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Police v HE [2009] WSSC 62 (15 June 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

"HE"
Accused

Counsels: Mr F. Lagaaia for the prosecution
Mr A. Roma for the accused.

Sentence: 15 June 2009

SENTENCE

In respect of the previous matter and in respect of this matter as well there will be an order if there has not one already been issued suppressing publication of the name of the complainant or any details that may serve to identify her. In this case because the charge is incest that extends to the defendant as well. Case report to be amended to Police v "HE".

The defendant appears for sentence on one count of incest committed on her adopted son. The maximum penalty for this offence is 7 years in prison. As stated in the matter just completed the relevant sentencing principles and policies the court follows are well known as outlined in Police v Faiga [2008] WSSC 96, namely that imprisonment will be imposed unless there are exceptional circumstances justifying a different penalty. These principles apply equally to the case of a female defendant who commits an offence on a young male. In this case the defendant is a 49 year old woman and at the relevant time the complainant boy was 14½ years old. The defendant is the wife of the complainants uncle and the couple had as is common in this country adopted the complainant and four other siblings for the purposes of emigrating overseas. These arrangements were in progress when this offending occurred around mothers day in May 2007, the parties were then residing at rental premises at Moataa.

It is clear from the material before me that the sex that occurred was consensual and that it probably occurred on more than one occasion. However only one charge has been proceeded with and the defendant must be sentenced only on that basis. It is also clear from the material before me and as counsel for the defendant has stated in his submissions that the actual act of intercourse was preceded by other acts of fondling and sexual groping.

The unusual feature of this case is that it involves a female defendant and a male complainant rather than the other way round. The significance of this is there is therefore no basis for saying that this sort of offence is prevalent in our community, in fact it is rare in our community. But what to the complainant may have been a journey of sexual awakening has become for this family unit an organ of destruction. The defendant has not surprisingly been alienated from the family group and the adopted children will probably in the end revert back to the biological parents. The hopes of this family for resettlement and a better life overseas have been dashed by the offending.

There is no victim impact report before me but I also have no doubt the other consequence of the offending is the effect on the 14½ year old complainant. As have his siblings been affected because some of them witnessed what was going on and all of them undoubtedly now know of the incestuous liaison that occurred between their brother and their adopted mother. The debris of this kind of offending can often be quite widespread and some of the sort of factors involved are referred to by the court in its judgment in the case of Police v Tuiloma [2008] WSSC 101 cited by the prosecution in their submission.

The other major aggravating factor in this case is the gross breach of trust by the defendant. A parents duty whether you are an adopted parent or a natural parent is to cherish, nurture and love your young ones. In this case the defendant chose to adopt this boy as one of a number of children to seek a better life for him but then gave in to her desires and exploited his young age and naivety for her own gratification. The sentence that the court must impose must reflect societies intolerance and indignation at this sort of offending and reflect the fact that such behaviour cannot be condoned or excused. There is nothing in the circumstances of this matter that require any exceptional treatment and I am of the clear view that the normal sentencing policies of the court must be applied.

The maximum penalty is 7 years imprisonment. I take 3½ years considering the circumstances of this case and the seriousness of the offending as the appropriate start point. I deduct 12 months for the defendants late guilty plea because as counsel for the defendant has pointed out it has obviated the necessity for the complainant to testify and it has also saved the time and costs of a full trial. A guilty plea is also the best expression of her remorse and regretfulness that defendants counsel has referred to. In respect of the remaining balance I deduct a further 12 months to account for the fact this is the defendants first court appearance of any kind and also to take account of the other factors in her favour as related by her counsel and as contained in the probation office report. That leaves 18 months in prison. The defendant will be convicted and sentenced to 18 months imprisonment.

JUSTICE NELSON