Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v TF [2018] WSSC 76 (27 April 2018)

SUPREME COURT OF SAMOA
Police v T.F [2018] WSSC 76

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

Police v T. F male and F. F female both of “S” Savaii.
Accused

Counsel:
I Atoa for prosecution
D Roma for T. F
M V Peteru for F. F

Sentence: 27 April 2018

S E N T E N C E

1. As is usual in these types of matters, I issue prohibition orders in respect of the publication of the names of the two accused and their village details.
2. T.F and F.F, you both appear for sentencing on one charge of incest which carries a maximum penalty of 20 years imprisonment (S43/18 and S44/18).
3. You entered an early guilty plea to the charges before the Court at the earliest opportunity on appointment of counsel and having had the opportunity to take legal advice.

The Offending

4. According to the Summary of Facts accepted by you both through counsel, on or between the 31^st December 2016 and 1 January 2018 at 11pm at “S”, Savaii, you both were sleeping together in the same bed when a male villager came by and noticed that the tarpaulin of the fale was down and saw you both. At dawn, a villager came by and woke you both up. That morning, you then engaged in sexual intercourse but were interrupted when the villager came by and he took photos of the sexual intercourse.
5. According to your PSR, it was not photographs taken by the villager but it seems a video which was then subsequently circulated within the village. From there, the matter was reported to Police. The circulation of that video within the village should not have occurred and for those who did so circulate that video, they should be ashamed of that conduct.
6. T.F, you are F.F’s biological father. You both knew of the biological relationship of father and daughter at the time of the offending. It is not disputed that you T.F initiated the sexual relationship with your daughter. You are described in the PSR as begging your daughter to have sexual intercourse with you. In submissions by your counsel, she told the Court that you could not resist your actions.

The Accused

7. T.F, you are a 58 year old male of “S” Savaii. You are the eldest of six children. You are a widower with children. You are a first offender and have a very positive report from the Probation Service together with very positive references from your church and others. Your PSR says that you are remorseful and ashamed of your actions. You have been punished by your village, fined $2,000.00, 2 pigs and 2 large fine mats between the two of you. You have been banished from the village.
8. F.F, you are a 35 year old female. According to your Supplementary Pre-Sentence Report, you are the eldest of 7 children. At the age of two months, you were adopted by your maternal grandmother and raised by her. At the time of your adoption, your natural parents relocated to your father’s village. Your natural mother was the only child to her parents and you grew up believing that your natural mother was your sister. In 2010 at the age of 28, you moved with your grandmother to your father’s village and only then were you told the truth about your parents. Despite that, you continued to be and considered yourself the child of your grandmother and your mother’s sister. You told the Probation Service that you found the news about your parents difficult given you had lived without a father for over 20 years.
9. When your natural mother passed away, your grandmother returned to her village leaving you with T.F. You told the Probation Service that you have been puzzled by your behavior and it would haunt you for the rest of your life.
10. You are currently single with three children. One of your children has been adopted out but two remain in your care. Through counsel, I am told that your children are aged between 3 and 10 years of age. You are a first offender and have a positive PSR and references. According to the Probation Service, despite this matter, you remain highly spoken of within your family and with your religious leaders. Similarly, you have been punished by the village with the fine and banished.
11. You have apologized to the village and your fine was accepted. I accept that you both have suffered significant humiliation, deep remorse and shame from your offending. That is clear in the PSR and my own observations of you both in the course of your appearances before the Court.

The Victim

12. The prosecution submitted that your village is a victim of your offending. With respect to counsel, I will not treat the village as a victim of the offending for the purposes of sentencing. Appropriate deductions in the normal way will however be made for the village penalty and imposition of the banishment order against the two Defendants.
13. For the reasons however stated below, I recognize you F.F as a victim of T.F’s offending.

Aggravating features:

14. The aggravating features of this matter in terms of you T.F are as follows:
    • (i) Your exploitation of your position as father and the vulnerability of your daughter to your actions given that relationship of father and daughter; and
    • (ii) Your gross breach of trust.
15. There are no aggravating features in terms of your offending F.F.

The mitigating features

16. In mitigation of both accused are (i) their deep remorse; (ii) prior good character; (iii) the village penalties imposed including the fine and banishment; and (iv) their early guilty pleas.

Discussion

17. In submissions, no counsel could refer the Court to any authorities involving sentencing on a single charge of incest. More importantly, no counsel referred to the relevant Court of Appeal judgment in Attorney General v Mr A [2012] WSCA 2 (31 May 2012) where the Court of Appeal asked itself the essential question relevant to this matter, “what approach should be taken by the courts of Samoa to sentencing the parties to incest between a father and his mature daughter.”
18. I want to reiterate that sentencing is a critical part of the criminal justice system and in which counsel have an important role to play. In Copland v Smith & Anor [2000] 1 All ER 457, Buxton LJ stated at p.459:

“...I cannot draw back from expressing my very great concern that the judge was permitted by those professional advocates to approach the matter as if it were free from authority when there was a recently reported case in this Court directly on point, which was reported not in some obscure quarter but in the official law reports. It is not only extremely discourteous to the judge not to inform him properly about the law, but it has also been extremely wasteful of time and money in this case, because not only did the judge have to deal with the matter, but it has also formed an issue in the appeal to this Court...”

