Police v MF [2012] WSSC 79 (2 July 2012)

SUPREME COURT OF SAMOA

Police v MF [2012] WSSC 79

Case name: Police v MF

Citation: [2012] WSSC 79

Decision date: 02 July 2012

Parties: POLICE v MF

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms F E Niumata for prosecution

Mr J Brunt for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Police v Mika [2006] WSSC 40

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Informant

AND:

MF

Defendant

Counsel: Ms F E Niumata for prosecution

Mr J Brunt for defendant

Sentence: 02 July 2012

SENTENCE

This defendant appears for sentence on four charges of rape, three charges of indecent assault and two of carnal knowledge. The amendments sought by the prosecution in relation to the indecent assault charges are granted by consent of the defendant as conveyed through his defence counsel. I accept the prosecution submission that there is no prejudice as the amended charges essentially are the same as the original charges, the only difference being the age of the complainant girl.

However in respect of the carnal knowledge information the application by the prosecution to amend is denied. That is because the two charges are not the same they are significantly different. The amended charge has different ingredients, it is contained under a different provision of the Crimes Ordinance and it carries a different maximum penalty. Considering the nature of the evidence and the amendments sought the prosecution should have got it right the first time around. In any event if the prosecution would care to look closely, the time period quoted in the charges do not both match up with their summary of facts. The defendant will therefore only be sentenced on the rape and indecent assault informations the carnal knowledge informations are dismissed.

These charges arise out of four incidents of sexual assault by the defendant on the complainant. The defendant is the complainants step father and at the relevant time he was 34 years of age and living with the complainants mother as husband and wife. The complainant is currently 14 years of age but at the time of this offending was 11 years old and attending primary school. The suppression order granted previously in respect of the defendant and the complainants details is to remain in force. The case is to be reported in the law reports as Police v MF.

The first of the four incidents occurred in the early hours of a day in the month of March 2009. The complainant and her two younger brothers were asleep in their living room. The defendant and the complainants mother were asleep in their bedroom. The summary of facts relates that the defendant crept to the complainant while she was asleep, pulled down her shorts and panties and this awoke the complainant. The girl tried to sit up but the defendant held her down and told her not to make any noise. The complainant asked the defendant what he was doing and the defendant replied “o mea e faaeva ai le po”. (Things to pass the night away). The defendant then spread the complainants legs and performed oral sex on her followed by his forcefully inserting his private part into the complainants private part. The complainant tried to escape and move away but the defendant threatened her as to what he would do if she screamed or tried to run away. The complainant felt pain in her private part while the defendant continued to have forceful intercourse with her. This would hardly be surprising considering the complainant was only 11 years of age. The events of this first incident has led to one count of rape information S401/12 and one count of indecent assault information S451/12 to which the defendant has pleaded guilty.

The second incident arises from what happened on another night later the same month of March 2009. Again the police summary of facts relates that the defendant left the bedroom of him and the complainants mother and crept to where the complainant was sleeping in the early hours of the morning. The defendant forcefully inserted his private part into the complainants private part and engaged in full intercourse with her. He continued until he was satisfied whereupon he then returned to the bedroom where he was sleeping with the complainants mother. This incident is the subject of information S402/12 a charge of rape to which the defendant has pleaded guilty.

The third incident occurred during the month of April 2009 where again the complainant and her brothers were asleep in the living room while the defendant and the complainants mother were asleep in their bedroom. Again the defendant crept to where the complainant was sleeping undressed her performed oral sex on her before raping her. When he was satisfied he threatened her not to tell anyone about what he had done or she will see what will happen to her. These actions have led to the defendant pleading guilty to one count of rape information S404/12 and one count of indecent assault S454/12.

The fourth incident of sexual assault also occurred at night in the same month of April 2009 and followed the pattern of earlier incidents. The defendant crept to where the complainant was sleeping undressed the girl performed oral sex on her before having forced sexual intercourse with her. Again when he finished he told the girl not to say anything about what he has been doing to her and returned to the couples bedroom. In respect of this incident the defendant has pleaded guilty to one count of rape S405/12 and one count of indecent assault S455/12.

