Police v TL [2012] WSSC 60 (11 June 2012)

Supreme Court of Samoa

Police v TL [2012] WSSC 60

Case name: Police v TL

Citation: [2012] WSSC 60

Decision date: 11 June 2012

Parties: Police v TL

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi for prosecution

Mr P L T Masipau for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Informant

AND:

TL

Defendant

Counsel: Ms L Taimalelagi for prosecution

Mr P L T Masipau for defendant

Sentence:11 June 2012

SENTENCE

Because this is a case that involves an allegation of rape on a young complainant there will issue the usual suppression order prohibiting publication of the name or any details relating to the complainant. Case to be reported as Police v TL.

The police summary of facts indicates that the defendant is a 43 year old security guard and he supports a defacto spouse and three children. The three children are not his biological children but are the children of his defacto from a previous relationship. The complainant is the eldest of the three children. She is now 21 years of age but at the time of the offending in 2006 was 15 years old. And was living with her mother and the defendant in a village in Savaii. In other words the defendant is the complainants step-father.

It appears from the facts that the complainant first moved to live with the defendant and her mother in the year 2005 because she was attending Vaipouli College as a live-in student at the college hostel. Like other students she went home to her family in the weekends.

One Friday night in the year 2006 on a weekend at home she went to her mothers room to get a towel for a shower. The door to the room was closed so she called out to her mother to open the door. Instead of the mother the defendant opened the door and dragged the girl into the room and covered her mouth with his hand to prevent her from crying out. Because the complainant was struggling and trying to free the defendants hands he punched her on the back of her neck causing her to lose consciousness. While she was in that state the defendant raped her.

When she came to she found that she was lying naked on the floor covered only by her lavalava. She said she felt fatigue and her private parts were painful. She turned on the light to find that her genitals were bleeding and that she had bruises on her breasts. She called out for help and her mother came to her aid. She told the mother what had happened and she says that her injuries were obvious to her mother.

But the matter seems to have been settled within the family covered up by them and not reported to the police or anyone else. It only came to light in the year 2011 when the defendant and the complainant got into a fight at the Salelologa Market place and the defendant publicly called the complainant a whore and other names. It appears from the material before me the defendant may also have tried to kill or at least injure the complainant by running her down that day with his motor vehicle. Charges in relation to that incident were withdrawn by the police for reasons that were not made entirely clear. Which is why I caution the police that plea bargaining is not necessarily a good option nor does it always achieve a just result.

This was a serious rape carried out by the complainants father figure within the confines of the family home and environment. An incident which was covered up by everyone. The complainant then was only 15 years of age. She was entitled to the protection and guidance of her step father. And to the protection and care of her mother. Both have failed horribly in their parental duties.

The mother should be sitting beside the defendant in the dock. Clearly she was an accessory after the fact to the rape. And actively participated in its cover up. If this were the cover up of a murder I wonder if the police would be so lenient in forgiving her participation by not charging her. I am bound to observe their conduct has been less than exemplary in this case. The mother is beyond the reach of the court but to her and to the defendant I say “shame on you.” You are not fit to be parents of this or any other child.

Rape carries a maximum sentence of life in prison. An indication of the seriousness with which the law regards it. The fact that it was carried out by someone in a special relationship to the victim is a significant aggravating factor. But it is only one factor to be considered and other factors include the fact that this act took place in the sanctity of the family home, a place where all children should be given nurturing love and protection free from sexual abuse especially by a care-giver. The offending is also aggravated by the fact that it was covered up by the defendant and his wife. And that if not for subsequent events which included an assault using a motor vehicle this matter would not have come to light. The degree of physical violence involved in the rape and the defendant rendering the complainant unconscious so that he could carry out his purpose is also relevant. As is the young age of the girl who was 22 years younger than the defendant. In pronouncing sentence the court must also bear in mind the need to express societys abhorrence of such behaviour. And the need to try and deter what seems to be becoming more and more prevalent in fathers and step-fathers sexually assaulting children under their care.

I agree with prosecution counsel a start point of 20 years in prison is appropriate for your case. But I also accept your counsels submission that there are mitigating factors in your favour which need to be taken into consideration. For example the fact that you are a first offender and appear with a clean record. And also very importantly the fact of your guilty plea which has spared the complainant the further ordeal of a public and probably painful reliving of this experience.

Your counsel has also expressed that you are remorseful for this matter as indicated by your apology and settlement of the matter in 2006. And your good behaviour since 2006. I do not however think the covering up of a criminal offence should be a mitigating factor for anyone. And I have doubts about the genuineness of your remorse given your subsequent conduct in relation to the complainant in publicly calling your step-daughter what you called her and in trying to run her over with your vehicle. The complainants victim impact report speaks of how you treated her as another wife and would jealously react when she left the house to run errands. And how you would belittle and insult her with your comments.

However I have accepted your counsels submission generally in mitigation and for those factors that are in your favour I will deduct a term of 5 years from the 20 year term. For this charge you will be convicted and sentenced to 15 years in prison.

JUSTICE NELSON