Police v FS [2011] WSSC 120 (26 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

FS
Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Ms S Ponifasio for defendant

Sentence: 26 September 2011

SENTENCE

This defendant appears for sentence on seven counts of incest and in case one has not been issued there will issue a suppression order regarding the details of all parties. That order extends in particular to the village of the defendant and her father in Samoa as well as the place where these offences occurred. The order is perhaps wider than normal but in this case is necessary because there is much stigma attached to this sort of offending.

The case is unusual in that the defendant here is a married female who has been charged together with her father with committing incest. The father has pleaded not guilty but the defendant pleaded guilty to the charges against her. It appears from what I have read that the defendant is an only child and was raised by her maternal grand-parents. The probation office pre-sentence report says that she did not know who her biological parents were until recently and she grew up under the care of aunties and uncles of her extended family. Her biological parents separated some time ago and her biological father left and was living in Australia.

In 2009 one of her uncles took her to meet her biological father for the first time. According to the police summary of facts which the defendant has accepted through her counsel, the father travelled over from Australia for the defendants birthday celebrations. He came over wanting to meet his daughter and to build a house for her and her family to live in. By this stage the defendant was a married woman of 36 years with a husband and several children. No doubt what was intended to be a reunion turned into something far more because on the night of her birthday she had sexual intercourse with her then 61 year old biological father at her place of residence.

The father must have been staying with the defendant and her family because the summary goes on to state that on subsequent nights during this visit the parties had further sexual intercourses all at her house. The father returned to Australia at the end of this initial visit but came back again on a number of occasions. The parties continued with their sexual relationship whenever he returned during the years 2010 and 2011 until the defendant was caught by her husband who reported the matter to the police. By this time the affair had spanned some two years.

It is difficult to understand what drives a woman to have sex with her own biological father. Especially a married woman with what appears to be an otherwise stable family. One can only surmise that it may have been born out of misguided love and affection denied to the parties for many years. But it is not their relationship that is open to question, it is the manner of its manifestation that is unacceptable.

The defendants counsel has argued very strongly for a non-custodial sentence to be imposed. The maximum penalty for the crime of incest is of course 7 years in prison for each count. Counsel argued that the real victim in this case is the defendant. Suggesting that the older more mature father using promises of ongoing financial support and pecuniary reward lured or seduced her client into this incestuous relationship.

That may well be so but it does not absolve this 36 year old married woman from moral or criminal responsibility for her actions. She well knew the man was her biological father and she offended deliberately and callously, the majority of offences being committed in her house and family home where her husband and children also resided. She made a choice which offends the standards of the society which she lives in and its laws. A choice which is taboo under our custom and tradition which ridicules and scorns such conduct. To the extent that it has a special term assigned to it, that of "mataifale".

Furthermore this is not a case of one-off offending, it was committed off and on over a period of two years. The last of the two charges against the defendant relates to a visit and acts that occurred in August 2011. To do something once in a moment of weakness is one thing, to do it deliberately and repetitively over a two year period is criminally more culpable. As well there is no doubt her actions have impacted on the lives of her husband and her 8 children. Not to mention her own extended family and the reputations of all those people in their villages.

It is not in my respectful view in the public interest to treat such behaviour lightly or appear to condone it by imposing on this defendant a non-custodial sentence. Especially when in this jurisdiction defendant fathers are not spared prison for such offending. The sanctity of the father daughter relationship is to be respected as much by daughters as by fathers. That is the message the court must by its penalty send.

But I do take into consideration in the defendants favour what her counsel hassubmitted. That her guilty plea has spared the ordeal and resources of a trial of this matter. Of the defendants expression of remorse for her offending to the police and through her counsel to the court. In her favour is also the fact of her first offender status and her previous good background. And her attempts to heal the rifts her offending has caused within her family as detailed in the probation office report. I also take into consideration her willingness to testify as a prosecution witness in her fathers pending trial. Though I give that factor limited credit as there is no guarantee that will continue to be the case or that a trial will eventuate. I also take into account her banishment from her village as a result of this offending.

There has in my experience been very few cases involving incest where daughters have been prosecuted by the police. There are accordingly no reported decisions on the matter. The only recorded judgment of similar circumstance that I can find is Police v HE (unreported) 15 June 2009 a case of a mother who committed incest upon her adopted son and in that case a prison sentence was imposed by the court. This case therefore to some extent sets a benchmark for sentencing in this sort of circumstances.

Considering all the factors that the court has referred to and applying the principle of totality of sentencing, you will be convicted and sentenced in respect of all seven charges of incest to 3 years in prison.

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