Police v MF [2022] WSSC 58 (11 November 2022)

IN THE SUPREME COURT OF SAMOA
Police v MF [2022] WSSC 58 (11 November 2022)

Case name:	Police v MF
Citation:	[2022] WSSC 58
Decision date:	11 November 2022
Parties:	POLICE (Prosecution) v MF (Defendant).
Hearing date(s):	20th – 22nd July 2022 Submissions: 25th July 2022
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vui Clarence Nelson
On appeal from:
Order:	On the charge of rape, you will be convicted and therefore sentenced to twelve (12) years in prison. On the charge of sexual connection by digital penetration following a similar process and giving due weight to the aggravating and mitigating factors and after considering the authorities cited by counsel, convicted and sentenced to five (5) years in prison. But that is to be served concurrent with the twelve (12) year term. On the other count of sexual connection by rubbing the complainants private part convicted and sentenced to three (3) years in prison again to be served concurrent to your rape. On the final charge of indecent act by kissing the cheeks of the complainant this is part and parcel of the other offending, the defendant on that charge will be convicted and discharged without penalty. Any remand in custody time MF has had to serve should be deducted from his sentence.
Representation:	E. Tiitii for Prosecution V. Afoa for the Defendant
Catchwords:	Rape – digital penetration – sexual connection – indecent act – victim under 12 years of age – sentencing bands (rape)- custodial sentence.
Words and phrases:
Legislation cited:	Family Safety Act 2013, s. 17(1); Sentencing Act 2016, s. 8.
Cases cited:	Attorney General v Lua [2016] WSCA 1; Fetuao v National Prosecution Office [2016] WSCA 10; Key v Police [2013] WSCA 3; Police v Iakopo [2017] WSSC 162; Police v PP [2022] WSSC 39; Telea v National Prosecution Office [2017] WSCA 4.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

MF

Defendant

Counsel: E Tiitii for prosecution
V Afoa for defendant

Hearing: 20 – 22 July 2022

Submissions: 25 July 2022

Sentence: 11 November 2021

SENTENCE

1. The defendant faces four (4) charges;
   • (i) Firstly that in the month of December 2020 he sexually violated the complainant in this matter a child under 12 years of age by raping her;
   • (ii) Secondly that during the same month he had sexual connection with the complainant by way of digital penetration;
   • (iii) Thirdly that at the same time he had further sexual connection with the complainant by way of rubbing her vagina; and
   • (iv) fourthly that he had also at the same time committed an indecent act by kissing her cheeks.
2. After hearing all the evidence including the complainant and the defendant and his witnesses, a panel of assessors by unanimous verdict found the defendant guilty of all four charges. It is now for me to determine what is an appropriate sentence for these offences. To this end the court has been assisted by submissions from both the prosecution and the counsel for the defendant as well as from the probation office by way of their pre-sentence report.
3. Relevant facts are as follows: both parties were then living in the house of the complainants parents in Savaii. The defendant is the brother of the complainants fathers current wife, in other words he is the brother of the complainants step-mother. Further details of the complainant in particular anything that may serve to identify her including the defendants name will remain suppressed by order of the Court. That means suppressed from publication not only in the news but on any form of social media.
4. The complainants evidence which the assessors by their verdict obviously preferred over the defendants denials was that on a night in December 2020 this incident occurred. The complainant said whilst she was asleep in the family sitting room on the floor and the defendant on a bed in the same room the defendant came to her. He pulled down her pants and digitally penetrated and rubbed her private part. She said he then inserted his penis into her and had sexual intercourse with her. After which he kissed her on the cheeks and went back to his bed. She said she did not invite or welcome the defendants actions and that it caused much pain to her private parts.
5. The medical report of the doctor who examined the complainant subsequently at Tuasivi Hospital confirmed that force was used in the intercourse. He found abrasions in the interior of the complainants vagina and noted that the young girl had lost her virginity -the report notes the absence of a hymen.
6. The pain and shock of such an experience on a 11½ year old girl must have been quite overwhelming. No doubt its lingering effects and experience can last a lifetime.
7. In her Victim Impact Report filed with the Court she says the following:
   • “O se aafiaga o lou mafaufau i le taimi sa fa’atino ai nei amioga matagā o lo’u fefe, inoino, ita ae lei mafai ona tetee ese le o loo molia nei, na’o lo’u tagi lava ae leai se mea e mafai ona fai.
   • Ou te le toe fia oo i le mea sa tupu ia te a’u, e oo mai lava i le taimi nei o loo taumafai lava e faagalo ae le’o mafai ona aluese ma lo’u mafaufau le mea sa fai ia te a’u.”

