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Police v TA [2024] WSSC 89 (23 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v TA [2024] WSSC 89 (23 September 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

TA, male.

Accused

Counsel: MT Fesili for Prosecution
V Afoa for the Accused

Hearing: 3^rd & 11^th September 2024.

Sentence: 23^rd September 2024

SENTENCE

1. TA, you appear for sentence on 13 charges of sexual violation by way of rape, l0 charges of incest and 1 charge of sexual violation by way of unlawful sexual connection. The maximum penalty for rape is life imprisonment, sexual violation by way of unlawful sexual connection 14 years and for incest, 20 years.
2. You pleaded guilty to the charges on the hearing date.

The Offending:

3. According to the Summary of Facts dated 1^st August 2024 accepted by you through your counsel and by you personally, you began sexually assaulting your daughter in January 2022. Your daughter was 15 years of age at the time. She was doing her laundry. You went to her, grabbed her and groped her breasts. She was shocked and tried to pull away but you grabbed her, slid your hands in to her pants and used your finger to digitally penetrate her. Your daughter pleaded with you to stop but you pulled up her shirt and sucked her breasts.
4. Between the 1^st February and 28^th February 2022, you entered your daughter’s room at around 3.00am while the whole family was asleep. You woke her touching her toes, told her not to scream and undressed her. You covered her mouth with a hand and then raped her until you ejaculated. She was in pain and weeping. You then continued on a pattern of raping your daughter on another 10 separate occasions during the course of 2022, often, in the kitchen. In 2023 in January and October, you raped your daughter again on 2 separate occasions.
5. Your sexual abuse of your daughter was witnessed by 2 of your children. V saw you rape the victim in 2022 and your son T saw you rape the victim in 2023. Both times, you raped her in the kitchen.
6. Your offending came to light in October 2023 when you told the victim to have sexual intercourse and she refused. You then chased her with stones and she sought shelter in a neighbouring home. The matter was then reported to police.

The Accused:

7. You are a 50 year old. You are married with 11 children and completed school to year 10. You then worked your family plantation all your life. You are said to suffer hypertension and diabetes. You have no prior convictions and positive character references.

The Victim:

8. The victim is your biological daughter. She was born in June 2006. When you began to sexually abuse your daughter in January 2022, she was 15 years of age. Your daughter in her VIR speaks of the impact of your offending on her, the physical pain she felt, the tears she shed and the shame she feels when she sees you. Your abuse of your daughter was witnessed by 2 of your children. There can be little doubt that your abuse of your own biological daughter will have life-long traumatic effects on her together with the shame that she no doubt feels.

Aggravating and Mitigating Factors:

9. The aggravating features of your offending are:
   • (a) you raped your own biological daughter in your family home, often while your family was asleep. This was a gross breach of trust. It was also offending within a domestic relationship in accordance with section 17 of the Family Safety Act 2013;
   • (b) the vulnerability of the victim and your age difference. She was only 15 years of age at the time you began raping her. You will have been about 48 years of age;
   • (c) the multiplicity of the offending over a long period of time between January 2022 and October 2023;
   • (d) the impact of your offending on the victim as stated in her VIR. Relevant also in terms of impact not only to the victim but also your family is that they were banished from the village due to your offending;
   • (e) also relevant is the impact of your offending on others. Your rape of your daughter was witnessed by 2 of your other children. There can be little doubt that this will have been traumatic and shocking for your other children to see; and
   • (f) your offending was clearly premeditated and calculated. You did so over almost 2 years, often while the family was asleep and would take her to the kitchen to commit your acts.
10. Although prosecution has referred to the use of force and threats as aggravating factors to the offending, the Summary of Facts refers to you on one occasion instructing your daughter not to scream and you covered her mouth. Violence is inherent in this type of offending. These facts raised by prosecution do not graduate the inherent violence in the offending to be viewed as an aggravating factor increasing the start point.
11. In terms of mitigating features personal to you, I take into account:
    • (a) your prior good character;
    • (b) the apology you have extended to your family together with your remorse for your offending expressed in Court and the reconciliation that has occurred;
    • (c) the village penalty imposed and paid; and
    • (d) your late guilty plea on the hearing date.

