Police v JI [2018] WSSC 50 (21 March 2018)

SUPREME COURT OF SAMOA
Police v JI [2018] WSSC 50

Case name:	Police v JI
Citation:	[2018] WSSC 50
Decision date:	21 March 2018
Parties:	POLICE v JI male.
Hearing date(s):
File number(s):	S164/17 and other 40 charges.
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Order prohibiting publication in news media, internet or any other publicly accessible database the names, school or village of the accused and victim. - Accordingly, you are sentenced as follows: (i) Information S164/17, you are convicted and sentenced to 7 years imprisonment less time remanded in custody; (ii) for the 40 remaining charges of unlawful sexual connection, you are convicted and sentenced to 2 years imprisonment on each, to be served concurrently to information S164/17; and (iii) for the charge of indecent assault, 3 months imprisonment to be served concurrently.
Representation:	L Sio for prosecution A Lesa for the Accused
Catchwords:	Biological daughter; sexually assaulted your daughter.
Words and phrases:	By your serious and prolonged offending, you have destroyed all that is special in a relationship between a father and daughter; she wants you to remain as she says, ‘behind bars.’
Legislation cited:	Crimes Act 2013
Cases cited:	Police v Faiga [2008] WSSC 96, Nelson J, Police v Kum [2000] WSCA 6, a Court of Appeal judgment, (see: Police v Leiataua [2015] WSSC 211 (17 December 2015), (Police v Vei [2016] WSSC 148), Police v Ieremia [2014] WSSC 70, Police v Misipati [2017] WSSC 102 (7 July 2017), Police v Taliilagi Ulusele (Unreported Sentence of this Court, 21 September 2017) and In R v AM [2010] NZCA 114, the New Zealand Court of Appeal.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

JI male.
Accused

Counsel:
L Sio for prosecution
A Lesa for the Accused

Sentence: 21 March 2018

S E N T E N C E

The Charges:

1. JI, through your counsel who will have explained the charges to you, you have pleaded guilty to 41 charges of unlawful sexual connection by way of sexual violation against your daughter contrary to sections 49(b), 50(b) and 52(2) of the Crimes Act 2013. You have also pleaded guilty to 1 charge of indecent assault (S210/17) of your daughter. You first started sexually assaulting your daughter when she was 13 years of age.
2. The maximum penalty for sexual connection pursuant to subsection 52(2) of the Act is 14 years imprisonment. The maximum penalty for the indecent act to which you have pleaded guilty is 5 years imprisonment.

The Offending:

3. According to the Prosecution Summary of Facts, you first sexually assaulted your daughter in January 2013. On the first occasion, you went to your daughter who was sleeping and began to feel her up on her legs. She woke, asked who it was and you covered her mouth and told her to be quiet. When you went outside the mosquito net, you asked her why she did not want you to touch her and she told you because it was bad.
4. After this first encounter, you then embarked on a long term sustained pattern of sexual abuse perpetrated against your daughter that became more serious after this first incident. When you next assaulted her, it was between the 1^st of February and 28^th February 2013. Between 10.00pm and 12.00am at night, you went to her when she was asleep in her mosquito net and sexually assaulted her by inserting and poking your finger in her private part. She was 13 years of age.
5. Over the course of 2013, you followed this pattern of sexually assaulting your daughter by inserting your finger in her private part a further 8 times, doing so in May, June, July, August, September, October, November and December 2013.
6. In 2014, you carried out the same pattern of sexual offending of inserting your finger in to your daughter’s private part a further 10 times, sexually assaulting her over various times in the months of January, February, March, April, May, June, July, August and December.
7. In 2015, you maintained your sustained pattern of sexual assault involving inserting your finger in to her private part a further 12 times in the months of January, February, March, April, May, June, July, August, September, October, November and December.
8. In 2016, you sexually assaulted your daughter a further 10 times by inserting your finger into her private part doing so in the months of January, February, March, April, May, June, July, August, September and October 2016.
9. Your matter only came to light when your daughter became involved in an argument with another of your daughters’ in January 2017 and your other daughter threatened to report her to your wife.
10. In your PSR, you said that on the first occasion that you sexually assaulted your daughter, you had mistaken her for your wife. The second time, you went to her mosquito net while she was asleep and inserted your finger in her private part and did so for 5 minutes until she woke. This was the start of a pattern of sexual offending that continued over the next 4 years.

