SUPREME COURT OF SAMOA 
Police v Filipo [2012] WSSC 97

Case name: Police v Filipo
Citation: [2012] WSSC 97
Decision date: 05 November 2012
Parties: 
THE POLICE v AAIFAATOA FILIPO, male of Palisi and Faga Savaii
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
Defendant unrepresented
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE POLICE
Prosecution

AND

AAIFAATOA FILIPO, male of Palisi and Faga Savaii
Defendant

Counsel:   Ms L Taimalelagi for prosecution
Defendant unrepresented 

Sentence:   05 November 2012

SENTENCE

The defendant appears for sentence on eight charges of indecently assaulting his step-daughter.  A thirteen year old school girl who was then living with her mother and the defendant at Palisi.  The defendant is originally from Savaii and is a 46 year old planter.  He is now separated from the complainants mother who told the probation office she does not want the defendant back into the family.  Not surprisingly she has shown no support for the defendant.  She did not want her daughter interviewed by the probation office.  Although a victim impact report has been filed by the Attorney Generals office.
The complainants mother well knows her husbands character.  Because she was living with him in 2004 when he was convicted of indecent assault on their neighbours daughter.  For that he was sentenced to prison.  But that was not his first offence. He had already gone to prison in 1998 for rape.  This history of offending shows the defendant is prone to sexual offending. He is an adult male who is unable to control his sexual urges.  And is in need of proper diagnosis and appropriate treatment.  Otherwise when he is released from prison, and it must be accepted the court cannot lock him away forever or indefinitely under the law, I assess the likelihood of his reoffending to be high.  
It is therefore in the interests of society in particular the young girls thereof that predators like this defendant be incarcerated for an appropriate time and be treated for his problem during the term of incarceration.  With the advent of an independent prison service the court is hopeful that such measures will be seriously examined by the new Prison Authority. An Authority which should now be free to concentrate on the alternative function of any penal institution, viz to rehabilitate criminal offenders.  For every offender sent to prison, one day the prison door must open.  The last thing any sensible society wants is for such people to be let out worse than when they went into prison.  Even Members of Parliament should understand what is common sense.  The alternate reality is for Tafagata to produce people like the present defendant.  Who has been sent to prison twice but have not reformed or learnt anything.  
The defendant faces eight counts of indecent assault.  Three committed on his step-daughter when she was 11 years of age, and eight committed on her when she was 12.  The police summary of facts which the defendant has admitted says the offences were committed when the mother went to work on night shift.  They comprised the defendant instructing the complainant who was asleep in the mosquito net with her siblings to come out of the mosquito net,  undress, rubbing his private part on the complainants private part.  Further to instruct the young girl not to tell anyone about what had happened.  
After a while the wife of the defendant became suspicious.  Which led to her questioning the complainant who told her about what was going on.  The complainants victim impact report relates the psychological effects of the offending as follows:  Firstly she felt very afraid of the defendant;  that she was afraid people would find out about what was going on; that she looked upon the defendant as her real father and loved him as a father until he started abusing her; that she became afraid of living with him and would dread the come of night because then she knew what the defendant would do.  
Each count of indecent assault facing the defendant carries a 7 year maximum penalty.  In assessing the penalty the court must pay regard to the aggravating factors which include the following:  first is the breach of trust because the defendant is the complainants step-father.  He was looked upon her as her father.  He had a duty to care and nurture the young girl.  Not to treat her as a sexual play thing for satisfaction of his physical needs.  Secondly there is an age difference of some 35 years between the defendant and the complainant.  Thirdly there is an element of pre-meditation in the offending because the defendant would wait until the wife had gone to work leaving the complainant under his sole control.  The offending also indicates that there was an implied threat of harm to the girl if she spoke about what was happening.  There is no doubting the psychological effect on a girl this young of such behaviour.  This is also a case of not one offence but multiple offending over a long period of time.  Which serves to highlight the trauma of the experience over a period of years.  
The defendant has sought leniency from the court.  You did not give this young girl any leniency, you will get none here.  But you are entitled to certain deductions by law for mitigating factors which I will now effect.  
Considering all the circumstances of your offending a suitable start point for sentencing is 6 years in prison.  For your guilty plea I deduct one-third of that term being a period of two years.  Because that has saved the courts valuable time and because it relieved the need for the complainant to come to court and re-visit these traumatic parts of her young life.  That leaves a balance of 4 years in prison.  Normally further deductions would be made for those who are first offenders but you are not a first offender.  You therefore do not qualify.  There is further usually a deduction made for an “ifoga” or an apology but in this case that is non-existent.   Indeed you made no such apology when given an opportunity to address the court in mitigation.  There are no other deductions to which you are entitled.  
This sort of offending by step-fathers on step-daughters is too prevalent as has been noted by the court on many occasions.  Deterrent sentences need to be continued to be imposed in an effort to deter potential offenders and to hopefully deter you from doing this again.  I have also assessed the likelihood of your re-offending upon release is high.  Accordingly I am going to increase your penalty by a term of two years.  Taking your term back to 6 years in prison.  
Your remand in custody time awaiting sentence is to be deducted.  

.……………………
JUSTICE NELSON