Police v ML [2018] WSSC 91 (22 June 2018)

IN THE SUPREME COURT OF SAMOA
Police v ML [2018] WSSC 91 (22 June 2018)

Case name:	Police v ML
Citation:	[2018] WSSC 91
Decision date:	22 June 2018
Parties:	POLICE (Informant) v ML (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	Convicted and sentenced to 14 years imprisonment
Representation:	F Ioane for Prosecution D Roma for the accused
Catchwords:
Words and phrases:
Legislation cited:	Crimes Act 2013, section 49 (1)(a)
Cases cited:	Police v EF [2016] WSSC 159; Police v Pauesi (Unreported, 9 May 2008).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

ML

Accused

Counsel: F Ioane for Prosecution

D Roma for the Accused

Sentence: 22 June 2018

SENTENCE

The accused had pleaded guilty to one count of rape. The victim is his biological daughter. I accordingly issue a permanent suppression order prohibiting publication of her details and for protection of her identity this extends to the accused’s details. This case will be reported in the law reports as Police v ML.

The charges

1. The accused appears for sentence on one count of rape pursuant to sections 49(1)(a) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment.
2. He pleaded guilty to the charge on 23 May 2018 through Counsel.

The offending

3. According to the summary of facts, the accused is 40 years old and is the biological father of the 15 year old victim. Sometime during the month of January 2017, the accused approached the victim ordered her to take off her clothes, lie down and spread her legs so that he could check her private part to see if she was a virgin. He then raped her without her consent. A relative who reported the matter to police had done so when the relative became suspicious of the accused’s conduct towards his daughter.

The accused

4. The accused is now 41 years old. He separated from his wife and 6 children as a result of this matter. The victim is the eldest of his children.
5. He is now single and lives with family.
6. He says of the offending that it occurred because he was checking to see if she was cheeky. He says he had been drinking at home before the incident. He ordered her to take off her clothes and lie down. He told her to spread her legs and when she did, he says he became sexually aroused and proceeded to have sexual intercourse with her.
7. His ex-wife told Probation of her shame and sadness over the incident and says there has been reconciliation. She says she is praying for the courage to forgive him. She says he was a loving and fair father who supported their family. She says that both her family and the family of the accused are blaming her for what happened.
8. The accused’s cousin has written a testimonial saying that the accused has brought shame on their family because of his actions. However he says the accused is hard working, is living with him and he continues to counsel the accused.
9. The village mayor has confirmed that the accused is an active member of the aumaga. He told Probation that although the accused is allowed to stay in the village he is prohibited from participating in any village activities. They are currently discussing a penalty of $3000 for the accused.
10. His religious leader says that the accused is serving the village and the church through his work as a carpenter. He says he continues to counsel the accused.
11. The accused is a first offender.

The victim

12. The victim was 15 years old when the offending occurred.
13. She says that her father apologised to her and she has forgiven her father and still loves him. She dropped out of school as a result of this matter. She expressed sadness that her family has broken up.

Aggravating features of the offending

14. This is a gross breach of trust by the accused. The victim was his biological daughter. He committed the offence in a family environment where she is entitled to grow up safe and protected by her father from this sort of behaviour. This close familial relationship is a significant aggravating factor. I am hard pressed to find a closer familial relationship than that of a parent and a child. Quite apart from the fact that the accused breached his legal duties as a father, in our Samoan culture there is a covenant of va tapuia between a parent and child. The accused has violated this covenant of trust and respect between him and his daughter.
15. This offending was premeditated to an extent. The accused says he wanted to check if his daughter was cheeky. He asked her to undress, lie down and spread her legs. This intention and these actions indicate that he had planned what he would do.
16. The victim was particularly vulnerable by reason not only of her age but also by reason of the relationship she had to the accused. He was the head of the family with authority over all family members.
17. The extent of the harm to the victim is taken into account. She says that the accused has apologised and she has forgiven him. However those are the natural reactions of a daughter who loves her father. It does not take away from the fact that he raped her. No doubt she is feeling confused about what happened. She has dropped out of school, and she is sad about the family break up. This offending has affected this whole family, including extended family as seen in the cousin’s written testimonial.

