Police v Sione [2006] WSSC 40 (14 July 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FUIFATU TAPUA’I SIONE
male of Sagone, Savaii.
Accused

Counsel: A Lesa for prosecution
Accused in person

Sentence: 14 July 2006

SENTENCE

The charges

The accused is charged with one count of rape under s.47 of the Crimes Ordinance 1961 which carries a maximum penalty of life imprisonment and six counts of incest under s.49 of the same Ordinance each of which carries a maximum penalty of seven years imprisonment. The accused was also charged with six counts of carnal knowledge but those counts have been withdrawn. To all remaining counts the accused pleaded guilty at the first available opportunity.

The offending

The offences with which the accused has been charged were committed over a period of time commencing from 2003 and ending on 1 January 2006.

The accused who is a 42 year old male is from the village of Sagone in Savaii. His date of birth as shown from the pre-sentence report prepared by the probation service was 17 February 1964. He is married and has five children. The victim who is now 16 years old is the second eldest child of the accused. She is a student attending school and was a student at all times the present offences were committed on her.

According to the summary of facts prepared by the prosecution and confirmed by the accused before me, on a certain date between 9 September 2003 and 1 November 2003, the accused, whilst sitting at the kitchen of his house, called out to his wife to send the victim to him. When the victim came to the accused, he threatened her telling her that she was to do what he wanted. At the same time he showed the victim the knife that he had. The accused then undressed the victim before removing his own clothes. He then sat the victim on one of the side rails (puipui) of the kitchen, raised her legs and forcibly had sexual intercourse with her. After raping the victim the accused told her not to make any noise or tell anyone what had happened. The victim who is now 16 years old must have been 13 years old at the time of that incident. That is the incident which is the subject of the rape charge.

On two separate occasions in 2004 the accused again had sexual intercourse with the victim when she was about 14 years old. Then on three separate occasions in 2005 the accused had sexual intercourse with the victim. The last occasion the accused had sexual intercourse with the victim was 1 January 2006 on New Year’s Eve. On the last four occasions the victim was 15 years old. These six separate incidents are the subject of the six incest charges.

As it appears from the summary of facts and the pre-sentence report, except for the first incident of sexual intercourse which took place when the victim was attending school at Sagone, Savaii, all the other incidents of sexual intercourse took place when the victim who was then attending school in Apia, returned to her family in Sagone for the school holidays. As shown from the pre-sentence report, the accused told the probation service that some of these incidents took place at night time. He also told the probation service that in relation to the incident on New Year’s Eve 2006, the victim came to him for some money and he told her that he would give her $10 if they had sexual intercourse first. He then proceeded to have sexual intercourse with her.

When what happened came to the knowledge of the village council of Sagone, the village council decided to banish the accused and his wife but not their children. The accused is presently in police custody while the wife is staying with relatives in the Apia area.

The victim

The victim who is the second eldest child of the accused is now 16 years old. She is now attending school in Apia. At the time she was raped by the accused in 2003 she was 13 years old and attending school at Sagone, Savaii.

According to the victim impact assessment report submitted by the prosecution, the victim related to the prosecution that before the accused started to sexually abuse her, she used to think highly of her father and the relationship between her and her father was that of a normal relationship between a parent and child. However, wen the victim was raped, she became scared and confused about what was happening as she did not think that something like this would be done to her by her own father. She believed that her father loves her and yet he was doing this to her. She then started to feel angry and did not want to call the accused her father. She was scared because her father threatened her that if anyone in the family knows what was happening she would kill her and himself. The victim also related to the prosecution that during her Year 8 national exams in 2003, she did not want to go to school anymore but she forced herself to go to school. As a result her exams were affected.

The victim also says that when she did not obey the accused’s instructions she would be beaten with a stick. As a result of these beatings, she would have bruises on her back and legs for almost a week.

The impact of all that happened, as it appears from the victim impact assessment report, is that the victim does not want to see her father again. She feels ashamed of what happened because many people now know about it and she says that she cannot go to school now without thinking that people are staring at her.

