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Police v NN [2012] WSSC 101 (4 December 2012)

SUPREME COURT OF SAMOA

Police v NN [2012] WSSC 101

Case name: Police v NN

Citation: [2012] WSSC 101

Decision date: 04 December 2012

Parties:
POLICE v NN, a male and AN, a female

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi for prosecution
Defendants unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Crimes Ordinance 1961

Cases cited:
Police v F [2012] WSSC 26
Police v FT (19 November 2012)
Attorney General v A and B

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution

AND

NN, a male

First Defendant

AND

AN, a female

Second Defendant

Counsel: Ms L Taimalelagi for prosecution

Defendants unrepresented

Sentence: 04 December 2012

SENTENCE

I am sure I do not need to remind the ladies and gentlemen of the press corp that there remains in force the suppression order prohibiting publication of any details concerning the defendants in this matter. For the purposes of the record this case will be reported as Police v NN in respect of the male defendant and Police v AN in respect of the female defendant.

The defendants are a biological brother and sister with the same father same mother. The brother is 24 years of age and the sister 22 years of age and both are single. As apparent from the probation office pre-sentence reports they come from a disjunctive family background. They were born and raised in a low income family that depended heavily on agricultural produce. Their family home was located far inland and was isolated from the rest of the village. Their house is located in the middle of the family plantation.

In the year 2000 their mother passed away suddenly and the father remarried or took another partner. The male defendant was at that time 12 years of age and his sister 10 years of age. Because of the family situation, the family was split up and the female defendant and her twin sister went to live with an uncle at Vailele. The male defendant and his brother were sent to live with an uncle at Tufulele. The male defendant was re-enrolled back into school but this did not last long. He therefore only received a limited education and the bulk of his life has been spent on working fulltime in the plantation. At one point he moved to Safata and lived on a plantation there with his late mothers family.

The girls meanwhile grew up with their uncle at Vailele. In 2004 they were taken to American Samoa. They returned to Vailele in 2007 and took up residence with their uncles daughter. There were problems with that household and the girls then decided to move out. They searched for their biological father hoping to return to him. They were successful and in July this year 2012 the girls and their two brothers and their biological father and their step-mother were reunited as a family. This was the first time the male defendant had seen the female defendant for some 12 years. They lived in houses next door to each other together with other members of the extended family. While their biological father and his partner lived in a different area of the same village.

The offences began occurring a few months later in September 2012. How they came about is expressed in the following way in the brothers probation pre-sentence report. It began when the brother and sister had lengthy discussions about their past trying to catch up with that part of their lives that was left void when they were separated after their mothers passing. The discussions covered a variety of topics including previous relationships and matters that young people normally discuss. I get the impression reading the background documents that the parties were trying to make up for the lost years.

One night in September 2012 the brother sprained his ankle in a rugby game. He took his injury to his sister to fofō or massaged. It was during the cause of this massaging that the brother became sexually arouse by what was happening. This led to a stage where he sat his sister up kissed her and she responded, resulting in the first occasion of intercourse between the pair.

In the pre-sentence report it states that the brother returned to his own fale that night knowing that what he had done was morally wrong. But the two could not avoid each others company considering the proximity they lived in and further acts of intercourse were engaged in. All of which were done with mutual consent until the pair were caught one night by an uncle.

As a result they have been charged with 14 counts of incest to which they have pleaded guilty. It is those charges upon which they appear for sentence.

Incest is made a crime by section 49 of the Crimes Ordinance 1961 where subsection (2) paragraph (b) states:

“Incest is sexual intercourse between brother and sister whether of the whole blood or of the half blood and whether the relationship is traced through lawful wedlock or not.”

Subsection (3) provides that:

“Everyone of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 7 years.”

While the crime of incest is becoming horrifically common in this country brother-sister incest is not something the court usually sees. The majority of cases are father-daughter or step-father step-daughter scenarios. There are thus no reported cases of brother-sister incest. Such incest therefore cannot be said to be a prevalent offence at the present time. This seems to be the first case to proceed to the penalty stage. In Police v F [2012] WSSC 26 charges of incest between a brother and half sister under the age of 16 years were dismissed by the court for lack of evidence. But the defendant was found guilty of indecent assault and was sentenced to 6 months in prison. There have also been cases of brothers raping sisters. But that is a more serious offence and naturally attracts higher penalties. These are the sort of cases relevant to this particular matter.