Evidence of the impact this offending has had on the young girl.

8. MF, the law says that for the offence of rape a defendant can be sentenced to life in prison. Of the four charges against you the lead offence is sexual violation by rape. Because of the young age of the girl being below twelve (12) years, the law provides offences of sexual connection with such a young child is also punishable by maximum penalties of life in prison. The fourth charge of indecent act of kissing the complainant on the cheek is punishable by a maximum penalty of 14 years.
9. These are obviously extremely serious offences young man and they carry a hefty penalty by law. In fact the sexual connection penalties were increased by Parliament in 2013 in an effort to combat the rising tide of sexual offending on young children by the males of this country. This is a disturbing and appalling trend. The court must hold people who commit this kind of offence on young girls accountable for their actions and the penalty must deter the offender from repeating this kind of conduct and send a message to other men and young males of Samoa of the consequences of this kind of behaviour.
10. The courts penalty must also pay due regard to the provisions and matters set out in the Sentencing Act 2016. In particular section 8 thereof which outlines the special aggravating factors applicable to cases “involving violence against a person under 18 years.” Although violence for these purposes is not explicitly defined, I am in agreement with my sister judge Justice Tuala-Warren that violence in this context should be interpreted to include sexual violence: see Police v Iakopo [2017] WSSC 162. A judgment which should be read in the context of the Court of Appeal decision in Telea v National Prosecution Office [2017] WSCA 4. I also concur with Iakopo where it deals with offending in the context of a “domestic relationship” under the Family Safety Act 2013 section 17(1). I conclude the defendant here like in that case has also offended in the context of a domestic relationship pursuant to the section 2 definition paragraphs (d) and (g). And that is a further and important factor aggravating the defendants offending.
11. I will deal firstly with the lead charge and the most serious charge of rape. Sentencing for rape in Samoa is governed by the Band approach laid down by the Court of Appeal in the leading case of Key v Police [2013] WSCA 3; as subsequently clarified by the Court of Appeal in Fetuao v National Prosecution Office [2016] WSCA 10. A recent application of this approach can be found in Police v PP [2022] WSSC 39.
12. The Sentencing Bands are as follows:
    • Band One – 8 to 10 years in prison extending up to Band Four which is 19 years to life in prison representing the most severe kind of rape.
      • (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).
    • Below band one are those cases of lesser severity and culpability.
13. To determine which Band and where therein lies an appropriate start point for sentence for rape involves a consideration as stated in Key of the “intrinsic seriousness of the offending.” This means having regard to the aggravating factors as referred to above. These include the defenselessness of the complainant who was asleep in the same room as the defendant and her much younger siblings, the evidence showing that her parents were asleep in a closed bedroom elsewhere in the house. It also means having regard to the long term consequences of the offending upon the victim, both mental and physical as outlined in the Victim Impact Report earlier referred to. Also the fact that there was a breach of trust as the defendant was in a familial relationship by marriage to the complainant. I do not have to tell you MF that every young Samoan male knows his traditional duty is to protect his younger siblings in particular the females of the family from harm, this extends to the females of your extended families. Instead of this protection the defendant sought to prey on one of these young girls.
14. This illustrates the fact that the offending occurred in the context of a domestic relationship as defined by the relevant legislation. The defendants offending is further aggravated by the very young age of the complainant, she was then 11 years and 4 months. The age gap between her and the defendant is about 9 years. Given that fact and the fact that she was asleep in the same room as the defendant, she was obviously in a position of vulnerability.
15. The court also cannot overlook the fact that this offence was committed in the family home, a place where all young children including the complainant was entitled to feel safe, secure and protected. There also seems to be an aspect of callous indifference in this offending, in that once the defendant had completed his sexual assault he kissed her cheeks and retreated to his bed.