The accused

The accused is 42 years old, married, and has five children. He has never had paid employment but works on his plantation for his family’s livelihood. He had a low level of education having ended his education whilst in primary school. He barely goes to church as some of the people of his village told the probation service. He and his wife have been banished from their village because of the present offences.

Mitigating circumstances

The only circumstances which may be described as mitigating are the accused’s plea of guilty at the first available opportunity, the fact that the accused is a first offender, and the accused’s apology on his knees to the Court. I do not consider the banishment of the accused from his village as a mitigating circumstance because the accused was going to be removed from his village by the criminal law in my event.

Aggravating circumstances

The aggravating circumstances in this case are fully covered in detail in the well-prepared written submissions by counsel for the prosecution. Essentially, they are (a) the abuse by the accused of the victim’s trust by taking advantage of his position as her father, (b) the physical injuries which resulted from the beatings inflicted on the victim by the accused when she did not obey his instructions, (c) the threats of violence made on the victim if she informed anyone of what was happening, (d) the age of the victim at the material times, (e) the age difference of 26 years between the occurred and the victim, (f) the repeated offending over a period of about three years, and (g) the emotional and psychological harm suffered by the victim and its impact on her.

Sentences imposed in similar cases

Counsel for the prosecution in his written submissions referred to the most recent cases where this Court imposed sentences of imprisonment on accused persons charged with raping their daughters and with the crime of incest.

In the case of Police v A [2002] WSSC 21, the accused was charged with two counts of raping his own daughter and two counts of incest. Cooper J sentenced the accused to 8 years imprisonment on each count of rape and 4 years imprisonment on each count of incest. All the sentences were to be concurrent.

In the case of Police v Z (13 July 2005) the accused was charged with ten counts of rape of two daughters, nine counts of incest of two daughters, one count of attempting to commit incest in respect of one daughter, four counts of threatening to kill in respect of two daughters, and one count of indecent assault. The four victims in that case are all daughters of the accused. Sapolu CJ imposed the maximum penalty of life imprisonment on the rape charges and made the sentences on the other charges concurrent.

In Police v Pati Niupulusu (22 July 2005), the accused was charged with four counts of raping his own daughter. Vaai J imposed a sentence of 20 years imprisonment.

Whilst the sentence for each case must be determined by the circumstances of the particular case, sentences passed in similar cases provide a useful guidance as to the range of sentences which the Court has imposed in previous cases of a similar nature. This is a legitimate consideration in passing sentence.

The decision

Rape or incest cases where the accused is a father and the victim is a daughter always involve a serious abuse by the father of his daughter's trust in him. As is often the case, the abuse is accompanied by violence and threats of violence. The victim, especially if she is of young age, is in a most vulnerable position because of her natural dependency on the accused for support and protection as well as the physical superiority of the accused over her. Normally, the victim will have the natural love and affection of a child for her father and expects the same from her father. Thus when a daughter is sexually abused by her own father, one of her initial feelings must be one of confusion, as it happened in this case. This confusion may transform into fear and anger as it also happened in this case, especially if the abuse is repeated against the will of the victim.

I have carefully considered the mitigating and aggravating circumstances. I have also considered the sentences imposed in recent cases of rape where the accused was also charged with incest. In doing so, I bear in mind that the sentence for each case must be determined by the facts of that case.

In this case violence and threats of violence were used by the accused on his daughter. The victim’s trust in the accused was seriously breached and the sexual abuse was repeated seven times over a prolonged period. Perhaps if the victim did not have to come to Apia during the period of this offending to attend school there would have been many more repetitions of this abuse.

In all the circumstances, the accused is convicted and sentenced to 8 years imprisonment on the count of rape. On each of the six counts of incest the accused is convicted and sentenced to 4 years imprisonment.

All sentences on the counts of incest are to be concurrent so that the accused is to serve 4 years imprisonment for all those counts. But that sentence of 4 years is to be cumulative on the sentence of 8 years imprisonment on the count of rape. Thus in total the accused will serve 12 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution