Father jailed 14 years for raping biological daughter

By Joyetter Feagaimaali’i-Luamanu 25 June 2018, 12:00AM

A father who pleaded guilty to raping his 15-year-old daughter has been jailed for 14 years. 

The decision was delivered by Supreme Court Justice Tafaoimalo Leilani Tuala-Warren. Lawyer, Fuifui Ioane, of the Attorney General’s Office was prosecuting while Diana Roma represented the defendant.

“The victim is his biological daughter. I accordingly issue a permanent suppression order prohibiting publication of her details and for protection of her identity this extends to the accused’s details. This case will be reported in the law reports as Police v M.L.” 

The defendant appeared for sentence on one count of rape. 

“According to the summary of facts, the accused is 40 years old and is the biological father of the 15 year old victim.  Sometime during the month of January 2017, the accused approached the victim ordered her to take off her clothes, lie down and spread her legs so that he could check her private part to see if she was a virgin. 

“He then raped her without her consent. A relative who reported the matter to police had done so when the relative became suspicious of the accused’s conduct towards his daughter.

“The accused is now 41 years old. He separated from his wife and 6 children as a result of this matter. The victim is the eldest of his children.

“He is now single and lives with family. “He says of the offending that it occurred because he was checking to see if she was cheeky. He says he had been drinking at home before the incident. 

“He ordered her to take off her clothes and lie down. He told her to spread her legs and when she did, he says he became sexually aroused and proceeded to have sexual intercourse with her.

“His ex-wife told Probation of her shame and sadness over the incident and says there has been reconciliation. She says she is praying for the courage to forgive him. She says he was a loving and fair father who supported their family.  She says that both her family and the family of the accused are blaming her for what happened,” stated Justice Tafaoimalo. 

The accused’s cousin has written a testimonial saying that the accused has brought shame on their family because of his actions. However he says the accused is hard working, is living with him and he continues to counsel the accused.

“The village mayor has confirmed that the accused is an active member of the aumaga. He told Probation that although the accused is allowed to stay in the village he is prohibited from participating in any village activities. They are currently discussing a penalty of $3000 for the accused.

“His religious leader says that the accused is serving the village and the church through his work as a carpenter. He says he continues to counsel the accused.” 

The victim was 15 years old when the offending occurred. 

“She says that her father apologised to her and she has forgiven her father and still loves him. She dropped out of school as a result of this matter. She expressed sadness that her family has broken up.” 

Justice Tafaoimalo pointed out this is gross breach of trust by the accused. 

“The victim was 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. 

“This close familial relationship is a significant aggravating factor. I am hard pressured to find a closer familial relationship than that of a parent and a child. 

“Quite apart from the fact that the accused breached his legal duties as a father, in our Samoan culture there is a covenant of va tapuia between a parent and child. The accused has violated this covenant of trust and respect between him and his daughter.

“This offending was premeditated to an extent. The accused says he wanted to check if his daughter was cheeky. He asked her to undress, lie down and spread her legs. This intention and these actions indicate that he had planned what he would do. 

“The victim was particularly vulnerable by reason not only of her age but also by reason of the relationship she had to the accused.  He was the head of the family with authority over all family members.

“The extent of the harm to the victim is taken into account. She says that the accused has apologised and she has forgiven him. 

“However those are the natural reactions of a daughter who loves her father. It does not take away from the fact that he raped her.  No doubt she is feeling confused about what happened. 

“She has dropped out of school, and she is sad about the family break up. This offending has affected this whole family, including extended family as seen in the cousin’s written testimonial,” pointed out Justice Tafaoimalo. 

In considering the sentence for sexual offences, particularly rape, the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. 

The sentence is also to convey condemnation by society of such criminal conduct.

“However this is not only a case of rape. It is also a case of incest although he is not charged with incest.” 

Justice Tafaoimalo noted that 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”.

“Sexual offending in our community has been topical recently. In yesterdays editorial in the Samoa Observer Mata’afa Keni Lesa wrote “The sad reality is that this is just one of so many similar cases surfacing in Samoa.” “Unfortunately this is yet another case which will continue to highlight the prevalence of sexual offending in our community and sadly within families,” stated Justice Tafaoimalo. 

In assessing culpability to determine a starting point in the case taken intto account the gross breach of trust, the closeness of the familial relationship, the violation of the cultural covenant of va tapuia between a father and a daughter, the extent of premeditation in this offending,  the extent of the harm to the victim and her young age. 

Justice Tafaoimalo finds that these are aggravating features at a serious level place the starting point at 22 years imprisonment. 

“I deduct 2 years for his previous good character, his personal circumstances and his village sanction. I deduct 6 years for his guilty plea. That leaves 14 years,” ordered Justice Tafaoimalo.

By Joyetter Feagaimaali’i-Luamanu 25 June 2018, 12:00AM

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