Police v Miti [2007] WSSC 33 (30 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

PETI LI’O MITI,
male of Sapapalii Savaii.
Defendant

Counsels: Ms M. Lui for prosecution
Ms RV Papalii for defendant

Sentence: 30th March 2007

SENTENCING

Peti you appear for sentence on three counts of having sexual intercourse with the complainant who was your step daughter and who at the time was under 21 years and living with you as a member of your family. These offences are alleged to have occurred in Savaii during the year 2002 and you have through counsel pleaded guilty to all three counts. You now appear today for sentencing on these charges.

Police v Fanuasa – a similar case:

Counsel for the prosecution as well as your counsel have provided written submissions to the court for which the Court is grateful. The prosecution has referred in their submissions to a similar case that occurred before this court namely, the decision in Police v Fanuasa [2006] WSSC 22 a case that was dealt with last year by the Chief Justice. It is cited in counsels submission as a case of incest but in fact the charge in that case was not incest under section 49 of the Crimes Ordinance 1961 but was the same charge as in this case, a charge of intercourse with a related girl under section 50.

The circumstances of Police v Fanuasa are very similar to the circumstances of this case. The defendant there was also in a step-father relationship with the complainant and the complainant there as in this case was living with the defendant as a member of the family. Here, the complainant is the defendants step-daughter in that she is the daughter of the defendants de facto wife from a previous relationship, i.e. she is not his biological daughter. The defendants de facto wife died in 2002 leaving the complainant and her two younger siblings under the care of the defendant. The summary of facts submitted by the police is silent on this point but the pre-sentence report of the probation office states that the defendant and the complainant never had a father-daughter relationship because the complainant and her siblings were brought up by their mothers family in another part of Savaii. Furthermore, that the complainant and her siblings only went to live with their mother and the defendant in the year 2001 when the mothers health deteriorated A deterioration which ultimately led to her death in the following year 2002. The incidents in respect of which the defendant is charged occurred after her death in 2002.

The Fanuasa case is also similar to the present case in that there the defendant and the complainant had a relationship for approximately two years. Similarly, the complainant became pregnant as happened here. And the complainant in that case was about 20 years of age. In the present case, the complainant at the relevant time was 19 years of age. The sexual acts involved in this case as well as the Fanuasa case are also similar in that they were consented to by the complainant. By law this is not a defence, however it is a matter to be taken into account in sentencing.

Police v Fanuasa is therefore a most helpful authority on how to deal with cases of this nature. The other cases cited by the prosecution are incest authorities where charges were brought under section 49 of the Crimes Act, which section is a very different kind of offence where in my view, different considerations apply in particular in the sentencing of offenders. I do not find those cases of great assistance.

Aggravating factors:

I accept the aggravating factors advanced by counsel for the prosecution and I accept that an imprisonment penalty is required to express societys denunciation of conduct like this and to serve as a warning to other step-fathers who may be like-minded in relation to young girls under their care and protection.

This is a case of a vulnerable complainant whose parents both father and mother were deceased by the time these offences were committed. She was left with only her two siblings and she was left after the death of her mother totally dependent on the defendant. The victim impact report submitted to the court says her father had died when she was younger and her mother followed in 2002, and at 19 years of age and living with the defendant, she felt that there was no or little security for her and her two siblings. She felt pressured to have sexual intercourse with the defendant because they were entirely dependent on him. There is no question the defendant was in a position of care and trust for the daughter of his deceased wife. There is equally no question that he abused that trust in committing these offences on her. The resulting pregnancy of the complainant brought shame on her personally and in the community and the materials before me indicate that the defendant was banished by his home village as punishment for his offences.

The child that the complainant bore is now being cared for by the complainant who has since met and now married a new partner and they together are now bringing up this child. The victim impact report also states that when the complainant became pregnant she felt very depressed and felt hatred for the defendant but as time has gone on her hatred has diminished and she now feels sorry for him. She is now older and married and has a different outlook and sees that in fact what happened is the defendant took advantage of her. These show to me there is some hope that the complainant may eventually fully recover from what happened to her in 2002. I doubt however that she will ever forget.

The complainant was at the time a 19 year old female. Defendant is a 44 year old male and there is clearly a vast age difference between the parties. That factor must also be taken into consideration because this appears to be a case of a 44 year old taking advantage of a 19 year old under his care for the purposes of his own sexual gratification.

