7 February 2023, Apia Mulinuu Courts, Samoa. Justice Tafaoimalo Leilani Tuala-Warren has this week handed down an 18 year prison sentence for a father of six convicted of raping his 14 year old daughter.
The 44 year old farmer from Upolu, who has been granted name suppression by the Courts to protect the identity of the victim, was found guilty by a panel of assessors after a court hearing where he maintained his innocence throughout.
The victim, now 17 years old, was made to relive the ordeal during a two-day hearing in November 2022; the very week Samoa commemorated 16 Days of Activism against gender based violence.
In her sentencing report Justice Tafaoimalo Tologata Leilani Tuala-Warren, known for handing down harsh penalties for sexual violence, said there is a significant need for deterrence against this deplorable behaviour, which continues to violate young girls and breach the sacred covenant of va tapuia in our Samoan culture between a parent and a child.
“The rape of a young girl is in itself unacceptable and inexcusable, but when it is committed by her own natural father, the level of abhorrence is staggering,” said Justice Tuala-Warren, “particularly in a family situation where a child should rightly have an expectation that she or he is safe and protected by her parents, in particular her father.”
“Quite apart from the fact that the defendant breached his legal duties as a father, in our Samoan culture there is a covenant of va tapuia between a parent and child,” said the judge. “The defendant has violated this covenant of trust and respect between him and his daughter”.
“This va tapuia is extremely important in the faaSamoa and is one of the core values of the faaSamoa. The breach of va tapuia in this deploring manner is not acceptable and will lead to a breakdown in faaSamoa if we do not deter it by way of harsh penalties,” added Justice Tuala-Warren.
“Today the Court will play its role in purging our county of this deplorable behaviour.”
The Offending
According to evidence, the victim who is now 17, was 14 years old when her biological father raped her on the 1st of February 2020.
The young victim’s evidence is that her mother was working a night shift, and she was home alone with her two younger siblings aged 10 and 8 at the time. She said her father waited until her younger siblings had fallen asleep.
Her father moved across to where she lay in their small open fale and told her to remove her clothes before raping her.
During her evidence in Court, the young victim described a home environment where their small fale’apa was located deep inland – e tu i uta le matou fale i le togavao.
Asked to describe their sleeping arrangements and how big their home was, she pointed out a space inside the Courtroom that was no more than 5m long x 6m wide.
The youngster had tried to describe a second incident five months later in July 2020 of the same year, however, prosecution had filed charges relating to a second incident and the victim was unable to give evidence on what she says was the second time she was raped.
She says she is in disbelief that her own natural father would do this to her. She was angry and wanted to run away from home, and to this day, she cannot forget what her father did to her.
As is common with perpetrators of sexual violence and rape, her father threatened her if she should tell anyone. She has not seen her father or his family since the offending when she left home.
Aggravating features of the offending
In Justice Tuala-Warren’s sentencing report, she states that the extent of the harm to the victim is taken into account as seen in her victim impact report.
Aggravating features included the gross breach of trust by the defendant. “The victim is his biological daughter. He committed the offence in a family environment where she is entitled to grow up safe and protected by her father from this sort of behaviour.”
Justice Tuala-Warren said the close familial relationship is a significant aggravating factor. As she had stated in a 2018 case of Police v Lualua and a February 2020 sentence of a father who raped his 13 year old daughter – “I am hard pressured to find a closer familial relationship than that of a parent and a child.”
The Judge said this offending was premeditated. “The defendant waited until the mother had gone to work and the younger siblings had fallen asleep”.
“The victim was particularly vulnerable by reason not only of her age but also by reason of the relationship she had to the defendant. He was the head of the family with authority over all family members. She was 14 years old, he was over 40 years old”.
Mitigating Factors
The defendant had served time in prison for previous convictions and the Court could not find any mitigating factors other than the defendant’s personal circumstances as seen in the various references provided in his favour.
“I cannot find any other mitigating factors. He has previous convictions and therefore is not a person of previous good character. He has not expressed any remorse, either through Counsel or in his presentence report,” said Justice Tuala-Warren.
“His ex wife and the victim say there has been no reconciliation. He is a heavy drinker which is not a mitigating factor. The consequences of his offending in that his wife and children left him is not a factor which counts in his favour.”
The Rape Bands
The Supreme Court Judge set out the four bands of rape as we’ve seen listed in many previous sentences of sexual offending handed down by Justice Tuala-Warren over the years.
Justice Tafaoimalo once again lists the rape bands previously set by the Court of Appeal in 2013 Key v Police [2013] WSCA with short descriptors as to the circumstances for which each band would be appropriate to apply.
(a) Rape Band One: 8 – 10 years (Appropriate where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited);
(b) Rape Band Two: 9 – 15 years (Where violence and premeditation are moderate);
(c) Rape Band Three: 14 – 20 years (Offending where there are aggravating features at a relatively serious level); and
(d) Rape Band Four: 19 years to life (As well as the aggravating features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band).
The Sentence
In handing down the sentence, Justice Tuala-Warren said this behaviour “needs to be expunged for the sake of this country’s children”.
Justice Tuala-Warren said there was also a need to hold the defendant accountable for the harm done to the victim and to promote in him a sense of responsibility for that harm, and provide for the interests of the victim.
“The effects of this offending on the victim will no doubt last a lifetime. This sentence says that the victim is important and her interests are considered important”.
Prosecution submitted a starting point of 22 years imprisonment while Defence Counsel submitted that 10 years imprisonment is an appropriate starting point for sentence.
In placing the starting point at the higher end of Rape Band Three, Justice Tuala-Warren said, “As stated in R v AM and reiterated in Key v Police, I bear in mind that “what is required is an evaluation of all the circumstances” and “a mechanistic view is not appropriate””.
“In assessing culpability to determine a starting point in the case before me now, I take into account the age and vulnerability of the victim, the impact of this offending on her, the nature of the relationship between the defendant and the victim, he being her natural father and the way he has breached that trust and va tapuia.”
“I assess the culpability of the defendant to be significantly high.”
“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 place this offending at the upper end of Rape Band 3 (14-20 years) where there are aggravating features at a relatively serious level.”
Justice Tafaoimalo took 20 years imprisonment as the starting point for sentence.
“This is in line with Police v Lualua (22 June 2018), a case whose facts are markedly similar to this case. I deduct 2 years for his personal circumstances.”
“The defendant is convicted of rape and sentenced to 18 years imprisonment. Time spent in custody will be deducted.”
Community Message from Samoa Global News:
If you or someone you know is a victim of sexual violence, please call Police on Ph 22222 or the Samoa Victim Support Group free calling number 800-7874.
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