In a previous sentencing in Police v FT (19 November 2012) a case of a brother-sister rape, this court spoke of the cultural concept of “va-tapuia” or sacred covenant between a brother and a sister. That concept applies equally and arguably more forcefully here. We are all aware the brother-sister relationship in our faasamoa is one of special significance. Nowhere is it better illustrated than in the saying “o le ioimata o le tuagane o lona tuafafine.” It is a relationship valued and respected by custom. Thus sexual contact between brother and sister is taboo. Those who voluntarily engage in such conduct bring ridicule and shame upon themselves their families and their village. And are given the special and derogatory tag of “mataifale.” Meaning to cast ones eyes upon ones own dwelling.

Cases like this bring with it therefore their own punishment on offenders in terms of social ostracism and disgrace. That endures far longer than any sentence the court can impose. This is a factor that I bear in mind.

I also bear in mind what our Court of Appeal said in Attorney General v A and B which was a father-daughter incest case. Where statements of general principle were made which also apply to this case. At page 8 of the judgment:

“In our assessment two principal themes are relevant to sentencing for incest. The first which we regard as dominant is the protection of family members who because of the trust placed in a loved one are vulnerable to abuse. The second which overlaps the first and is more complex is infringement of the moral standards of society.”

I am of the view both these principles apply to the instant situation. The first one because the brother is two years older than his sister. And because in our culture in the absence of a father or father figure it fell to him to protect his younger siblings and family members in particular his younger sisters. The male defendant’s probation pre-sentence report indicates he worked the family plantation as a provider for the family. His younger sisters carried out the normal less onerous chores usually undertaken by young women of a family. The natural father was no longer around to guide and care for the children because he was living with his new wife. The responsibility therefore for the younger members of the family fell upon the male defendant. He failed in that duty.

His account to the probation office indicates that he initiated the sexual contact with his sister in making the first move. His probation report acknowledges and states that after the first occasion of intercourse he returned to his own lodging that night trembling about what he had just done knowing that it was morally wrong. If his sister was weak it was incumbent upon him in his role as protector of the family to be the strong one, to resist temptation. He breached that duty and repeated his conduct on at least 14 more occasions.

I have no doubt that both defendants to a great extent were victims of a lack of parental or other strong guidance. There was no one to counsel and advise them on matters of sexuality or matters of ‘va-tapuia’ or boundaries of social behaviour. Hence their mistaken expression of longing and love for each other. In that respect the second theme of responsibility for incest comes into play namely, their infringement of the moral standards of our society. In embarking upon and in continuing with their physical relationship.

I sincerely hope some form of counseling becomes available to them. They have appeared before me several times and I have heard them speak in mitigation on their own behalf because they are not represented by a lawyer. I have seen many offenders come and go. These two are not seasoned adult offenders. At times they appeared to be just two very young scared people who now realise the wrongness of their actions.

The difficult question that I have had to consider is what to do with the two defendants. Bearing in mind that this is the first of this sort of case to come before the court. In discussing the issue of infringement of moral standards the Court of Appeal at page 9 of the above decision said:

“We do not share the view of some people that the principle of what consenting adults do in private is not the business of the law. We prefer in the present context the more nuanced insight of Plato: that the good society is created by and sustains the virtue of individuals. The law of Samoa prohibits incest of every type. But it does not follow that all who commit that crime should receive the same treatment.”

I think that is recognition by the Court of Appeal that the punishment of an offender who commits incest by infringing societys moral code is not necessarily the same as that of an offender who abuses his position to commit incest on a more vulnerable member of the family. It is an embodiment of the age old principle that the punishment must fit the crime. That the punishment must reflect the criminal culpability of an offender. And if the criminal culpability of offenders is different then the punishments should be different.

As stated I have found this case difficult. But after giving it careful and due consideration I have come to the conclusion that the male defendant should be sentenced on the basis of his failure to protect his sister who was the younger and more vulnerable family member. Whereas the female defendant should be sentenced on the basis of her breach of the moral standards of society prohibiting having sexual relations with her biological brother. Their criminal culpability is different, their penalty should be different.

I deal firstly with the male defendant. There are 14 charges against him. Each charge carries a 7 year maximum penalty. He failed in his duty as the older brother to his sister. In initiating and persisting with this relationship he also flouted the moral code of this country. The impact his offending has had on his family is not to be overlooked. His victim impact report details the consequences for the family of this offending. It has subjected them and the defendants other siblings to what is probably permanent ridicule and abuse. Something this defendant himself will have to deal with when he is released back into society. I also do not lose sight of the fact that all the instances of incest effected in this case were done consensually.