The Accused:

11. You are a 36 year old male of XX and YY. You are the second of three children. You were raised at XX and completed school to year 12. When you left school, you worked various jobs as a carpenter and in an uncle’s engineering business. You are the father of 8 children aged between 8 and 17 years of age.
12. According to the Probation Service, your sister claims that you are a person of good character within your family, are hardworking, reliable and dependable. Despite what you have done, she still supports you.
13. There are no written references in support of your character. You expressed remorse when you addressed the Court and seek forgiveness.

The Victim:

14. Your biological daughter is now 16 years old. She says in her VIR that she was threatened by you and that she was scared every time you approached her. She explained that over the years that you did this to her, if she refused your acts, you would be angry with her and punish her. She no longer wants to see you as it would remind her of what you did to her and that she no longer thinks of your offending. She wants you to remain as she says, ‘behind bars’.

Aggravating features of your offending:

15. The aggravating features of your offending are:
    • The gross breach of trust between father and daughter;
    • The scale of your offending involving in all 42 incidences of sexual offending constituting a pattern of sustained and long term sexual abuse against your daughter over a period of 4 years;
      
    • The harm to your daughter inherent in your offending;
    • The age difference between you and your daughter;
    • Your daughter’s vulnerability given her young age and the circumstances of offending; and
    • The offending was premeditated and planned.

The mitigating features:

16. There are no mitigating features in respect of the offending. Personal to you is your guilty plea though the discount in sentence is reduced by the fact that after pleading guilty, you applied to vacate your guilty plea in October last year. That application was only withdrawn on the 15^th February this year after completion of the hearing to vacate your guilty plea. Nevertheless, your guilty plea has spared your daughter the ordeal of having to give evidence. I also take into account your prior good character and remorse.

Discussion:

17. In Police v Faiga [2008] WSSC 96, Nelson J in his sentencing remarks addressed the United Nations Convention on the Rights of the Child and relevantly stated as follows:

“Samoa is signatory to and has ratified with an immaterial exception the United Nations Convention on the Rights of the Child ("CRC") adopted by the United Nations General Assembly in 1989. The preamble to that Convention recognizes that the child for the full and harmonious development of his or her personality should grow up in a family environment in an atmosphere of happiness, love and understanding bearing in mind that the child by reason of his or her physical and mental immaturity needs special safe-guards, protection and care including appropriate legal protections. The Convention relevantly provides in Article 19(1):

"State Parties shall take all appropriate legislative administrative social and educational measures to protect the child from all forms of physical or mental abuse including sexual abuse."

Article 34 of the Convention goes on:

"State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes state parties shall in particular take all appropriate national measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity."

18. In Police v Kum [2000] WSCA 6, a Court of Appeal judgment referred to by Nelson J, the Court of Appeal stated:

“The Convention requires protection of the child from sexual abuse while in the care of parents and any other person who has the care of the child. The preamble recognises that a child 'should grow up in a family environment, in an atmosphere of happiness, love and understanding.' ... The Court should send out a strong message, where appropriate as in this case, that offences of this nature by a grandfather on a granddaughter in his care will not be tolerated and will be met with a sentence of imprisonment sufficient to mark society's denunciation of such conduct. The sentence of nine months imprisonment is manifestly inadequate to condemn such conduct, punish the offender and serve as a deterrent to the offender and others.”

