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Police v FS [2013] WSSC 25 (28 January 2013)

SUPREME COURT OF SAMOA

Police v FS [2013] WSSC 25

Case name: Police v FS

Citation: [2013] WSSC 25

Decision date: 28 January 2013

Parties: POLICE and FS

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
Ms L Taimalelagi for prosecution
Mr T K Enari for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

FS

Defendant

Counsel: Ms L Taimalelagi for prosecution

Mr T K Enari for defendant

Sentence: 28 January 2013

SENTENCE

The defendant appears for sentence on two counts of raping his biological daughter. He is a 42 year old male currently serving a term of life in prison for murder. The complainant was at the time of this offending 14 years of age. She was one of the defendants eight children and she was living at home with her family. Circumstances of this matter require that a suppression order issue not only in relation to publication of the complainants details but also the defendants.

The offences occurred in the year 2008. The first occurred on the 15th of April 2008. At that time the defendant was working as a watchman on a Government cattle farm. On the night of the 15th of April the complainant and her younger sister slept over at the defendants house at the cattle farm. They were the only persons at home. The complainants mother and other siblings were at the village seaward at their house. When it came time for bed the defendant came and slept between the complainant and her younger sister. At approximately 10:00 pm that night the summary of facts from the police relates that the defendant turned to the victim, undressed her and had sexual intercourse with her. The complainant complained to him that it was painful as she was a virgin. The defendant instructed her not to make any noise. When he was finished he got off the young girl and told her to go and sleep by her sister.

The next day as the two girls prepared to return home the defendant told the complainant not to tell her mother what had happened. And it appears from her statement to the police that he threatened to kill her if she talked about what happened. Not surprisingly this 14 year old was afraid and mentioned the incident to no one.

The second incident occurred on the night of 14 June 2008. When the complainant and her sister were asleep in the family house at the village. Again only the defendant was in the house, the mother was absent and none of her other siblings were sleeping with them. The police summary of facts relates that about 2:00 am that night the defendant approached the victim undressed her and again had sexual intercourse with her. The complainant relates that again it was a painful experience but the defendant told her not to make any noise and not to tell her mother about it. Again the complainant kept silent. These matters appeared to only have come to light when the complainants sister told their mother about what had happened and the matter was then brought before the court in the year 2010.

The maximum penalty for the offence of rape is life in prison. And there has been a life sentence imposed in at least one case involving a father raping his daughter. Generally parental rape cases are of such seriousness that the courts have imposed a starting points for sentence ranging from 20 to 25 years.

Absent any special aggravating factors the appropriate start point considering the circumstances of this matter is in my view 20 years in prison. I agree with your counsel that your guilty plea is of value as it has spared the ordeal of a public trial for the complainant and your family. Also saves the States limited resources and it reflects some expression of remorse. But I note from the file that your guilty plea was not entered at the first available opportunity. You will therefore only receive for your guilty plea a one-quarter deduction as opposed to the usual one-third of sentence deduction. From the 20 years start point therefore I deduct 5 years for your guilty plea leaving a balance of 15 years. You are not a first offender therefore that deduction is not available to you neither are any other deductions required to be made from this sentence.

The fact that your sentencing has been delayed is not a fault of the court or the system of justice. It was because of your election to initially defend these charges and plead not guilty. The blame for that delay therefore lies on your own doorstep. No allowance therefore for time in custody.

On each of these charges the defendant will be convicted and sentenced to 15 years in prison, terms are to be served concurrent to each other. But because these offences are separate and distinct from the murder charge you are presently serving the rape terms must be cumulative to the present sentence.

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

JUSTICE NELSON