Mitigating Factors

18. The mitigating factors are his previous good character, his personal circumstances, his village sanction and his guilty plea at the earliest opportunity once he had engaged Counsel.
19. Defence Counsel has rightly stated the position of the Court in relation to the commission of crime while intoxicated. Alcohol is not an excuse.

Discussion

20. This case concerns the rape of a 15 year old by her biological father. Rape carries a maximum penalty of life imprisonment and according to Vaai J in Police v Pauesi (9 May 2008) ;
    • In considering the sentence for sexual offences, particularly rape, the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. The sentence is also to convey condemnation by society of such criminal conduct.
21. However this is not only a case of rape. It is also a case of incest although he is not charged with incest.
22. In relation to incest, Nelson J said in the case of Police v EF [2016] WSSC 159 (2 May 2016) that “this kind of offending is also an infringement of the customary va tapuia between a father and a daughter. It results from a father taking advantage of his position in the household to satisfy personal lust”.
23. In similar case of rape of a biological daughter (Police v AV [2017] WSSC 130) Nelson J said;
    • There is no question such conduct must be soundly and clearly condemned as not acceptable to our society and that a strong deterrent sentence of imprisonment is required as a personal deterrent to the accused and as a general deterrent to all fathers who would fail their parental duty to love and nurture their offspring in this fashion.
24. In the same case Nelson J said that “...sentence ...must mark the significance of the cultural taboos that you have broken”.
25. Sexual offending in our community has been topical recently. In yesterday’s editorial in the Samoa Observer Mata’afa Keni Lesa wrote “The sad reality is that this is just one of so many similar cases surfacing in Samoa.” Unfortunately this is yet another case which will continue to highlight the prevalence of sexual offending in our community and sadly within families.
26. Today the Court will impose a sentence which denounces and deters this type of offending, and provides for the interests of the victim of this offending.
27. Prosecution has submitted that a starting point of 15-16 years imprisonment is appropriate for the charge of rape.
28. Defence Counsel has recommended that 12 years imprisonment is an appropriate starting point as in the case of Police v AV.
29. In determining a starting point for the charge of rape, I am guided by the rape bands set by the Court of Appeal in Key v Police [2013] WSCA 3 (28 June 2013).
30. The rape bands are;
    • (a) Rape band one: 8 – 10 years (Appropriate where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited);
    • (b) Rape band two: 9 – 15 years (Where violence and premeditation are moderate);
    • (c) Rape band three: 14 – 20 years (Offending where there are aggravating features at a relatively serious level); and
    • (d) Rape band four: 19 years to life (As well as the aggravating features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band).
31. As stated in R v AM and reiterated in Key v Police, I bear in mind that ‘...what is required is an evaluation of all the circumstances” and “a mechanistic view is not appropriate”.
32. In assessing culpability to determine a starting point in the case before me now, I take into account the gross breach of trust, the closeness of the familial relationship, the violation of the cultural covenant of va tapuia between a father and a daughter, the extent of premeditation in this offending, the extent of the harm to the victim and her young age. I find that these are aggravating features at a serious level.
33. This case of rape falls within the lower end of rape band 4 (19 years to life).
34. Having therefore considered all the circumstances of the rape, and in particular having regard to the aggravating features relating to this offending (there being no mitigating features of the offending), I place the starting point at 22 years imprisonment.
35. I deduct 2 years for his previous good character, his personal circumstances and his village sanction. I deduct 6 years for his guilty plea. That leaves 14 years.

The result

36. For the offence of rape, the accused is convicted and sentenced to 14 years imprisonment.

JUSTICE TUALA-WARREN