Police v SS [2024] WSSC 27 (7 May 2024)

IN THE SUPREME COURT OF SAMOA
Police v SS [2024] WSSC 27 (07 May 2024)

Case name:	Police v SS
Citation:	[2024] WSSC 27
Decision date:	07 May 2024
Parties:	POLICE (Informant) AND SS (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	But something must reflect the fact that your predatory behaviour continued on after raping your daughter twice and would have continued if your wife had not caught you. A 2 year additional sentence in my view would sufficiently reflect that. Increasing your sentence to 15 years. That is the defendants total sentence for incest, for all of them a 2 additional years making a total of 15 years in prison. Remand in custody time to be deducted. I will also follow what was done by the court in RS and recommend that the relevant authorities take steps to terminate your parental rights in respect of the Victim and possibly all your daughters. And further that the defendant be registered in accordance with the Sex Offenders Registration Act 2017.
Representation:	J. Leung-Wai for prosecution F. Ioane for defendant
Catchwords:	- Rape – incest -
Words and phrases:
Legislation cited:
Cases cited:	Police v MJV [2020] WSSC 8 Key v Police [2013] WSCA 3
	Police v IF [2019] WSSC 11 Police v ML [2018] WSSC 91 FT v Police [2023] WSCA 5 Police v RS [2023] WSSC 66
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

.
Defendant

Counsel:
J. Leung-Wai for the prosecution
F. Ioane for the defendant
Sentence: 07 May 2024

S E N T E N C E

1. Epidemics of dengue fever and other diseases come and go in Samoa but the epidemic of sexual offending by older men on innocent young females continues to hold this country in its grip. National statistics tell us that one in every five Samoan women is raped during her life time and two out of every three are subjected to sexual violence or sexual abuse of some sort before the age of 65. A disproportionately large percentage of victims are young girls. This is a national shame.
   
2. I agree with what my sister Tuatagaloa, J said in Police v MJV [2020] WSSC 8 (Registrar to anonymise the case report please):
   

“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. As the three pillars of society that encompass our existence as Samoans – family, culture and religion, we need to step beyond the just “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 organisations. We all need to 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.”

3. That the three pillars of our society are family, culture and religion. And that people in families and members in churches and the community as a whole from the grassroots level up all need to play a part in ridding our society of this scourge.
   
4. This case is yet another example of depraved behaviour involving a 40 year old father of six, raping and committing incest on his 13 year old daughter. The victim is the eldest of his children and at the time was attending College.
   
5. The suppression order prohibiting publication of the names and details pertaining to the victim and for her better protection also the defendant will be made permanent and this case will be reported as Police v SS.
   
6. The defendant has here pleaded guilty to two (2) counts of rape and four (4) counts of incest. According to the Police summary of facts accepted by the defendant though his counsel the first rape was committed in July 2022 when the victims mother was away from the house playing bingo, leaving the victim and her two younger sisters alone at home.
   
7. The defendant sent the two younger girls to the front house of the family, leaving him alone with the victim at the back house. He began kissing her cheeks and the young girl pushed him away. He then instructed her to lie down, the victim resisted and this made him angry. The victim became afraid so she complied and he instructed her to remove her clothes. The defendant then undressed and laid on the victim and had sex with her.
   
8. The victim felt pain and begged the defendant to stop. He did not. He sucked on her breasts and continued having sex with her till he was satisfied then he got up and left. The victim noticed that she was bleeding from her private part and there was blood also on her thighs. The victim showered and went to sleep feeling numb and in pain.
   
9. These actions were repeated by the defendant later in July 2022, in August 2022, September 2022 and when the victim was 14 years old again in October and November 2022. Details set out below.
   
10. On 27^th July 2022 at around 7:00pm the complainant left the victim and her younger children with the defendant at home to go play bingo. The victim and her younger sisters prepared their beds and went to sleep. Following this the defendant approached the victim who was lying next to her sleeping younger sister. The defendant tried to wake the victim who was pretending to be asleep to avoid the defendant. Despite the victim not responding the defendant continued his attempts to wake her up and whispered to the victim how she was doing. The victim finally responded to the defendant that she wanted to sleep.
    
11. Upon hearing the victims response the defendant removed the victims sheet covering her body and forcefully pulled down her pants and panty. The defendant spat on the victims vagina and forcefully inserted his penis into her vagina and engaged in sexual intercourse without her consent. At the time the victim experienced immense pain. When the defendant ejaculated he got off from on top of the victim and went to his bed.
    
12. On 28^th August 2022 around 12:30 pm the complainant left home leaving her children and the victim in the defendants care. The defendant instructed his other children to go play in their other house leaving the victim alone with him. When the children left the defendant approached the victim and kissed her cheek and neck. Following this, the victim lay on a mat in the house. The defendant removed the victims shorts and panty before inserting his penis into her vagina. They engaged in sexual intercourse until the defendant ejaculated.
    
