Police v MP [2014] WSSC 109 (22 January 2014)

IN THE SUPREME COURT OF SAMOA
Police v MP [2014] WSSC 109

Case name:	Police v MP
Citation:	[2014] WSSC 109
Decision date:	22 January 2014
Parties:	Police (Prosecution) MP, male defendant. (First Defendant) AND CP, female defendant (Second defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On each count of incest you will be convicted and sentenced to 6 years in prison but terms are to be served concurrently so that you will serve a total of 6 years in prison. On each count of incest you will be convicted and sentenced to 18 months in prison but terms are to run concurrent so you will only serve 18 months. I will also order that your time spent in custody awaiting sentence is to be deducted from that 18 months term.
Representation:	O Tagaloa for prosecution J Brunt for first defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Attorney General v A [2012] WSCA 2
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

MP, male defendant.
First Defendant

AND:

CP, female defendant.
Second Defendant

Counsel: O Tagaloa for prosecution
J Brunt for first defendant

Sentence: 22 January 2014

SENTENCE

3. The defendants appear for sentence having pleaded guilty to two counts of incest. They are father and daughter. I will just remind our friends of the press that there continues to exist a suppression order in respect of the details of both defendants.
4. These instances of incest are said to have occurred in May and June last year. When the defendant father was according to his probation report 59 years of age and his daughter 34 years old. Of the two incidents of incest one occurred at night in the family home in the village where the defendants live. And the second occurred at the family plantation inland.
5. According to the probation office pre-sentence reports on the defendants these were not the only two times that they had consensual intercourse. There were many other occasions both in the family home and at the family plantation inland. But it would appear that at all relevant times the mother of the family was absent in Savaii visiting relatives. When she returned she heard rumours in the village of the relationship of the defendants. It was her who took the matter to the village council and eventually from there into the hands of the police.
6. It seems clear from the facts before the court that the defendants pursued a relationship over a period of at least two months. In defiance of custom and the rules of the village and without any thought to the impact their behaviour may have on their family. In particular the younger members thereof because defendant is a married man with five children. The instance of incest in the family home was in fact witnessed by the defendants daughter in law.
7. It is an extraordinary feature of this case that the daughter insists she was responsible for initiating their relationship. She told that to the probation office and confirmed it to me in court. She said that on her return to Samoa with her two children after a few years absence in New Zealand she became close to her father. She is a married woman but it would appear that her husband stayed in New Zealand to work and send money for the upkeep of the family in Samoa. According to her their relationship turned into a sexual one when she approached her father asking to have intercourse. And that the first two times she approached him he assaulted her and told her that was not appropriate behaviour between a father and a daughter. But the third time she went to his mosquito net late at night. At that time he gave in to her wants.
8. In days gone by in this country cases of this incest coming before the court were quite rare. But in the last few years they have come more and more frequently involving not only fathers and daughters but mothers and sons, brothers and sisters. Usually fathers and daughters. That such behaviour is offensive and taboo in our custom need not restated by the court. Everyone knows this. It is so taboo we give it the derogatory name “mataifale”. And people who engage in such conduct are ridiculed.
9. Two important factors are at play. Firstly the concept of family. This is of course central to our way of life and our faa-Samoa. It is a corner stone of our culture. And it is our culture that makes us different from other countries of the world. There is therefore every effort being made to preserve and indeed improve our culture and its traditions. The concept of a family structure is at the core of that culture.
10. His Highness the Head of State has observed that “Samoa is not a country. It is a family”. Behaviour such as this that threatens the stability and nurturing environment of the family structure must be considered with the utmost seriousness and must be dealt with appropriately. This no doubt led Parliament in 2013 to dramatically increase the penalty for incest from 7 to 20 years. It did so without differentiation between male incest and female incest.
11. The second important concept to be borne in mind is that this country is espoused to be based on Christian Principles. Behaviour such as that exhibited by the defendants infringes the very foundation of such principles. As noted by our Court of Appeal in Attorney General v A a case of father daughter incest infringement of Samoas moral standards is a very real and relevant theme. That incest must therefore be met by deterrent sentences is a given. Imprisonment in appropriate cases is necessary to deter the individual offender from re-offending. And to deter other fathers and daughters from such behaviour. It is also necessary to express societies non-acceptances of such behaviour. And its condemnation of such actions. But the penalty for each case must be tailored to its particular circumstances and to the particular offender. Which brings me then to the present defendants.
12. I deal firstly with the defendant father. As a father you are the head of your family. You are required to set good examples by your behaviour and your life style. Examples to your children and to other members of your family under your care and control. I wonder how you would react if your children or your wife started behaving like you did. You knew it was wrong that is why you refused the girl the first two times. You are 25 years older than your daughter. You have lived that much longer and experienced that much more of life. You failed to live up to your responsibility as a father and as a head of your family. And in doing so you offended against the culture and norms of our society. I consider your criminal culpability greater than your daughter. You will receive the heavier penalty.
13. Considering all circumstances of your matter a start point for sentence is 10 years in prison. From that you are entitled to certain deductions which your lawyer has quite properly pointed out to the court in mitigation. Firstly for your guilty plea because that has saved the courts time and having this matter go to trial. For that I will deduct one-quarter of the start penalty a period of 2½ years leaves a balance of 7½ years. For the fact that at 59 years of age this is your first court appearance and you have a good background of service to your family as outlined in your pre-sentence report. I will deduct for those factors one year from that balance. Leaves 6½ years. This matter went before your village council. Curiously what your village council did was to banish your daughter but not you. In respect of you they imposed a fine of 50 pusa apa according to the probation office pre-sentence report. A penalty that was in respect of not only you but also your daughter. A penalty which has been paid. Considering that is the only penalty you received from your village council I only deduct 3 months from the balance of sentence leaves a period of 6 years and 3 months. The final deduction you are entitled to is to reflect the fact that you have been in custody awaiting sentence. In acknowledgement of that I will deduct 3 months from your sentence leaves a balance of 6 years in prison.
14. On each count of incest you will be convicted and sentenced to 6 years in prison but terms are to be served concurrently so that you will serve a total of 6 years in prison.
15. By your own words defendant daughter you initiated this illicit relationship. Daughters as well as fathers must respect the customs of the community. You have lived here long enough. You know such behaviour is wrong and taboo. I am sure you do not want your children following your example.
16. Considering all the relevant factors CP the start point for sentence for you would be 4 years in prison. I will make the same deduction for your guilty plea as your father one-quarter of penalty leaves a balance of 3 years. For your record of pervious good character and your good background of looking after your own children and family I will deduct 6 months from that period leaves a balance of 2½ years. To recognize the fact that you have been banished from your village and that you were also part of the family penalty I will deduct 6 months leaves a balance of 2 years. I must tell you CP I admire your honesty in admitting that you started this relationship. I also note you have a heart condition so life in prison will be difficult for you. To take account of those two matters I will make a further 6 months deduction from the penalty against you leaves a balance of 18 months.
17. On each count of incest you will be convicted and sentenced to 18 months in prison but terms are to run concurrent so you will only serve 18 months. I will also order that your time spent in custody awaiting sentence is to be deducted from that 18 months term.
    

JUSTICE NELSON