Police v VL [2015] WSSC 243 (21 December 2015)

IN THE SUPREME COURT OF SAMOA
Police v VL [2015] WSSC 243

Case name:	Police v VL
Citation:	[2015] WSSC 243
Decision date:	21 December 2015
Parties:	POLICE (Prosecution) VL, male (Defendant)
Hearing date(s):	21 December 2015
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	F Ioane and Mr Tumua for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Key v Police [2013] WSSC 3 Police v PM [2011] WSSC 112
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

VL, male.
Defendant

Counsel: F Ioane and Mr Tumua for prosecution
Defendant unrepresented

Sentence: 21 December 2015

SENTENCE

1. After a defended hearing the defendant was found guilty by unanimous verdict of a panel of assessors of thirteen (13) counts of rape of his biological daughter. The girl was at the time 15 years of age. The assessors also returned a unanimous guilty verdict on thirteen (13) corresponding counts of incest. The incidents occurred over the period December 2014 to May 2015 with a frequency of at least twice a month and three times in the month of May 2015.
2. The incidents occurred in the defendants bedroom where he slept with his daughter. She slept there at his insistence on a mattress on the floor beside his bed. They took place usually in the early hours of the morning or late at night when the rest of the household were asleep. There was no indication the rapes were carried out with any particular degree of brutality. But the complainants testimony was she submitted out of fear of her father who would beat her for any transgression. And who each time threatened to beat her if she disclosed what was happening to anyone.
3. The result of the rapes was a pregnancy and in October 2015 the complainant gave birth to a healthy baby boy. Both parties are now under the care of the Samoa Victim Support a volunteer group that fills a great void in our community. Which thankfully carries out outstanding work and support for victims of sexual offending. And the offspring that sometime result from such offending. Names and other details of the complainant and her child will be suppressed from publication as per normal procedure. To further protect that confidentiality this extends to the defendant. This case will be recorded as Police v VL.
4. There is no doubting that the complainants life has been forever altered in more ways than one by the defendants criminal behaviour. The offending only stopped when it became apparent she was pregnant resulting in enquiries being undertaken by members of the family and the matter being referred to the police. The trial evidence also showed the defendant had instructed his daughter that should anyone ask, to blame her pregnancy on one of her male cousins. This defendant is a man with no conscience who almost beat his teenage son, the brother of the complainant, when the boy confronted him about his behaviour.
5. Had the defendant accepted responsibility for his offending and pleaded guilty he would have received some credit for that. But when given the opportunity to do so at the beginning before the trial commenced he chose to continue to defend the charges. Necessitating the complainant and his son, his very own children, appearing and going through the harrowing experience of a public hearing before a court room full of strangers.
6. It is apparent from what has now been produced before the court the defendant is in fact no stranger to the judicial process. He was convicted and imprisoned in New Zealand in 2009 for indecently assaulting a female between the age of 12 and 16 years. He was deported from that jurisdiction after serving his sentence in the company of two New Zealand police officers. An indication of the seriousness with which the New Zealand authorities regarded him.
7. I find it astounding how a convicted sex offender deported from an overseas jurisdiction because of his offending, considered dangerous enough to warrant being accompanied to Samoa not by one but two police officers, can then be permitted to live freely and anonymously in our community with no restriction whatever. With nothing in place to prevent possible reoffending.
8. The evidence showed that on his return the defendant went to the family of his deceased wife where the children were living and brought the complainant and her brother to live with him. The evidence also showed obsessive behaviour on his part in relation to the young girl. According to her testimony he would forbid her from playing or spending time with her female cousins. He would forbid her going outside the house. He would beat her when he returned from work and found her outside the house for whatever reason. Her brothers evidence was sometime these beatings would produce blood “e masa’a le toto o lou tuafafine pe a fasi.” The complainant was not even allowed according to her to watch TV. The defendant seems to be what is referred to in common parlance as a “control freak.” Sounds to me like he kept his daughter a virtual prisoner in her own home.
