Police v PM [2011] WSSC 112 (1 August 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

PM
Defendant

Counsels: Ms L Su'a-Mailo and F E Niumata for prosecution
Defendant unrepresented

Sentence: 01 August 2011

SENTENCE

The summary of facts in this matter which the defendant accepts relate that he is a 55 year old male married with 10 children. The complainant is the defendants biological daughter who is 17 years of age but at the time this offending began was only 14. The defendant has pleaded guilty to 5 counts of rape that occurred in the years 2009 and 2010, two in 2009 and three in 2010.

In respect of the first count of rape in 2009 the summary relates that on a day during that year while the complainants mother was away selling vegetables the defendant was at home with his children. The defendant sent his other children to do chores outside of the house leaving him and the complainant alone in the building. He then began to ask questions of a sexual nature of the complainant and began making sexual advances towards her. He told her that he wanted to show her how intercourse was carried out between males and females. The summary relates that the complainant rejected the defendants advances but he persisted. Although she was resisting he managed to take off her clothing, laid her on the floor and succeeded in forcefully inserting his penis into the complainants private part. This shocked the complainant who felt pain and began to feel faint as this was her first experience of a sexual nature. This did not deter the defendant from continuing to have intercourse with the girl until he was satisfied at which point he then instructed her to get dressed and not to tell anyone about what had just happened. The summary continued that it took some time for the complainant to recover and she laid on the floor until she was able to do so.

The second charge arises out of a further act of intercourse in the year 2009 and occurred on a day when the complainant was resting and the defendant came to her and told her they are going to go to the plantation to "fai fafie" or search for firewood. When they arrived in a bushy part of the plantation the defendant demanded the complainant remove her clothing. The complainant refused so the defendant grabbed her and forcefully removed her clothes. He then laid her on the ground and had forceful sexual intercourse with her until he was again satisfied.

The third count of rape is said to have taken place between the parties on a date in 2010 where again the defendant took the complainant to the plantation. He threatened to beat her up if she did not undress so she did so whereupon he then forced her to the ground and had sex with the complainant. The summary relates that the complainant pleaded with the defendant to stop because she was in pain however he continued with the intercourse until he was satisfied.

The fourth count of rape occurred also in the year 2010 at a time when the complainants mother had gone to play bingo. The defendant went to the complainant who was at that time asleep, woke her up and told her to remove her clothing. The complainant refused so the defendant removed her clothing and panties himself and again had forced sexual intercourse with the girl until he was satisfied. Afterwards he told her to get dressed and not to tell her mother about what had happened.

The fifth and final count of rape relates to an incident again on a day in 2010 when the complainant went to the defendant to ask for permission to go and hang out with her friends. The defendant told her that she cannot go to her friends unless she first has sex with him. The summary relates that the complainant was disgusted by the defendants demand but submitted to it and the defendant led her to the plantation behind their house where again the parties had sexual intercourse.

The summary relates that throughout the year 2010 the complainant lived in fear and distress of the defendants action and says that he threatened her and told her that if she tells anyone about what had happened she would be taken to jail. And that the consequences of that also would be banishment of their family from the village including her mother. It is not clear from the police summary of facts what eventually led the young girl to speak up but it states that on Friday the 20 May this year she finally told her cousin about the defendants sexual abuse of her. Something which no doubt took a lot of courage on her part considering her circumstances. The matter eventually found its way to the complainants mother who accordingly notified the police which leads us to the defendants appearance today for sentence on 5 counts of rape.

A suppression order has already been issued and I would remind the honourable ladies and gentlemen of the press about it and its application to not only the complainants details but also because the defendant is her father the defendants details including their villages.

The complainant in her victim impact report relates that the first instance of intercourse was painful as it caused her to lose her virginity. The subsequent acts of intercourse also caused her a great deal of pain and discomfort and no doubt mental distress. She said she never suspected the defendant had sexual feelings for her and she loved and trusted him as a father. The actions of the defendant came as a great shock to her and caused much anger and confusion in her mind. Things which are all quite understandable. It is clear from the facts of this case that her silence was extorted by fear and the threats by the defendant. She says in the report that she kept quite about all these hoping that he will change and clung to his promise each time that he will not do this sort of thing again. Promises which the defendant clearly had no intention of keeping. The complainant has since left her home and is trying to move on with her life and the reports states that she never wants to return to her village of residence which is not surprising. Curiously the report also states that she feels sorry for the defendant because despite her actions he is still her biological father.

This defendant is a married man with 10 children and is 40 odd years older than the complainant who is his biological child. He is said in the probation office report to be a planter and fisherman and was previously regarded in his community as a loving father serving the church and the village. Obviously this was far from the truth because behind this public facade lay an unspeakable evil and degradation of one of his daughters. The defendant is guilty of a premeditated and gross breach of trust and he used his position as head of the family household to satisfy his lusts on a 14 year old girl. These offences were committed within the confines of a family environment, an environment where young girls are entitled to grow up safe and protected from this sort of behaviour. The primary protector of the young girl should have been her father the defendant. A defendant whom has by his actions deprived her of her innocence and of those childhood things that she is entitled to not only by the laws of this country but under the laws of many countries. His offending is further aggravated by the fact that it occurred over a two year time span. A time during which the complainant must have lived in fear of what was happening. And in fear of the defendant repeating his conduct which he did on no less than five occasions.

The proper sentencing approach to cases like this where a defendant carries out sexual offending over a period of time is to apply what is known as the totality principle. As stated by the Chief Justice in Police v P [2009] WSSC 16 that is to say that 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. Because the gravity of raping a victim a number of times is greater than the gravity of raping a victim only once.

The maximum penalty for each count of rape that you are charged with is life in prison. There have been life sentences imposed by this court for example Police v Z (unreported) 13 July 2005. Multiple rapes of a biological daughter have also attracted penalties ranging from 16 years in Police v P [2009] WSSC 16 to 20 years in Police v Niu Pulusi (unreported) 22 July 2005 and Police v MT [2011] WSSC 70. As stated in Police v P while the sentence for each must be determined by its circumstances sentences passed in similar cases provide a useful guidance as to the range of sentences which the court has imposed in cases of a similar nature. This is a legitimate consideration in passing sentence.

Considering all circumstances of this matter the aggravating factors as well as the fact that you are a first offender who has pleaded guilty I consider this to be a case at the top end of the scale. In respect of these 5 counts of rape you will be convicted and sentenced to 20 years imprisonment. Your remand in custody time awaiting sentence is to be deducted.

............................
JUSTICE NELSON