13. On 7^th September 2022 at around 7:00pm the complainant again went to play bingo while the defendant stayed home with the victim and his other young children. The victim and her siblings made their beds and got ready to sleep. The defendant turned off the lights and approached the victims bed. The defendant told his younger children to go to sleep. At that time the victim was laying in her bed and went to sleep as well but was awakened by the defendant nudging her to wake up. When she woke up the defendant was caressing her vagina from outside of her shorts. The victim removed her shorts and panty and the defendant got on top of her. The defendant inserted his penis inside the victims vagina and had sexual intercourse with her until he ejaculated then went back to his bed while the victim wiped her wet vagina with her sheet and went back to sleep.
    
14. On 8^th October 2022 at around 7:00pm when the victim was fourteen (14) years old, the complainant went to bingo while the victim stayed home with the young children and the defendant. The victim and her young siblings made their bed and went to sleep. The defendant turned off the lights walked to where the victim was sleeping and told the young children to sleep. Later that night the defendant woke the victim. The victim removed her pants and panty. The defendant inserted his penis into the victims vagina and they engaged in sexual intercourse until the defendant ejaculated. Following this they both went to sleep.
    
15. On 5^th November 2022 at around 7:00pm the complainant again left for bingo while the defendant stayed home with the victim and the other young children. The victim made the beds for her and her siblings. The victim went to sleep. Later that night the defendant woke up the victim and removed her pants and panty. The defendant inserted his penis into the victims vagina and they had sexual intercourse until he ejaculated.
    
16. The defendants offending was discovered when the matter was reported to Police by the complainant who continuously observed the defendants suspicious behaviour at home of pacing in and out of their room and approaching the victims bed late at night.
    
17. Of these acts the victim says the following in her victim impact report.
    

“Sa ou fa’alogoina lo’u fefe, inoino ma e lei atoa lou fiafia i totonu o le matou aiga i taimi uma sa fa’atino ai nei amioga, sa ou fa’alogoina foi lo’u mā ona o lo’u Tamā moni sa ou ola mai ai.

O le taimi atoa sa ou aafia ai i le mataupu nei fa’atoa maua lou sa’olotoga ina ua ou sau i totonu o le Toomaga ma ou alu ese mai le tagata lea sa faia nei uiga matagā ia te a’u. E ui lava sa ou misia lou Tinā ma nisi o o’u aiga, ae ua ou fiafia ma fa’afetai ua ou alu ese mai le nofoaga sa ou aafia ai.

Ou te le toe fia vaai i lea tagata e oo mai lou oti, le mafai ona galo ia te a’u le mea sa tupu ia te a’u. Sa ou miti ina ia avea a’u ma loia ae ina ua tupu mai le mataupu lea ia te a’u sa tau fa’avaivai ai a’u, peita’i ou te fia manao pea ou te alu i tua e fa’aauau la’u miti lea ou te mana’o ai. Ou te le mana’o foi e fa’aleaoga la’u miti ona o le mea lea ua tupu ia te a’u.”

18. About this I say to the complainant, do not let this man destroy your dream. Believe in yourself, with God on your side no one can prevail against you.
    
19. Rape or the offence of sexual violation carries a maximum term at law of life in prison. The Court of Appeal in Key v Police [2013] WSCA 3 established the sentencing parameters for this offence. Low level offending belongs in category B-1 with a start point in the 8 to 10 year range. Where violence and pre-meditation are moderate a B-2 category start point of 9 to 15 years. Where there is a large number of aggravating features a category of B-3 start point of 14 to 20 years. For the most serious cases involving multiple offending over a long period of time and this includes repeat offending within a family context the category B-4 applies start point of 19 years to life in prison.
    
20. In a matter in 2020 involving a 39 year old father raping his 14 year old daughter while the mother was absent from the household, the trial judge adopted the B-4 category and a start point of 20 years. Similarly in Police v IF [2019] WSSC 11 (Registrar needs to correct the titling etc, of these cases because they unfortunately recite the names and identities of the parties) in that case a 46 year old father raped his 14 year old step-daughter, the court also adopted a 20 year start point. Also in Police v ML [2018] WSSC 91 (again a case report that needs the attention of the Registrar), a 41 year old father raped his 15 year old daughter, the court adopted a 22 year start point.
    