9. Eventually his temperament took on a darker side. Resulting in his raping the defenceless young girl on a regular basis as verified by the charges. The complainant gave evidence of complaining to her brother that he treated her “like his wife.”
10. This case once again highlights the need for a Sex Offenders Register for registration of serious sex offenders. So that such offenders can be supervised and monitored post release from prison. Irrespective of whether they are convicted and imprisoned in Samoa or elsewhere. It seems to be a normal practice now that sex offenders convicted in overseas jurisdictions are being returned to Samoa upon expiry of their sentences. Then are released back into an unsuspecting community which is blissfully ignorant of the criminal past of these people who walk and live among them. This is the proverbial insertion of the wolf into the sheeps den.
11. There was a similar case before this court last week of a 52 year old serving a prison term for raping his eleven (11) year old daughter. He too was released this time on weekend parole to attend a wedding. There were no conditions attached to that release. He spent the night at the family hosting the wedding and during the night he “moetolo” or sexually assaulted a 15 year old female of the family. Fortunately for that defendant the boys of the family did not find out about this until after he left. Had he been a registered sex offender and subject to strict monitoring and supervisory conditions this sort of reoffending would probably be far more difficult to perpetuate. One of the primary purposes of such a register is to place barriers and restrictions on offenders thus making it more difficult for reoffending to occur. The reality is that offender last week, and this defendant and other like offenders will one day walk out the prison gates. As free, unmonitored, unsupervised but not necessarily rehabilitated men.
12. The maximum penalty for rape is life in prison. Sentencing for rape is of course governed by the guidelines set out by the Court of Appeal in Key v Police [2013] WSSC 3. Where it provides for band sentencing Bands 1, 2, 3 and 4. One being for the lightest kind of offending and 4 for the heaviest. This is a case of a father repeatedly raping his 15 year old daughter in the confines of the family home. It is similar to the case of Police v PM [2011] WSSC 112 where I observed the following: the defendant is guilty of a pre-meditated and gross breach of trust. He used his position as head of the family household to satisfy his lusts on a young girl. The offences were committed in a family environment where young girls are entitled to grow up safe and protected from this sort of behaviour. The primary protector of the girl became her primary abuser. In doing so he has deprived her of her innocence and those childhood things that she is entitled to by the laws of man and God. The end result in the present case was an unplanned unwanted pregnancy.
13. I assess this case to be in the most serious category of rapes, that of Band 4. The prosecution are seeking that sentencing start at 25 years in prison. While I think sentencing must begin at a high level I consider that too high. A better reflection of the circumstances of this matter would be a 20 year start point. That start point must however be upgraded because of the defendants record of previous sex and other offending which he has admitted. Sentence will therefore start at 22 years in prison.
14. In terms of deductions there are some that are customarily made for mitigating factors. But in your case VL I find no mitigating factors. You did not plead guilty. In fact you told me this morning you still dispute the allegations made against you by your children. But you forgive them for their actions. You are not a first offender because you have previous convictions in New Zealand and some minor previous convictions here. You are therefore eligible for no deduction for your previous good character and record. But I accept that you were a reasonable provider according to the evidence, for your children as a working parent. You provided a roof over their heads it is what you did underneath the roof that is highly objectionable. I will give you some credit for that I will deduct one (1) year from your sentence. That leaves a balance of 21 years. There are no other factors you can be given credit for VL.
15. On each charge of rape you will be convicted and sentenced to 21 years in prison all terms concurrent. On the charges of incest you will be convicted and sentenced to 14 years in prison each charge all concurrent terms. Ao le taimi lea sa e nofo taofia ai e faatalitali le faaiuga o mataupu nei VL e tatau ona toese mai le taimi lea ua faamalau atu e fai ma ou faasalaga i le mataupu lenei.
    

JUSTICE NELSON