Police v RS [2023] WSSC 66 (25 August 2023)

SUPREME COURT OF SAMOA
Police v RS [2023] WSSC 66 (25 August 2023)

Case name:	Police v RS
Citation:	[2023] WSSC 66
Decision date:	25 August 2023
Parties:	POLICE (Prosecution) AND RS (Defendant)
Hearing date(s):	05 & 06 June 2023
File number(s):	Charging Document dated 06/05/22
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the primary charge of incest convicted and sentenced to 5½ years in prison. - In relation to charges of indecent acts, you will be convicted and sentenced to 3 years each charge, terms concurrent. Time spent in custody awaiting sentence to be deducted. - The defendant is obviously not a fit person to be a father to his children I would also recommend that the relevant authorities take the necessary steps to terminate his parental rights. And further that the defendant be registered as a sex offender in the Sex Offenders Registry in accordance with the Sex Offenders Registration Act 2017.
Representation:	I. Atoa for prosecution D. Roma for defendant
Catchwords:	- Incest by way of unlawful sexual connection – indecent act on dependent family member – Sex Offenders Registry
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

RS
Defendant

Counsel:
I. Atoa for the prosecution
D. Roma for the defendant
Hearing: 05 & 06 June 2023
Decision: 18 July 2023
Sentence: 25 August 2023

S E N T E N C E

1. After a defended judge alone trial (decision dated 18^th July 2023) defendant was found guilty of three (3) charges. First incest by way of unlawful sexual connection with his 10-year-old biological daughter by touching her vagina when the family lived at Saleimoa in the year 2020. Secondly same place same time committing an indecent act on the same complainant by sucking her breasts. Thirdly same time and place committing a further indecent act by putting his penis into her mouth.
2. A suppression order suppressing publication of the details of the victim and by necessity also her father will continue for the purposes of this sentencing and will be made a permanent suppression order. This case is to be reported as Police v RS.
3. The Courts task today is to sentence the defendant for these crimes which by law all carry severe maximum penalties of imprisonment. Twenty (20) years for incest and fourteen (14) years for indecent acts on a dependent family member under 21 years of age. The defendants sentence must reflect a strong condemnation of his actions as repugnant and totally unacceptable. Must promote in him a sense of accountability and responsibility. Must serve as a deterrent to other fathers or caregivers tempted to do this to their children. Must also reflect the nature of the defendants actions and his criminal culpability.
4. The facts established at trial shows the defendant has a family of eight (8) children and in 2020 they were living with his extended family at Saleimoa. He was then working as a security guard in Apia. Not long after these offences occurred his wife and mother of the complainants left them, something that is quite inexcusable behaviour from a mother. The defendant therefore became and remains the main caregiver for the family. But the victims of these alleged offending now reside under the care of the Samoa Victim Support Group a non-profit charitable Non-Government Organisation that runs a shelter for victims of domestic violence and sexual offending and which fulfills a great need in this country.
5. The defendant has not shown any remorse for his offending and continues to maintain his innocence to the Probation Office. I have no doubt he has underlying problems of a sexual and psychological nature which hopefully he will reflect upon during his time in prison. During which time the court also hopes he will receive some form of remedial counselling aimed at changing his behaviour.
6. That he must go to prison is beyond doubt. The aggravating features of the offending demand this. These factors include the young age of the victim, the fact that the defendant is her natural father and his duty was to nurture and protect the girl not to take advantage of her to satisfy his sexual cravings. And in doing so he has violated existing cultural taboos and the “va” between a father and a daughter. It is given the derogative phrase “mataifale” which means to look at ones own house. Something that is prohibited and frowned upon by our culture and tradition.
7. The offending is also aggravated by the vulnerability of the 10-year-old girl as compared to someone who is over five times her age. And compounded by the mental effect this offending has had on the victim. The victim impact report on page one says:

“Aafiaga o le tino – Sa ou fefe, sa ou taumafai foi e sola ese mai le taimi e alu atu ai lo’u tamā laa fai ana meavalea. O le ao e tele ina fai ai meavalea a lo’u tamā. O le taimi lea ua leai so’u tinā, toe o a’u ma nai o’u tei.

Aafiaga o le mafaufau – Sa faafefe a’u pe a o’u ta’uina i seisi e alu loa e le toe ano mai ia matou pe alu e su’e mai seisi matou tinā e fa’asauā ia matou. Sa ou fia mana’o ou te sola ese mai le matou fale, ae ou te fefe i lo’u tamā. Ou te fefe pe a toe ave a’u e tu’u ai. Ou te le toe mana’o foi e toe nonofo ai nisi o matou ma nai o’u tei i le matou tamā. O lea ou te fiafia i le nofoaga lea ua ou nofo ai nei. E tele meaai ma tafao ai.”

8. The defendants offending has also had the effect of demolishing the existence of the family environment for the complainant and her siblings. The mother has deserted the family unit, he is going to go to prison and the children now live essentially without their parents. In the case of the victim reliant on a Non-Government Organisation for assistance.
9. The evidence produced before the court also indicated that one of her siblings suffered from special needs and requires special care. The impact the defendants offending has had on these dependents is not to be understated. And it is hoped that some care and assistance can be given to the upkeep of these young persons.
10. The maximum penalty by law for incest is as stated 20 years in prison. The incest here consisted of you touching the victims vagina and her evidence at trial was that on a date unknown while she was in Year 1 at the local Primary School her father did “a meavalea” to her. She said you took her to the toilet, pulled down her pants and fondled her left breast. You put your penis into her mouth and touched the inside of her “pi” with your hand. She resisted. She said you also asked her to touch and suck your breast which she refused to do. Her further testimony is the defendant sucked her right breast twice which was painful. Her evidence also referred to the defendant putting his “pi” in to her “pi” but she did not provide any further details. The court found these allegations proven beyond reasonable doubt. As well the other acts as described in the charges were proven beyond reasonable doubt.
11. Considering these factors plus all other relevant circumstances, for the charge of incest I agree with your counsel the appropriate start point for sentence should be 5 to 6 years in prison. Your sentence will start at 6 years in prison.
12. Your counsel has referred to all that can be said on your behalf in particular that you are a first offender with previous good character and a background of service to the family as attested to by your pre-sentence report. For that I allow the usual deduction of 6 months from your start point for sentence, leaves 5½ years in prison.
13. There has been no apology or reconciliation in this matter and there are no other mitigating factors in your favour.
14. On the primary charge of incest convicted and sentenced to 5½ years in prison.
15. In relation to charges of indecent acts, you will be convicted and sentenced to 3 years each charge, terms concurrent. Time spent in custody awaiting sentence to be deducted.
16. The defendant is obviously not a fit person to be a father to his children I would also recommend that the relevant authorities take the necessary steps to terminate his parental rights. And further that the defendant be registered as a sex offender in the Sex Offenders Registry in accordance with the Sex Offenders Registration Act 2017.
    

JUSTICE NELSON