Considering all these factors I am of the view a prison sentence is entirely appropriate to reflect the seriousness of what you did. To deter you from doing it again and to deter others from following your poor example. A start point of 5 years is in my assessment appropriate. From that I deduct one-third of penalty for your guilty plea. Because you have saved the embarrassment for you, your sister and your family of a public trial by pleading guilty. You have also saved the courts limited and valuable resources. It also indicates your remorse. Deducting that from the 5 year start point leaves a balance of 40 months in prison. For the fact that you are a first offender with a clean criminal record I deduct 6 months. For the fact that because of this offending you have been not surprisingly banished by your family and by your village, for that fact I deduct a further 6 months. That leaves a balance of 28 months. In consideration of your age and the particular circumstances in your background that have led in my assessment to your committing these offence and the fact that upon your release you will forever be hounded by this offending I will deduct a further 4 months. That leaves a balance of 24 months. There are no other deductions that you qualify for according to law.

In respect of all these charges except for the last one in time, you are convicted and sentenced to 2 years in prison per charge but terms to be served concurrently. Your time spent in custody awaiting sentence is to be deducted from that sentence.

In respect of the charge committed last in time deemed to be Information S1940/12, you will be convicted and ordered to come up for sentence within a period of 3 years if called upon, which is the maximum allowable under the Criminal Procedure Act. Conditions of that sentence are firstly you will not reoffend. Secondly you are to stay away from your sister, you are not to be found within 100 feet of her, you are not to live in the same house or in the same household as her, you are to have no further contact with her whether by phone or any other electronic means. For the period of 3 years from today which includes the period of your release from prison you will have to abide by those conditions of your sentence. If you keep them, that is the end of the matter. But you break any one of those conditions you are to be brought back before me as sentencing judge for your case and I will deal with this charge and any new one against you. And let me be clear if you are brought back before me because you have reoffended with your sister you can expect no leniency or mercy. Ona e leai se loia o tula’i mo oe, ua e malamalama i le faaiuga lea ua lau atu e le famasinoga i lau mataupu? (defendant indicated he understood).

AN also has 14 charges against her. But I recognize that she is a victim of her brothers offending. That is not an excuse defendant for your conduct. But it does mitigate the penalty that should be imposed. It also seems to me to be justice that it is enough that your brother who in my view is the more criminally reprehensible in this matter should be the one out of the two of you to go to prison. To mark the denunciation by this court on behalf of society of your activities and to serve as a deterrent penalty.

You are accordingly not sentenced to a term of imprisonment. I have noted that you have spent some months in police custody awaiting sentence. Like your brother you are a first offender who has also been banished by her family and her village. But the supplementary report filed by the probation office contains a very relevant passage to your matter. They interviewed your father and your step-mother and noted that the father was very emotional during interview. He said that he had been happy to have his daughters back after such a long time. But did not expect anything of this sort to occur between his children.

It was noted that the step-mother was the more composed of the pair and spoke outright that she will accept you back into the family despite what happened. She also indicated that she supports the idea of separating the two of you because that relationship has caused so much grief for the family. And has impacted greatly on the other young children who are now experiencing difficulty in their lives. The report goes on to express that your parents are conscious a custodial sentence may be applied but they still plead for leniency. They also apologize to the court for their remiss and failure to foresee this sort of offence occurring within their household. That supplementary report indicates to me a willingness by your family to take you back. To give you another chance so that you may atone to all for what you did.

Accordingly in respect of you sentence is as follows: in respect of all charges except the latest one committed in time you will be convicted and ordered to serve the maximum period of supervision under the probation office of 2 years. The special conditions of your supervision are firstly you will reside only where approved by the probation office. Secondly you are not to live in any house or household with your co-defendant brother, you are to have no further contact of any kind with him including contact by telephone, text or any other electronic means, you are essentially to severe all relationship with your brother during the period of your supervision. If you are smart you should make that a permanent arrangement. Because if you break any of those conditions and are brought back on a charge of resuming your relationship with your brother then I assure you a return to Tafaigata. Ua e malamalama lelei i le tulaga lena? (defendant indicated she understood).

You will also undertake and carry out during your period of supervision 200 hours of community service as and when directed by the probation office. And you will attend any remedial programmes or counselling sessions as and when directed by the probation office.

In respect of the last offence committed in time deemed to be Information S1927/12 you will be convicted and ordered to come up for sentence within 3 years if called upon on the same conditions as were imposed in respect of your brothers last charge. Ua e malamalama i le faaiuga o lau mataupu? (defendant indicated she understood).

.........................

JUSTICE NELSON