonment. To all four charges the accused has entered a plea of guilty.

The offending

On Thursday night 06 October 2005 the accused was at home with his children including the victim. His wife had gone to spend the night with other members of the woman’s committee of their village of Samata-i-tai. The accused slept side by side with the victim and his other daughter who is eight years old in the same mosquito net. At about 3.00am the accused removed the victim’s shorts and undergarment and proceeded to have sexual intercourse with her. The sexual intercourse caused the victim severe pain.

On 07, 19 and 21 October 2005, the accused again had sexual intercourse with the victim while his wife was absent from home to attend to her obligations as a member of the village women’s committee. After the fourth occasion of sexual intercourse, the victim told her aunties what the accused was doing to her. Eventually this matter was reported to the police.

The victim

The victim is 15 years old. She is a biological daughter of the accused. It is not clear whether she attends school. Attempts by the prosecution and the probation service to contact the victim for an interview for the purpose of compiling a victim impact assessment report have not been successful because the victim has been taken to Savaii.

The accused

The accused is a 54 year old male of the village of Samata-i-tai in Savaii. He is married with eight children ranging in age from eight year to twenty three years. One of his children is the victim. He is the sole breadwinner for his family. He does not have a salaried job but works on his own plantation. 

In consequence of these offences, the accused has been banned from his village of Samata-i-tai by the village council. As it appears from the pre-sentence report prepared by the probation service, it was also the village council that reported the accused’s offending to the police.

The accused has apologised to his family and children. He is a first offender.

Mitigating factors

The accused’s plea of guilty to the charges against him at the first opportunity and the fact that at the age of 54 years he is a first offender can be taken into account in mitigation of penalty. So is the fact that the accused has already being given the customary punishment of being banned from the village.

I must say that I find it difficult to understand what the accused told the probation service that he loves his children very much. In respect of the victim, genuine parental affection and incest cannot be reconciled.

Aggravating factors

Almost invariably young children expect from their parents care, affection and sympathy. In their position of vulnerability, they depend on their parents for guidance and protection. So when a father commits incest upon a daughter, that will always involve a serious breach of trust. Such breach of trust strikes at the very fabric of family life and can be destructive of family life. The victim must also have suffered enduring psychological harm from what the accused has done to her.

This is also not a case of a “one off” incident of incest. This is a case which involves four separate incidents of incest committed in the space of sixteen days. It only stopped when the victim told her aunties about what the accused was doing to her and the village council reported the accused to the police.

Whether it is an aggravating factor or whether it relates to the inherent gravity of the offence, incest is an offence that has always been frowned upon and condemned in Samoan society. It is referred to as “mata i fale.”

Sentencing guidelines for this type of case

In the guideline decision of the English Court of Criminal Appeal in The Attorney General’s Reference (No. 1 of 1989) (1990) 90 Crim App R 141, Lord Chief Justice Lane, in delivering the judgment of the Court, said at p.147:

“Having indicated the basis of our reasoning, we venture to make the following suggestions as a broad guide to the level of sentence for various categories of the crime of incest. All are on the assumption that there has been no plea of guilty…..

2. Where the girl is aged from 13 to 16

Here a sentence between about five years and three years seems on the authorities to be appropriate. Much the same principles will apply as in the case of a girl over 16, though the likelihood of corruption increases in inverse proportion to the age of the girl. Nearly all the cases in this and in other categories have involved pleas of guilty and the sentences in this category seem to range between two and four years, credit having been given for the “plea.”

It must be noted that the decision of the English Court of Criminal Appeal is a guideline decision for sentencing in the various categories of incest cases. It also sets out some of the mitigating and aggravating factors which are relevant to sentencing in incest cases. No doubt one of the purposes for sentencing guideline decisions is to maintain consistency in the levels of sentences passed for a particular type of offence. But as the English Court of Criminal Appeal made it clear, what is being suggested is a broad guide to the levels of sentences for various categories of incest. A broad guide is, of course, not the same thing as a fixed rule. Perhaps, it should be noted here that The Attorney General’s Reference (No. 1 of 1989) (1990) 90 Crim App R 141 was later applied by the English Court of Criminal Appeal in Denis v R [1999] EWCA Crim 1366

It should also be noted that the maximum penalty provided for incest under the English Sexual Offences Act 1956 is seven years imprisonment which is the same as the maximum penalty for incest in Samoa. However the guidelines to the levels of sentences for incest provided in The Attorney General’s Reference (No. 1 of 1989) (1990) 90 Crim App R 141 have not been followed in jurisdictions where the maximum penalties for incest are different, for example, in the Australian Capital Territory see The Queen v GS. C.C. No. 8 [1989] ACTSC 53 and in Papua New Guinea see Mitige Nehege v The State [1992] PGLA WREP 59; [1994] PNGLR 71

The decision

The purpose of the sentence I am about to impose in this case is not only retribution but deterrence, that is, not only must the accused be punished for his crime but the Court must also endeavour to deter other fathers who are mindful of committing this kind of offence. The accused himself also needs to be deterred from committing this kind of offence again. Having regard to the total gravity of the accused’s offending, the mitigating circumstances including the plea of guilty, and the aggravating factors, the accused is convicted on each of the four charges against him and sentenced to three and a half years imprisonment on each charge. All sentences to be served concurrently. This means the accused will serve three and a half years imprisonment. This term of imprisonment is to commence from 31 October 2005 when the accused was first remanded in custody.

CHIEF JUSTICE