Police v Mapusaga [2010] WSSC 82 (13 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

ELIAPO MAPUSAGA,
male of Vaigaga
Defendant

Presiding Judge: Justice Slicer

Counsel: G Patu & L Taimalelagi for the prosecution
M Tuatagaloa for the defendant

Hearing: 12 & 13 July 2010
Sentencing: 13 July 2010

Charge: Indecent Assault

SENTENCE

1. The defendant Eliapo Mapusaga now aged 67, has pleaded guilty to the indecent assault on his step-daughter then aged 21. The maximum penalty for an act of indecency on a girl or woman over the age of 16 years as provided by the Crimes Ordinance 1961, section 54 is that of 5 years imprisonment.
   
2. On 16 February 2008, the complainant was asleep. Eliapo went to her bed and committed acts of indecency. The complainant objected and escaped by saying that she needed to take a shower. When she returned, he repeated his attempts of sexual intimacy against her will.
   
3. The matter was reported to police and Eliapo admitted the conduct. He was charged with 6 offences, 5 of which were withdrawn on the day of the hearing. He then pleaded guilty to this information. He is entitled to the benefit of that plea.
   
4. The complainant's mother states that in 2008, Eliapo sought forgiveness from his step-daughter and she accepted his apology.
   
5. The defendant is 67 years old. He has no previous record. He has raised four other children aged between 35-40 years. A sibling, older than the complainant says he has been a good father and had shown special care for the complainant.
   
6. He has harmed someone whom he loved and who trusted and loved him. He has shown remorse and shame and has been forgiven by his family.
   
7. In Police v Oto [2009] WSSC 53, the defendant aged 62 was sentenced to 12 months imprisonment for similar acts of indecency on a girl aged 18 who was living under his care. The sentence was significantly reduced because of the good history of the offender and the payment of a large fine to his village.
   
8. In this case, the defendant has no means to pay compensation to his step-daughter.
   
9. The defendant has spent 3 months in custody for this matter.
   
10. In R v F [1998] TASSC 74, I dealt with the question of how a court takes into account an adult victim's wishes and ambivalent attitude to the offender. An adult-child betrayed by a parent might require punishment of the offender as a vindication of the harm caused. But destruction of an otherwise good parent will cause that person to feel responsible for the retribution. The victim's attitude is not decisive since the wider needs of the community are relevant.
    
11. The competing interests of the community and the family are discussed by Professors Bowman and Mertz in an article entitled;
    

A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy (1996) 109 3 Harv L Rev 551, which although concerned with third party proceedings, deals with the inter-relationship of the legal process with the primary aim of assisting in the recovery of the victim. They state at 593 - 596:

"Last, but certainly not least, the community at large has substantial interests in this area of law, including (1) the deterrence of child abuse, (2) the rehabilitation of adult survivors who without treatment may live less productive lives, become abusers themselves, or possibly engage in violent crime, (3) the appropriate use of the courts, and (4) the maintenance of families.

First, the community has an interest in deterring child abuse by calling abusers to account and by encouraging mental health professionals to investigate and to intervene in situations of suspected abuse. Mandatory child abuse reporting laws in every state illustrate the strength of this public policy interest.

Second, the community has an interest in the rehabilitation and treatment of adult victims of childhood abuse, given the apparent correlation between past child abuse and crime. Additionally, many abusers have themselves been sexually abused in childhood. To stop this cycle of violence requires at least two types of intervention: first, calling abusers publicly to account in order to stop them from abusing, to deter others, and to make it clear that society will not condone such behavior; and second, treating children wounded by abuse before the pattern is repeated in the next generation.

...

Third, society has an interest in the appropriate and efficient use of its court system; this consideration underlies traditional policy arguments based upon administrative convenience.

...

Fourth, and finally, society also has an interest in protecting families from disruption. On the one hand, therapy leading to 'recovered' memories of abuse and to intrafamilial law suits for civil damages or criminal remedies for that abuse can be very disruptive of family unity and tranquillity. If the state's interest is seen, as it historically has been, as the maintenance of the family as a private unit, shielded from public intervention even if it is internally dysfunctional, one might say that maintenance of family unity for its own sake is in the interests of the state. On the other hand, the state could embrace another vision of family, one that allows change and challenges to traditional authority. Therapy that exposes the harmful weaknesses of old patterns may ultimately strengthen all families. It permits individuals injured by family abuse to recover and allow reconciliation and reunion and new and healthier patterns within the family of origin. If the family of origin does not survive the disruption, such therapy causes deep pain to the individuals involved; but when the family has been dysfunctional, the root to the development of healthier families, including those of abuse survivor's own children, lies through such disruption."

12. In R v F (supra) the court considered the competing interests and stated;
    

"During the course of the sentencing hearing, the complainants articulated, through Crown counsel, their response to this tension. Their commendable response was that they required not vengeance but justice. Regrettably the concept "justice" is one which law, with all its imperfections, is unable to provide. The courts ought pay regard to community response, while not giving way to unreasoned cries for vengeance (Inkson (supra)), but ought not ignore the possibility that the sanction might cause further unnecessary harm to the victim. For a child to feel greater harm by the imprisonment of a parent for sexual crimes long committed would be an inappropriate use of the criminal justice system. Yet to give total effect to the dilemma of a child of the offender would be equally a betrayal of the community and that child. The Court would be abrogating its responsibility and passing such to the child, and this ought not be permitted. In the case of T and S, the Court accepts that both require retribution, and at the same time, hope that their father will not suffer because of their complaint. The Court understands and respects their wishes. The responsibility for the sanction is that of this Court alone. Their dilemma is heard and taken into account, but the determination of the Court is not solely based on their response, but on the wider needs of the community."

13. Here the question is the degree to which the court should ameliorate the penalty to take into account the forgiveness of an adult victim, the age of the offender and the conduct of an otherwise good parent.
    
14. On balance I will ameliorate the penalty. The age of the offender suggests that it is unlikely he will re-offend. He has served 3 months in custody.
    
15. The court will impose an effective suspended sentence. This form of sentence should not be regarded as a precedent. It is a response to a specific circumstance where an adult complainant and the family have been able to forgive an otherwise good parent. The appropriate penalty would have been a further period in custody of between 6-9 months over and above the 3 months served.
    

ORDERS

1. Eliapo Mapusaga is convicted of the crime of Indecent Assault.
   
2. Eliapo Mapusaga is to appear before the court if called upon within 3 years of the date of this order.
   
3. It is a condition of this order that the defendant commits no crime or offence of a sexual nature or involving violence to a person or property within that period of 3 years.
   

JUSTICE SLICER