Police v MFT [2023] WSSC 57 (15 September 2023)

IN THE SUPREME COURT OF SAMOA
Police v MFT [2023] WSSC 57 (15 September 2023)

Case name:	Police v MFT
Citation:	[2023] WSSC 57
Decision date:	15 September 2023
Parties:	POLICE (Prosecution) v MFT (Accused)
Hearing date(s):	Submissions – 22 August 2023
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	You are convicted and sentenced as follows less time remanded in custody: (i) S1372/22 on a totality basis, 6 years imprisonment; and (ii) all remaining charges, 2 years imprisonment for each charge to be served concurrently to S1372/22.
Representation:	T. Fesili for Prosecution V. Fa’asi’i for the Accused
Catchwords:	sexual conduct with a dependent family member – occurred multiple times – victim became pregnant – sexual abuse – breach of trust – committed over a long period of time – threatened violence against victim – big age disparity – vulnerability of victim – apology – village penalty imposed – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 56(1); Family Safety Act 2013, ss. 17(1); 17(2)(a)(i); 17(2)(d).
Cases cited:	Police v Fui [2015] WSSC 9; Police v Kum [2000] WSCA 6; Police v Laki [2018] WSSC 65; Police v Lemalu [2015] WSSC 79; Police v MK [2022] WSSC 64; Police v Popole [2022] WSSC 49; Police v Tuliau [2020] WSSC 27; R v AM (CA27/2009) [2010] NZCA 114; [2010] 2 NZLR 750.
Summary of decision:

PERMANENT ORDER PROHIBITING PUBLICATION IN NEWS MEDIA, INTERNET OR ANYOTHER PUBLICLY ACCESSIBLE DATABASE THE NAMES AND VILLAGE DETAILS OF THE ACCUSED AND VICTIM

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

MFT

Accused

Counsel: T. Fesili for Prosecution
V. Fa’asii for Accused

Submissions: 22 August 2023
Sentence: 15 September 2023

SENTENCE

1. MFT, you appear for sentencing on twelve (12) charges of sexual conduct with a dependent family member contrary to section 56(1) of the Crimes Act 2013. The charges carry a maximum penalty of up to 14 years imprisonment.
2. You entered guilty plea to the charges on the hearing date on withdrawal of a number of other charges.

The Offending:

3. Your offending is set out in the Summary of Facts accepted by you through counsel dated 18^th August 2023. I will not traverse the whole of the Summary of Facts.
4. You are 47 years of age. According to the victim’s birth certificate contained in the trial documents, the victim was born on the 9^th July 2008. She was 12 years of age when your offending started. You are the victim’s “step-father” and were in a de-facto relationship with her mother.
5. The first occasion in which you sexually assaulted the victim was on the 5^th May 2021 (S1371/21). While the lights were on, the victim and your family were asleep. You covered the light with a cloth, approached the victim and woke her up. You whispered to her to take her clothes and told her that if she didn’t do so, you will beat her. She complied undressing herself and laying down. You then got on top of her, sucked her breasts, spread her legs and engaged in sexual intercourse with her. She felt pain but you continued. You then removed your penis and ejaculated on her thighs. You then told her to go to sleep.
6. A pattern of continued sexual abuse of your step-daughter then began. This involved going to her always at night. If she was asleep, you would wake her up. You would then engage in sexual intercourse with her. On a number of these occasions, you would also suck her breasts. You did these acts to her in your home. The second incident occurred between the 30^th November 2021 and 1^st January 2022 (S1420/22). You then repeated these another ten (10) times: between 31^st December 2021 – 1^st February 2022 (S1418/22); between 31^st January 2022 – 1^st March 2022 (S1419/22); 28^th February 2022 – 1^st April 2022 (S1399/22); 31^st March 2022 – 1^st May 2022 (S1400/22); 30^th April 2022 – 1^st June 2022 (S1401/22); 31^st May 2022 – 1^st July 2022 (S1402/22); between 30^th June 2022 – 1^st August 2022 (S1403/22); between 31^st July 2022 – 1^st September 2022 (S1404/22); between 31^st August 2022 and 1^st October 2022 (S1370/22); and 22^nd October 2022 (S1372/22).
7. As a result of your sexual abuse of your step-daughter, she became pregnant. Your offending only came to light when a teacher from the school found out the victim was pregnant and reported the matter to Police.

The Accused:

8. You are 47 years old and have 7 children employed as a groundsman. In your Pre-Sentence Report, you tell the Probation Service that you grew up in [xy-village] and are the youngest of 9 children. You completed school to year 8 to find employment. You have a number of positive character references submitted with the Pre-Sentence Report. You are a first offender.

The Victim:

9. The victim is now 15 years old. She is your step-daughter. In her Victim Impact Report, she says that she is staying at the SVSG shelter. She has given birth to twin boys who are also sheltered at the SVSG. She does not provide care for them but has an opportunity to spend time with them. The children were removed from her at birth but she wants to take the children with her when she leaves the SVSG.
10. Understandably, the victim remains angry with you. You brought her up since she was a young child and you as her father. She questions herself how you could show no love to her by sexually abusing her. She yearns to be back home with her mother and wants this matter over with.

