Police v L [2011] WSSC 63 (14 March 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

L
Defendant

Counsels: Ms R Titi and Ms F E Niumata for prosecution
Defendant unrepresented

Sentence: 14 March 2011

SENTENCE

The summary of facts in this case which the defendant has admitted states that he is a 53 year old male of Saleimoa and Salani married with 8 children. The complainant in this matter is the defendants biological daughter who at the time was 18 years of age, had a de-facto husband and one infant but was living in the same household as the defendant. Given the circumstances of this matter the suppression order to issue relates not only to the complainant and the identity of the complainant but will have to by necessity also include the identity of the defendant her father and the details pertaining to him. That will include the suppression of publication of the villages from which these people come. For the purposes of the law report this case should be reported simply as Police v L.

The summary relates that sometime in the month of March 2010 the complainant was at home during the day asleep with her child in the bedroom. The defendant was the only other person at home with them. While asleep the complainant felt someone undoing her shorts. She immediately sat up and saw it was the defendant sitting next to her. The complainant asked the defendant what he was up to and the defendant replied "a e alofa ia te au aua nei e pisa i lou tina". The complainant again asked the defendant what did he want and the defendant told her he wanted to have sex with her. The complainant cried and told the defendant that she is shocked by his actions and that he did not love her and her child. However the defendant persisted and he continued to request sex with the complainant.

The summary continued that the defendant reached out and touched the complainant and the complainant got up and tried to leave the room. But the defendant had locked the door. The complainant also remembered her child still sleeping on the bed and so she returned to the bed. This was when the defendant took off his clothing, removed the complainants clothing, laid on top of her and proceeded to have sex with her. The summary continues that during the course of the intercourse the defendant stared directly at the complainant while the complainant beneath him was covering her face with her hands. The defendant continued to have sex with her until he was satisfied. After which he put on his ie lavalava and left the complainant in the bedroom.

Unknown to him however a male neighbour of the family was using the water tank located next to the complainants bedroom. He heard sobbing from inside the bedroom and looked in and saw what was happening. He must have reported the matter to the village council because the summary continues that the village chiefs and the complainant brought the matter to the police station. An action by the village council that the court must applaud because the court regards a village council as a partner in trying to keep the laws of the country observed. All these have led to the defendants appearance today for sentence on a charge of incest to which he has pleaded guilty.

For a father to have sex with his own biological daughter is as the defendant himself admitted to me this morning quite shameful and degrading behaviour. In our faa-samoa it is known as "mataifale" and it is frowned upon by our culture and tradition and a person doing it is often stigmatized for generations. This sort of behaviour is contrary not only to culture but to law. And as observed by my brother Judge in Police v Tuiloma [2008] WSSC 101the resulting psychological and emotional harm on a daughter subjected to this sort of action usually cannot be determined with accuracy but it will no doubt be enduring, destructive and probably caused confusion, distrust and even hatred. The defendant took advantage of his position as a father to make his young daughter submit to his will. All for a few seconds of pleasure. For those few seconds the defendant must now pay.

For your information defendant the maximum penalty at law for this offence is surprisingly only 7 years in prison. Considering the seriousness of this sort of offending and the taboo nature it carries in our society the maximum penalty is possibly out of kilter with modern trends and thought and should perhaps be reviewed at the earliest possible opportunity by the relevant authorities. Looking at the circumstances of your case L in particular what is noted as the sobbing that was noticed by the neighbour who saw what was going on and the other actions of the complainant in this locked-room they all seem to indicate non-consent but the prosecution have chosen to file a charge of incest and not the more serious charge of rape. The circumstances are such that this is still a serious example of incest.

I have noted that you have pleaded guilty to the charge and this is your first offence. That has the effect of reducing what would otherwise be a term of 6 years in prison to a term of 5 years in prison. For this matter L you will be convicted and sentenced to 5 years in prison. The remand in custody time of the defendant is to be deducted from that sentence.

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