Police v RT [2013] WSSC 130 (15 October 2013)

SUPREME COURT OF SAMOA

Police v RT [2013] WSSC 130

Case name: Police v RT

Citation: [2013] WSSC 130

Decision date: 15 October 2013

Parties: POLICE v RT

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation:
F E Niumata for prosecution

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

RT

Defendant

Counsel: F E Niumata for prosecution
Defendant unrepresented
Sentence: 15 October 2013

SENTENCE

1. Defendant appears for sentence on three charges. One charge of incest, one charge of causing injury and one charge of assault. As this is a matter involving sexual offending and a young complainant a suppression order will issue prohibiting publication of the young girls details. And because the defendant in this matter is her father a suppression order will likewise issue in respect of his details.
2. The defendant is a 42 year old male. The probation office report indicates he never went to school so he does not have the benefit of a formal education. He was brought up on the family plantation and because he is the second eldest of the family it is likely that he always worked to support the family on the plantation. The summary of facts from the police which the defendant admitted this morning says he is divorced from his wife. Who is now re-married. But their six (6) children were left in his care. Four (4) boys and two (2) girls. He is in good health he is a smoker and consumes alcohol. After his wife left he carried on the task of looking after the children. Like all Samoan men he renders “tautua” to his family and extended family. He is part of the aumaga of their nuu. And the report says he goes to church and plays a role in church activities. He is well spoken of by his father and the village pulenuu.
3. The victim in this matter is his 17 year old daughter. She is the second eldest. After the mother left the family she became primarily responsible for the care of her younger siblings. No doubt that care included the normal everyday chores of cooking, washing and getting the younger children ready for school.
4. All seemed to be well in this family until the year 2011. During that year the victim noticed a change in the defendants behaviour towards her. When the girl slept over with relatives he would become angry. He became overly protective of her. He began asking her to have sex with him. But she consistently refused.
5. However the summary relates that one evening during the month of July this year the defendant approached the victim while she was asleep in the bedroom, woke her up and asked to have sexual intercourse. Despite the victims protestations and saying no the defendant persisted and he removed her clothing. He then performed oral sex on her and culminated in penile penetration of her private part continuing until he was satisfied. Then he left the bedroom and went to sleep.
6. The summary of facts then jumps to the following month of August 2013 and the assault charge against the defendant. And offers no explanation as to what happened after the incident in question and before the assault arose. But the defendants account to the probation office seems to fill this gap. The defendant told the probation office that after the incident occurred the victim ran away and stayed with one of her uncles. That would hardly be surprising. And she did not report what happened between her and her father.
7. After some time passed the victim began going home again each day to do the washing for her younger brothers and sisters. No doubt she probably did other things to help the family but never stayed the night. This continued until one day she stopped going. Because she was directed by the uncle she was staying with that she had to go to sell vegetables for the family at the market. When the defendant found out about this he became enraged.
8. On Wednesday 7 August 2013 the victim was getting ready to go with her aunty to the Fugalei market. The defendant turned up and told her not to go she is to stay home. The victim refused to obey and went with her aunty to the market. Stayed there for the day and in the evening the victim and her aunty returned home.
9. When their taxi stopped outside the auntys house they were surprised when the defendant approached, opened the victims door and pulled her out of the vehicle. He assaulted her by punching her. The aunty tried to intervene but the defendant pushed her away. The defendant then grabbed hold of the victims hair and dragged her to the family house inland. When they arrived at the house he pinned her down and trimmed her hair using a pair of scissors. Summary also says he tried to shave her head using a shaver.
10. The victims aunty came on to the scene and tried to pull the victim away but the defendant said “pule a a’u i lo’u afafine, a loto lava e fasioti e fasioti lava”. He then got hold of the victim and tied her to a post in the family faleoo using a rope. And then continued his assault. The aunty and people who came to help were eventually able to stop this and pull away the defendant. Some one rang the police and the police arrived and took the defendant into custody. He was taken to the Faleolo Police Station and interviewed while the victim was placed into the care of the Samoa Victim Support Group that same night. She is still there and she again not surprisingly does not wish to return home.
11. The next day the 8th of August she was taken to the hospital where the following injuries were noted. Her hair was unevenly trimmed, abrasions on her forehead and around the left eye area. An examination of her private part showed a small lesion adjacent to the urethra with associated bleeding. What caused that is not clear but it must have been associated with the assault that the defendant delivered. As a result of all this the defendant has been charged with incest, causing injury and assault.