16. There is no evidence of any sympathy or attempt to apologise to the complainant in the subsequent days and this offending according to the evidence before the court only came to light when the complainant told an aunty about it subsequently. The complainants evidence at the trial was she was afraid and in examination in chief and cross examination she said this was not the first time the defendant had made advances towards her. She was obviously in a difficult position, the defendant being the step-mothers brother and her father as came out in the trial evidence being intermittently absent from the family home on business travel.
17. All factors considered, in particular the young age of the complainant, her vulnerability and the familial context of this offending, I am of the view this case belongs in the B-2 range of sentencing and I fix 14 years as a start point.
18. From that you are entitled to deductions for mitigating factors in your favour. First and foremost is for your previous good character and record as outlined in the pre-sentence report which indicates that you are now a newly married father with children of your own including one on the way. The Court regrets that these innocent parties will become the debris of your offending. The report testifies to your “tautua” as with all young Samoan men to the upkeep of your family immediate and extended. And a favourable reference from the sa’o of your aiga has been submitted, although I note none has been received from your Ekalesia or village as per normal. Nevertheless MF I will give you the usual full credit of six (6) months deduction to reflect these matters.
19. There is no evidence of any village penalty being paid or imposed or of any reconciliation formal or otherwise being made or attempted by the defendants family which is surprising. That is usual in this kind of case but it is absent in yours. But perhaps that is consistent with the fact that you still insist to the Probation Office that you are innocent of these crimes despite the assessors unanimous verdict of guilty of all charges. A verdict with which I agree. I can therefore give you no credit for remorse or such like actions on the part of yourself or your family.
20. In relation to the letter that has now been confirmed by the Probation Office to have been written by the father of the complainant, indicating he has forgiven you and making a plea for leniency on your behalf, the court cannot give any weight to this for three reasons. Firstly, the defendant is the brother-in-law of the author of this letter and the complainants father is therefore not an independent party. He is married to your sister, so he is caught between his daughter as complainant and his loyalty to his wife. It is perhaps a good thing for your family that he has forgiven you, but in the circumstances the Court cannot give any credit for such a petition.
21. Secondly is that when the father appeared at the trial he never told us in his evidence anything like this. And the third and final reason is credit is usually given for proper and formal reconciliation in accordance with our “tu ma aganuu fa’asamoa”. Indeed, the law requires that the court take into account such customary settlement. This letter falls far short of that.
22. But what you are entitled to as your lawyer has correctly pointed out is a deduction to reflect your young age at the time of this offending. You were then around 20 years still a relatively young man. For that I will give you a further deduction of one and half (1½) years making your total deductions from the start point of sentence two (2) years.
23. On the charge of rape, you will be convicted and therefore sentenced to twelve (12) years in prison.
24. On the charge of sexual connection by digital penetration following a similar process and giving due weight to the aggravating and mitigating factors and after considering the authorities cited by counsel, convicted and sentenced to five (5) years in prison. But that is to be served concurrent with the twelve (12) year term.
25. On the other count of sexual connection by rubbing the complainants private part convicted and sentenced to three (3) years in prison again to be served concurrent to your rape.
26. Defence counsel referred to the authority of Attorney General v Lua [2016] WSCA 1 in her submissions in this regard but it should be noted by counsel that only applies where the lead charge is unlawful sexual connection and there is no penetrative act involved. A different situation exists here.
27. On the final charge of indecent act by kissing the cheeks of the complainant this is part and parcel of the other offending, the defendant on that charge will be convicted and discharged without penalty. Any remand in custody time MF has had to serve should be deducted from his sentence.
    

JUSTICE NELSON