SUPREME COURT OF SAMOA
Police v PT [2021] WSSC  83

Case name: 	Police v PT	
		
Citation: 	[2021] WSSC 83	
		
Decision date:	23 November 2021	
		
Hearing date: 		
		
Parties: 	POLICE v PT male of Samusu Aleipata	
		
File number(s): 	CD1/21 – CD32/21	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court Samoa Mulinuu	
		
Judge(s): 	JUSTICE FEPULEA’I A. ROMA	
		
On appeal from:		
		
Order:	Convicted of each of the 32 charges of rape and sentenced to 20 years’ imprisonment less time spent in custody.

Representation: 	E. Tiitii for Prosecution
M Soonalole for both Defendants	
		
Catchwords: 	Rape – sexual violation by rape – sexual intercourse, sexual connection – aggravating factors – breach and violation of duty –mitigating factors – maximum penalty – starting point for sentence – sentence	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.49 (1) (a) & 52 (1)

Cases cited: 	 Key v. Police [2013] WSCA 3
Police v. Ah Cheem [2017] WSSC 89 (23 June 2017).
Police v Faatauvaa [2019] WSSC 11 (18 January 2019);
Police v Lualua [2018] WSCC 91 (22 June 2018); 
Police v. Sialii [2015] WSSC 3 (16 January 2015)	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v PT male of Samusu Aleipata
Defendant

