Police v SP [2014] WSSC 140 (9 June 2014)

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

Case name:	Police v SP
Citation:	[2014] WSSC
Decision date:	09 June 2014
Parties:	Police (Prosecution) SP, male ( First Defendant) AND SP, female (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:	For all eleven (11) information laid under the Crimes Act 2013 you will be convicted and sentenced to 6 years in prison for each charge but terms are to be served concurrently. For the fifty (50) charges under the previous legislation taking all factors into consideration I upgrade the prosecution submission of 4 years to 5 years for each charge as I am of the view that better reflects the gravity and sustained nature of the offending. For each of those fifty (50) charges you will be convicted and sentenced to 5 years in prison but those terms are again to be concurrent to your 6 years in respect of the eleven (11) new charges. In respect of the new charges under the Crimes Act 2013 you will be convicted and sentenced to 9 months in prison on each charge, terms to be served concurrent. In respect of the 50 counts of incest under the old legislation, for reasons similar to the sentence imposed on your brother you will be convicted and sentenced to 6 months in prison each charge, terms to be served concurrent to your other terms.
Representation:	O Tagaloa for prosecution S Leung Wai for first defendant F K Ainuu for second defendant
Catchwords:	-
Words and phrases:
Legislation cited:	Crimes Ordinance 1961 Crimes Act 2013
Cases cited:	Attorney General v Mr A [2012] WSCA 2 Police v FT [2012] WSSC Police v NN and AN [2012] WSSC 101
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SP, a male
First Defendant

AND:

SP, a female
Second Defendant

Counsel: O Tagaloa for prosecution
S Leung Wai for first defendant
F K Ainuu for second defendant

Sentence: 09 June 2014

SENTENCE

1. Each defendant faces 61 counts of incest spanning the period June 2010 to October 2013. Because the offending occurred over a 3 year period, fifty (50) of the sixty one (61) charges are brought under the old Crimes Ordinance 1961. Which provides for a maximum penalty of 7 years imprisonment. And eleven (11) of the charges are brought under the new Crimes Act 2013 which commenced on 01 May 2013. Which carries a new maximum penalty of 20 years in prison. This is a significant increase signalling Parliaments concern at this type of offending and how it is coming to light more and more.
2. It is common ground amongst counsel that for the fifty (50) charges committed under the old legislation the court must sentence on the basis that the maximum penalty is 7 years in prison. And for the 11 counts committed under the new regime the maximum penalty that applies is 20 years. This is the approach the court will take which I note in passing to be consistent with article 10 of the Constitution. Before sentencing a suppression order will issue regarding the details of both defendants and this case is to be reported as Police v SP a male and SP a female.
3. The police summary of facts which the defendants have not challenged says the first defendant is a 45 year old male divorced with four children. The second defendant is a 38 year old female also divorced with two children. The defendants are half brother and sister. They have the same father but different mothers. At the time of the offending both parties had separated from their respective partners and were living in the same house with other members of their family. The female defendant after divorcing her husband went to live with her half brother in the half brothers house in his village.
4. It is apparent that all instances of intercourse were consensual acts carried out in the brothers house. And occurred without anyone in the family knowing about it or even suspecting what was happening. The fact that it went on for over a 3 year period means the defendants were very circumspect about their behaviour. The relationship only came to light when the defendants argued about the sisters wish to buy a new shirt for White Sunday. This led to the brother getting drunk and violent, destroying furniture in the house and discharging a firearm. Resulting in the sister calling the police and in the course of police questioning disclosing to them the true nature of their relationship.
5. There is no question that both defendants knew exactly what they were doing. The sisters defence counsel sums it up quite well in his submission when he says, “this is a matter between two consenting adults who obviously were blinded by lust and did not see anything wrong with their actions.” Consensual their actions may have been but as the Court of Appeal reminded us in Attorney General v Mr A [2012] WSCA 2 the court is charged with the duty of protecting the moral standards of the society within which we are living.
6. As was stated in previous cases such as Police v FT [2012] WSSC 102 (a case of brother/sister rape) and Police v NN and AN [2012] WSSC 101 (brother/sister incest), there exists as we know a “va-tapuia” or a sacred covenant between a brother and a sister in our culture.

