Police v MI [2014] WSSC 105 (30 September 2014)

IN THE SUPREME COURT OF SAMOA
Police v MI and TP [2014] WSSC 105

Case name:	Police v MI and TP
Citation:	[2014] WSSC 105
Decision date:	30 September 2014
Parties:	The Police (Prosecution) MI (First Defendant) TP (Second Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	For the defendant MI – Sentenced to 2 years in prison. For the offence of having sexual intercourse with a young related girl of your family not your wife, you are convicted and sentenced. For the defendant TP - Convicted and sentenced to 6 months in prison. That is to be followed by 12 months supervision under the probation office. The special conditions of your supervision are: (i) that you will sever all contact with the first defendant; (ii) you will live only where approved by the probation office; (iii) you will attend counseling programmes as directed by the probation office; (iv) you will report as required and when required by the probation office; and (v) you will obey all other directions given to you by the probation office for the term of your supervision.
Representation:	O Tagaloa for prosecution D Kerslake for defendants
Catchwords:
	Sex with young related girl – sexual intercourse - incest
Words and phrases:
Legislation cited:
Cases cited:	Crimes Ordinance 1961
	Marriage Ordinance Attorney General v A and B Police v NN
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

MI male defendant.
First Defendant

AND:

TP female defendnat.
Second Defendant

Counsel: O Tagaloa for prosecution
D Kerslake for defendants

Sentence: 30 September 2014

SENTENCE

1. The defendants are father and step-daughter. She is the daughter of one of the fathers defacto or common law wives. The father MI appears for sentence on Information S2983/13 (sex with young related girl) that he did in the month of April 1999 have sexual intercourse with his step-daughter who at the time was between 16 and 17 years of age and living with him as a member of his family. He is being sentenced under the old Crimes Ordinance 1961 because that was the law in force as at the date of the offence. Under that legislation the offence he committed was punishable by up to 7 years imprisonment.
2. His step-daughter TP is appearing for sentence on Information S2590/13 that she did between January and May 2013 have sexual intercourse with her then 19 year old half-brother and did thereby commit the crime of incest. She too is being prosecuted under the Crimes Ordinance 1961. Maximum penalty for the offence is 7 years imprisonment. A permanent suppression order will issue in respect of the identities of both defendants and the other parties involved in this offending as per the normal practice of the court.
3. This is quite a sad and unusual case. It is clear from what I have read in the material before the court that illicit relationships are rampant in the families of these people to the extent that the defendants, notwithstanding that they are in a forbidden relationship pursuant to the First Schedule of the Marriage Ordinance 1961, went ahead and married in 2012. A marriage which by section 7 of the Marriage Ordinance is void. That should have been pointed out by somebody to them at the time in particular the marriage officer who conducted the ceremony.
4. The couple have had 4 children as a result of their relationship and there is a fifth child from TPs relationship with her half-brother. It also appears that her biological father is currently serving a prison term for incest committed on one of her sisters. It is little wonder that TP who got pregnant at a young age to one of her uncles is in the predicament she is now in; something which her counsel has dealt with extensively in her submissions.
5. The approach to incest cases generally was laid down by our Court of Appeal in Attorney General v A and B [2012] WSCA 2 as followed subsequently by this court in cases such as Police v NN [2012] WSSC 11. The Court of Appeal pointed out that two principle themes are relevant to sentencing for incest. The first which it regarded as dominant is the protection of family members who because of the trust placed in a loved one are vulnerable to abuse. The second which overlaps the first and is more complex is infringement of the moral standards of society. Those principles enunciated by the Court of Appeal in my view also apply in this case to the charge against MI. The first principle moreso than the second.
6. I will deal with his case first. He is a 76 year old man who has a number of children from previous relationships and is caring for 5 children from his current relationship with TP. His pre-sentence report also says that his pension helps support the family together with income earned from TP from weaving fine mats and other things. He is well spoken of by both his pulenuu and pastor in character references attached to the pre-sentence report and he plays an active role in his community.
7. However in this matter he has set a poor example to his family. In April 1999 according to the charge, he initiated sexual intercourse with the then much younger TP and initiated an illicit relationship with his step-daughter whom he has now married. All these things contrary to the laws of this community. He has in my assessment failed in his responsibilities as a parent and an elder of his family. It is important that members of his family and the public at large understand quite clearly that his conduct is not only morally reprehensible but illegal.
8. In terms of the principles referred to by the Court of Appeal above he has failed in his duty to protect and nourish the complainant and likewise he has infringed societys moral code. Imprisonment as a penalty is not only necessary but appropriate. His advanced age and personal circumstances are overshadowed by the need to hold him accountable for his actions and the need for a deterrent sentence to be imposed; a deterrent both personal and general.
9. Considering all the circumstances of your matter a 5 year start point is appropriate. For your guilty plea I will make a one-third deduction of sentence because that has saved the time and the resources of the court. It has avoided the necessity for the complainant/second defendant to give evidence and most significantly your guilty plea is an indication of your acceptance of responsibility for your wrong-doing. A one-third deduction is 20 months, that leaves a balance of 40 months in prison. You have a clean criminal record and the pre-sentence report is a good one outlining your background of service to your family and community. In recognition of those factors I will deduct 6 months from your balance of sentence, leaves 34 months. I also note you have been banished from your village which is a significant and well appropriate penalty. To take that into consideration I deduct a further 6 months from your balance of sentence, leaves 28 months in prison. I recognise MI that at your advanced age prison will be hard for you I will accordingly deduct 4 months from this 28 months and reduce your penalty to round figures, 2 years in prison.
10. For the offence of having sexual intercourse with a young related girl of your family not your wife, you are convicted and sentenced to 2 years in prison.
11. In relation to the second defendant TP her case is more complex. Her personal circumstances and history are fully canvassed in the pre-sentence report and have been referred to extensively in her lawyers helpful submissions. Her criminal culpability is based on a breach of societys moral code of behaviour.
12. As observed by this court in Police v NN [2012] WSSC 101: TP is most likely the product “of a lack of parental or other strong guidance and supervision. There was no one to counsel and advise on matters of sexuality or matters of “va tapuia” or boundaries of social behaviour.” Hence her choice to engage in an illicit relationship with her half-brother.
13. But at the time she had the relationship she was a mature married woman with children and a husband. I have no doubt counseling will greatly benefit TP for it is not too late for her to change her ways and views. It is never too late to teach her children that her conduct was wrong through no fault of theirs. I recognise that she has a long arduous struggle ahead of her.
14. But as with the first defendant there is an overriding need in the circumstances of this matter to hold her accountable for her actions. And for her and others to understand the gravity and illegality of her actions and to send a deterrent message to everyone. I have come to the conclusion that a short term of imprisonment will satisfy these requirements and leave room for her to get on with her life in future; a future that I hope is brighter than her past.
15. Taking all circumstances into consideration TP you are convicted and sentenced to 6 months in prison. That is to be followed by 12 months supervision under the probation office. The special conditions of your supervision are:

• (i) that you will sever all contact with the first defendant;
• (ii) you will live only where approved by the probation office;
• (iii) you will attend counseling programmes as directed by the probation office;
• (iv) you will report as required and when required by the probation office; and
• (v) you will obey all other directions given to you by the probation office for the term of your supervision.

JUSTICE NELSON