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Police v E.T [2021] WSSC 22 (2 July 2021)

IN THE SUPREME COURT OF SAMOA
Police v E.T [2021] WSSC 22

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

E.T
Defendant

Counsel:
L. I. Atoa for the Prosecution
S. U. Vaai for the Defendant

Sentence: 2 July 2021

SENTENCE OF PERESE CJ

1. This is a matter involving a 25-year-old single male from the village of Moataa. He has pleaded guilty to 8 charges involving sexual connection with a young person, and incest. The Court, in reliance on its inherent jurisdiction, orders the suppression of the name of the victim, and any information that may identify her. Given the nature of the offending, the Court orders the suppression of the name of the defendant, and consequently orders this matter be reported as Police v ET.
2. In relation to the incest charges - the defendant offended against s 55 of the Crimes Act 2013 (“the Act”), which carries a maximum sentence of twenty years imprisonment. In relation to the sexual connection charges, he has offended against s.59 of the Act.

55. Incest – (1) Sexual connection is incest if:

(a) it is between 2 persons whose relationship is that of
(b) parent and child, siblings, half-siblings, or grandparent and grandchild; and
(c) the person charged knows of the relationship.

(2) In this section, “child” includes an illegitimate child or an adopted child; and “grandchild” has a corresponding meaning.

(3) A person who is or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 20 years.

59. Sexual conduct with young person under 16 – (1) A

• (b) person who has sexual connection with a young person is liable to
• (c) imprisonment for a term not exceeding 10 years.
• (d) ...
• (e)
• (f) “young person” means a person who is 12 years or over and
• (g) under the age of 16 years;
• (h)

3. It is noted in the Summary of Facts, which is accepted by the defendant, the victim was 15 years old at the time of the offending. The defendant and the victim are biological siblings through your shared mother. During the times of the offending, the victim’s father would go to work as a security guard at night. The victim’s mother would also be away from the house in the evening at church gatherings or in her work as a traditional healer. At these times the defendant and the victim were home with their grandparents and younger siblings.
4. The defendant slept with his younger brother at a different house to the one where the victim slept with her and their grandparents.
5. The Summary of Facts states:
   • (a) on 19 September 2020 at Moataa, between 8pm and 11pm, the defendant and the victim engaged in sexual activity, which involved the performance of oral sex on the victim and sexual intercourse where the defendant inserted his penis in the victim’s vagina;
   • (b) on 30 September 2020 at Moataa, between 8pm and 11pm, the defendant and the victim again engaged in sexual activity, which involved the performance of oral sex on the victim and sexual intercourse where the defendant inserted his penis in the victims vagina;
   • (c) between 31 December 2020 and 1 February 2021 at Moataa between 8pm and 11pm, the defendant had sexual intercourse with the victim by inserting his penis in the victim’s vagina;
   • (d) on 12 March 2021 at Moataa, between 8pm and 11pm, the defendant and the victim were home alone, the defendant performed oral sex on the victim and sexual intercourse where the defendant inserted his penis in the victims’ vagina.
   • (e) The offending came to light when in March 2021, the victim told her schoolteachers that she was pregnant because of the offending.
   • (f) The defendant pleaded guilty to the charges at mentions on 24 May 2021.
   • (g) The defendant has no previous convictions.
6. The Court has been provided with a presentence report, date 18 June 2021, a victim impact report, dated 17 June 2021, the Prosecution’s Sentencing Memorandum, which is dated 17 June 2021, and submissions on behalf of the defendant, dated 1 July 2021, received only the day before sentencing despite Mr Vaai advising that he would file his submissions three days ahead of the hearing.
7. Although, the summary of facts was not available to the writer of the pre-sentence report, the defendant’s submission accepts the summary of facts, and he accepts and concurs with the report prepared by the probation services - the pre-sentence report. This admission is critical. It means the defendant admits the first time of offending may have been a result of the defendant’s intoxicated state at the time, and that in fact the defendant cannot recall exactly how many times he violated the victim, which he would do when he came home for the weekend. It is said that on some occasions the defendant would wait until all the family were asleep before the victim would sneak into his room.
8. The defendant’s mother has advised that there has been a reconciliation, and that the family have forgiven the defendant and hope that he has learned a valuable lesson from this ordeal.
9. The victim impact report from the victim states that she has not received an apology from the defendant. She has given birth to a boy as a result. The defendant now has a son who is also his nephew. The victim also now has a son who is also her nephew, and she now appears to be ashamed of what has happened and does not want the defendant to be acknowledged as the boy’s father. The victim says she forgives the defendant but that she does not want to experience again what has happened to her.

