Police v GT [2011] WSSC 125 (19 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

GT
Defendant

Counsels: Ms L Su'a-Mailo for prosecution
Defendant unrepresented

Sentence: 19 September 2011

SENTENCE

The summary of facts from the police in this matter which the defendant has admitted to states that he is a 40 year old male, married and is a tausi aiga. The complainant is his step-daughter being the daughter of his wife. She is presently 23 years of age but at the time this offending began she was only 17 years old. At all material times she was living in the same household as the defendant and his wife and was under his care as a member of his family.

Again there is already issued a suppression order in respect of the details of this complainant. And because of her relationship to the defendant that will by necessity extend to the suppression of publication of details regarding the defendant and in particular the village where both come from and where these offences occurred.

The defendant appears for sentence on five charges. The first charge S2010/11, relates to offending that occurred during the year 2004 and the charge is having sexual intercourse with his step-daughter who at the time was under 21 years of age and living with him as a member of his family. The summary of facts says that the defendant sometime during that year began making sexual demands of the complainant and exerted pressure on her to have intercourse with him because he wanted children but his wife was unable to bear any. The victim initially refused telling him it was improper because he was her mothers husband. But the defendant continued with his efforts and according to the summary after much persistence the victim eventually conceded and the first act of sexual intercourse occurred in the victims room in the house where they lived.

The summary goes on to refer to two other instances of intercourse that occurred between the parties in the year 2004. Both occurring inside the victims bedroom and on this occasion when the victims mother was at home. Sometime after the third instance of sex the victim noticed that she had missed her monthly menstrual cycle and that was because she was pregnant to the defendant. In 2005 a baby boy was born and was cared for by the defendant and his wife as if it were their own biological child.

The summary goes on to state that in 2007 the defendants relationship with the complainant revived again and the couple engaged in two instances of intercourse in the family home. As a result of this the complainant again fell pregnant to the defendant and in December 2008 gave birth to another baby boy. He too was "adopted" by the defendant and his wife.

The matter does not appear to have come to the notice of the authorities or been brought out in the open until this year when an uncle of the complainant visiting from Australia found out about what had happened and reported it to the police. What is not stated in the police summary but what seems to be an inference to be drawn from it is that the complainants mother or the defendants wife probably had knowledge about this matter and what was going on. But said nothing.

As a result of this conduct the defendant is charged with three counts of sex with his step-daughter in 2004 from which she fell pregnant when she was 17 years of age. And two charges of further sexual intercourse with his step-daughter in 2007 when she was 20 years of age which also led to another pregnancy and birth of a second child. The offence the defendant has been charged with is the offence of sex with a related girl and in respect of such an offence it is irrelevant whether the girl consented to the intercourse or not. The relevant statute specifically provides that the consent of the girl is no defence to this sort of charge. The maximum penalty for the offence is 7 years imprisonment.

Having reviewed the facts of this matter I must observe that this is a bad example of this type of offending. The documents before the court including the probation office pre-sentence report suggest that the reason for these sexual encounters between the defendant and the complainant were so that the complainant could bear the defendants children. Because the complainants mother or the defendants wife was barren. But that cannot be true because the complainants mother gave birth to the complainant so she is not barren. It is far more likely the complainant was used as a sexual puppet to satisfy the defendants lusts and that the pregnancies were unfortunate results of these encounters. In any event, the complainant is not a breeding horse to be exploited by the defendant for the purposes of having children.

This family tragedy continues to unfold not only because the defendant faces prison today but this family is now broken up and the two children that were born out of this relationship will one day grow up and want to know the truth of their origins. Knowing the society that we live in it is quite likely that the children will stumble on to the truth beforehand and grow up with the stigma of something that was not of their making. They will become the real victims of what this man did. Such barbaric behaviour must be soundly condemned by the court. It is contrary to Samoan custom which shamefully refers to it as "mataifale". It is contrary to the laws of God and it is contrary to the laws of man.

There is no question an imprisonment penalty is called for and the leniency requested by the defendant in his plea in mitigation this morning only extends to him because he is a first offender who has saved everyone time and trouble and the courts valuable resources by pleading guilty.

Considering all the circumstances of your matter a high start point is required reflective of the gross criminality of your offending. In respect of the three counts relating to the year 2004, I use a start point of 6 years in prison. From that you are entitled to a one-third deduction for your guilty plea that is a period of 2 years leaving a balance of 4 years. You are also entitled to a deduction because this is your first offence and you previously had a good character although I use the word "good character" very loosely. But you are entitled to a deduction of 1 year for that matter, that leaves a balance of 3 years. You are not qualified for any other deductions.

You will be convicted on each of these counts S2010/11, S2011/11, S2012/11 and sentenced to a period of 3 years in prison for each count but terms to be served concurrently. In respect of the two counts relating to the offences in 2007 through a similar exercise I reach the same result. You will be convicted and sentenced on each count to 3 years in prison to be served concurrent. But those 3 year terms are cumulative to the previous 3 year terms so that you will serve Galu a total of 6 years in prison for this matter. The remaining two charges on file S2001/11 and S2002/11 are duplicate charges, they are dismissed.

JUSTICE NELSON