Police v PS [2013] WSSC 104 (2 September 2013)

SUPREME COURT OF SAMOA

Police v PS [2013] WSSC 104

Case name: Police v PS

Citation: [2013] WSSC 104

Decision date: 02 September 2013
Parties:
POLICE v PS

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
L Taimalelagi and O Tagaloa for prosecution
T Leavai 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

Prosecution

AND:

PS

Defendant

Counsel: L Taimalelagi and O Tagaloa for prosecution
T Leavai for defendant

Sentence: 02 September 2013

SENTENCE

This defendant is for sentence on the following charges: two (2) counts of attempted sexual violation, two (2) counts of sexual conduct with a young person under 16 years, two (2) counts of indecent assault on a girl under 16 and two (2) counts of insulting words.

The summary of facts which the defendant through his lawyer accepts says he is a 42 year old male of Sapapalii and Saleaumua married with six children, works as a painter for a construction company. The victim is his 14 year old biological daughter. A suppression order will issue if one has not already issued prohibiting publication of the names and details of both the young girl and the defendant. The complainant is the 59 year old wife of the defendant.

The matter before the court consists of two incidents one on the night of Thursday 6th of June this year and the second on the following night Friday 7th of June this year. I will deal with the first incident in time first.

That evening the defendant consumed five large bottles of beer. At about 11:00 pm he finished his beer and told the complainant to go to sleep. The complainant advised the defendant to go to bed as well because he was drunk. The defendant walked to the front of their property and the complainant stopped him and brought him back to the house.

The defendant then told the complainant that he wanted to suck his daughters breasts. The complainant was shocked and expressed disbelief that the defendant could think of such things. She told him that. The defendants reply was “kefe oute alu atu loa fasi loa ma oe.” The couple went to sleep.

Later that night the defendant went to where the victim was sleeping. He told her that he wanted to see her breasts. The victim asked the defendant to repeat himself no doubt surprised at such a request from her father. He repeated his request and she said to him no. He swore at her saying “ufa na’o ou susu lava oute mana’o iai.” She told him that she is his daughter and she does not agree with what he wanted. He tried to touch her breasts, she pushed him away.

He was however successful in undressing her and removing her lavalava. He then lay on top of her and sexually violated her by sucking on her breasts. He also performed oral sex on her private parts. As he did this she was crying and struggling to break free. She could not push the defendant off her. He continued with his actions sucking and biting her breasts, kissing her on the mouth and putting his tongue inside her mouth. He also attempted to have sex with her by trying to put his penis into her vagina. This caused her pain and discomfort. And probably because of his condition he was unable to complete the exercise.

The summary of facts says the defendant was interrupted by the victim who pleaded with him that was enough. The victim impact report says that it was the mother who discovered what was going on and got the defendant off the victim. Whatever the case may be he stopped what he was doing and went to sleep.

The summary says the incident went on for about an hour. And that the next day the complainant said to the victim they should report the matter to the police. However the victim told her she would wait until the defendant came home from work and see if he apologised for what he did. After work that day the evening of Friday 7 June the defendant came home. He made his apology to the victim and sought her forgiveness. He assured her that this would never happen again. She accepted his apology. The matter was not reported to the police.

The summary continues that the defendant that evening again went out drinking. He bought a bottle of vodka and drank it with a friend. When he came home he was drunk and swearing. By this stage it was late. He did the same thing, he said to the complainant that he wanted to suck his daughters breasts and went into her mosquito net where she was sleeping. He told her what he wanted to do. The complainant whispered to the young girl that she was going to go to the toilet and she would call the police to report the defendant. The complainant left the room and called the police for help.

When she had gone the defendant grabbed the victim undressed her and did to her what he did the previous night. The girl tried to resist she reminded the defendant she was his daughter but the defendant insisted on doing what he wanted. Eventually she complied. He laid on top of her sucked her breasts and performed oral sex on her. Again he tried to insert his private part into hers causing pain and discomfort to the girl. Again he was unsuccessful.

While he was in the middle of all this the police finally arrived. They entered the house and the defendant ran behind the tarpaulin wall of the house. He was naked and that is where the police apprehended him. He was arrested and taken to the Lalomanu Police Post. The following day Saturday 08th June he was cautioned and interviewed by the police. During the interview he admitted to sexually violating the victim his biological daughter.

The defendant is no stranger to the court. He has a record of previous convictions. For drunkenness in 2004 and 2005 and assault in 2010. In 2012 for armed with a dangerous weapon and for throwing stones. I disagree with counsel these offences are most relevant to the current matter before the court. Especially the previous convictions for drunkenness, assault and offences of violence.

