Police v AS [2015] WSSC 233 (3 August 2015)

IN THE SUPREME COURT OF SAMOA
Police v AS [2015] WSSC 233

Case name:	Police v AS
Citation:	[2015] WSSC 233
Decision date:	03 August 2015
Parties:	POLICE (Prosecution) AS, male. (First Defendant) AND MS, male. (Second Defendnat)
Hearing date(s):	-
File number(s):	S157/15, S4400/14, S4391/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	O Tagaloa and Ms Amosa for prosecution M Vaai for defendants
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Police v FT (19 November 2012) Key v Police [2013] WSCA 3 Police v NN [2012] WSSC 101
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AS, male.
First Defendant

AND:

MS, male.
Second Defendant

Counsel: O Tagaloa and Ms Amosa for prosecution
M Vaai for defendants

Sentence: 03 August 2015

SENTENCE

1. The defendants in this matter are brothers. The first defendant AS is the older brother he is 20 years of age single and tausi aiga. He faces two counts of rape. The second defendant MS is 19 years of age also single and tausi aiga. He faces one count of incest. The victim is their 14 year old sister. She is the biological sister of both defendants. At the time of this offending she lived together with the defendants and their parents in Savaii. The usual suppression order will issue prohibiting publication of the details of the victim and to further protect her name considering that it is her brothers who are defendants that order will also extend to the brothers details as well.
2. The police summary of facts relates that on a day in October 2013 the victim was playing on the road in front of the family house with one of her sisters. The first defendant called her over and instructed her to bring him some water. The girl took him the water and when she gave it to him he grabbed her by the arm and pulled her to the house. The girl cried and became scared. The defendant removed all her clothes and kissed her breasts and private part. He inserted his penis into her private part and had sexual intercourse with her. This caused her pain because this was the first time the girl had ever experienced sexual intercourse. After the act he told the victim not to tell their parents.
3. The summary goes on to relate that on another day in the same month October 2013 the victim was again playing with her older sister in the front of the house by the road. Again the first defendant called out to another sister to send the victim to him with some salt “masima.” The victim complied and when she gave the defendant the salt he caught her and carried her to the faleoo where he removed her clothes, sucked her breasts and private part and then inserted his penis into her private part and had sexual intercourse with her. While the first defendant was doing this the sister who was waiting on the road came to the faleoo. When she entered the faleoo she saw the first defendant having sex with the victim. This caused the act to be interrupted and he quickly jumped off the victim and he ran away.
4. The police summary goes on to say later in the month of May 2014 the victim was in her mosquito net with her boyfriend. They were talking. Later when the boyfriend left she went to sleep. Not long after that the second defendant, the other brother MS came to the mosquito net. He removed her underwear and sucked her private parts. He however was interrupted by the first defendant the older brother calling him from outside the house to come to scrape some coconuts. He stopped what he was doing and left the mosquito net.
5. This behaviour by the defendants has resulted in two rape charges against AS the older brother and the one incest charge against the younger brother MS. Because incest is now defined by legislation to include a sexual connection such as oral sex between siblings. It is no longer limited to just penis-vaginal penetration.
6. Both charges are serious charges. Rape carries the maximum of life in prison and it has invariably received sentences of imprisonment. I know of no Samoan case where imprisonment has not been imposed.
7. Regarding first defendant: the circumstances in this particular matter include the young age of the victim, the loss of her virginity to the forceful actions of her older brother, a brother who was at the time 6 years her senior. That is not to mention the breach of the brother/sister covenant which in our custom and tradition is something regarded as sacrosanct. As this court observed in Police v FT a decision handed down on 19 November 2012 and I quote:

“All rapes are serious. If a scale exists for such things the rape of a sibling is even more serious. Not only in the eyes of the western law but also as a matter of the cultural law that has governed this country for centuries. The “vatapuia” or sacred covenant between brother and sister has been broken. Indeed in this case it was forcibly ripped apart by the defendant. We are all aware it is the duty of every Samoan brother to protect his sister his “feagaiga” and his family and not to sexually abused and take advantage of them. These breaches are recognized in the courts sentencing.”