19. JI, by your serious and prolonged offending, you have destroyed all that is special in a relationship between a father and daughter. A daughter, rightfully, can expect of her father love, support, guidance and protection from those who might harm them. As a father, your role was to protect your daughter from harm, not to be the perpetrator of such acts against her, let alone within her home and in her bed. In doing so, you have destroyed your relationship with her and any trust that she could possibly have in you as her father. Your actions will have lasting consequences for your daughter. In sentencing you, I bear in mind the United Nations Convention on the Rights of the Child and what has been said in earlier cases.
20. The Samoan Courts have also long recognized the prevalence of sexual offending in the community and have very clearly enunciated the need for deterrence in sentencing (see: Police v Leiataua [2015] WSSC 211 (17 December 2015); Police v Kum [2000] WSCA 6)). Sexual offending within the family is also prevalent (Police v Vei [2016] WSSC 148). Your offending however in my view is highly unusual because of the scale of your offending against your daughter and the long period of time that you did so. Your offending must therefore be condemned to clearly reflect society’s denunciation of such abhorrent acts on your daughter that are repugnant to the community’s strong Christian values, Samoan culture and the role of a father in the Samoan family unit. Importantly, the sentence imposed today is to deter you and others from committing such offences.
21. Prosecution seeks a start point of 5 years imprisonment based on Police v XX [2015] WSSC 9, a case involving sentencing on nine charges of sexual violation by having sexual connection with a dependant family member under the age of 21 years which also with a maximum penalty of 14 years imprisonment. That offending occurred over 10 months, the offender being the 44 year old biological father of his 17 year old daughter. The facts of that case, whilst serious, are not as serious as the offending here which took place over 4 years.
22. In considering sentence, I have also had regard to other sexual offence sentences including Police v Faiga [2008] WSSC 96; Police v Ieremia [2014] WSSC 70, Police v Vei, Police v Misipati [2017] WSSC 102 (7 July 2017); and Police v Taliilagi Ulusele (Unreported Sentence of this Court, 21 September 2017).
23. In R v AM [2010] NZCA 114, the New Zealand Court of Appeal set out sentencing guidelines for rape and sexual violation by way of unlawful sexual connection. Relevantly, the New Zealand Court of Appeal set out sentencing bands for sentencing for sexual violation where unlawful sexual connection is the lead charge. The bands were summarized by Sapolu CJ in Police v Ieremia as follows:
    

“Those bands are set out and discussed in R v AM [2010] NZCA 114 at paras [113] – [124] as follows:
(a) Band one: 2 – 5 years

Appropriate to cover offending at the lower end of the spectrum where none of the “culpability assessment factors” is present or where one or more of those factors is present to a low or moderate degree.
(b) Band two: 4 – 10 years

Appropriate for cases of relatively moderate seriousness and will encompass cases which involve two or three of the factors which increase culpability to a moderate degree.
(c) Band three: 9 – 18 years

Appropriate for the most serious offending of this type and will encompass cases which involve two or more of the factors increasing culpability to a high degree, for example, a particularly young victim or an extensive period of offending. This band will also be appropriate where more than three of such factors are present to a moderate degree.”

24. In my assessment, this case would fall within the lower range of band 3 of the New Zealand sentencing guidelines, recognizing the differences in maximum penalty in Samoa and New Zealand.
25. In Police v Misipati [2017] WSSC 102 involving one charge of unlawful sexual connection with an intellectually disabled girl (14 years maximum) and one charge of indecent assault where both charges arose out of the same incident, the Court adopted an 8 year start point for sentence. In Police v Taliilagi Ulusele, this Court adopted an 8 year start point for sentence for a charge of unlawful sexual connection and indecent assault arising out of a single incident.
    
26. This case is one in which I view the start point of 5 years imprisonment suggested by prosecution and agreed to by defence counsel as inappropriate. I have set out my reasons for that conclusion.
27. I will apply the totality in sentencing principles and adopt information S164/17 as the lead charge. Given the serious aggravating factors of your offending and the need for a deterrent sentence, I adopt 9 years imprisonment start point for sentence. I deduct 4 months for your prior good character and 4 months for your remorse stated before the Court. From the balance of your sentence, I deduct 16 months for your guilty plea.

Result:

28. Accordingly, you are sentenced as follows:

(iv) Information S164/17, you are convicted and sentenced to 7 years imprisonment less time remanded in custody;
(v) for the 40 remaining charges of unlawful sexual connection, you are convicted and sentenced to 2 years imprisonment on each, to be served concurrently to information S164/17; and
(vi) for the charge of indecent assault, 3 months imprisonment to be served concurrently.

JUSTICE CLARKE