“We are all aware the brother-sister relationship in our faasamoa is one of special significance. Nowhere is it better illustrated than in the saying ‘o le ioimata o le tuagane o lona tuafafine.” It is a relationship valued and respected by custom. Thus sexual contact between brother and sister is taboo. Those who voluntarily engage in such conduct bring ridicule and shame upon themselves their family and their village. And are given the special and derogatory tag of “mataifale.” Meaning to cast ones eyes upon ones own dwelling. Cases like this bring with it therefore their own punishment on offenders in terms of social ostracism and disgrace. That endures far longer than any sentence the court can impose.”

This is the covenant that the defendants have broken.

7. The present case has many of the features of NN and AN. Like there the brother in this case is older than his sister. Here he is 7 years her senior. The younger sister had separated from her husband, left her children with the husband and sought solace under her brothers roof. She was recovering from a failed relationship and became solely reliant on her older brother who worked as a teacher in the village and who provided for her needs and financial wellbeing. The documents before me indicate that like any other Samoan sister she repaid the brother by helping to rear his children, taking care of household chores and suchlike.
8. There was thus an element of vulnerability and dependency in her situation. Just like NN it was the brother in this case who initiated this sexual liaison. His probation office pre-sentence report says:

“SP reported that he first developed sexual feelings for his sister on the night, 1^st June 2010 when he was sharing his problems with her. He stated that he felt intimate with his sister after this night and the following night he went home drunk after a party with some colleagues. He noticed that all his children have gone to bed so he approached his sister who was asleep at the other house, asked her to have intercourse with him to which she consented. He undressed them both and engaged to the sexual encounter.”

On page three of that same report, the brother told the probation office:

“SP also reported that he has apologised to his sister for this appalling offence that he started and tempted his sister into committing it.”

9. This seems to indicate that the predominant role in this matter was played by the defendant brother. In its landmark judgment in A & B the Court of Appeal said:

“There are two principal themes relevant to sentencing for the crime of incest. The first which is regarded as the more dominant theme 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 the infringement of the moral standards of society.”

10. In considering the Court of Appeal judgment in A & B I expressed the view in NN:

“That was a recognition by the Court of Appeal that the punishment of an offender who commits incest by infringing societys moral code is not necessarily the same as that of an offender who abuses his position to commit incest on a more vulnerable member of the family. The punishment must fit the crime. And if the criminal culpability of offenders is different then the punishments should be different.”

11. Because the present case shares many of the characteristics of NN and AN, I propose to follow the same approach taken there for the same sorts of reasons. These include the older age of the brother, the significantly different customary position he holds as a person charged with the duty to protect his siblings, in particular younger sisters and those of the family more vulnerable than him.
12. As in NN I have came to the conclusion:

“That the male defendant should be sentenced on the basis of his failure to protect his sister who was the younger and more vulnerable family member. Whereas the female defendant should be sentenced on the basis of her breach of the moral standards of society prohibiting having sexual relations with her biological brother. Their criminal culpability is different, their penalty should be different.”

