Police v MT [2011] WSSC 70 (11 April 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MT
Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Defendant unrepresented

Sentence: 11April 2011

SENTENCE

The defendant in this case pleaded guilty to three counts of rape. The first occurred in May 1998 and involved his step daughter. The second occurred in 2006 and involved his biological daughter and the third occurred in 2009 and again involved his biological daughter. When these matters were called this morning the defendant tried to deny guilt these charges. But as explained to him the time for that was well past and the court file shows that his initial plea of not guilty to the charges was reversed to pleas of guilty. And at the time he changed his pleas he was represented by counsel. The court therefore proposed to proceed with his sentence on the basis of those guilty pleas.

I would just remind the press although I am sure they are well aware of it that there has been a suppression order issued in relation to the names of the girls involved in this offending and any other details that may identify them. Because of the relationship of those girls to the defendant I am extending the order to the name of the defendant. That suppression will include the villages of the parties. And the name of this particular case will be amended in the court record to Police v MT.

In relation to the first of the charges the summary of facts states as follows; the defendants step daughter was at the time of this offence 17 years of age and 6 months pregnant. In or around the month of May 1998 while the mother was away overseas, she was asleep at the family home together with her younger siblings. During the night the defendant entered her mosquito net and starting rubbing her legs. When she told the defendant to stop he advised her not to make any noise otherwise he would hit her with a bottle. She said that at the time the defendants smelt strongly of alcohol. And that the defendant made attempts to try and kiss her on the lips. He also tried to undress her and remove her clothing, causing her to move around and struggle and tried to get away from the defendant. But she was unable to partly because of the condition she was in. The summary goes on to state that the defendant digitally penetrated the girl and then proceeded to have forceful sexual intercourse with her. During this time she laid motionless and was crying.

The victim impact report filed for this particular complainant states that she was shocked by what the defendant had done. And that although the defendant was not her biological father she had loved him and he had treated her as if she were his own daughter. She also states that she tried to overcome what he was doing to her but could not do so because he covered her mouth with his hand and laid on top of her. She was overpowered by him and she was also in fear for her unborn childs safety. She also stated that the defendant threatened her that if she told anyone about what had happened that he will kill her. And she stated about how she lived after the incident in constant fear until she moved away from the family home about one year later. Not until recently when this matter was in the hands of the police that she began to feel some peace about what had happened. There has been an obvious burden on the complainant. That is clear from the fact that she left the family environment and never reported this matter to the authorities. And it was only recently when the defendants sexual abuse of her step-sister who is the defendants biological daughter came to the attention of the authorities that she then spoke of this historical rape. This is a hideous state of affairs and is a burden a 17 year old girl should never have had to bear.

In relation to the more recent events and actions by the defendant the police summary goes on as follows: on the relevant night of 2006 when the complainants mother was not in the house and the complainant was sleeping with one of her sisters, she awoke to find the defendant at the head of the bed. She said that he began fondling her breasts and her stomach. Although she repulsed his efforts he continued them and then jumped on top of her. This complainant also relates that the defendant smelt strongly of alcohol. And that despite her best efforts the defendant was able to have forceful sexual intercourse with her. When he was finished he fell asleep and she got up and left the building. She spent the night outside crying and waited until the defendant woke the next day and left for work. She also states that she was bleeding the next morning. Her fear of the defendant led her not to tell her mother about what had happened.

But in 2009 it happened again. She relates that she woke up on the relevant night to find that her sheet had been taken off her and that the defendant who was smelling again of alcohol was trying to undress her. Despite her best efforts he was able to undress her and jumped on top of her and despite her struggles was able to have forceful sex with her. She also says that he slapped her and assaulted her in the course of subduing her so that he could have his way. After the act had occurred she relates in the victim impact report and in the police summary of facts that for two weeks she was unable to function properly or leave her bed.

The other unfortunate result of this incident was that she fell pregnant. This second complainant was not the only victim of the offending by the defendant because the baby that she gave birth to was rejected by her family. The baby was adopted out the day after it was born. And no doubt this was done because there was a great deal of shame attached to what had occurred. Hopefully this is something this young child will never find out about but in a small community like ours one wonders.

The defendants offending in this matter is inexcusable, intolerable and totally unacceptable. He used his daughters to satisfy his lusts. And has inflicted on them deep and probably permanent emotional scars. There is no greater betrayal of a fathers trust then what this defendant did to his daughter and his step-daughter. He deserves no mercy and he will receive none from this court.

The penalty for rape in this country is life imprisonment. In this case I adopt a totality of sentencing approach to your offending. I will not use life imprisonment as a start point because I do not believe that is warranted but in respect of these two matters I use a start point of 20 and 25 years in prison respectively.

In respect of the rape of your step daughter in 1998 information S114/10, considering and allowing for the fact that you are a first offender and the fact of your guilty plea, you are convicted and sentenced to 15 years in prison. In respect of the second instances of rape involving your biological daughter, for information S116/10 for the year 2006 you are convicted and sentenced to 20 years in prison. In respect of the second count of rape involving your biological daughter, information S117/10 you are likewise convicted and sentenced to 20 years in prison. All these terms of imprisonment are to concurrent so that you will serve a total term of 20 years in prison for this matter.

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