Police v P [2009] WSSC 16 (2 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

P
Accused

Counsel: K Koria and R Titi for prosecution
R V Papali’i for accused

Sentence: 2 March 2009

SENTENCE BY SAPOLU CJ

The charges

1. The accused appears for sentence on six charges of rape. Initially he pleaded not guilty to all charges and the case was adjourned for hearing to the week commencing 9 February 2009.

2. Even though it is true that during some of the call-overs prior to the date of hearing, there was indication from defence counsel that there was a likelihood of a change of plea from not guilty to guilty, it appears from the written submissions of defence counsel this was because the defence was awaiting further trial documents from the prosecution. Defence counsel also advised the registrar one week before the hearing that the accused intends to withdraw his not guilty plea.

3. The accused’s plea of not guilty was only entered on the morning of the trial.

The offending

4. As it appears from the summary of facts, the accused is a 36 year old male and the victim is a 15 year old female. The victim is a biological daughter of the accused.

5. On Friday 25 January 2008, the mother of the victim went to Savaii with the victim’s younger siblings to visit their family. The victim stayed behind with the accused.

6. At around 8pm that night, the victim got ready to go to bed inside her room when the accused called out to her to come and sleep with him in the sitting room. The victim refused but the accused was insistent and eventually the victim came and laid down beside the accused.

7. After a while, the victim felt the accused pulling up her t-shirt. She tried to wriggle away. However, the accused held her down and threatened her not to make any sound. The accused then continued to take off her lavalava and her panties.

8. At that time, the victim screamed and tried to get away but the accused covered her mouth and climbed on top of her. The accused then started kissing her on the lips and continued downwards to her private part. The accused spread the victim’s legs, inserted his penis inside her vagina and had sexual intercourse with her until he was satisfied. After sexual intercourse, the accused told the victim to go back to sleep and not to tell anyone about what had happened or else he would beat her up.

9. On a Friday night in March 2008, the victim went to a youth practice at their church. After the youth practice, the victim came outside and found the accused waiting to pick her up.

10. The accused told the victim to get inside the car and she did so. The accused then drove to a secluded area and turned off from the main road onto a dirt road. The accused stopped the car and instructed the victim to get out while he spread out a lavalava on the ground.

11. The accused further instructed the victim to take off all her clothes and lie down on the lavalava. He then got on top of the victim, started kissing her on the lips and continued downwards to her private part. After a while, the accused spread her legs, inserted his penis inside her vagina and had sexual intercourse with her.

12. On their return home, the accused verbally threatened the victim if she told her mother or anyone else about what had happened.

13. On a Friday night in April 2008, the victim went to the youth practice at their church. Before the victim’s youth practice was finished, the accused arrived and excused her from the practice. He then drove the victim to the some secluded place they had gone before.

14. Upon arrival at that place, the accused instructed the victim to take off her clothes before he got on top of her. He started kissing her lips and body continuing down to her private part. He then spread her legs, inserted his penis inside her vagina and had sexual intercourse with her.

15. On their return home, the accused told the victim not to tell her mother or anyone else about what had happened.

16. On a Saturday in May 2008, the victim’s family including the accused, all went to church leaving the victim by herself at home. Not long after the family left, the accused returned home and went straight inside the victim’s room. He told the victim to take off her clothes. He then got on top of the victim and had sexual intercourse with her.

17. On Saturday 21 June 2008, the victim’s family prepared to go to church but the accused prohibited the victim from going to church. Not long after the family left for church, the accused returned home and took the victim inside his bedroom. He removed the victim’s clothes and had sexual intercourse with her.

18. Afterwards, the accused instructed the victim to get ready for church and he threatened her not to tell her mother or he would kill her.

19. On Saturday afternoon 12 July 2008, the victim’s family were all prepared to go to church for the afternoon service while the victim was asleep. The accused woke up the victim, hastily took off her clothes and had sexual intercourse with her.

20. Then on September 2008, the accused was apprehended by the police and charged, inter alia, with six counts of rape.

The accused

21. The accused is a self-employed mechanic. He is also the sole provider for his wife and four children of whom the victim is the eldest.

22. As the pre-sentence report shows, the accused has already apologised to the victim and she forgave him.

23. The accused is also a first offender. He has also pleaded guilty to the charges though it was a delayed guilty plea.

The victim

24. The victim, as already mentioned, is a biological daughter of the accused. She is the eldest of the accused’s four children (three girls and one boy). She was attending school at the time of these offences and is still doing so.

25. As a result of the present offences, the victim is no longer staying with her family but with a relative at a different village.

26. As the victim impact report shows, this was the first time something like this has happened to the victim. It suggests that the victim was a virgin at the time she was first raped by the accused.

27. As the victim impact report also shows, the victim was always sad when the accused had sexual intercourse with her as she felt it was her own father doing such things to her.

28. The victim impact report further shows that ever since these incidents happened, the accused would just beat up the victim without any reason but he never used to beat her up before.

29. The victim is also feeling ashamed and concerned in case people find out about what has happened to her. So she has tried to keep this matter to herself and not to tell other people about it.

Mitigating features

30. The only features of this case which can be described as mitigating are the delayed plea of guilty by the accused and the fact that he is a first offender. I do not consider the forgiveness by the victim of the accused when he apologised to her as a mitigating factor in this case.

Aggravating features

31. This is undoubtedly a case of gross breach by a father of his daughter’s trust in him. The accused clearly abused his own daughter’s vulnerability because of her trust in and dependency on him.

32. This is also not a case of one incident but six incidents of rape committed at the rate of about one rape a month over a period of seven months.

33. Furthermore, on one occasion after the accused raped the victim, he threatened the victim that he would kill her if she told her mother about what had happened. On other occasions after the accused had raped the victim, he threatened to beat her up if she told anyone about what had happened. It also appears from the victim impact report that ever since these incidents of rape occurred, the accused would beat up the victim without any reason, something the accused never used to do before the rapes occurred.

34. The age difference of 21 years between the accused and the victim is also an aggravating feature.

35. So is the fact that the victim was a virgin at the time she was first raped by the accused as it appears from the victim impact report.

36. The psychological impact of this offending on the victim as set out in the victim impact report must also be taken into account. The victim is also most likely to live the rest of her life with the thought that her father had raped her and with the memories of how her father had raped her.

37. Two of the rapes also took place inside the victim’s family home, a place she would expect to be safe. Because of what happened, the victim is no longer safe in her own home and she now lives with a relative in another village. She has been separated from her mother and younger siblings because of the accused.

38. I am also mindful of the frequency with which this type of offending is coming before the Court and the response the Court has taken to these very serious crimes.

The decision

39. In passing sentence in this type of case where an accused appears for sentence on several sexual offences committed over a period of time, the usual approach taken by the Court is to apply the totality principle. That is to say, you take into consideration the totality of the offending by the accused in terms of all the offences on which he is appearing for sentence. This is also relevant in setting a starting point for sentence. The gravity of raping a victim six times is greater than the gravity of raping a victim only once.

40. Having regard to the degree of criminality involved in all these offences which is to be determined by considering the mitigating and aggravating features relating to the offending, I will take 20 years as the starting point for sentence.

41. I will then deduct 17½% for the delayed plea of guilty by the accused. That leaves 16½ years. I will deduct 6 months for the fact that the accused is a first offender. That leaves 16 years.

42. The accused is sentenced to 16 years imprisonment on each of the six charges against him. All sentences are to be concurrent so that the total sentence is 16 years imprisonment.

43. The period of time that the accused was kept in custody is to be further deducted from that sentence.

CHIEF JUSTICE

Attorney General’s Office, Apia, for prosecution
Toa Law