Police v MK [2022] WSSC 64 (8 December 2022)

IN THE SUPREME COURT OF SAMOA
Police v MK [2022] WSSC 64 (08 December 2022)

Case name:	Police v MK
Citation:	[2022] WSSC 64
Decision date:	08 December 2022
Parties:	POLICE (Informant) v MK (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On each of the 3 counts of sexual connection with a dependent family member, you are convicted and sentenced to 3 years and 8 months’ imprisonment. All sentences to be served concurrently less time you have spent in custody.
Representation:	B Vukalokalo for Prosecution F. Lagaaia on behalf of S. Ponifasio for the Defendant
Catchwords:	Sexual connection with a dependent family member – multiple charges – victim fell pregnant – breach of trust – village penalty imposed – defendant banished from his village – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 56(1); 57(a)(iii).
Cases cited:	Police v. Laki [2018] WSSC 65 (3 May 2018); Police v. Popole [2022] WSSC 49 (26 September 2022); Police v. Taleo [2016] WSSC 115 (15 July 2016); Police v. Tuliau [2020] WSSC 27 (19 February 2020).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

MK

Defendant

Counsel: B. Vukalokalo for Prosecution
F. Lagaaia on behalf of S. Ponifasio for Defendant

Sentence: 8 December 2022

SENTENCE OF ROMA J

Charges

1. You appear for sentence on 3 charges of sexual connection with a dependent family member contrary to sections 56 (1) and 57(a)(iii) Crimes Act 2013. The maximum penalty for each charge is 14 years’ imprisonment. Your guilty pleas were entered to all charges on the 3^rd October 2022 when the charges were finalised.

Offending

2. The offences occurred on 3 separate occasions this year at [XX-village]. The victim was 16 years of age at the time and under your care. She was your stepdaughter. The first incident occurred on the 14^th March. The victim was at home with her young cousins whilst her mother, your partner went to [XY-village]. The victim was in her room resting when you entered and closed the door. You asked her to have sex with you. At first she refused because there were people in the house but you persisted. You removed her shorts and panties and tried to insert your penis inside her vagina. You penetrated her vagina with your finger, then inserted your penis inside her vagina and had sexual intercourse with her until you ejaculated.
3. The second incident occurred in April whilst your partner was away playing bingo. The victim was at home sleeping with her young cousin. You entered the room, removed her shorts and panties, laid on top of her and fondled her vagina. You then inserted your penis inside her vagina and had sexual intercourse with her until you ejaculated. You kissed her on the lips and left her to sleep. The following morning, she kept going to the bathroom and her mother noticed changes in her appearance and behaviour. She asked her if she was pregnant to which she replied no.
4. The third incident occurred also at home on another evening of April this year. The victim’s mother was also out playing bingo when it occurred. You entered the room carrying the victim’s little cousin and laid him to sleep. You then approached the victim who was lying on the bed. You kissed her on the lips, removed her clothes and yours and inserted your penis inside her vagina. You had sexual intercourse with her until you ejaculated on her stomach. You left the room not long before your wife arrived home. She became suspicious that you and the victim were unusually both up late. She questioned the victim if she was having an affair with you which she denied.
5. Sometime in July this year the victim felt like vomiting all the time. Her mother also observed changes in her appearance and manner. She asked her if she was pregnant. The victim then told her that it was a boy that she went to school with. The mother continued to question the victim because she was highly suspicious of your involvement. The victim then admitted the relationship she had with you and that she was pregnant with your baby. The mother reported the incidents to police resulting in the charges against you.
6. In the pre-sentence report you admit your offending and say that your relationship and what happened between the two of you was consensual. You would have known however from your counsel that for the charges you face, consent is no defence.

Victim

7. She is now 17 years of age. She was a year 11 student [XV-school] at the time of the offending. In a victim impact report dated 1^st November 2022 submitted through the Attorney General’s Office, her mother says that she had given birth to a baby boy the night before and was admitted for monitoring. She was slowly recovering. The report further says that the victim does not want to go back to [XX-village] where the incidents took place. Plans have been made for the mother to care for the baby and the victim to move to live with family in [XW] for a new and fresh start. Your sexual abuse of the victim has definitely changed the course of her life and will have a lasting impact on her mentally and psychologically.

