Police v Toso [2009] WSSC 38 (1 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

ATINAE TOSO
male of Satitoa, Aleipata
Accused

Counsel: L Petaia for prosecution
D Clarke for accused

Sentence: 1 May 2009

SENTENCE BY SAPOLU CJ

The charges

1. After a two days trial, the accused was found guilty of six out of twelve charges of having sexual intercourse with the complainant, his under 21 years old foster daughter living with him as a member of his family. The accused is now appearing for sentence on those charges.
   

The offending

2. The complainant in this matter is a niece of the accused. She is a daughter of the accused’s sister.
   
3. When the mother of the complainant passed away and her father was imprisoned, the complainant and her siblings stayed with the accused and his wife who looked after them.
   
4. In September 2007, the wife of the accused was admitted at the hospital in Motootua. At that time, the accused started to have sexual intercourse with the complainant at their home at Satitoa, Aleipata. The complainant was then between 18 and 19 years old.
   
5. The accused had sexual intercourse with the complainant four times in September 2007 and twice in October 2007. At that time, the complainant was staying in the Apia area attending school. It was when she returned home for the weekends that the accused had sexual intercourse with her.
   
6. As a result of the acts of sexual intercourse committed by the accused, the complainant became pregnant and gave birth to a child in 2008.
   

The complainant

7. As earlier mentioned, the complainant who is 18 to 19 years old is a niece of the accused and at the material times was staying with the accused and his family as his foster daughter. Her mother, who was a sister of the accused, had passed away and her father was serving a term of imprisonment.
   
8. As also mentioned earlier, the complainant became pregnant as a result of the acts of sexual intercourse committed upon her by the accused and she has given birth to a child.
   
9. Because of these incidents, the complainant is no longer staying with the accused and his family.
   

The accused

10. The accused was 37 years old at the time of the offending. He is married with five children and is the sole breadwinner for his family.
    
11. The pre-sentence report shows the accused as a person who serves his church and community well and he is a highly skilled and valued carpenter.
    
12. The accused has also been heavily fined by his village. He has also apologised to the complainant’s father and her family.
    
13. The accused is also a first offender
    

Aggravating factors

14. All the aggravating factors which are relevant in this case are set out in the very helpful sentencing memorandum by counsel for the prosecution. These are:
    
    • (a) the gross breach by the accused of the complainant’s trust in him as her foster father;
    • (b) the vulnerability of the complainant;
    • (c) the age difference of about 19 years between the accused and the complainant;
    • (d) the offending was repeated six times; and
    • (e) the complainant became pregnant and gave birth to the accused’s child which will be a constant reminder to her for the rest of her life of what the accused did her.
      

Mitigating factors

15. The mitigating factors in this case are set out in the written submissions by counsel for the accused. These are:
    
    • (a) the accused is a first offender and was a person of good character prior to the commission of the present offences;
    • (b) the accused has been heavily fined by his village so that he has already been punished for this offending;
    • (c) the offending was consensual according to the accused but not confirmed by the complainant; and
    • (d) the accused has apologised to the complainant’s father but counsel for the prosecution points out that the denials by the accused during the trial that the complainant was never his foster daughter are a sign of lack of remorse.
      

The decision

16. The general principles for sentencing in this type of case are now well settled and well known. It is the application of those general principles to the circumstances of the particular case, the identification of the relevant aggravating and mitigating factors, and deciding the weight to be given to the various aggravating and mitigating factors which is the difficult task for a sentencer.
    
17. Setting a starting point for sentence is also not always an easy task. Having regard to the total criminality of the accused’s offending, I will take 5 years as the starting point for sentence. I will deduct 9 months for the mitigating factors relating to the accused. That leaves 4 years and 3 months.
    
18. The accused is convicted and sentenced to 4 years and 3 months imprisonment on each of the six charges for which he was found guilty. Those sentences are to be concurrent.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution
Latu Ey and Clarke Lawyers