Police v FT [2012] WSSC 102 (19 November 2012)

SUPREME COURT OF SAMOA

Police v FT [2012] WSSC 102

Case name: Police v FT

Citation: [2012] WSSC 102

Decision date: 19 November 2012

Parties: POLICE and FT

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
Ms F. Vaai for prosecution
Ms M V Peteru for defendant

Catchwords:

Words and phrases:

Legislation cited:
Cases cited:
Police v D [2009] WSSC 3

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

FT

Defendant

Counsel: Ms F. Vaai for prosecution

Ms M V Peteru for defendant

Sentence: 19 November 2012

SENTENCE

The defendant in this case has pleaded guilty to a charge that on a day between 01 February 2005 and 08 May 2005, he did rape the complainant. The complainant is the defendants half-sister. They have different fathers but share the same mother. At the time of the offence the defendant was 25 years of age and the complainant 12 years old. The two of them were living with their mother in the same household. I would just remind members of our press corp that suppression orders in respect of the details of both the parties in this matter continues. This case will be reported as Police v FT in the Samoa Law Reports.

The summary of facts which the defendant through his counsel has admitted states that on the day of the incident the defendant and the complainant went inland to the family plantation to fetch materials for Sunday toona’i. On arrival at the plantation the defendant turned to the complainant and told her that they were going to have sexual intercourse. The defendant immediately grabbed the complainant and pulled her to a nearby coconut tree. The complainant struggled and tried to free herself but was unsuccessful. The defendant tossed the complainant to the ground and when she tried to get back up he jumped on top of her and pinned her down. He proceeded to forcefully remove her shorts and then to have intercourse with her. The complainant reports that this caused her intense pain. After the act of intercourse took place the defendant asked the victim how she felt and the complainant told him she was in pain. Shortly thereafter the defendant and the complainant returned home.

The complainant did not tell anyone about what her brother had done to her because she was fearful of the defendant. I am told by defendants counsel that what happened was only revealed about one year later when another family incident that is not relevant to the present exercise occurred. In her victim impact report the complainant states she was terrified because this was “the first time something like this has happened to me. I was afraid in case I fell pregnant.” She was overcome with abhorrence during the act of intercourse. Because he was her brother she was disgusted by what he did. She relates that she found the ordeal unforgettable but counseling assistance from the Samoa Victim Support Group has helped her slowly forget and get over the incident. As to her physical injuries the report says that she experienced considerable pain in her private parts from the act. As this was the first time she had experienced such a thing. And she felt fatigue and discomfort after the act occurred.

The traumatic effect this experience has had on the complainant is obvious from what I have read. It would have taken a tremendous amount of courage for her to finally break the silence and speak out against her older brother. The victim impact report relates how disclosure of what had happened has brought a lot of relief. Not surprisingly it also says she detests the defendant and does not wish to see him ever again.

According to the probation office pre-sentence report the defendant is currently 32 years of age, divorced with two children. He is serving a term of imprisonment for possession of narcotics and has a previous conviction for theft. But as those are different kinds of offences and this is a sexual offence he is appearing for sentence on, I agree with his counsel he is entitled to be treated as a first time sex offender.

The court file discloses that he was charged with this matter in 2006. But after being released on bail, he failed to turn up for his trial on original pleas of not guilty to the charges against him. A warrant was issued for his arrest in 2007 but it was only when he was arrested on the narcotics matter earlier this year that this charge was resurrected. When the charges against him were finalized by the prosecution, some of them were withdrawn. He then changed his plea from not guilty to guilty on the charge of rape.

Rape by a brother of a sister is not an offence that comes often before the court. There is only one other reported case Police v D [2009] WSSC 3. That involved a brother raping his half-sister. That was also a case involving a first time offender who had pleaded guilty to multiple counts of rape. The sentence there was 15 years imprisonment on each count but terms to be served concurrently.

There is no question an imprisonment term is required here to mark societys abhorrence and denunciation of the defendants conduct. All rapes are serious. If a scale exists for such things the rape of a sibling is even more serious. Not only in the eyes of the Western law but also as a matter of the cultural law that has governed this country for centuries. The “va-tapuia” or sacred covenant between brother and sister has been broken. Indeed in this case it was forcibly ripped apart by the defendant. We are all aware it is the duty of every Samoan brother to protect his sister his “feagaiga,” not to sexually abuse and take advantage of her. These breaches are recognized in the courts sentencing.

There are further aggravating factors in addition to the special relationship of the defendant to the complainant. Firstly the young age of the complainant. She was only 12 years old when the defendant raped her, a young and vulnerable age; the age difference between the parties, the defendant was more than twice the complainants age; the commission of the offence in an area where the complainant was alone and defenseless; pre-meditation on the part of the defendant in selecting the place to commit the crime; the effect this offending has had on the complainant as referred to above; the fear that the complainant had to live with for over a year before she could summon the resolve to talk and report what happened. Not to be overlooked is the loss of the complainants virginity to the defendant, a cherished possession of any young female to be given to a partner of her choosing at a time of her choosing.

The maximum for rape is life in prison. Considering all the relevant circumstances a start point of 20 years is in my view appropriate to this crime. From that period the defendant however is entitled to certain deductions and these were referred to by your counsel. Firstly for his guilty plea which has saved the time and limited resources of the State and of the court in what is a small jurisdiction. More importantly it is the best expression of the defendants remorse for his actions and has spared the complainant the further trauma of having to relive her experience. Secondly the court accepts the defendant should be treated as stated earlier as a first offender. Thirdly some remorse was expressed by the defendant not only through his counsel but also to the probation office. His reports states that he feels sorry for his half-sister and the stupidity that he had done to her and seeks the courts mercy when passing sentence. For all these mitigating factors I make a blanket deduction of 5 years from the defendants original sentence.

For this crime you will be convicted and sentenced to 15 years in prison. Remand in custody time to be deducted.

.........................

JUSTICE NELSON