Aggravating Factors

8. The aggravating features of your offending are:
   • (i) the vulnerability of the victim given her age and relationship to you;
   • (ii) the age disparity - she was 16 and you were 23, an age disparity of 7 years. I bear in mind however that compared to other cases of sexual connection with a dependent family member the age disparity in your case is much lower;
   • (iii) the familial relationship - the victim was your stepdaughter,
   • (iv) the significant breach of trust - as stepfather you were to protect the victim not violate her;
   • (v) there was an element of premeditation - you made sure your wife was not at home each time before you made advances on the victim;
   • (vi) this was multiple offending - it occurred over 2 months and would have continued had the victim not become pregnant;

the impact of your offending - apart from sexually violating the victim resulting in her pregnancy and giving birth to your child, the mental and psychological impact will last a long time.

9. There are no aggravating factors personal to you as offender.

Mitigating Factors

10. I consider the following personal to you as offender:
    • (i) your guilty pleas entered at the earliest opportunity when prosecution had finalised the charges;
    • (ii) reconciliation - the victim impact and pre-sentence reports confirm that you have apologised to your wife and family, especially the victim. I also note that the victim has made plans to move to [XW] for a fresh start and that her baby will be adopted by one of her aunts in [XW];
    • (iii) the village penalty - the pre-sentence report confirms the presentation of 100 cartons of tinned fish. You have also been banished from [XX-village];
    • (iv) your personal circumstances - you are 23 years of age and the youngest of 3 brothers. You ended your formal education at year 11 level at [XO-school]. You have 2 children from a previous relationship including a 2 year old daughter who is currently cared for by your mother. Your partner has 5 children including the victim from a previous relationship. Your mother through Probation speaks highly of you and seeks leniency from the Court. I have read the testimonials by the Minister of the [ABC-Church] and Sui o le Nuu of [XT-village] where you grew up and lived until you moved to your defacto wife’s family at [XX-village]. They speak of your service to your family, village and church. They also confirm that since your late father’s passing, your mother continues to live and serve the church and village of [XT]. You are a first offender.

Discussion

11. The 14 years’ imprisonment maximum penalty for each of the 3 charges you face is indicative of Parliament’s intention for the law to protect young girls from sexual abuse by older male family members, especially those upon whom they depend for care and protection. The need to hold you accountable for the harm caused to the victim; promote in you a sense of responsibility for and an acknowledgement of that harm; provide for the interests of the victim; denounce your conduct and deter you and other like minded fathers and stepfathers from engaging in similar conduct must be reflected in the Court’s sentence. The continued prevalence of the offending must also considered. A custodial sentence therefore as imposed in previous similar cases is the appropriate penalty.
12. Prosecution recommends a starting point of 8 years for each of the 3 charges. They cite in support the cases of Police v. Taleo [2016] WSSC 115 (15 July 2016); Police v. Tuliau [2020] WSSC 27 (19 February 2020); Police v. Laki [2018] WSSC 65 (3 May 2018) and in particular Police v. Popole [2022] WSSC 49 (26 September 2022) where a 43 year old stepfather was sentenced to 5 years’ imprisonment on 3 counts of sexual connection with a 17 year old stepdaughter. I accept that the circumstances of that case are similar to yours except that the age disparity in your case is much lower.
13. Your counsel seeks a starting point of 5 to 6 years. She relies on the cases of Police v. Taleo and Police v. Laki which prosecution have also cited. In Taleo the victim also fell pregnant and gave birth to her defendant stepfather’s baby as a result of the offending. In Laki the offending involved 2 separate victims.
14. Taking all those matters into account and applying the totality principle, I adopt 7 years as the appropriate starting point. I then make the following deductions. For the apology and reconciliation, I deduct 4 months. For the village penalty including banishment from [XX-village] I deduct 6 months. For your personal circumstances including your age, previous good character and remorse I deduct 12 months. The remainder after those 3 deductions is 5 years and 2 months. I make a final deduction of 10 months for your early guilty pleas. The end sentence is 3 years and 8 months.

Result

15. On each of the 3 counts of sexual connection with a dependent family member, you are convicted and sentenced to 3 years and 8 months’ imprisonment. All sentences to be served concurrently less time you have spent in custody.

JUSTICE ROMA