12. It is appropriate to deal with the most serious charge first which is the charge of incest. By the Crimes Act 2013 Parliament increased the maximum penalty for incest from 7 years to 20 years. This is a sign of Parliament recognizing the concern that has been reiterated by the courts on many occasions about the increasing number of incest and other sexual assault cases coming before it. The message from our law makers is clear in equipping the court with higher maximum penalties it can impose. But that does not mean that criminal sentences for incest should be dramatically increased overnight. Time should be permitted for the public to become aware of the new laws in order for them to be effective. To this extent previous sentences of the court are of assistance. And all those previous sentences indicate that terms of imprisonment are usually imposed for this particular offence.
13. Having reviewed the facts of this matter I have no doubt that a term of imprisonment is required for this mans offending. To deter the defendant from doing this sort of thing again. To deter other fathers who may be thinking of doing this sort of thing to their daughters and to denounce the conduct of the defendant as being totally unacceptable. The sentence must also reflect the seriousness of the offending. And the fact that the person whose job it was to safeguard the child instead became the abuser. By taking advantage of his position for his own personal lust.
14. The defendant attempted to put the blame of this on his daughter in his interview with the probation office. Saying that “he found himself aroused as she appeared half naked when she dressed up”. There is no evidence that was the case. And the court does not accept this pathetic attempt to place the blame of his offending on the young girl. It is also relevant that the offence occurred in the sanctity of the home in a place where children are entitled to grow up in a safe and loving environment. Not a place where they are abused by their caregivers. There have been other impacts on the victim of the offending. Quite apart from the loss of her virginity and the physical pain that the act caused. Because this incident has resulted in her forced separation from her siblings. As she is now with Victim Support and her siblings are presumably being cared for by relatives. There has also undoubtedly been psychological and emotional damage to the young girl caused by the incident.
15. Considering all the relevant factors an appropriate start point for sentencing is 8 years in prison. From that defendant you are entitled to certain deductions which I will now make. Firstly for your guilty plea which has saved the necessity for a trial and for the complainant to come and give evidence I will deduct one-third of your term or a period of 2.5 years. Leaves a balance of 5½ years. For your previous good record of service in your village and your ekalesia as well as to your family I will deduct 6 months from this balance leaving 5 years. There are no other factors that you are eligible for deductions. In respect of the charge of incest you will be convicted and sentenced to 5 years in prison.
16. In respect of the two remaining charges firstly the charge of causing injury or causing actual bodily harm to your daughter. The actual bodily harm comprised your assault by punching her and secondly forcefully cutting her hair and trying to shave her head which seems to be an attempt to demean and humiliate her. Not content with that you tied her to a post and continued to assault her. You treated her like an animal. And you assaulted her and continued to do so until relatives and others nearby intervened and stopped you. I regard this sort of offending as very serious by a 42 year old man on a 17 year old girl.
17. On this charge an appropriate start point would be 3 years in prison. From that you are again entitled to a guilty plea deduction of one-third of your sentence namely a period of one year because that has avoided the necessity of a trial. That leaves a balance of 2 years. You have already been given credit for your pervious good record in respect of the incest charge so you are not entitled to credit for this charge. No other deductions are applicable to this matter.
18. In respect of this charge you will be convicted and sentenced to 2 years in prison. Because this charge is quite separate not only in nature and time but from one perspective in terms of brutality I am going to order that this term be served cumulative to your term for incest. It is also relevant that it arises out of separate albeit related circumstances and I make the cumulative order after having due regard to the principle of totality of sentence.
19. In my view the 7 year term is a just an appropriate sentence considering your primary offending and your consequent treatment of the young girl in question. I will however order that your time spent in custody awaiting sentence is to be deducted from that term.
20. In respect of the final charge of assault that is part and parcel of the actual bodily harm offending. You are convicted and discharged without penalty in respect of that charge.
21. That is not the conclusion of this matter counsel. Have you heard of the Family Safety Act 2013? You should have come to the workshop that was held on it last week because I am now going to make some consequential orders following this sentence. The first is that I direct the Attorney Generals Office file an application to the Family Court Division of the District Court applying for a protection order in respect of the victim in these proceedings.
22. Secondly, I am also directing that your office consider whether it is necessary to make a similar application in relation to the remaining girl. I have no information as to who she is with. I assume she is being taken care of by the family. But when the defendant is eventually released after his sentence has been served he may be returning to her environment. That is a matter for you to consider. Perhaps the probation office can give you whatever information they have in relation to that issue. That will also form part of the recorded judgment and sentence for this matter.
    

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JUSTICE NELSON