Police v Keil [2007] WSSC 94 (17 December 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

ATIKEN KEIL
male of Siusega.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Su’a for prosecution
F P Meredith for accused

Sentence: 17 December 2007

SENTENCE

The accused who is a 38 year old male and separated from his married wife appears for sentence on two counts of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years. Each count carries a maximum penalty of 7 years imprisonment. Initially, the accused pleaded not guilty to both counts but later on changed his plea to guilty on the date of trial. The victim was at the material times over the age of 12 years but under the age of 16 years.

In late September 2006 the accused and the victim met through a conversation on the phone. At that time the victim was about 15 years and 8 months old given that her date of birth was 25 January 1991. From there, their relationship started and developed with both calling one another. They also started to see each other and talk to each other. This later led to the accused picking up the victim late at night and taking her for drives in his car. When the accused asked the victim about her age she told him she was 17. This was confirmed by what the victim told the probation service as it appears in the pre-sentence report.

On 24 December 2006, the accused picked the victim from her house and took her to his house at Siusega where, after a brief conversation they had sexual intercourse. The victim was then about 15 years and 11 months old. Then on 5 January 2007, the accused and the victim checked into one of the hotels in Apia and had sexual intercourse in a hotel room. The victim was then 20 days short of her sixteenth birthday. According to what the accused told the probation service, the first time he became aware of the victim’s real age was when she had her sixteenth birthday at the beginning of this year. The victim appeared before the Court and from her physical built it is difficult to tell her age. However, she appeared more mature than her real age.

Sometime after the victim’s sixteenth birthday on 25 January 2007, the accused and the victim started living together as man and wife. They plan to get married once the accused’s divorce from his previous wife is through. The victim is now five months pregnant and is very much dependent on the accused. When she appeared in Court, she pleaded for mercy upon the accused. She also said she had consented to having sexual intercourse with him and she also told him that she was 17 years old.

The accused is the proprietor of a successful fencing business which now employs seven people. The mother of the victim appeared and told the Court that the accused is a very good person. A testimonial from someone who knows the accused refers to him as a reliable person. The accused, however, has a previous narcotic conviction which is not relevant to the present case.

Counsel for the accused submitted that the accused and the victim had a genuine relationship before sexual intercourse between them first took place. The accused believed, though mistakenly, that the victim was 17 years because that was her age which she told the accused. As mentioned earlier, it is difficult to tell from the victim’s appearance what is her real age. But she appeared more mature than her age. Counsel also highlighted the fact that when the first act of sexual intercourse took place between the accused and the victim, the victim was about 15 years and 11 months old and when the second act of sexual intercourse took place the victim was only twenty days short of her sixteenth birthday. Counsel also referred to the accused’s guilty plea though delayed and the fact that the accused is a first sexual offender. Reference was also made to the intentions of the accused and the victim to get married once the accused’s divorce from his previous wife is through.

In all the circumstances, I have decided that a custodial sentence will not be appropriate. The accused is convicted and fined $250 on each of the two charges. The total fine the accused has to pay is therefore $500. Perhaps I should also note that in this case the prosecution has not sought a custodial sentence.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Meredith & Ainuu Law Office