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Police v EF [2016] WSSC 159 (2 May 2016)

IN THE SUPREME COURT OF SAMOA
Police v EF [2016] WSSC 159

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

EF male defendant.

Defendant

Counsel: I Atoa for prosecution
Defendant unrepresented

Sentence: 02 May 2016

SENTENCE

1. The defendant has pleaded guilty to a charge that between 01^st of May and 31^st of September 2015 he did have sexual connection with the complainant, his biological daughter. At the time, she was 14 years of age. For the protection of the identity of the young girl I will issue a permanent suppression order suppressing publication of her name and any other identifying details. As well, that order will extend by necessity to the name of the defendant so that this proceeding will be reported as Police v EF.
2. The police summary of facts which the defendant admitted this morning says he is a 33 year old divorcee with children. The victim is his biological daughter aged 14 years and had been raised by the defendants parents in American Samoa.
3. In April 2015 the victim was brought to Samoa by her grandfather and she lived at Lufilufi. Because she wanted to meet the defendant, in May 2015 the defendant took the victim from Lufilufi to live with him. It was during that period the offending occurred. On a night between May 1st and September 31^st 2015 while the victim was sleeping the defendant removed her pants and underwear after coming to her mosquito net. He fondled the victims private parts, digitally penetrated her fondled her breasts and then climbed on top of her and had sexual intercourse with her. When he was finished he hopped off and told her not to tell anyone about what had happened.
4. The police summary of facts, while only relating one instance of intercourse, states the victim became pregnant and gave birth on 29 March 2016. While it is unlikely she became pregnant due to one instance of sex, the defendant did tell the probation office he had sexual intercourse with his daughter three times. According to the young girls statement, she had sex with no one else so it is very likely it is the defendant who impregnated her. When her pregnancy was discovered the matter was reported to the police which has resulted in the one charge against the defendant.
5. The Victim Impact Report says the girl and her baby are now under the care of Samoa Victim Support. Report also says the girl was surprised the first time the defendant approached her because she did not think a father would do such a thing. She said she was sad because of the result of the offending. The offending has altered her life because she no longer attends schools and can no longer pursue her dream of becoming a police officer. She also no longer thinks of getting married and raising her own family. She has never spoken to her family since going to live with the Samoa Victim Support Group.
6. She also says the defendant has never approached her to relay any kind of apology for his conduct. However she forgives him for what he did. The defendant not only did not apologise to the girl but when he was given the opportunity to say something this morning, did not apologise to the court either or express any remorse for his offending.
7. The defendant should know that the increasing number of cases of incest coming before the court led Parliament in 2013 to increase the penalty. Maximum penalty for incest from seven to 20 years imprisonment. That is indicative of Parliaments concern which is shared by the court as is obvious from its many previous decisions.
8. This kind of offending is also an infringement of the customary ‘va tapuia’ between a father and a daughter. It results from a father taking advantage of his position in the household to satisfy personal lust. The impact on the victim is clear from the victim impact report and this has resulted in an unwanted, unplanned pregnancy for the girl. I have no doubt there has also been an emotional toll and social damage to the family structure. There is a need to impose a deterrent sentence upon this defendant as well as for other fathers.
9. I agree with the prosecution given the nature of the offending an 8 year in prison start point is appropriate. Had they laid charges for the other instances of incest a higher start point would probably have been applicable but because you only face one charge, we start at 8 years. The only deduction that can be made from that start point EF is for your guilty plea because that has saved the courts time and resources, and means the girl does not have to come and face you again.
10. For your guilty plea I give you the normal deduction of one-quarter of penalty, that is 2 years, leaves 6 years in prison. You are not a first offender so you do not qualify for a deduction for a good record and there has been no reconciliation. No other deductions need to be made to your sentence.
11. Mo le mataupu lenei EF ua fa’amaonia lou solitulafono, e 6 tausaga e te nofo sala ai i le toese. Afai sa iai se taimi sa e nofo taofia ai e fa’atalitali le fa’aiuga, e tatau ona toese mai le 6 tausaga na.

Addendum:

12. I will include as part of the judgment that I would recommend the SVSG take out the necessary protection orders in relation to the victim and the young baby in this matter.
    

JUSTICE NELSON