8. I do not overlook either the fact that the defendant used force to give effect to his desires. And take advantage of his position as the older sibling. All these factors combine to justify an imprisonment penalty. The sentence must also denounce the conduct of the first defendant as unacceptable and send the necessary deterrent messages to him personally to all brothers and young men generally. It overrides any consideration of rehabilitation. The law cannot condone or be seen to condone sibling rape.
9. Likewise the incest matter must be met by a prison term for the similar reasons. But the penalty should reflect the nature of the offending which here does not involve penile penetration. I deal firstly with the older brother.
10. I accept the submission that the Court of Appeal decision in Key v Police and the sentencing band approach applies. But I disagree with the prosecution that a B-2 start point is appropriate. The offending here in my view considering all factors belongs in the B-3 sentencing range given that it is a case of sibling rape of a young girl in her own home. Acts which have had a disastrous effect on her life.
11. The Victim Impact Report says that currently this girl is under the care of the Samoa Victim Support Group. It is uncertain how long that will continue given the defendants are her biological brothers. But the acts are certainly a basis for protection orders to be taken out as against her brothers prohibiting them from any future contact with her.
12. The defendant obviously also chose his time to do these things to the young girl when the victim was vulnerable and no adult or parent was around. This indicates some degree of planning and pre-meditation. But I do accept that the degree of violence seems to be low since there is no suggestion the young girl suffered any other physical injuries.
13. As you have heard AS the maximum penalty for rape is life in prison. A suitable start point for your sentence considering all facts would be 16 years in prison. Although there are factors justifying using different start points for the two incidents of rape for example the first rape resulted in the loss of the victims virginity and the second rape was a repeat offending in much the same manner and in the same place as the first, these factors largely off-set each other. So I will apply the totality of sentencing approach and use the same start point for both counts of rape.
14. There are deductions as your counsel has correctly pointed out to which you are entitled. Firstly for your guilty plea a one-quarter of sentence deduction because that has saved the courts valuable time. It is also some indication of remorse. And spares the complainant the ordeal of testifying. That is a period of 4 years leaves a balance of 12 years.
15. You have a good background. Your pre-sentence report indicates that even though you had a low level of education you have regularly contributed to “tautua” to your family. This is your first criminal offence, there is no evidence you have ever been in trouble in your village either. To reflect those factors I deduct 6 months, leaves 11½ years.
16. In terms of an apology the victims mother has confirmed the defendant has apologized. This has been verified by the probation office. And this has been accepted by the victims family. Although not by the victim personally and I cannot blame her for that. The main point is that the defendant has expressed remorse and contrition. For that I deduct 6 months, leaves 11 years in prison.
17. You are eligible for a further deduction AS for your young age and clean record. As our Court of Appeal recently pointed out in Senetenari the prospect of rehabilitation should still be recognized and allowed for accordingly. For that I will deduct one (1) year, leaves a balance of 10 years in prison.
18. No other deductions apply to your case or should be made to your sentence. On each of these counts of rape convicted and sentenced to 10 years in prison, concurrent terms. Remand in custody time awaiting sentence to be deducted.
19. MS the maximum penalty for what you did is now 20 years in prison. That is double the previous maximum penalty. Which is an indication of Parliaments concern over the increasing number of these sorts of cases coming before the court in recent times. As noted by this court in Police v NN a sentence handed down on the 4^th of December 2012 brother/sister incest is not as common as father/daughter incest. But it still involves the sexual abuse of a younger family member in this case your younger sister who was not only younger than you but had already been abused by your older brother.
20. Your duty young man was to protect your sister who at that time was 5 years younger than you. Instead you abused your status for sexual gratification. You told the probation office you were intoxicated at the time. That is no excuse for your action. A brothers duty to his sister is not suspended because he consumes alcohol. Some good advice for you MS is if you cannot drink and control yourself best not to drink at all.
21. Considering all factors I am in agreement with the prosecution that an imprisonment penalty must be imposed but a 4 year start point is the appropriate place to start. The deductions you are eligible for are the same as your brother because you have similar backgrounds. For your guilty plea one-quarter of sentence that is 1 year, leaves a balance of 3 years.
22. For your tautua and clean record 6 months, that leaves a balance of 2½ years. For the apology that you have also made for what you did as accepted by your family 6 months, that leaves 2 years. And for your age a further deduction of 1 year will be made leaves a balance of 12 months.
23. On the charge of incest by way of oral sex convicted and sentenced to 12 months in prison. Remand in custody time to be deducted.
    

JUSTICE NELSON