19. In that same judgment at p. 462 - 463, Brooke LJ stated:

“The English system of justice has always been dependent on the quality of the assistance that advocates give to the bench. This is one of the reasons why, in contrast to systems of justice in other countries, English judges are almost invariably in a position to give judgment at the end of a straightforward hearing without having to do their own research and without the state having to incur the cost of legal assistance for judges because they cannot rely on the advocates to show them the law that they need to apply.”

20. Our system of justice is derived from and based on the English system of justice also dependent on the quality of the assistance advocates give to the bench. Counsel appearing therefore should cite relevant authorities for the reasons referred to in Copland v Smith & Anor.
21. I raise this because there is a growing practice amongst lawyers not to cite any authorities at all, which of course is of no assistance at all, or to cite authorities drawn from earlier submissions not particularly relevant to the matter before the Court. Such a practice from the bar if it were to become enshrined would be a disservice to clients, the Courts, the profession and the community. The Law Society can and should also play an active role in this area of advocates duties that I have raised by way of continuing legal education.
22. Turning to the authorities, in Attorney General v Mr A [2012] WSCA 2 (31 May 2012), the Court of Appeal asked itself: “The essential question is what approach should be taken by the courts of Samoa to sentencing the parties to incest between a father and his mature daughter.” The Court of Appeal in answer to the question stated:

“18. 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 the society.

19. The first theme supports the distinction made by Slicer J between the unhappily familiar case of a father abusing a young daughter, and that of sexual relations between consenting adults. In Attorney General’s Reference (No 1 of 1989) [1989] 3 All ER 571, 573 Lord Lane CJ cited as to the function of the criminal law in the field of sexual offences the report of the Wolfenden Committee on Homosexual Offences and Prostitution (Cmd 247 (1957)):

To preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence.
In that case the Court of Appeal set out a range of offending, with:

At one end of the scale...incest committ a father with aith a daughter in her late teens or older who is a willing participant and indeed may be the instigator of the offences. In such a case the court usually need do little more than mark the fact that there has been a breach of the law and little, if anything, is required by way of punishment.
(at 574) The point was elaborated:

Generally speaking a range from three years’ imprisonment down to a nominal penalty will be appropriate depending...on whether force was used and on the degree of harm, if any to the girl, and...on the desirability...of keeping family disruption to a minimum. The older the girl the greater the possibility that she may have been a willing or even the instigating party to the liaison...the lower the degree of corruption, the lower the penalty.”

23. The Court of Appeal noted some differences with the approach in New Zealand involving a more stricter approach. The Court of Appeal went on to comment in terms of the infringement of moral standards:

“The second theme is that of infringing moral standards. ...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.”

24. In applying sentencing in Attorney General v Mr A, the Court of Appeal there despite the mature age of the daughter accepted that she was a victim because of the trust placed in her father and which made her vulnerable in the specific circumstances of that case. The father was found guilty of two charges of incest after hearing and the Court of Appeal set a start point of no less than two years. The end result for the father was 1 year imprisonment after deductions in mitigation.
25. For the daughter who the Court of Appeal accepted to be a victim, the Court of Appeal stated:

“Ms B is a victim. We have reflected on the second, of infringement of Samoa’s moral standards. We have concluded that had the two cases come for sentence before a single Judge the moral responsibility would have been found rest substantially on Mr A rather than on his daughter. The Judge would have found it unnecessary for reasons of deterrence to impose a prison sentence upon a victim, despite her own candid admission that she had broken the law.

The circumstances of this case are quite exceptional: her father’s abandonment of her, his taking criminal advantage of her welled-up love for him, her prompt admission of guilt, her support for him at his sentencing despite what had happened to her, her ostracism from her village, and the eight months she has spent in prison. We have concluded that Ms B has more than paid her debt to society. We set aside her sentence of imprisonment and order that she be convicted and discharged without further penalty.”

26. In terms of other sentencing authorities, I have considered Police v Lilo (supra), Police v HE [2009] WSSC 62 (15 June 2009) and Police v Tuiloma [2008] WSSC 101 (1 December 2008) all involving one charge of incest. I have also considered Police v MP [2014] WSSC 109 (22 January 2014) involving two charges of incest as well as the other authorities that I have been referred to.
27. For you T.F, your level of culpability is significantly higher than that of your daughter. You instigated the sexual intercourse and you persisted for it to take place. You are older and abused your position of trust to engage in sexual acts with your daughter who despite being 35 years of age, was nevertheless vulnerable given her circumstances. Having considered the authorities and bearing in mind that since the judgment in Attorney General v Mr A, the penalty for incest has increased to 20 years imprisonment, I adopt 3 year start point for sentence. I deduct 6 months for your previous good character and deep remorse. In recognition of your banishment and the village penalty imposed on you, I deduct 4 months. From the balance, I deduct 8 months for your guilty plea leaving an end sentence of 1 year and 6 months imprisonment.
28. For you F.F, I recognize that similar to Attorney General v Mr A, you are in that sense also a victim. As the Court of Appeal in that judgment “it [is] unnecessary for reasons of deterrence to impose a prison sentence upon a victim, despite her own candid admission that she had broken the law.” Taking into account your personal circumstances including your young children, your positive PSR, your deep remorse and shame, the penalties that have already been imposed on you by your village including that of your banishment, a non-custodial sentence will be imposed. You are sentenced to 18 months supervision on the condition that:
    • (iv) You carry out 150 hours of community work;
    • (v) You attend such programs as directed by the Probation Service; and
    • (vi) You are to have no contact with your co-defendant during your supervision period.
      

JUSTICE CLARKE