Police v Fui [2015] WSSC 9 (13 February 2015)

SUPREME COURT OF SAMOA
Police v Fui [2015] WSSC 9

Case name:	Police v Fui 9
Citation:	[2015] WSSC 9
Decision date:	13 February 2015
Parties:	POLICE (prosecution) v PAEPAETELE FUI (accused) male of Falelima and Savaia Lefaga.
Hearing date(s):
File number(s):	S1327/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused is sentenced to 4 years and 9 months imprisonment on each of the nine charges - All these sentences are to be concurrent. - Total time the accused spent in custody is deducted from that sentence.
Representation:	L Su’a-Mailo for prosecution Accused in person
Catchwords:	having sexual intercourse with a female under the age of 21 years living with him as a member of his family - sexual violation by having sexual connection with a dependant family member under the age of 21 years - maximum penalty - age disparity between the accused and the victim – threatened to kill – beating – forbid – accused a first offender – aggravating features – vulnerability – breach of trust – extended of offending – offending in the home – impact of offending –mitigating features – totality principle – need for deterrence for this type of case - starting point for sentence – imprisonment term
Words and phrases:
Legislation cited:	Crimes Act 2013 Crimes Ordinance 1961
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1327/15

BETWEEN

P O L I C E
Prosecution

A N D

PAEPAETELE FUI male of Falelima and Savaia Lefaga.
Accused

Counsel:
L Su’a-Mailo for prosecution
T Atoa for accused

Sentence: 13 February 2015

S E N T E N C E

The charges

1. The accused had stood trial on fourteen substituted charges of having sexual intercourse with a female under the age of 21 years living with him as a member of his family pursuant to s.50 (1) of the Crimes Ordinance 1961, and nine substituted charges of sexual violation by having sexual connection with a dependant family member under the age of 21 years pursuant to s.56 (1) of the Crimes Act 2013 which repealed the Crimes Ordinance 1961. The charges laid pursuant to s.50 (1) of the Crimes Ordinance 1961 were dismissed due to a legal technicality but the accused was found guilty of all nine charges of sexual violation by having sexual connection with a dependant family member under the age of 21 years laid pursuant to s.56 (1) of the Crimes Act 2013. The maximum penalty for every offence under s.56 (1) is 14 years imprisonment. I will proceed to sentence the accused only on the basis of the charges on which he was found guilty.

The offending

2. The accused is the biological father of the victim. At the time of the offending, the accused was 41 years old and the victim 17 years old. The age disparity between the accused and the victim is therefore 24 years.
3. The evidence in support of the nine charges of sexual violation by having sexual connection with a dependant family member under the age of 21 years shows that on nine separate occasions, for about ten months, between May 2013 and February 2014, the accused had sexual intercourse with the victim. These acts of sexual intercourse took place at the accused’s house either late at night when his family were asleep or during the daytime when only the accused and the victim were at home.
4. In her oral testimony, the victim said that on some nights the accused would come to her bed when her mother and her young brother were asleep and have sexual intercourse with her while at other times during the day, when she was alone with the accused at home, he would have sexual intercourse with her. On each of these occasions, the accused would threaten the victim not to talk to anyone or threaten to kill her if she told anyone about what he was doing to her.
5. The victim’s oral testimony also shows that the accused was always angry and jealous when he sees the victim talking with boys, whether they were boys from the victim’s school or from their village. Almost every time that happened, the accused would give the victim a beating and forbid her from talking to or being seen with boys. On one such occasion, the accused used a piece of timber on the victim.
6. It also appears from the victim’s oral testimony, and confirmed by the accused in his evidence, that very often while the victim was attending college, the accused would come to the bus depot at Savalalo and wait for the victim when she finished school in the afternoon. He would then accompany the victim home by bus. I do not understand why the accused had to wait for the victim at the bus depot when she finished school. She was seventeen years old at the time and therefore old enough to know her way home by bus. She also appeared in the witness stand to be quite an intelligent girl.

The accused

7. The accused is married with seven children. One of them is the victim. He had a low level of education having finished school at Year 9. He then assisted his family with their plantation before finding a job as a fisherman on a fishing alia. At the time of this offending he was employed as a night watchman. He had been the principal breadwinner for his family.
8. The accused is a first offender. He was described by his wife to the probation service as well-mannered, humble, hardworking, and trustworthy.
9. The accused still maintains his innocence. He told the probation service that he is innocent of this matter. When asked whether there was anything he wished to say in mitigation of penalty, he also said to the Court that he is innocent of this matter. This is clearly not a sign of remorse.

The victim

10. As earlier mentioned, the victim is a biological daughter of the accused. She was attending school during the whole time of this offending. She suffered emotionally and physically during the whole time of this offending. Not only was she sexually abused by the accused but she was also beaten up by the accused when seen with boys, even male students of her former school. She also told the Court during her oral testimony that her studies suffered because of her emotional distress from the sexual abuse inflicted by the accused on her. She now feels ashamed that she is no longer a virgin. She also often thinks of what the accused had done to her when she is alone.

The aggravating features

11. There are several aggravating features of this offending. I will refer to them in the order of aggravating features for a similar offending set out in the sentencing decision of Kos J in R v T [2014] NZHC 1634, [33] – [44].

(a) Age disparity

12. The age disparity between the accused and the victim, as earlier mentioned, is 24 years. At the time of the offending the accused was 41 years and the victim was 17 years and attending school.

(b) Vulnerability

13. The victim was undoubtedly in a vulnerable position. In a parent/child relationship, the child is in a particularly vulnerable position because of his/her dependency on his/her parents and the parent’s position of authority over the child. The accused took advantage of the victim’s vulnerability to sexually abuse her.

(c) Breach of trust

14. A child would naturally trust his/her parents who is expected to provide support and protection for him/her. The child is entitled to expect warmth and care from his/her parents. The present offending was a gross breach by the accused of the victim’s trust in him as her father.

(d) Extent of offending

15. This offending was not a one-off or isolated incident. It was sustained criminal behavior committed by the accused upon the victim on nine separate occasions over a period of about ten months. Apart from the acts of sexual intercourse, the accused also threatened the victim not to talk to anyone, or to kill her if she told anyone, about what he was doing to her.

(e) Offending in the home

16. This offending occurred at home. The victim was entitled to feel safe and secure in her family’s home and to grow up in a loving environment. This was not so for her.

(f) Impact of offending

17. During the offending, the victim suffered emotionally and physically over a period of about ten months. This is emotional as well as physical harm. As a result, her school studies were affected. Since the offending, the victim often thinks of what her father had done to her and she feels disgusted about it. She now feels ashamed that she is no longer a virgin. No doubt, the thought of what her father had done to her would remain with the victim for a long time, if not for the rest of her life.

Mitigating features

18. A mitigating feature that is personal to the accused is the oral testimonial from his wife to the probation service. She told the probation service that the accused is well-mannered, humble, hardworking, and trustworthy. The accused has also been the principal breadwinner for his family. He is now 42 years old and this would be his first criminal offending.

Discussion

19. Having regard to the maximum penalty of 14 years imprisonment for sexual violation by having sexual connection with a dependent family member under the age of 21 years, the need for deterrence in this type of case, the aggravating features of the offending, as well as the totality principle, I have decided to adopt the starting point of 5 years imprisonment recommended by the prosecution. I will deduct 3 months for previous good character. That leaves 4 years and 9 months.

The result

20. The accused is sentenced to 4 years and 9 months imprisonment on each of the nine charges upon which he was found guilty. All these sentences are to be concurrent. The total time that the accused has been remanded in custody pending the outcome of this matter is to be deducted from that sentence.

CHIEF JUSTICE