IN THE SUPREME COURT OF SAMOA
Police v TLF [2024] WSSC 15 (25 April 2024)

Case name: 	Police v TLF	
		
Citation: 	[2024] WSSC 15	
		
Decision date: 	25 April 2024	
		
Parties: 	POLICE (Informant) v TLF (male, defendant)	
		
Hearing date(s): 		
		
File number(s): 	Charge 1, (b) & (c) per Charging Document dated 28 August 2023.	
		
Jurisdiction: 	Supreme Court, CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Fepulea’i A. Roma 	
		
On appeal from:		
		
Order:	I sentence you as follows:

(a)	On the charge of incest, you are convicted and sentenced to 3 ½ years’ imprisonment;
(b)	On the charge of sexual connection with a dependent family member, you are convicted and sentenced to 2 ½ years’ imprisonment;
(c)	On the charge of sexual connection with a young person, you are convicted and sentenced to 2 years’ imprisonment;
(d)	All three sentences will be served concurrently, less time spent in custody. 	
		
Representation: 	H. Apisaloma for Prosecution
S. Chan Chui for the Defendant 	
		
Catchwords: 	Sexual connection with a young person, Sexual connection to a dependent family member, Incest	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013, ss.59(1) & 50(b), s.56(1) & s.55(1) & (3)

Cases cited:		
		
Summary of decision:		

THE SUPPRESSION ORDER ISSUED EARLIER PROHIBITING PUBLICATION OF THE NAMES AND VILLAGE, AND ANY DETAIL THAT MAY REVEAL THE IDENTITIES OF THE VICTIM AND DEFENDANT CONTINUES.

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

TLF male

Defendant

Counsel:	H. Apisaloma for Prosecution
S. Chan Chui for Defendant

Sentence:	25 April 2024

SENTENCE
Charges
1. 	Following a defended hearing on the 27th March this year, I found you guilty of the following charges in a decision handed down on the 5th April:
(i) 	sexual connection with a young person, the maximum penalty is 10 years imprisonment;
(ii) 	sexual connection with a dependent family member, the maximum penalty is 14 years imprisonment;
(iii) 	incest, the maximum penalty is 20 years imprisonment.
2. 	You now appear for sentencing.  The victim is your biological granddaughter. 
Offending
3. 	The court heard that in the afternoon of father’s day in August 2022, two of your grandchildren aged 14 and 13 years at the time, found you with the victim in a room at your home.  Your granddaughter was naked and lying on the bed.  You were licking her vagina.  You were alerted when your two grandchildren made noise, they ran out of the room.
4. 	The incident was not reported until three months later when a dispute arose between you and one of your sons whom you chased off the land and has since lived with his family at [xy-village].  In the presentence report you maintain your innocence and claim that the allegations were concocted by your son and his step wife.  The evidence of your grandchildren at trial said otherwise and I have explained my reasons for accepting that evidence. 
The Victim
5. 	The victim was 12 years and 9 months at the time of the offending.  She suffers from a permanent intellectual disability which impairs her mental cognition and social skills.  Her condition was visible when she was called to testify.  She was unable to communicate or give evidence in court, but she was put through the task of trying to explain what happened despite her disability. 
Aggravating Factors
6. 	The aggravating features of your offending are as follows:
(i) 	the familial relationship – the victim was your granddaughter;
(ii) 	breach of trust arising from that familial relationship; 
(iii) 	young age of the victim - she was just over 12 years of age, you were 68.  The age disparity between you and the victim is 56 years;  
(iv) 	the victim was intellectually disabled; 
(v) 	vulnerability of the victim given her young age, mental disability and your familial relationship with her;
(vi) 	the place of offending – it occurred in the home where daughters and granddaughters must feel and be safe.  In saying that, your offending would not be  any less serious had it occurred elsewhere;  
(vii) 	impact of the offending - there is a victim impact report provided through the Attorney General’s office from an interview with the victim’s step mother.  She says the victim has always felt scared of you and suggest that this has been going on for some time.  I bear in mind that the charges relate to just one incident.  I do not doubt that your abuse of the victim will have a lasting impact on her physically, mentally and psychologically.  The report also says that no apology has been rendered, and you continue to deny any wrongdoing. 
Mitigating Factors
7. 	In mitigation of penalty, I consider the following:
(i) 	your personal circumstances - you are now 70 years of age.  Your wife passed away 3 years ago.  There are letters of support from your pastor, the village council of [**village], the Sa’o of your family who is also a present member of the [**group]; and a former employer.  They speak highly of your character and contribution to the family and village. Your daughter through the Probation Service describes you as a loving father who has always supported your family and catered for the many obligations including their education.  She expresses disbelief that you would commit what you are being sentenced on.  She seeks leniency from the court.  From the presentence report, you appeared previously for sentence on intentional damage 10 years ago; and insulting words in December last year.  Prosecution do not have any record of what sentences the Court imposed.  In any event, they are for unrelated offending and I will treat you as a first offender for purposes of this matter;
(ii) 	your medical condition as raised by your counsel - your doctor confirms in a letter dated 17th April that you suffer from hypertension, congestive heart failure and asthma.  For those illnesses you are on medication.  The doctor further says that when he recently visited you in custody, you had missed medication for a week.  He refers to the impact in his letter. 
Discussion
8. 	This is another serious case of sexual abuse within the home where daughters and granddaughters must be protected.  In all cases of this type of offending, the Court has imposed deterrent sentences of imprisonment, the length depending on the circumstances of each case.
9. 	What you did was unacceptable deplorable and unlawful.  The impact on your family and in particular, your young granddaughter who suffers a mental disability will last a long time.
10. 	In accordance with the court’s sentencing practice in similar cases, the sentence must denounce your conduct and deter other males from sexually abusing young females including daughters and granddaughters.  I say again that these are very serious charges.  Incest has a maximum penalty of 20 years imprisonment, the damage that this type of offending does to the family and victims are significant considerations.
11. 	Prosecution recommend a start point of 8 years.  I have considered each of the cases cited in their submission.  None of those cases involved a grandfather and granddaughter relationship; and the age disparity in your case is much higher.  In saying that I also consider that your case involves a single incident.
12. 	Mr Chan Chui on the other submits that the court considers as lead charge sexual connection with a young person, the less serious of the 3 charges in terms of penalty. Counsel further argues that 3 years should be the appropriate start point.  I simply do not accept the submission by counsel and take the more serious offence of incest as lead charge.  I bear in mind however that the incest in your case is by sexual connection, and not one involving sexual intercourse.
13. 	I adopt as the appropriate start point 8 years as recommended by prosecution.  I make these deductions.  For your personal circumstances including your age and previous good character, I deduct 1½ year.  For the references and testimonials provided through probation, I deduct a further one year.  For your medical condition confirmed by the medical report of Dr. Navy Collins, I deduct 2 years.  I make no other deductions. The end sentence is 3½ years.
Result
14. 	I sentence you as follows:
(a) 	On the charge of incest, you are convicted and sentenced to 3½ years imprisonment;
(b) 	On the charge of sexual connection with a dependent family member, you are convicted and sentenced to 2½ years imprisonment;
(c) 	On the charge of sexual connection with a young person, you are convicted and sentenced to 2 years imprisonment;
(d) 	All three sentences will be served concurrently less time spent in custody. 
JUSTICE ROMA