Mitigation:

In the defendants favour are certain mitigating facts. These have been referred to by his counsel in her written submissions. As she correctly points out, the defendant is a first offender and he is entitled to credit for that. Secondly, the defendant has pleaded guilty to these offences. She accepts that the guilty pleas were entered very late in the history of this case; in fact they were entered on trial day, but argues that nevertheless her client should receive some benefit for his guilty pleas.

Guilty pleas generally have a value from these aspects: firstly it is consistent with an expression of remorse for criminal offending. Secondly it is an indication that an offender is prepared to accept responsibility for his offending. Thirdly, one result of a guilty plea is it saves some time, some resources and the expense of a fully defended trial. And lastly and perhaps most significantly in sexual cases, it negates a complainant having to go through a trial and the ordeal of appearing and testifying in court and reliving what obviously were most unpleasant experiences.

The defendants guilty plea here satisfies the first part namely it is consistent with his expression of remorse and it indicates he is prepared to accept responsibility for his offences and it has saved the State some time and resources. But in relation to the latter aspect it only partly operates in his favour because the complainant was summoned and did have to appear on trial day in accordance with her summons and there is no doubt that there was some stress and trauma involved in preparing to testify in court, no doubt she was probably dreading having to come to court and publicly testify about such unsavory matters. However I do accept that some credit must be given to the defendant but it will certainly not be as much as he would have received if at the outset some two years ago when these charges were filed he entered a guilty plea. The 10% discount the court gave in Police v Sakarata [2006] WSSC 38 cited by counsel for the defendant is probably about as much as this defendant is entitled to.

A further factor in mitigation for the defendant is the matter of banishment which has been imposed on him by his village as the result of his offending. That of course is a legitimate factor the court is mandated to take into account in mitigation by section 8 (a) of the Village Fono Act 1990 and I do take that into consideration.

It is also a relevant consideration that these acts of sexual intercourse were consensual but that consent must be balanced by the fact that as noted in the victim impact report, her consent was given because she felt pressured to do so by the personal circumstances of her and her siblings. This is more a case of a complainant submitting to the wishes of the defendant caregiver for the good of them all rather than a complainant giving full and unreserved consent of her own free will and volition. Consent is a factor but in this case, not a particularly influential factor in mitigation of the defendants conduct.

Defendants counsel referred to the respective ages of the parties as well as the decisions cited by the prosecution. As to the decisions cited by the prosecution on the offence of incest, I have already touched upon the relevance of those matters. The decision most helpful is that of Police v Fanuasa. The sentence there was one of eighteen (18) months imprisonment for a middle aged first offender who committed similar offences on a consenting 20 year old complainant.

As to the personal circumstances of the defendant, his counsel is correct that these are fully canvassed in the pre-sentence report. In particular the impact a prison sentence will have on the defendants own son from his deceased spouse must also be taken into consideration. Such innocents often become the unfortunate debris of criminal offending. I have also taken into account the expression of remorse coupled with the apology given by the defendant. I accept the defendants admission that he made a terrible error of judgment which he regrets. I have also accepted he has apologised to the complainants family which apology appears to have been fully accepted. The history of this case shows an obvious reluctance by the complainant and her family to pursue criminal charges and the victim impact report demonstrates a desire by the complainant to put these matters behind her and move on with her life with her new partner. I also take these matters which involve the complainant very much into consideration.

A significant final factor not referred to by either counsel in this matter but which has a substantial bearing on the sentence the court must impose is the fact that these offences were committed almost five years ago, in the year 2002 . There is much merit in the legal maxim that justice delayed is often times justice denied. And there is much to be said about the early pursuit and resolution of criminal charges against an offender in sexual matters. The delay here seems to have been due to late pursuit of a complaint with the police together with subsequent delays inherent in the court processes itself. If it were not for these delays, I would have been mindful of imposing a sentence similar to Fanuasa namely one of 18 months imprisonment. However because of that delay and in the exercise of the courts discretion as to general leniency, I reduce the sentence to a lesser period. The defendant will be convicted and on each charge sentenced to 12 months imprisonment, all terms are to be served concurrently.

An order suppressing publication of the name and any other details that may serve to identify the complainant in this case is to issue.

NELSON J.