Police v MJV [2020] WSSC 8 (24 January 2020)

IN THE SUPREME COURT OF SAMOA
Police v MJV [2020] WSSC 8 (24 January 2020)

Case name:	Police v MJV
Citation:	[2020] WSSC 8
Decision date:	24 January 2020
Parties:	POLICE (Informant) v MJV (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant is to serve a total of 25 years and 6 months’ imprisonment.
Representation:	A Matalasi for Prosecution D Roma for the Defendant
Catchwords:	rape – incest – breach of trust – pre-meditated – sexual offending – apology – early guilty plea – custodial sentence – sentencing bands – unlawful sexual connection.
Words and phrases:	Indecent act on dependent family member – defendant biological father of victim – occurred more than once – not a first offender – breach of bail condition.
Legislation cited:	Crimes Act 2013 ss. 49(1)(a); 50; 50(b); 52(2); 55; 56(3) Criminal Procedure Act 2016 ss. 114(1)(c); 114(2).
Cases cited:	Key v Police [2013] WSCA 03
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

MJV

Defendant

Counsel: A Matalasi for Prosecution
D Roma for the Defendant

Sentence: 24 January 2020

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentence on the following charges:
   • (i) Rape(x1)^[1] which carries maximum penalty of life imprisonment;
   • (ii) Incest (x2)^[2] which carries a maximum penalty of 20 years’ imprisonment;
   • (iii) Indecent Act on dependent family member (x2)^[3] which carries maximum penalty of 14 years’ imprisonment; and
   • (iv) Unlawful sexual connection^[4]which carries maximum penalty of 14 years’ imprisonment.
2. The defendant is also charged with breaching his bail conditions in relation to the following charges which penalty is maximum 12 months’ imprisonment or fine not exceeding $200 or both.[5]

The offending

3. The defendant confirms the summary of facts by the Prosecution which basically says that:
   • The defendant committed all these offences in the period between 1 January – 30 June 2019;
   • The offending took place at home at (x-village) when it was only the victim and her younger siblings; while the mother goes to sell vegetables in front of a Supermarket at (y-village)
   • The 12 year old sister of the victim and daughter of the defendant is said to have seen what the defendant was doing to her sister a couple of times; and
   • It was the 12 year old sister who told family members of what was going on and the matter was then brought to the police.

The defendant

4. The defendant at the time of the offending was 39 years’ old and is the biological father of the victim. He is married with four children (including the victim) and they live at (x-village). The pre-sentence report (PSR) says the defendant finished his education at Year 12 at (** College). He has held several positions of employment and also went on a 2 year mission for the LDS Church.
5. The defendant’s wife continues to support the defendant saying that he is a person of good character, a loving husband and father to their children. There is written confirmation from members of the family and that of the victim that the defendant has personally apologized and the apology has been accepted.

The victim

6. The victim from the prosecution’s summary of facts was 14 years' old at the time. The young victim spoke about her ordeal in the VIR that she no longer attends school as the students know about what happened to her and the defendant.

The aggravating factors

7. The most aggravating factor of this offending is the relationship between that of the defendant and the victim. The victim is the biological daughter of the defendant. This is wrong on all levels; and this relationship encompasses all other aggravating factors noted by the prosecution in their submissions.
8. Aside from the loving, nurturing nature of a relationship between a parent and child, trust and respect are also essential to a healthy parent and child relationship. Unfortunately, this was not the case for the young victim as the trust was severely breached by the defendant. The sister of the victim who reported the offending was also victimized to some extent having to witness such an ordeal. Our society is structured around our cultural values and great emphasis placed on the importance of family. Our young children should feel safe when amongst family, especially in the hands of parents.
9. The number of times is not only aggravating in itself but also shows that it was pre-meditated as it did not occur only once. This offending is inherently violent, especially so because of the biological relationship involved.
10. Victims of sexual offending have to live with the long term emotional and psychological scars that remain, as well as the negative stigma attached to such a traumatic experience. The younger the victim the more vulnerable. Sadly, in this case the perpetrator was the victim’s own father, someone she would have looked up to and trusted.

The mitigating factors

11. The defendant is not a first offender. Although his previous offending is not related to his current offending but having a previous conviction means that he is not of previous good character. I have difficulty reconciling the person the wife is talking about as a loving husband; the person the pastor refers to as a devout Christian; and the person that he actually is who was capable of carrying out such a despicable act on the 14 year old victim being his own daughter. A devout Christian (in my view) would not act so impulsively as the defendant did; and as a loving husband to his wife and father to his children, he would not do such harm as he did to his own child.
12. The defendant apologized and is truly remorseful, further reiterated in the pre-sentence report the defendant is said to keep apologizing for what he did, and accepting that what he did was wrong will be considered as mitigating factor by the Court.
13. For his early guilty plea the Court gives a 25% discount.