It appears from what the defendant told the probation office that somehow his spouse discovered what he had been doing to her daughter. This led to the defendant apologizing to the complainants mother about his conduct and a reconciliation as the mother accepted his apology. The complainants victim impact report however says no apology was ever directed towards the victim the 11 year old complainant.

The police summary of facts says that these sexual assaults only came to the attention of the police in March of this year 2012. It has not been explained in the summary or in the material before me what brought this matter to police attention. But it is clear from what I have seen that the mother in forgiving the defendant and covering up the rape of her daughter made herself an accessory after the fact to the offending. It is not certain why the mother has not been charged but I will say this is not the first case that has come before the court like this. There have been a number of cases now where the rape of a young step-daughter or a young daughter by a step-father or care-giver which has been admitted to by the father or a step-father or a care-giver but has been covered up. The matter has been given some sort of kiss of forgiveness by the mother. Which as a parent I find astounding behaviour.

While we continue to turn a blind eye to this sort of thing and while we allow such attitudes to persist, there is no prospect of this country as a society progressing forward and making offenders such as the defendant accountable for his sexual abuse. This is a case of a young 11 year old being repeatedly raped by her care-giver. And then when discovered a cover up being put into place under the guise of a faa-Samoa reconciliation.

It is in my view time that the police closely examine the role of such forgiving mothers and seriously consider their criminal culpability. To see if charges against such people as accessories to rape are warranted. If this country is serious about wanting to stamp out rape and sexual abuse then it must pursue not only the offender but those who seek to hide and sweep under the family mat such criminal behaviour. I dare say if this were a cover of a murder our attitudes would be quite different.

Young girls such as this 11 year old have the right to grow up in a loving and caring environment free from being raped and molested by care-givers. This is a right they have under recognized international conventions to which Samoa is a party and is a right that should be protected by the law.

The circumstances of this matter are the repeated rape of a very young girl by her step-father who was 20 years older. Rapes which occurred within the family home and carried out under cover of darkness. Accompanied by threats of harm to keep the complainant quiet. The defendant abused his position as head of the household not once but on multiple occasions. And took from the complainant her innocence and her virginity. He has committed actions which ultimately have torn this family apart. His counsel is quite correct his conduct is appalling and his blaming of alcohol is no excuse for anything.

The maximum for each count of rape is life in prison. The court in the past has adopted start points for sentence of 20 and 25 years in respect of rapes of young females by care-givers. As stated by the learned Chief Justice in Police v Mika [2006] WSSC 40 considerations of retribution and deterrence take priority over considerations of rehabilitation in rape cases. This is because of the very serious nature of rape and the need to protect women from such crimes. Lengthy custodial sentences are generally imposed not only to reflect the gravity of the crime and its condemnation by society but also to punish the offender. Designed also to deter from re-offending and deter like minded people from committing rape.

The court is mindful of the increasing number of rapes and sexual assault cases by care-givers coming before it. The courts firm response thereto is in its sentences of offenders. The message to fathers and step-fathers of this country should be unequivocal and consistent.

Accordingly I adopt for this case a start point of 20 years in prison. I accept however what you counsel has stated that you are entitled to credit for certain matters. Such as your guilty plea not withstanding your unsuccessful attempt to vacate it and substitute it with a not guilty plea. You are also entitled to credit because you are a first offender. And for your expression of remorse and rendering apologies to your spouse for your conduct and as expressed to the court through your counsel. For all these factors I will make a blanket deduction of 5 years from the start point for sentence. Adopting the totality principle you will be convicted and sentenced in respect of the four rape charges to 15 years imprisonment. Your remand in custody time awaiting sentence is to be deducted from that period.

In respect of the three counts of indecent assault you will be convicted and sentenced to 2 years in prison on each charge but your terms are to be served concurrent to your term for the rapes.

JUSTICE NELSON