I will deal firstly with the most serious charges facing the defendant that of attempted sexual violation. This comprises the defendant trying to penetrate the young girl with his private part. It is not as stated in the police summary the sucking of her breasts. That is not an unlawful sexual violation because it is not an unlawful sexual connection. An unlawful sexual connection is restricted to acts carried out in relation to a young females vagina or with respect to her anus. Oral sex is a sexual violation because it is an unlawful sexual connection but the charge here is attempted sexual violation.

The prosecution have recently undergone substantial changes to the crimes legislation of this country in its new Crimes Act. It would be advisable for them to familiarize themselves intimately with the new provisions. And to train police officers who lay these charges to identify the proper charges. I would also note that in future this may require the prosecution to particularize the kind of unlawful sexual violation alleged because there are many ways now to commit these offences.

In respect of the present matter the defendants actions were committed on his biological daughter. His own flesh and blood. His counsel submits they were done under the influence of alcohol and there seems to be a suggestion that should mitigate his conduct. It is certainly apparent that the defendant consumed alcohol on both occasions. In relation to the second he told the probation office he consumed a large bottle of vodka bought from a local shop. This is probably of the lethal plastic variety so commonly sold in this country. The alcoholic content of which is very inadequately regulated leading to people indulging in all sorts of stupid activities. The results of which the court sees day in and day out. The answer to the suggestion that alcohol should excuse or somehow mitigate a persons conduct is it does not. You cannot drink yourself into a drunken stupor and then say sorry the ‘ava’ made me do it.

Clearly this defendants previous convictions and the circumstances here show he has a problem with alcohol. For which he should seek treatment. But before that he must answer for his behaviour while under the influence. The offence of attempted sexual violation is akin to the old one of attempted rape. Except the new one has a higher maximum penalty of 14 years in prison. No-one ever escaped prison for attempted rape under the old legislation. Because of the seriousness and trauma associated with such offending.

In this case considering all the circumstances some of which include the following: the defendants actions in refusing to accept what he wife was telling him and what the victim was telling him that his conduct was totally inappropriate; which also shows he was not as drunk as he tries to make out; in forcing the girl to submit to his desire using force to overcome her resistance in a prolonged assault taking up to one hour according to the police summary of facts; considering all that an appropriate start point for sentence in your case defendant would be 8 years in prison. I am going to upgrade that to 10 years to reflect the fact that the victim is your own daughter and at the time she was only 14 years of age.

But from that start point you are entitled to certain deductions which I will now make. There must be a deduction made for your guilty plea because that has saved the courts time and has bypassed the necessity for a trial. For that I will make a 25% discount for your plea leaving a balance of 7½ years in prison. You are also entitled to a deduction if you have been banished by your village but that has yet to be confirmed by the probation office. If they do confirm that in due course I will reduce the sentence accordingly by a period of 12 months to reflect that banishment. But until that is confirmed your sentence for todays purposes remains at 7½ years in prison.

That I must upgrade to take account of your previous convictions. Because those convictions show that you have learnt nothing and show that if you were truly remorseful for your misbehaviour you would not have continued to break the laws of this country. I will add 6 months to your term for that. Increases your penalty to 8 years in prison and if banishment is confirmed that will be reduced to 7 years but for today it remains at 8 years in prison.

In relation to the second incident which happened the following night Friday 7th of June. I consider that incident to be more serious than the first. For the simple reason that you apologised that Friday morning. And you told your daughter and her mother you would not do this again. That same evening you went out got drunk again and did the same thing. Only this time your wife wisely called the police. They caught you in the act and apprehended you according to the police summary of facts naked outside your house. This is not a man who is really sorry for his earlier behaviour. This is a man who thought he could get away with it again. Because of these reasons a higher penalty is appropriate for the second incident. In respect of that attempted sexual violation you will be convicted and sentenced to 9 years in prison. Reducable to 8 years if banishment is confirmed.

In respect of the charges of two counts of sexual conduct with underaged girl or what was previously known as carnal knowledge, in respect of the first incident you are convicted and sentenced to 4 years in prison. In respect of the second 5 years in prison.

In respect of the two counts of indecent act on a young person this would primarily relate to the sucking of the young girls breasts. In respect of the first incident you are convicted and sentenced to 3 years in prison. In respect of the second 4 years in prison.

In respect of insulting words you will be convicted and sentenced to 1 month in prison each charge.

If I were to total all those terms that means you would be liable to serve more than 20 years in prison. But that in my view would be out of proportion on the approach of totality of sentence to the offending. The leniency that you will receive from the court is I will order that all your terms be concurrent to your largest term of imprisonment. That means that for these offences you will serve 9 years in prison reducible to 8 if banishment is confirmed. Your time spent in custody awaiting sentence is to be deducted from whatever term is applicable.

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