13. I will deal with male defendant first, the brother. Because the higher maximum penalty applies under the new legislation. I will deal with the eleven (11) counts under the new legislation first. You are probably not aware of this defendant but the new maximum penalty of 20 years is dramatically higher than the 7 year maximum under the old law of incest.
14. This does not necessarily mean that the increase is aimed at brother/sister incest cases because such cases have previously been quite rare. The increase is probably aimed at targeting the increase in other kinds of incest such as father/daughter incest which is far more common. The court must therefore be cautious not to assign too heavy an emphasis on the increase in penalty because that is not the only differentiating factor between the old law and the new law. The court must also be careful that sentences in such matters are not unjustifiably increased because of legislative reform. In my respectful view gradual increases are to be preferred to allow the community to become more aware of the significant changes effected by Parliament in this area.
15. However considering all relevant factors I accept the prosecution submission in their sentencing memorandum that sentencing for SP for the newer offences should have a higher start point and accordingly will have a higher end point. To recognize the seriousness of the offending, to mark the significance of the cultural taboo that has been broken, to emphasise the sanctity of the brother/sister relationship, to reflect the sustained nature of the offending and the fact that it was carried out in the confines of the family environment and surroundings. And to denounce sir your conduct and to make it crystal clear to everyone that such behaviour is not acceptable and will not be tolerated.
16. For all those reasons I will take a start point of 10 years in prison. But from that you are entitled to certain deductions which your lawyers have referred to quite properly. The first is for your guilty plea entered when the prosecution finalised the charges against you. That guilty plea has avoided the necessity and expense of a scandalous trial involving members of your family. I give you full credit for that a one-quarter deduction from your original start term that is a period of 2½ years leaves a balance of 7½ years.
17. The second deduction you are entitled to is for your good background and record. I have read the documents before the court you have a good record of service not only to your family but also to your Ekalesia, to your community, you were employed as a teacher. You are highly spoken of by your school principal as well as the Ministry of Education. You have a clean criminal record at 45 years of age. For those factors I deduct 6 months from the balance of your term leaves 7 years.
18. Pre-sentence office report confirms you have apologised to your sister and to your family for what has happened. This is consistent with your remorse as expressed through your counsel. For that I deduct 3 months from the balance of your term. You have been banished by your village which is an entirely appropriate penalty for your offence. For that I deduct 9 months. That means a total deduction for these two factors of 12 months from your 7 year balance leaves a balance of 6 years in prison.
19. There are no other deductions that can be made from your penalty and the 6 years is in accord with the prosecution suggestion as an acceptable penalty. For all eleven (11) information laid under the Crimes Act 2013 you will be convicted and sentenced to 6 years in prison for each charge but terms are to be served concurrently.
20. For the fifty (50) charges under the previous legislation taking all factors into consideration I upgrade the prosecution submission of 4 years to 5 years for each charge as I am of the view that better reflects the gravity and sustained nature of the offending. For each of those fifty (50) charges you will be convicted and sentenced to 5 years in prison but those terms are again to be concurrent to your 6 years in respect of the eleven (11) new charges.
21. O lona uiga o le aotelega o le mataupu lenei, mo le solitulafono lea ua molia mai ai lau susuga i luma o le fa’amasinoga e 6 tausaga e te nofo sala ai i le falepuipui. Fa’afetai ua mae’a lau mataupu.
22. As indicated the sister SP is being sentenced on the basis of her breach of a moral code of behaviour. I am sure she heard the courts comments. Her behaviour is equally unacceptable and cannot be tolerated. In a sentencing for incest a few months ago the court talked of the importance of family to our fa’a-Samoa and to our community. Offending that threatens undermines or erodes such an essential underpinning of our culture and tradition is to be condemned and discouraged.
23. I accept that you were the more vulnerable party in this relationship. But you are a mature 38 year old divorcee with two children. You also carried out this offending deliberately and with both eyes wide open. And this was conduct that went on for a lengthy period of time within the family environment. To mark societys denunciation of such conduct and to remind sisters that they are bound by the sanctity of the brother-sister relationship as much as brothers an imprisonment term is in my view unavoidable. In your particular case a non-custodial sentence would be sending a completely wrong message to our people. But your term must reflect the position you found yourself in which led to your submission to the desires of your older caregiver brother.
24. In respect of the eleven (11) charges under the new Crimes Act 2013 an appropriate start point considering all factors would be 2 years in prison. For your guilty plea I will make a one-quarter deduction from that start point or a period of 6 months leaves a balance of 18 months. I have read the various reports concerning your case and you have a good background of service to the aiga and to the village, your faifeau has even submitted a reference on your behalf. You have a clean criminal record, this is your first court appearance. I will give you a full deduction of 6 months that leaves a balance of 12 months in prison. That deduction also reflects the remorse that you have expressed through your lawyer for your part in this very sad state of affairs.
25. According to the documents before me you have also been banished from your village. However I note that you were only a temporary resident of your brothers village, you did not normally live there. And as for the original village where you lived with your husband you left that of your own free will. So the banishment imposed by those two villages are only because of this matter. As such they should be accorded a less than usual value. But they must be accorded some value as required by law. For those banishments I will deduct a period of 3 months from your remaining sentence leaves 9 months in prison.
26. In respect of the new charges under the Crimes Act 2013 you will be convicted and sentenced to 9 months in prison on each charge, terms to be served concurrent.
27. In respect of the 50 counts of incest under the old legislation, for reasons similar to the sentence imposed on your brother you will be convicted and sentenced to 6 months in prison each charge, terms to be served concurrent to your other terms.
    

JUSTICE NELSON