Police v M [2009] WSSC 24 (24 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

M
Accused

Counsel: K Koria and G Patu for prosecution
S Leung Wai for accused

Sentence: 24 March 2009

SENTENCE BY SAPOLU CJ

The charges

1. The accused was charged with one count of rape, one count of attempted rape and one count of having sexual intercourse with a girl between the age of 12 years and the age of 16 years. He pleaded not guilty to the counts of rape and attempted rape but guilty to the count of having sexual intercourse with a girl between the age of 12 years and the age of 16 years.

2. After a two days trial before a panel of assessors, the accused was found guilty of both counts of rape and attempted rape.

The offending

3. According to the testimony of the complained at the trial, sometime in July 2007 she went with the accused, who is her stepfather, to their family’s taro plantation. Whilst at their plantation, the complainant said the accused threw a stone at her which hit her on the head and as a result "she did not know anything". The accused then struck her with the blade of his bush knife. He then undressed her and had sexual intercourse with her. The complainant also said that she was not happy with what the accused did to her.

4. The complainant also testified that she told the accused that she would report what had happened to her mother, the wife of the accused. However, the accused threatened her that if she did that, he would bring out her intestines using a bush knife. So the complainant did not report to her mother what the accused had done to her because she was afraid.

5. The complainant also testified that in a previous incident at their family’s taro plantation, the accused had also tried to have sexual intercourse with her but he was unsuccessful. She tried to move away, but the accused held on to her. She also said that she was not happy with what the accused did to her.

6. The complainant further testified that on that occasion, the accused told her not to tell her mother or he would slash her head with the bush knife.

7. The accused in his testimony gave quite a different version of what happened. He testified that these incidents took place, not at their family’s plantation, but at their home in the village.

8. The accused said that the first time he had sexual intercourse with the complainant, she came and laid down beside him and stretch out her legs. He said the complainant willingly took off her clothes and consented to having sexual intercourse with him. He denied that he threatened the complainant.

9. In relation to the second incident, the accused testified that it also took place at their family’s house in the village. He said that the complainant willingly took off her clothes and they had sexual intercourse.

10. The accused also denied that he threatened the complainant on that occasion.

11. By their unanimous verdict of guilty, the assessors must have believed the complainant’s testimony and not that of the accused.

The complainant

12. According to the testimony of the complainant’s mother, the complainant is her eldest child and she is now 16 years old. She was 14 years old at the time of the alleged offences in 2007.

13. The complainant testified that she had been living elsewhere before she went and stayed with her mother and her husband, the accused. She also testified that she had been living with her mother and the accused for five months when offences were committed on her.

14. As a result of the accused having sexual intercourse with the complainant, she became pregnant and gave birth to a child.

15. The victim impact report also shows that as a result of what happened, the complainant feels ashamed to see other people, especially the ones who know about what happened to her. She is also no longer attending school because she is ashamed of what the accused did to her. She also says what happened has lowered her self-esteem.

The accused

16. The accused, as it appears from the pre-sentence report, is 57 years of age having been born on 10 March 1952. He has a young daughter from the complainant’s mother. He is also a planter.

17. It also appears from the pre-sentence report that the accused is still denying the charges of rape and attempted rape against him. He has not even made an apology concerning this matter. He still maintains his innocence. This is no sign of remorse.

18. The accused is a first offender.

Aggravating features

19. This case involves a serious breach by a stepfather of his stepdaughter’s trust. That both incidents occurred at the plantation where the accused and the complainant went to, suggests that these offences were pre-meditated and that the accused took advantage of the vulnerable position the complainant was in at the relevant times.

20. Violence was also used. The accused threw a stone which hit the complainant on the head, then struck her with the blade of his bush knife, before raping her. This was followed by threats of violence that if the complainant told her mother, the accused would bring out her intestines using a bush knife. As a matter of common sense, how could the accused realistically have said that in such circumstances he had an honest belief that the complainant consented?

21. Threats of violence were also used by the accused when he attempted to rape the complainant.

22. The age difference of 41 years between the accused and the complainant is also an aggravating factor.

23. So is the fact that the complainant became pregnant as a result of what happened and gave birth to a baby. The psychological impact of the offending on the complainant further aggravates the offending. One of the results of this is that the complainant is ashamed to attend school anymore. Her child from the accused will also be a constant reminder of what the accused did to her. This is likely to remain with the complainant for the rest of her life.

Mitigating features

24. The only circumstance in favour of the accused is that at his present age he is a first offender.

The decision

25. The frequency with which this type of sexual offending involving a father or stepfather and a daughter is continuing to come before the Court is too high. As a consequence, the Court, in the interests of the community, has responded with custodial sentences, usually of 10 years or more.

26. Considerations of retribution and deterrence have been given much more weight then considerations of rehabilitation.

27. One of the sad factors in this type of case, is that, more often than one would expect, the mother takes sides with the offending husband and neglects her daughter. This has also happened in this case as it appears from the victim impact report.

28. In setting a starting point for sentence in this case, I take into account the totality of the offending, that is to say, the rape and the attempted rape which were committed at different times. I then take into account the aggravating and mitigating features relating to the offending. I will take 12 years as the starting point for sentence.

29. I will deduct 6 months for the fact that the accused is a first offender. That leaves 11½ years which is the sentence I will impose on the rape charge.

30. For the charge of attempted rape, I will impose a custodial sentence of 6 years.

31. For the charge of having sexual intercourse with a girl between the age of 12 years and 16 years to which the accused had pleaded guilty, I will impose a custodial sentence of 18 months taking into account the early guilty plea and the fact that the accused is a first offender.

32. All in all then, the accused is sentenced to 11½ years imprisonment on the charge of rape, 6 years imprisonment on the charge of attempted rape and 18 months imprisonment on the charge of having sexual intercourse with a girl between 12 years and 16 years old. All sentences to be concurrent. Any time the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution
Leung Wai Law Firm for accused