Police v F [2009] WSSC 32 (30 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

"F",
male of Satapuala.
Accused

Counsels: Ms F. Vaai for the prosecution
Mr LT. Malifa for the accused

Sentence: 30 March 2009

SENTENCE

The facts:

The defendant appears for sentence on a charge that he did indecently assault his at that time 8½ year old daughter. The facts were canvassed in the courts judgment dated 3 March 2009 and essentially show he effected this assault by placing his penis into her vagina but thankfully was unable to penetrate the complainant and used his finger to digitally penetrate her causing a partial rupture of her hymen as found by the doctor who examined her the day after the sexual assault. The complainant's evidence was that this digital penetration caused her pain.

All this was done at the defendant's house during the day while the defendant's partner was away at a village meeting but the assault was interrupted by the defendant's partner's sister who came to the house looking for the defendants young son to run an errand. The evidence also showed that the defendant had earlier sent his young son to the bathroom so that he could be alone with the complainant. The defendant was clearly trying to have sex with his 8½ year old daughter and had the aunty not interrupted he may have succeeded. I can think of no words sufficient enough to convey to the defendant the moral outrage and social condemnation of actions such as those that he performed on the young girl.

The defendant continues to protest his innocence but I am well satisfied from the evidence the court heard of his guilt in this matter. Because the complainant is his own 8½ year old daughter, there will be a suppression order to issue prohibiting publication of the name and village of the complainant and any other detail that may serve to identify her. For the further protection of her identity that prohibition will necessarily have to extend to the name and village of her father the defendant. Any official court report of this case will be amended to read Police v "F".

CRC and the applicable sentencing principles:

The applicable sentencing principles have been referred to by the prosecution in their written submission. And as noted Samoa is signatory and has ratified the United Nations Convention on the Rights of the Child or the "CRC" as it is commonly referred to. As noted by this court in its decision in Police v Faiga [2008] WSSC 96:

"The preamble to that Convention recognizes that the child for the full and harmonious development of his/her personality should grow up in a family environment in an atmosphere of happiness, love and understanding.

And further that the child by reason of his/her physical and mental immaturity needs special safeguards protection and care including appropriate legal protections."

The CRC relevantly provides in article 19(1):

"State Parties shall take all appropriate legislative administrative social and educational measures to protect the child from all forms of physical abuse including sexual abuse."

Article 34 of the Convention goes on to say:

"State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes State Parties shall in particular take all appropriate national measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity."

Counsel for the defendant has referred to the applicable sentencing principles for cases such as this and these principles have been the subject of judicial decision by our highest court. Again I quote from Faiga:

"The Court of Appeal decreed in Attorney General V Maumasi [1999] WSCA 1 that all Samoan Courts should have regard to the articles of the Convention on the Rights of the Child in cases within its scope. No less a personage than Lord Cooke of Thorndon who was for many years the president of our Court of Appeal has stated that the following of the principles of the CRC should not be mere window dressing.

This is a clear mandate to the courts of this country to have regard to the provisions of the CRC in appropriate cases. The list of appropriate cases undoubtedly includes cases involving the sexual abuse of children. A child has the inalienable right to be protected from such behaviour and more than lip service must be paid to the provisions of the CRC. This is one of the reasons why the courts view offending against young and vulnerable children as serious and deserving of stern sentences."

The courts of this country routinely apply the CRC in its sentencing decisions see e.g. my brother Justice Vaai in Police v Wright [2003] WSSC 30 where with his customary succinctness he said:

"We comply and adhere to the principles of the CRC."

As to other applicable sentencing principles again I quote from Faiga:

"Another reason is the increasing prevalence of sexual offending involving young children. Terms of imprisonment have been imposed in the past and will continue to be imposed in the hope of deterring not only the particular offender involved but also others who may be like minded to give in to such lustful urges. The sentence of the Court must also convey society's intolerance of this type of offending."

Aggravating Factors:

These have been correctly highlighted by the prosecution sentencing submission. Firstly the offending in this case involved a gross breach of trust. The defendant is the complainant's biological father. His duty is to love and nurture the complainant not to take advantage of his position and the complainant's vulnerability. As stated by this court in Police v Vui [2008] WSSC 27:

"Young girls are entitled to expect that within their own families they would grow to maturity unmolested and undefiled by the lust of their fathers."

Another aggravating factor is the very young age of the complainant. She is 8½ years old compared to her father who is listed as being 33 years of age. Also to be considered is the nature of the indecent acts carried out. The defendant used his penis and a finger to molest the complainant. A further factor is the trauma caused to the complainant having to re-live such an unpleasant experience in court. The defendants not guilty plea meant the complainant had to appear and relate in front of a room full of strangers what had happened to her. That she was able to do so in a credible and believable fashion is commendable. That she was forced to do so by the defendant whose only defence was a blank denial of everything is shameful.

Also a further aggravating factor is the pre-meditated nature of the offending. The trial evidence showed that the defendant sent his young son the only other occupant of the house to the toilet so that he could be alone with the complainant and have his way undisturbed. It was fortunate the aunty came along and interrupted the defendant.

A further aggravating factor is the emotional harm done to the complainant. No victim impact report was made available to the court and I do not know why but I accept the prosecution submission that given the young age of the complainant there would be psychological damage from being indecently assaulted by her own biological father. It should also be taken into account that there has been no remorse expressed by the defendant who continues to maintain he is innocent of all these things.

Mitigating factors:

In mitigation counsel for the defendant has pointed to a number of factors. He said this is the first time the defendant has been before a court. Police are unable to produce any evidence of an alleged previous conviction and therefore the defendant must be treated as a first offender and I accept that.

Secondly the banishment from the defendants home village. Although this was not confirmed by the probation office in their pre-sentence report, I will accept this in mitigation and make the appropriate allowance for it.

Counsel also asked the court to have regard to the fact that the complainant's mother was prepared to come to court and plead for leniency for the defendant but had been prevented from doing so by her family. Whatever the case may be I cannot have regard to a plea that has not been made and no allowance can therefore be made for that.

Counsel also referred to the defendant's previous good character and as I have said I accept he is a first offender and his previous good character is reflected in his record and will be taken into account.

Decision:

This is a serious case of indecent assault because of the young age of the complainant and the fact that it was her own father who indecently assaulted her. The maximum penalty for the offence at law is seven (7) years imprisonment. As an appropriate starting point I take 5½ years given the aggravating and other factors of the case. I will deduct six months for the defendants previous good character and clean record, deduct 6 months for the defendants banishment which is a penalty that was imposed on him by his village council, I will deduct a further 6 months for the other factors contained in the pre-sentence report and in the exercise of the courts general leniency. This makes a total deduction of 1½ years, that leaves a term of 4 years, the defendant is convicted and will be sentenced to four (4) years imprisonment.

JUSTICE NELSON