Police v Popole [2022] WSSC 49 (26 September 2022)

IN THE SUPREME COURT OF SAMOA
Police v Popole [2022] WSSC 49 (26 September 2022)

Case name:	Police v Popole
Citation:	[2022] WSSC 49
Decision date:	26 September 2022
Parties:	POLICE (Prosecution) v SEMI PELE POPOLE (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 5 years’ imprisonment for each count of sexual offending against the young victim under 16 years who also was a dependent family member. The sentences to be served concurrently less time the defendant has been in custody awaiting sentence.
Representation:	I. Atoa for Prosecution C. Vaai for the Defendant
Catchwords:	Sexual connection with a dependent family member – complainant is defendant’s step-daughter – victim pregnant – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 56(1)(a).
Cases cited:	Police v Taleo [2016] WSSC 115; Police v Vui [2020] WSSC 8.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

SEMI PELE POPOLE

Defendant

Counsel: I. Atoa for Prosecution
C. Vaai for the Defendant

Sentence: 26 September 2022

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentence on three (3) counts of sexual connection with a dependent family member^[1] which carries maximum penalty of 14 years’ imprisonment. The offending took place on the following dates:
   • On or between 1 May 2021 and 31 May 2021;
   • On or between 1 June 2021 and 30 June 2021; and
   • On or between 1 July 2021 and 31 July 2021.

The offending

2. The defendant is the victim’s stepfather; married to the victim’s mother and has five (5) children. At the time of the offending the victim, her mother and siblings were living with the defendant at the defendant’s family at Nofoalii.
3. The defendant confirms the summary of facts by the Prosecution which says that:
   • The defendant had sexual intercourse with the victim at Nofoalii at night time on the above named dates. The defendant would leave where he was sleeping next to his wife and went over to where the victim and his children were sleeping not far from where him and his wife were sleeping and removed the victim’s shorts and panties, and penetrated the victim’s vagina with his penis. Afterwards he would go back to where he was sleeping next to his wife.
   • According to the summary of facts that between 1 July and 30 July 2021, the mother of the victim or the wife of the defendant became suspicious when she observing the defendant and the victim’s interactions, they were very close and could be perceived as inappropriate especially a relationship between a father and daughter. The mother asked the victim but the victim denied anything going on between her and the defendant. The mother also confronted the defendant but the defendant brushed off any inappropriateness in the behavior between him and the victim.
   • Sometime in October 2021, the mother was suspicious that the victim was pregnant. The mother asked the victim and after being in denial a couple of times, the victim finally admitted to her mother that she was pregnant with the defendant’s baby.
   • At all material times, the defendant knew that the victim was under 21 years.

The defendant

4. The defendant at the time of the offending was 33 years’ old. Prior to the offending the defendant was employed as a caretaker with the Ministry of Natural Resources and Environment (MNRE). Education wise the defendant reached Year 12 at secondary school.
5. The defendant in his PSR disputes paragraphs 7, 9, 11, 12, 13 and 15 of the summary of facts by the Prosecution. Those paragraphs state that the defendant always initiated sexual intercourse with the victim by going over to where the young victim was sleeping while his wife was asleep. He said that it was the young victim who initiated the sexual liaisons that took place between them. She was the one who approached him at night. The defendant disclosed in the PSR that prior to the offending taking place he had been persuading the victim to have sex with him. He said that he usually talks to the victim of his sexual urges when she comes home after school. What he meant by this is that he only talked to the victim of his sexual urges but he never acted upon it. I do not for once accept or believe that it was the victim who initiated the sexual intercourses that took place. There is the suggestion by the defendant that if the victim initiated the sexual encounters, it means that she consented. That’s where he is wrong and was not well informed of the law by his legal aid Counsel.
6. The defendant’s brother relays disappointment with the defendant’s actions but nevertheless seeks leniency from the Court in sentencing. Written testimonials are provided from the defendant’s Church Leader Bishop Pelesasa Tanuvasa of LDS Nofoalii Ward 2, Sui o le Nuu and Sa’o of his family, who spoke of the defendant to be an upstanding member of the church and a hardworking individual. These positive qualities mentioned across the written testimonials I find hard to accept considering what he has done. If he was truly the person the written testimonials refer to, he should have self-control to not succumb to any feelings and thoughts that led him to do what he did.
7. The PSR confirms an apology by the defendant to the victim’s uncle by marriage who happens to be the Commissioner of Prisons who said that the defendant only apologized to him because of his position and that he can have access to him at the Prisons. I do not accept the genuineness of his apology.

The victim

8. The victim from the prosecution’s summary of facts was 15 years' old at the time and was attending secondary school in Year 10. She became pregnant as a result of the offending. She may very well have had the baby. When her pregnancy came to light her biological father’s sister removed her from her mother and took her in. There is no Victim Impact Report (VIR) provided or any other information regarding this young victim. There is no doubt that this young victim would feel ashamed with what has happened to her and she is now a mother at a very young age.