Discussion

14. The reason behind the law is because of the need to protect young girls from people like the defendant. The safety of our young vulnerable girls from predatory behaviours of older males needs to be vigilantly protected. For a country that places a lot of emphasis on family, culture and religion, the increase in the number of sexual violations and abuse against young girls in villages and especially within families’ shows a breakdown in our society and on the innate shared understandings pertaining to our cultural values. It is from our culture that we place importance in the status of our children, our women and overall our aiga (family). It is with a heavy heart that such values are very much being threatened.
15. Our community also need to play a part in advocating against these kinds of crime. As the three pillars of society that encompass our existence as Samoans – family, culture and religion, we need to step beyond the just “knowing” what is right from wrong, and really go that extra mile and ACTION these thoughts, stand up and protect our young – people in families, leaders & members of churches, and the community as a whole – from grassroots level within villages to established organisations. We all need stop brushing such issues under the carpet but make it known that it is not OK, and also assist with individuals that fall prey to such unfortunate offending through counselling services, etc. because in the long run, if these victims are able to tell their story, it could help another individual facing the same predicament.
16. Incest is any sexual connection under section 50 of the Crimes Act 2013. In this case there was rape, not once but twice. In the circumstances of these offending’s and the biological relationship between the victim and the defendant make these offending very serious and at the high end of the scale. It does not matter whether it was done once or a couple of times the fact that such a callous act even occurred is repulsive. The incest together with the other offending took place over a period of six months.
17. It is without a doubt that a custodial sentence is most appropriate. The only question is how long.
18. The case of Key v Police[6] provides the sentencing bands guideline for rape which are:
    • (a) Band 1: 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) Band 2: 9 – 15 years – Where violence and premeditation are moderate.
    • (c) Band 3: 14 -20 years – Aggravating features at a relatively serious level.
    • (d) Band 4: 19 – life imprisonment – As well as the aggravating features in Band 3 it is likely to consist of multiple offending over a considerable time. Repeat family offending would fall into this band.
19. I will adopt the totality approach of the offences committed and take the offence of rape with maximum penalty of life imprisonment as the most serious offence.

Rape

20. The prosecution provides sentencing decisions of this court in similar circumstances which range from 16 years - 20 years starting point. Prosecution given the circumstances of this offending seek for a starting point of 20 years in the lower end of Band 4.
21. In the circumstances of this particular offending, taking in to account the aggravating factors I take as appropriate the starting point of 20 years as in Band 4 of Key[7]. I deduct 12 months for the apology and accepting that he is remorseful for his behaviour. I give 25% discount of 4 years and 9 months for early guilty plea. The end sentence is 14 years and 9 months.

Incest (x2)

22. The prosecution recommends a starting point of 9 years for incest. Although, incest is maximum 20 years’ imprisonment I consider this offence to be more grave than the rape given the circumstances of this offending and in relation to our values as Samoan people – our culture, religion and family. I take as appropriate the starting point of 15 years and make the same deductions as above. The end sentence is 10 years and 6 months for each charge of incest to be served concurrent.

Unlawful sexual connection

23. The prosecution recommends that the defendant be sentenced to 7 years’ imprisonment. The defendant tried to insert his penis inside the victim’s vagina while his wife and baby were sleeping not far from the victim and her siblings. A starting point of 9 years is appropriate less the same deductions as above and leaves the end sentence of 6 years.

Indecent Act on a dependent family member (x2)

24. The defendant indecent behaviour was touching the victim on the inner thighs and on her breasts on two separate occasions. A starting point of 7 years is appropriate less the same deductions as above leaving the end sentence of 4 years and 6 months.

Breach of bail condition

25. The defendant was released on bail with one of the conditions that he is to reside elsewhere away from (x-village) where the victim lives and not to be in contact with the victim. The defendant breached this bail condition by going back to (x-village). A 3 months’ imprisonment term is appropriate.

Conviction and sentence

26. The defendant is convicted and sentenced as follows:
    • (i) The sentences for the offences of incest (x2) are to be served concurrently but is cumulative to the sentence of rape;
    • (ii) The sentences for the offences of indecent act (x2) are to be served concurrently together with the other offences;
    • (iii) The sentence for the offence of unlawful sexual connection is also to be served concurrently with the other offences.
    • (iv) The sentence for the breach of bail conditions is to be cumulative to the sentences imposed for the offences of rape and incest.
27. The defendant is to serve a total of 25 years and 6 months’ imprisonment.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, sections 49(1)(a) and 52(1)
^[2] Crimes Act 2013, section 55
^[3] Crimes Act 2013, section 56(3)
^[4] Crimes Act 2013, sections 50(b) and 52(2)
^[5] Criminal Procedure Act 2016, sections 114(1)(c) and (2)
^[6] Key v Police [2013] WSCA 03
^[7] ibid