Police v AT [2011] WSSC 72 (18 April 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

AT
Defendant

Counsels: T Toailoa and F E Niumata for prosecution
F K Ainuu for defendant.

Sentence: 18 April 2011

SENTENCE

This defendant appears for sentence this afternoon on four charges of having sexual intercourse with his step daughter in the months of October, November, December 2009 and January 2010. In addition to that he has a fifth charge against him namely one of indecent assault on the same complainant occurring in October 2009. A name suppression order will issue if one has already not been issued in respect of suppressing the publication of the name of the complainant in this matter. And because the defendant is her step father that name suppression order will extend to details concerning him as well.

At the times of these offences the complainant was 15 years of age. She was living with the defendant and his wife but was not the defendants biological daughter but the daughter of his wife from a previous liaison. But the complainant had been brought up by the couple for a number of years prior to this offending. The complainant viewed the defendant as a father and the defendant was in every sense the complainants father.

The police summary of facts states that during the month of October 2009 at night while the complainants mother was attending a bingo game the complainant was at home asleep with her younger siblings. She was awoken by the defendant who said to her that he wanted to have sex with her. The complainant refused but the defendant threatened to beat her if she did not comply. The defendant then digitally penetrated the complainants private parts. He removed her clothing then inserted his private part into hers and had sexual intercourse with her. This caused the complainant pain and according to the summary she lost consciousness and woke up the following morning to find that she was bleeding from her genitals. She did not tell anyone about what had occurred.

Sometime in the following month being November 2009 a similar incident occurred again when the complainants mother was away playing bingo. On that occasion she also refused but the defendant beat her with a "salu lima" or a broom and told her to be quiet and not to cry. The defendant then removed her clothing and not withstanding the fact that she was crying had sexual intercourse with her until he was completed. The complainants mother returned later that night and found the complainant still crying but when she asked the complainant why, the defendant heard this and called out that he had smacked her because she was not looking after her younger siblings properly. Something which was of course untrue.

In December 2009 again at night again while the mother was off playing bingo a similar incident occurred whereby the defendant approached the victim saying he wanted to have sex with her. The complainant tried to wake up one of her younger brothers in an effort to discourage the defendants actions. According to the summary this caused the defendant to become angry and he beat up both the complainant and her younger brother. Then again threatened the complainant and then had sex with her.

A similar incident also occurred on a night in January 2010 when the complainants mother was again absent playing bingo. After this incident of sexual intercourse the complainant told the defendant she was going to tell her mother about his actions but the defendant threatened that if he did so he would kill both her and her mother.

Sometime in February 2010 the complainant began displaying symptoms of pregnancy and upon questioning by her family she then finally revealed what the defendant had been doing to her. She was taken later that year for a medical examination which confirmed her pregnancy and in October 2010 she gave birth to a healthy young child. In August 2010 the police interviewed the defendant concerning this matter and he admitted to having sexual intercourse with the complainant many times and also admitted to them he was the father of the complainants child.

There is no question the charges in this case are serious. And the courts attitude to them and this sort of charge is well summed up by my brother judge Vaai, J in the previous case of Police v Semeatu [2008] WSSC 48 where he said and I quote "these offences involved the betrayal of the trust of the complainant as the daughter of the accused. It is for that reason that the crime of incest whereupon a father has sexual intercourse with his daughter or step daughter is frowned upon by right thinking members of our society." In fact as Vaai, J notes society goes further and labels it as "mataifale". Behaviour like this is condemned in our custom and tradition. I completely concur with Vaai J when he said fathers who take advantage of their position of authority to satisfy their sexual lusts upon their own daughters deserve no leniency from the court.

The defendants offending in this case is compounded by the use of violence and threats of violence as outlined in the summary of facts. It is also apparent that the defendant used his position as father figure in the family to control what occurred and the complainant. Sexual abuse by father figures in any family invariably and inherently usually involves the use of the offenders position for the purpose of dominance and control over the abused. The age difference that is usually involved as in this case of 38 years between the 53 year old father and his 15 year old step daughter also plays its part in this ugly scenario.

The court should also not overlook the multiplicity of offending in this case as admitted by the defendant to the police. Nor should the court overlook its obligations under the Convention on the Rights of the Child to which this country is a signatory which obliges the court to "protect children from all forms of sexual exploitation and abuse." Severe deterrent penalties from the court for this sort of offending is consistent with these obligations, indeed in my view are mandated by it.

I deal firstly with the sexual intercourse charges. These carry a 7 year maximum penalty at law. It is hard to think of worse circumstances of offending by a father on a step daughter who was at the time living with him as a member of the family. But there may be and therefore I will use a start point not the maximum penalty but just below it of 6½ years in prison. As your counsel has pointed out you are entitled to certain deductions from that starting point for sentence. Firstly for your guilty plea which I accept. But I note from a review of the file that this plea was entered very late and indeed was only entered on trial day in March this year when this matter was ready to proceed before the court. That therefore earns you only a limited deduction and for that I allow 3 months. For the fact that you are a first offender you are entitled to a further deduction and for that I allow a further period of 3 months.

For your expression of remorse communicated through your counsel, that is too little too late and was not given at any stage directly to the complainant in this matter, the person that you wronged. There is mention in the documents before me of a formal apology but there has been no confirmation of this by the probation office or indeed by any other source. And that fact is disputed by the family of the complainant. There will be no deduction allowed for either matter.

You are eligible for no other deductions from your sentence. On each of these charges of having sexual intercourse with your step daughter you are convicted and sentenced to 6 years in prison concurrent terms for all charges.

In relation to the remaining one charge of indecent assault in my view that is a superfluous charge I will entertain an application by the prosecution to have it withdrawn by leave if you wish to make that. You make that application? Toailoa, yes your honour prosecution seeks leave to withdraw the indecent charges. In respect of the indecent assault charge information S1777/10 on police application that is withdrawn and dismissed. There will be therefore no separate penalty for that matter Afemai because that is part and parcel of what you have already been convicted and sentenced for.

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