Discussion:

12. TA, you are described by your wife as “o ia ose tama alofa I lana fanau...” The victim also says in her Victim Impact Report:
    1. “O lo’u olaga atoa mai lava a’o ou laititi e mafana lava le ma mafutaga ma lo’u tama, oute iloa fo’i e alofa lo’u tama ia te a’u. Peita’i sa ou le talitonu ina ua amata tupu ma fai fai pea le faatinoina o nei uiga mataga ia te au.”
13. Psalm 127:3 speaks of children as a blessing from God. As is obvious from your daughter’s Victim Impact Report, she had a deep daughterly love for you – a blessing in itself for any parent. As her father, your daughter, like every daughter, expects from you fatherly love, support, guidance and protection from those who might harm and abuse her. You should have been her greatest defender. Rather than protect her however, you became her abuser sexually violating her many times over almost two years in her own home, where she is entitled to feel safe. Your acts against your own daughter betrayed in the most depraved way everything that is sacred in a father’s relationship with his daughter. Your offending broke the customary va tapuia between a father and a daughter.
14. Sexual offending in the community is highly prevalent as is sexual offending within the family. The courts have long recognized this prevalence and enunciated the need for deterrent sentencing (Police v Ji [2018] WSSC 50 at [20]). Prosecution seeks a sentence start point of 32 years. Your counsel accepts the inevitable that an imprisonment term will be imposed but says that the appropriate start point is 20 years.
15. Your counsel accepts that your offending falls within what is called rape band 4 in Key v Police [2013] WSCA 3. This band is reserved for the most serious of rape cases consisting of multiple offending over considerable time including repeat offences within a family relationship. This band is 19 years to life imprisonment start point. I accept that your case falls within band 4. The question is where in band 4 it should fall.
16. I have referred to the cases by prosecution and in particular Police v PT [2021] WSSC 83 and Police v PP [2022] WSSC 39. Prosecution submits that your case is high range band 4 and a start point of 32 years imprisonment should be adopted. I have also referred to Police v VL [2015] WSSC 42 and the other cases referred to by your counsel. Your counsel says that your offending falls within the lower end of band 4 and that a start point of 20 years should be adopted.
17. In my respectful view, applying Key v Police with regard to the culpability factors in R v AM, culpability at the higher end of rape band 4 of 32 years is too high. While in no way minimizing the very serious facts of this case and TA’s offending, this case involved one victim over a shorter period of time than many of the higher end case examples in R v AM. Further, the victim was older than some in the high-end cases which involved young girls as young as 8, 11 and 12. I see the appropriate start point in the vicinity applied by Nelson J in Police v VL [2015] WSSC 243. The number of incidences of sexual assault are similar and the age of the biological daughter was also similar. What I do however also take into account in setting the start point is that your rape of your daughter TA was seen by two of your children. This will have been traumatizing. Further, as a result of your offending, your family has left the village. Taking these additional points into account, I view a 22 year start point on a totality basis as appropriate.
18. From a 22 year start point, I deduct 12 months for prior good character; 18 months for the apology, remorse and reconciliation that has occurred; and 6 months for the village penalties imposed and from the balance, 3 years for the guilty plea late as it was on the date of trial leaving an end sentence of 16 years imprisonment.

The Penalty:

19. TA, you are accordingly, convicted and sentenced as follows less remand in custody:
    • (a) sexual violation charge 3 in the Charging Document dated 25 June 2024, 16 years imprisonment on a totality basis;
    • (b) all remaining sexual violation by way of rape charges, 10 years 6 months imprisonment concurrent;
    • (c) all charges of incest, 6 years 6 months concurrent; and
    • (d) sexual violation by way of unlawful sexual connection, 3 years 4 months imprisonment, concurrent.

JUSTICE CLARKE