Aggravating features:

11. There a number of serious aggravating features of your offending:
    • (i) breach of trust with your offending committed within a familial relationship recognized as a domestic relationship by law (see: R v AM (CA27/2009) [2010] NZCA 114; [2010] 2 NZLR 750; section 17(1), Family Safety Act 2013);
    • (ii) the number of acts of sexual abuse committed by you over a long period of time between May 2021 and October 2022, a period of approximately 17 months;
    • (iii) you threatened violence against the victim on the first occasion;
    • (iv) the age disparity between you and the victim;
    • (v) the vulnerability of the victim, she was 12 years of age when your sexual abuse of her began (section 17(2)(a)(i), Family Safety Act 2013) as well as your age disparity of 35 years;
    • (vi) your offending was clearly premeditated; and
    • (vii) the significant impact of your offending on the victim. It has been life changing. She became pregnant and has now given birth to twins and is kept at the SVSG shelter (section 17(2)(d), Family Safety Act 2013).

The Mitigating Features:

12. The mitigating features are your prior good character; your remorse and apology made once the offending came to light; the village penalty of $5,000 and 3 fine mats and your late guilty plea.

Discussion:

13. MFT, your sexual abuse of your step-daughter is a complete betrayal of the trust placed in you to protect her and bring her up in a safe and loving family environment. Instead, you took advantage of her while she lived under your roof for your sexual purposes. You would sneak to her at night, often while she and your family were asleep, wake her and then engage in sexual intercourse with her. She was 12 years old when your abuse started. She has now had children to you, no doubt a source of immense shame and a stigma in itself which she will carry for the rest of her life. You have robbed her of her childhood. Your role was to protect your step-daughter. Instead, you have become the perpetrator from whom she needed protection.
14. In Police v Kum [2000] WSCA 6, the Court of Appeal commented in terms of the Convention on the Rights of the Child which was ratified in 1994 by Samoa that:
    • “The Convention requires protection of the child from sexual abuse while in the care of parents and any other person who has the care of the child. The preamble recognises that a child 'should grow up in a family environment, in an atmosphere of happiness, love and understanding.' ... The Court should send out a strong message, where appropriate as in this case, that offences of this nature by a grandfather on a granddaughter in his care will not be tolerated and will be met with a sentence of imprisonment sufficient to mark society's denunciation of such conduct....”
15. Prosecution seeks a custodial sentence with a 14 year sentence start point. The original start point advanced was 18 years but reduced when counsel for the accused highlighted that the start point exceeded the maximum penalty available. Your counsel appropriately acknowledges that a custodial sentence is warranted for your offending and recommends a start point of 6 years imprisonment. Below, I set out the sentencing approach by the Court for this type of offending. I have not included non-custodial sentences as those sentences relate to circumstances of offending materially different to your case.

Case	Charges	Facts	Start Point
Police v MK [2022] WSSC 64 (8 December 2022) (Roma J)	Sex connect dependent family member (x3) (s.56(1))	Defendant 23 years old and victim step daughter 16 years old. Sexual connection involved sexual intercourse at home. Victim became pregnant.	7 years.
Police v Popole [2022] WSSC 49 (26 September 2022) (Tuatagaloa J)	Sex connect dependent family member (x3) (s.56(1)(a))	Defendant was the victim’s step-father. Sexual connection involved acts of sexual intercourse on three (3) occasions. Victim was 15 years of age and became pregnant	8 years.
Police v Tuliau [2020] WSSC 27 (19 February 2020) (Tuatagaloa J)	Sex connect dependent family member (x8) (s.56(1)(a)) Indecent act dependent family member (s.56(3))	Defendant 51 year old faifeau. Victim 16 year old, daughter of parishioners of the Defendant. Sexual connection involved digital penetration (x1), licking vagina (x3) and rubbing penis against and inserting intoi vagina (x4). Indecent act of sucking of breasts (x1).	8 years.
Police v Laki [2018] WSSC 65 (3 May 2018) (Nelson J)	Sexual connection dependent family member (x4) (s.56))	Two female victims. Victim A involved 3 incidence of sexual intercourse Victim B involved 1 incidence of sexual intercourse.	7 years start point.
Police v Lemalu [2015] WSSC 79 (20 August 2015) (Sapolu CJ)	Sex connect dependent family member (x2) (s.56(1)).	Defendant married to victim’s aunty. Defendant and victim living under same roof. Sexual intercourse on 2 occasions. The 15 year old victim became pregnant.	3 ½ years.
Police v Fui [2015] WSSC 9 (13 February 2015) (Sapolu CJ)	Sex connect dependent family member (x9) (s.56(1)).	Defendant biological father. Defendant was 41 and victim 17 years of age. On 9 separate occasions over a period of 10 months, Defendant would have sexual intercourse with the victim.	5 years.

16. As the Court of Appeal in Police v Kum (supra) referred, this is an appropriate case to again send out a strong message that offences of this nature by a step-father on a step-daughter will not be tolerated. The sentence must be sufficient to mark society’s denunciation of this type of conduct, behaviour that is repugnant to Samoa’s strong Christian values, Samoan culture and the role of a father (albeit step-father) in the Samoan family. In determining an appropriate start point, I note that your offending is more serious than that in Police v Popole (supra) and Police v Tuliau (supra) and other cases referred to. Sentences since 2015 reflect increasing sentencing tariffs for this type of offending. Although in my view a higher start point might be warranted, I have determined to adopt 8½ years imprisonment start point. From that start point, I deduct 9 months for your prior good character and remorse, 6 months for your apology, reconciliation and the village penalty and for your late guilty plea, 15 months leaving an end sentence of 6 years imprisonment.

The Penalty:

17. Accordingly, you are convicted and sentenced as follows less time remanded in custody:
    • (i) S1372/22 on a totality basis, 6 years imprisonment; and
    • (ii) all remaining charges, 2 years imprisonment for each charge to be served concurrently to S1372/22.
      

JUSTICE CLARKE