Sentencing

10. The prosecution relies on three sentencing principles in their sentencing memorandum:
    • (a) To denounce the conduct, the defendant was involved with.
      • (b) To deter the defendant and any other like-minded persons from committing the same or a similar offence.
      • (c) To protect the community from the defendant.
11. The prosecution argue that these are the aggravating features of the defendant’s offending:
    • (a) The vulnerability of the victim – she was 15 years old; the defendant was 25 years old at the time. The submission is that the defendant took advantage of the young girls age and inexperience. The defendant had power or authority over the victim as a much older brother and the sexual activity was regular and occurred at times when the defendant anticipated that he was alone with the victim.
    • (b) The age difference – she was 15 and you were 25.
    • (c) Breach of trust – The defendant is the victim’s older brother. Instead of protecting his sister, he breached her trust by violating her and exposing her to sexual acts at a young age.
    • (d) Premeditation.
    • (e) Familial relationship.
    • (f) Breach of the sanctity of the home; and
    • (g) Impact of the offending.
12. The aggravating features advanced by the prosecution have a fair degree of overlap. I consider that there are three main aggravating features that arise from the prosecution’s submissions, and they are (1) the vulnerability of the victim, (2) the age difference, and (3) the gross breach of trust.
13. I would add two further aggravating features (4) the regularity offending, and (5) the normalisation of the exploitative behaviour, which the defendant admitted occurred when he came home in the weekends.
14. The prosecution submits the only mitigating feature is the defendant’s early guilty plea, which has obviously had the effect of bringing closure to the victim. It has also saved the anxiety to the victim of having to give evidence at a trial, and the State has been saved expense of a trial. I would also add that an ifoga has been performed as between families but note that no personal apology has been given to the victim.
15. The defendant’s counsel submits that there are three mitigating circumstances: (1) the defendant’s prior good record, (2) the early guilty plea, (3) genuine remorse. These are matters to be properly considered, and I do so.
16. The prosecution submits an appropriate starting point should be more than 10 years, and it submits that an appropriate starting point is 12 years for the incest charges.
17. The defendant’s counsel in oral submissions given today says that an appropriate starting point is 14 - 18 months. The defendants counsel’s suggested starting point is wholly inadequate, and unrealistic in the context of the circumstances of incest in this case. Mr Vaai did not refer to any authority in support of his suggested starting point. Mr Vaai also sought in his oral plea in mitigation to suggest that the victim was only a few months short of turning 16 years old. The submission has no merit as it improperly attempts to minimise the offending, and I reject it. At the time of the offending, the victim was under the age of 16 years. It is a criminal offence to have sex with someone who is under the age of 16 years.
18. In his written submissions, the defendant’s counsel, Mr Vaai submitted that the Prosecution’s submission of a 12-year starting point is too high, and he asks for the Court to apply s.112 of the Criminal Procedure Act 1972 which gives the Court a discretion to impose lesser sentences.
19. Mr Vaai also points to authorities which he submits support sentences in the vicinity of 2 years imprisonment. Respectfully, the authorities Mr Vaai relies on are not apposite the circumstances of this case, and they do not support a sentence of around 2 years for a perpetrator. For instance, Mr Vaai submits that the sentence in Police v MP was 18 months, but that is incorrect, that is the sentence which was handed down in Police v CP. The sentence handed down in Police v MP was 4 years, with a starting point of 6 years (at a time when the maximum sentence had been increased from 7 to 20 years in the Crimes Act 2013). The circumstances of the offending in Police v MP were very different to the circumstances in this case.
20. In my view, an appropriate starting point in this case is 10 years for the incest and 7 years for the sexual violation. This is offending which involves a young vulnerable girl, which is sustained over many months to the extent that it appears to have been normalised, by an older sibling in whom the victim was entitled to have trust for not just her physical safety but her emotional security as well. They both plainly appreciated that their behaviour was wrong; each of the incidences were carried out in secret. However, the defendant was a mature, experienced man at least 9 years the victim’s senior, and the victim was, as is defined in the law, a young person, whom the law requires to be protected given their relative physical and emotional immaturity and vulnerability.
21. I consider that an overall sentence should be imposed in respect of the two types of offending, to reflect the criminality of the offending between the defendant and his sister. There is a need to protect family members, like the 15-year-old victim who because of trust placed in a loved one was vulnerable to abuse, and there is also a need to take account of an infringement of the moral standards of society.
22. A non-custodial sentence is not appropriate – this type of offending should be met with a sentence which denounces the offending and sends a strong message of deterrence that offenders will be sentenced to long periods of imprisonment.
23. I consider that a discount of a third should be given in respect of the guilty plea. This would reduce the sentence by 40 months. I allow further discounts of 4 months for previous good behaviour, 4 months for the defendant’s remorse and apology to his wider family.
24. I note that in another case of this nature (Police v CP), the perpetrator and victim were banished by their village, and at sentencing they were given a discount to reflect that community consequence. That issue has not arisen in this case and so no further discounts are able to be considered
25. The defendant is sentenced to a period of 6 years imprisonment, less time served whilst on remand.

CHIEF JUSTICE