Court

Father Jailed for Sexual Connection Towards Biological Daughter

December 17, 2021

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Screenshot_20211217-081443_Chrome — Image: UNICEF Awareness image to combat violence against girls.

Friday 17 December 2021, Mulinuu Apia Samoa. A 39-year old father of six who pleaded guilty to three counts of sexual connection and one count of incest towards his biological daughter was sentenced to 5 years and 10 months by the Supreme Court of Samoa on Thursday afternoon.

The Offending

The victim was just nine years old when her father sexually violated her, then threatened to kill her if she told anyone especially her mother. According to the summary of facts accepted by the accused, there were 4 incidents of offending.

As described in the written sentence handed down by Justice Tuala-Warren, “The first occurred on 13 July 2018 when he victim was 9 years old and in Year 4. He sent his other two children outside to play while he told the victim to lie on the bed. He removed her shorts and panties and then removed his shorts. The victim started to cry”.

The sentencing report states the defendant then lay on top of the victim and rubbed himself against her. The young girl told her mother about what happened and resulted in an argument between her parents. Two more similar incidents occurred over the next five months.

“On 16 October 2018, the victim’s mother went to sell koko. The exact same thing happened as on 13 July 2018 with an argument ensuing between the victim’s parents”.

“On 12 December 2018, the victim’s mother went to work. The accused sent the victim to get a kipi from the next door neighbour. When she returned, the accused was sitting on a basin naked. He grabbed her hand and pulled her close to him. He pulled down her skirt and panties and digitally penetrated her while he masturbated. The victim cried as she felt pain in her vagina. He threatened her not to tell anyone. She told her mother when her mother arrived home from work. Her mother then reported the matter to Police.”

According to the sentence report, the matter then fell off the Court list when the accused failed to turn up to Court. The defendant was issued with an arrest warrant.

When another incident occurred this year on the 7th of August 2021, the victim, now 12 years old, again told her mother who reported the matter to police. Police arrested the father who has been in custody since.

In her Victim Impact Report (VIR) the young girl says she was scared and angry with her father’s actions. She tried to stay away from him when he was released after the first offending but it ended up happening again. She says she no longer wants to think about it. Her mother says that the accused is in custody and he is not to come and see them again but she welcomes any assistance towards the maintenance of their children.

The defendant told probation he did not remember the first three incidents, because he was intoxicated.

In handing down the sentence, Justice Tuala-Warren quoted Senior Supreme Court Justice Vui Clarence Nelson in a previous case of sexual offending by a father towards his biological daughter.

“Most disturbing is that the accused is the biological father of the victim,” stated Justice Warren.

“In a case of sexual offending by a father of his biological daughter, (Police v AV [2017] WSSC 130) Nelson J said; “There is no question such conduct must be soundly and clearly condemned as not acceptable to our society and that a strong deterrent sentence of imprisonment is required as a personal deterrent to the accused and as a general deterrent to all fathers who would fail their parental duty to love and nurture their offspring in this fashion.”

“In the same case Nelson J said that “…sentence …must mark the significance of the cultural taboos that you have broken”. The accused has breached the sacred trust between father and daughter”.

“There is a need to hold the accused accountable for the harm done to the victim,” to promote in him a sense of responsibility for, and an acknowledgment of that harm, and to provide for the interests of the victim,” said Justice Tuala-Warren. “The effects of this offending on the victim will no doubt last a lifetime. Intoxication is not an excuse for what this accused did to his daughter”.

Prosecution submitted a starting point of 12 years imprisonment while defence counsel recommended a starting point of 11 ½ years imprisonment.

Guideline for Sentencing Sexual Connection Towards Girls

Justice Tuala-Warren set out guidelines laid down by a Court of Appeal case to ensure consistency in approach to similar offending towards girls.

“In the case of Attorney General v Lua [2016] WSCA (19 February 2016), the Court of Appeal found it desirable to establish a guideline for sexual connection against children and pronounced that the new guideline applies to all sentencing decisions for unlawful sexual connection against children under 12 years from now on. The Court remarked that the guidelines ‘do not place the sentencing judge in a straight-jacket”. I would add that the guidelines have been extremely helpful in working towards, not necessarily the exact same sentence for similar offences, but a consistent approach to sentencing of similar offences in the exercise of judgment.”

“Three bands were considered appropriate for sexual connection offending against children under 12 years. The bands are;

Band one: 2-6 years (appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features or their presence is limited);
Band two: 5-12 years (where the offending is of moderate seriousness and involves two or three aggravating features); and
Band three: 11 years-life imprisonment (where the offending is the most serious of this kind, for example it involves offending against multiple victims over a significant period in the presence of serious aggravating features).

“Prosecution submits that this offending falls within the higher end of Band 2,” said the Judge.

“I note the observation made by the Court of Appeal in Attorney General v Lua ;

[25]“…That Band one has a range from 2 to 6 years reflects the diversity of sexual connection offending. The least capable offending will comprise a single skin on skin touching of the genitalia or anus which is of limited duration.”

“This offending falls within the higher end of Band 2 because it occurred 5 times from 2018 when it first started to 2021 when the accused was finally apprehended. It also involved digital penetration which the Court of Appeal in Lua said “…the most serious acts covered under this guideline is digital penetrations”.

“Having therefore considered all the circumstances, and in particular having regard to the aggravating features relating to this offending (there being no mitigating features of the offending), I take 10 years imprisonment as the starting point for sentence. I deduct 8 months for his personal circumstances, and 3 ½ years for his guilty pleas”.

The result

“For each offence of sexual connection with a child under 12 years, of which there are three the accused is convicted and sentenced to 5 years and 10 months imprisonment, to be served concurrently..

“For the offence of incest, he is convicted and sentenced to 4 years imprisonment to be served concurrently..

“Time spent in custody will be deducted..

“Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim, the accused and their village. This is for the protection of the victim.