Counsel:	
E. Tiitii for Prosecution
M Soonalole for both Defendants	
	
Sentence:	23 November 2021

SENTENCE OF JUSTICE ROMA
A permanent order is made suppressing the publication of the names and villages of the victim and defendant.  The order is made in view of the close relationship between the defendant and victim and for the protection of the victim.
Charges
[1]	You appear for sentence on 32 counts of sexual violation by rape. The record shows that you had denied the charges but subsequently sought to vacate your denial and substitute guilty pleas on the 15th of April 2021 when the matter was to be heard.  For a number of reasons including the schedule with the recent electoral petitions, the court has not been able to pass sentence until now.  
 Offending
[2]	According to the police summary which you accept through counsel, the offending commenced in January 2017 and continued for almost 3 years until the last incident in August 2019.
[3]	The victim is your biological daughter.  She was 17 years and attending year 12 level in high school when the offending first occurred.
[4]	In January 2017 your wife who is also the victim’s mother went to bingo whilst you stayed back with the victim and her younger siblings.  She was sleeping when you woke her up and told her to go inside the room and lie on the bed.  You followed her and instructed her to remove her clothes.  She refused but you threatened to beat her up.  Out of fear she did as you told her. You removed your lavalava and started kissing her and sucked on her breasts.  You then inserted your penis inside her vagina and had sexual intercourse without her consent.  She cried as she felt pain and tried to push you away but could not.  You ejaculated on her stomach before you left her in the room. She could not go back to sleep after what you did that night.  She could barely walk the next morning.
[5]	The second incident occurred in February 2017, again when your wife and mother of the victim went to bingo. You approached the victim when your young children were asleep and told her to go inside the room.  You threatened to kill her if she did not do as told. You told her to remove her clothes; she cried and begged you not to do anything to her.  You did not listen; you did not care.  You spread her legs and started kissing her.  You inserted your penis inside her vagina and had sexual intercourse without her consent.  You then told her to go and sleep before her mother came home. You threatened her harm if she told her mother. 
[6]	A month later in March 2017, the third incident occurred.  You were out collecting coconuts with the victim who did not attend school that day.  You told her that you wanted to have sex with her then spread a lavalava on the ground and told her to remove her clothing. She refused but you screamed at her to do as told.  She then laid naked on a lavalava under a banana tree; you started kissing her on the lips and breasts; inserted your penis inside her vagina and had sexual intercourse without her consent.  Later that evening, she was able to tell her mother what you had been doing to her.  The mother, your wife confronted you but you denied everything. You argued but nothing was reported to police.  
[7]	On 29 other separate occasions between April 2017 and August 2019, you again had sexual intercourse with the victim without her consent. Whilst the police summary does not go into detail as to what happened on each of those 29 occasions, it is clear that each incident occurred at home when your wife was not present and you also threatened to kill the victim if she told anyone.
[8]	The police summary further says that the victim lost her virginity to you. And after a long time of being subjected to sexual abuse, she found comfort in her sister in law with whom she shared what you did to her. She left home to stay with her sister in law and her brother at Tiavea.  Their family learnt of what was happening and from there a complaint was laid with police. 
[9]	In the pre-sentence report you deny the number of incidents; admit to having had sexual intercourse with the victim but say all was consensual.  You later conceded through counsel the entirety of the police summary. You claim that you were tempted by the devil.  That is most unacceptable and simply a silly excuse. 
Victim
[10]	She is now 19 years of age.  In the VIR she says that she lost her virginity to you and could not believe that you would do such thing to her.  She stresses that this all happened in the home where she was entitled to feel safe.  She has suffered your unwanted advances and abuse for many years but could not really tell anyone.  She describes having suicidal thoughts and for a long time had wanted to escape and find herself a husband so that her suffering would end. She explains that even her mother, your wife doubted her when she told her.  She is thankful that she had the courage to eventually tell her sister in law.   Since the incidents came to light she has moved on and married.  She says in the VIR that you have apologised and she has forgiven you despite that harmful impacts of what you did to her.  
Aggravating factors
[11]	In relation to your offending these are the aggravating features:
(i)	The offending involved a significant breach of trust, the victim is your biological daughter.  She was entitled to feel safe and protected by you, not be violated by you;
(ii)	The vulnerability of the victim given your relationship with her, her young age and the fact that you were always alone with her at the time of offending; 
(iii)	The degree of premeditation - clearly you planned to commit the offending when your wife was not at home and to avoid the possibility of being caught;  
(iv)	The offending occurred within the family context and inside the home where the victim should have been safe and protected;
(v)	The offending involved force and consistent threats of violence;
(vi)	The age disparity between you and the victim - the age difference was 25 years; 
(vii)	The offending was committed in multiple incidents and continued for a period of almost 3 years. 
Mitigating Factors
[12]	There are no mitigating features of your offending.  But personal to you as offender, I take into account the following matters: 
(i)	Your guilty pleas to all 32 charges - I note however that the guilty pleas were entered late when charges were scheduled for hearing.  Even after your guilty pleas you again denied the allegations in a pre-sentence report and suggested that all were consensual. I acknowledge nevertheless that your guilty pleas have saved the victim from reliving the traumatic experience of giving evidence of her abuse in open court;
(ii)	The apology that you rendered to your own family;
(iii)	The fine of $2,000 plus fine mats imposed by your village which is confirmed by the material before me;   
(iv)	Your personal circumstances - You are 44 years of age, married and a father of 5 children including the victim.  You are the eldest of 9 siblings. Your formal education ended at year 9 level.  Apart from formal employment at Le Well Limited at one time, you have mostly worked the plantation in support of your family. The pre-sentence report attaches good references from your family matai, church minister and pulenuu of Samusu. You are a first offender.  
Discussion
[13]	 This is a serious case of sexual abuse within the confines of the home.  The gravity and totality of your offending warrants a lengthy sentence of imprisonment.
[14]	Daughters must and should feel safe and protected not only within their homes, but in particular with their fathers.  It is the duty of every parent to provide for the support, maintenance, safety and protection of their children. To sexually violate your daughter in your home and in the manner which you did is a serious breach and violation of that duty.  For her to continue to suffer that violation for almost 3 years aggravates your offending to higher level.
[15]	The sentencing bands for rape were determined by the Court of Appeal in Key v. Police [2013] WSCA 3.  Four sentencing bands were identified and your offending falls under Band 4 where the sentences range from 19 years to life imprisonment.  In assessing the appropriate penalty, I have also carefully reviewed the sentencing authorities cited by the prosecution. The cases of Police v. Sialii [2015] WSSC 3 (16 January 2015); Police v Faatauvaa [2019] WSSC 11 (18 January 2019); Police v Lualua [2018] WSCC 91 (22 June 2018); and Police v. Ah Cheem [2017] WSSC 89 (23 June 2017).  But none involved offending so significant in number and over a considerable period of time than yours.
[16]	Prosecution recommends a starting points of 50 years.   I consider the totality and gravity of the offending and adopt 30 years as the appropriate starting point. From that term I make the following deductions - 1 year for your apology to your family; 2 years for the fine and penalty imposed by your village; and a further 2 years for your personal circumstances including your first offender status, leaving a balance of 25 years. I deduct a further 5 years from that term for your guilty pleas to the charges and make no other deductions.  The end sentence is 20 years.
Result
[17]	You are convicted of each of the 32 charges of rape and sentenced to 20 years’ imprisonment less time spent in custody.
JUSTICE FEPULEA’I A. ROMA