21. These cases indicate a general start point of 20 years and the B-4 category which is no doubt why both counsels in the matter before me recommend a 20 year start point and B-4 categorisation for the defendants offending. However I remind counsels the issue was recently revisited by the Court of Appeal in FT v Police [2023] WSCA 5 which involved one count of rape by a 40 year old father on his 14 year old biological daughter. In that case the trial judge also took a 20 years start point but this was reduced on appeal to 15 years, it being a case that appropriately in the view of the Court of Appeal belonged in the upper end of B-2.
    
22. The Court of Appeal in FT appropriately referred to the relevant considerations for sentencing in intra-family rape by fathers on their teenage daughters. Noted the observations from judges in previous cases about the infringement of the customary “va tapuia” between father and daughter to satisfy personal lusting. And recognised the need to soundly and clearly condemn such behaviour and how a strong deterrent sentence of imprisonment is required as a personal deterrent to accused persons and a general deterrent to all fathers who fail in their parental duty in this fashion.
    
23. The Court said at paragraph 21:
    

“We place heavy weight on those concerns. Although the concerns are by no means peculiar to Samoa, we respect the view of Judges who are in a position to know the extent of the problem here. Denunciation and deterrence must play a particularly prominent part in the approach to such sentences in this country.”

24. The court noted that FT was the first time the Court of Appeal was being asked to consider the appropriateness of a starting point for the single rape of an underage female family member. It thought that absent “violence additional to the serious violence inherent in every rape” the start point for rape of a teenage girl within a family on a single occasion would normally fall within the upper end of B-2 namely 15 years not 20 years. But with the rider that “careful attention” must be paid to the circumstances of the particular case.
    
25. Cases of single rape of teenage girls by a father absent a high degree of violence are therefore governed by the FT approach. The present case however is not a case of a single isolated rape. It is the rape of a 13 year old girl that was then repeated by the defendant later in the same month. At a time when the victims mother was again absent playing bingo, and the victims younger siblings had gone to bed. This is a case where despite her resistance and the fact that the victim was sleeping next to a younger sister the defendant again raped the young girl in an act which the accepted Police summary of facts says caused her “immense pain”.
    
26. This is a case therefore of repeat family offending albeit the rape was only repeated one more time. That fact and the age of the victim distinguishes the present matter from FT and in my view justifies a higher start point but at the lower end of the B-3 category.
    
27. For the reasons given I adopt as a start point for sentence a term of 16 years in prison for the rapes. From that you the defendant are entitled to various deductions as has been highlighted by your counsel. For your previous good character and clean record, the usual deduction of 6 months should apply. Leaves 15½ years.
    
28. There has been no reconciliation, ifoga or village council penalty but you are entitled to a further deduction for your guilty plea because that has saved the courts valuable and precious time and resources and most significantly the victim having to testify and relive her experience. However this guilty plea was only entered on trial day when the Assessors had been summoned to sit. I will therefore allow only a partial deduction of 2½ years from the balance of sentence, leaving 13 years in prison.
    
29. On the two counts of rape you will be convicted and sentenced for both charges to 13 years in prison.
    
30. For the four counts of incest it is clear from the Police summary of facts that the defendants predatory behaviour on his daughter continued in 2022, twice when she was still 13 years of age and twice when she was 14. The summary of facts seems to indicate that the victim by this stage was non-resistant to the defendants actions and her Victim Impact Report says she succumbed to these acts which still caused her anguish and psychological grief. Which life experience tells us takes a long time if ever for a victim to recover from.
    
31. The maximum penalty for incest is 20 years per charge. This offence too involved a serious breach of social values described in Police v RS [2023] WSSC 66 as:
    
32. “A violation of 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.”
    
33. Suffice to say that incest is a crime that too common comes before the court involving young teenage girls being preyed upon by their fathers for sexual gratification. Taking into consideration the age of the victim and her particular vulnerability and the fact that she probably thought she had no other option available, I consider 10 to 12 years as a start point for sentence. And after deductions for mitigating factors an eventual sentence of 6 to 8 years would be entirely appropriate. But if I make that cumulative to your rape prison term (as I consider I should in this case), that would result in an end sentence of around 20 years in prison. I do not consider that a proper reflection of the level of your criminal offending from a totality of sentence viewpoint.
    
34. But something must reflect the fact that your predatory behaviour continued on after raping your daughter twice and would have continued if your wife had not caught you. A 2 year additional sentence in my view would sufficiently reflect that. Increasing your sentence to 15 years.
    
35. That is the defendants total sentence for incest, for all of them a 2 additional years making a total of 15 years in prison. Remand in custody time to be deducted.
    
36. I will also follow what was done by the court in RS and recommend that the relevant authorities take steps to terminate your parental rights in respect of the Victim and possibly all your daughters. And further that the defendant be registered in accordance with the Sex Offenders Registration Act 2017.
    

SENIOR JUSTICE NELSON