Police v B [2022] WSSC 27 (15 May 2022)

SUPREME COURT OF SAMOA
Police v B [2022] WSSC 27

Case name:	Police v B
Citation:	[2022] WSSC 27
Decision date:	15 May 2022
Hearing date:
Parties:	POLICE v B
File number(s):	.Charging Document 1/2020
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	JUSTICE FEPULEA’I A. ROMA
On appeal from:
Order:	Convicted and sentenced to 8 years’ imprisonment. Time in custody to be deducted.
Representation:	T. Sasagi for Prosecution Tuisa T. Patea for Defendant
Catchwords:	aggravating factors – mitigating factors – sexual violation by rape – sexual intercourse without consent – breach of trust – sentence
Words and phrases:	case of sexual abuse of a young girl by her father within the sanctity of her home where she should and must be safely protected – Parliament’s intention behind the heavier penalties for sexual offending including rape is to protect young girls from unwanted abuse as in your conduct
Legislation cited:	Crimes Act 2013 s.49 & s.52
Cases cited:	Police v. Faatauvaa [2019]); Police v. Fetaiai Mealofa); Police v. Key [2013] Police v. Autagavaia [2013]; Police v. Lualua [2018] Police v. AV [2017] Police v. Peniamina Ese
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v B
Defendant

Counsel:
T. Sasagi for Prosecution
Tuisa T. Patea for Defendant

Sentence: 15 June 2022

SENTENCING OF JUSTICE ROMA

The interim Order issued to suppress the publication of the names and village of the victim and defendant given their close familial relationship is made permanent. The Order is made for the protection of the victim.

Charge

[1] You appear for sentence on one charge of sexual violation by rape contrary to ss49 (1)(a) and 52(1), Crimes Act 2013. You denied the charge but subsequently sought to vacate your not guilty plea on the 12^th May 2022 before the hearing was to commence and after the alternative charges were withdrawn.

Offending

[2] The offending occurred sometime between September 2018 and January 2020. The victim, your biological daughter and then 14 years of age was watching TV at the neighbour’s house. You arrived where she was and told her to go home with you. You were intoxicated. At home you continued to drink whilst the victim went to sleep. A while later you went to where she was and forcefully got on top of her causing her to wake from her sleep. You removed your shorts and undressed her. You parted her legs and inserted your penis in her vagina and had sexual intercourse with her without her consent. Sometime later she told her mother and aunt. The result is the charge against you.

The Victim

[3] The victim is now 18 years of age. She was 14 at the time of the offending. She cannot believe that her own father would do such thing to her. She is embarrassed and has been a subject of ridicule and insult. You broke her virginity which has weighed heavily on her mentally and psychologically. She now has a de facto partner and is living with his family. She further says in the victim impact report that you have never apologised; and at the hearing where she saw you next since the incident was reported, you told her to change her story.

Aggravating factors

[4] In relation to the offending I consider the following aggravating features:

(i) familial relationship between you and the victim. She was your daughter;

(ii) breach of trust – As her father, your duty was to protect and not violate her;

(iii) age disparity - you were 48 and the victim 14, the age difference was 34 years;

(iv) vulnerability of the victim given the age disparity and your relationship to her;

(v) impact - you broke her virginity and as she says in the victim impact report, the impact on her mentally and psychologically will last a long time.

[5] As offender you have a previous conviction for a violence related offending in 2009. That was some 13 years ago and I will treat you as a first offender for purposes of this matter.

Mitigating Factors

[6] Personal to you as offender I consider the following:

(i) your guilty plea to the charge;

(ii) your personal circumstances you are 50 years of age and a father of 5 children including the victim. You have had a secondary level of formal education and worked several jobs and the plantation to support your family. Your wife describes you as a hardworking, loving and caring husband. She seeks the court’s leniency on you. I have this morning received testimonials from your church Minister, the village mayor and matai of your family. They speak of your contribution to your family, village and church. Counsel says in his submissions that you are genuinely remorseful. I do not find that you are because not only is there no confirmation of an apology or reconciliation before me, but you actively tried to influence the victim to change her story. It shows your lack of respect for the victim and justice system; and obviously lack of remorse.

Discussion

[7] This is another sad case of sexual abuse of a young girl by her father within the sanctity of her home where she should and must be safely protected. The sentence must therefore be a long deterrent term of imprisonment. It should denounce your conduct and continue to send you and other like-minded fathers the message that society will not condone such deplorable and inexcusable behaviour. After all Parliament’s intention behind the heavier penalties for sexual offending including rape is to protect young girls from unwanted abuse as in your conduct.

[8] Sentencing in rape cases is determined by the 4 Bands set out in the Court of Appeal decision in Police v. Key [2013] WSCA 3 (28 June 2013). I must also have regard to previous comparable cases. I have reviewed the sentences in Police v. Autagavaia [2013] WSSC 12 (10 April 2013); Police v. Peniamina Ese (Unreported, 5 August 2013); Police v. Fetaiai Mealofa (Unreported, 18 December 2013); Police v. Faatauvaa [2019] WSSC 11 (18 January 2019); and Police v. Lualua [2018] WSSC 91 (22 June 2018) as cited by prosecution. I have also considered the case of Police v. AV [2017] WSSC 130 (24 October 2017) cited by your counsel. I bear in mind that compared to most of those cases which involved multiple offending, yours involved a single count of rape.
[9] Upon a consideration of all factors in particular the aggravating features, I find that your offending falls in the lower end of Band 3 as in Key. I adopt a starting point of 14 years. From that I deduct 3 years for your personal circumstances including the testimonials and your first offender status, leaving a term of 11 years. I make a final deduction of 3 years for your guilty plea to the charge. The end sentence is 8 years.

Result

[10] On the charge of sexual violation by rape you are convicted and sentenced to 8 years’ imprisonment. Time in custody to be deducted.

JUSTICE FEPULEA’I A. ROMA