The aggravating factors

9. The most aggravating factor of this offending is the relationship between the defendant and the victim. The victim lived with the defendant as one of his children and was a dependent family member of the defendant. The responsibility for the victim’s safety and her overall wellbeing was entrusted to the defendant, as a father for guidance and protection. Unfortunately, this was not the case for the young victim as the trust was severely breached by the defendant.
10. There is the vulnerability of the victim not only in the familial relationship with the defendant then but also the difference in age. The victim was not only under the age of 16 years but was also a dependent family member of the defendant’s household. There is no doubt that in that familial relationship the defendant knew how old the victim was at the time.
11. I also find most aggravating the fact that the young victim became pregnant and would become a mother at a very young age. Experiences young girls usually go through as teenagers with their peers and completing her education, this young victim will miss out on as she is now responsible with raising a child.
12. The number of times is not only aggravating in itself but I also find that they were all premeditated. The fact that the defendant lied when confronted by his wife means that the defendant concealed his unlawful behaviour is also an aggravating factor.
13. Consent is a non-issue where the victim is of young age under 12 years (s58) and under 16 years (s59). Whether the victim initiated the sexual intercourse is of no consequence in my view. These provisions relating to young victims are enacted to protect them from themselves by making consent immaterial. The flirtatious nature of the defendant’s actions talking to the victim of his sexual urges and persuading the victim to have sex with him confirms that he is the aggressor and that his behaviour was premeditated because he had been thinking about it for some time and later acted upon it.
14. I also find that the defendant by shifting the blame of what happened to the young victim shows that he is not taking responsibility for his wrongdoing. It also shows that he is not truly remorseful for his behaviour.
15. 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. Life will never be the same for this young victim whose reputation has been severely tarnished.
16. As mentioned earlier, I do not accept the genuineness in the apology made by the defendant to the young victim’s uncle.

The mitigating factors

17. I will allow for some discount for the various written testimonials submitted on his behalf although I have difficulty reconciling the person they are talking about and the person that he actually is, who was capable of carrying out such disgraceful acts on the 15 year old victim who was living with him as his own daughter.
18. I will also allow for some discount for the person that he was prior to the offending. He was a person of good character and is a first offender.
19. For his early guilty plea I will give a 25% discount.

Discussion

20. This is the worst type of domestic violence that our young daughters and young girls are facing within the homes and in our community. It is happening within the environment where young girls are supposed to be safe for they are surrounded by family and people they know and trust and as seen in this case, even in the hands of a father albeit a stepfather. Such offending continues to have a profound negative impact on young girls as sadly, it’s becoming more prevalent.
21. I reiterate what I said in another case with circumstances similar to the present matter:
    • “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.”
    • “Our community also need to play a part in advocating against these kinds of crime. The three pillars of society that encompass our existence as Samoans – family, culture and religion need to step beyond the “shared understanding,” “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 organizations. 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.”^[2]
22. The family is where our children (or anyone for that matter) should be safe where there is the Samoan saying ‘A malu i fale e malu fo’i i fafo’ (If you are safe at home you should also be safe outside of it.). This is again not the case. The Court has become aware that sexual offending is prevalent within our society and especially within the family where young girls are preyed upon by their own fathers (step or biological), brothers, cousins and other male relatives who abuse their position of trust and have easy access to the young girls who at a young age are very vulnerable.
23. The negative impact of such an offence is a violation of our core values and beliefs, and encompasses all other aggravating factors as noted by the Prosecution in their submissions. The age disparity of 18 years’ difference between the defendant and the victim is an indication of the extent of vulnerability of the victim. The younger the victim the more vulnerable.
24. These were sexual acts including penetration of a dependent family member that occurred on three separate occasions at night not far from where the mother and other children or siblings of the young victim were sleeping.
25. The circumstances of the offending resulting in the young victim becoming pregnant place the offending at the high end of the scale. It is without a doubt that a custodial sentence is most appropriate. The only question is how long. Each case is to be sentenced accordingly to its own circumstances.
26. The prosecution provides sentencing decisions of this Court in offending of this nature which range from 22 months – 7 years starting point. Prosecution seeks for a starting point of 6 years. Defence Counsel submits that the defendant accepts a custodial sentence but seeks a starting point of 3 years on the aggravating factors he advanced. Counsel for the defendant did not refer to any cases or highlight the differences between the cases relied upon by the prosecution and the present case to further support his submissions for a starting point of 3 years.
27. The case of Police v Taleo^[3] is of similar circumstances to the present case involving a 15 year old victim, a stepfather relationship and the young victim also became pregnant. The difference from the present case is there was only one sexual encounter with the victim in Taleo while there were three sexual encounters in the present matter. 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. As said earlier each case is to be sentenced according to each one’s own particular circumstances.

The starting point

28. In the circumstances of this particular offending, taking into account the aggravating factors, I find appropriate 8 years as starting point. I will be generous and deduct 12 months for the person that he was and 4 months for the written testimonials confirming the person that he was. I give 25% discount of 20 months for early guilty plea. This leaves 60 months or 5 years.

Conviction and sentence

29. The defendant is convicted and sentenced to 5 years’ imprisonment for each count of sexual offending against the young victim under 16 years who also was a dependent family member.
30. The sentences to be served concurrently less time the defendant has been in custody awaiting sentence.

JUSTICE TUATAGALOA

---

^[1] Crimes Act 2013, section 56(1)(a).
^[2] Police v Vui [2020] WSSC 8 (24 January 2020).
^[3] Police v Taleo [2016] WSSC 115 (15 July 2016).