Police v Keni [2008] WSSC 97 (19 November 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SAMUELU KENI,
male of Vaitele-uta.
Defendant

Counsels: Mr F. Lagaaia for the prosecution
Ms FM Vaai-Hoglund for the defendant

Sentence: 19 November 2008

SENTENCING REMARKS OF NELSON, J.

The defendant in this case appears for sentence on one count of sexual intercourse with a girl between the age of 12 and 16 years and one count of indecently assaulting the same girl on the same day. The defendant is a 25 year old male, single, originally from Savaii but at the time of this offending was living with his sister at Vaitele-uta for employment purposes. He is a carpenter by trade. He has had some education and finished Year 13 at Ulimasao College Savaii. He was brought up by his adopted parents and lived most of his life in Savaii. He is currently according to the pre-sentence report of the probation office unemployed staying at home.

The victim is a 12 year old female of Vaitele-uta and New Zealand and has since returned to New Zealand where she normally resides. Thus no victim impact report has been able to have been prepared on her and the court has no information on the impact on her of the offending. I remind the media that a suppression order has already been made in respect of the victims name and identifying details and that order continues in force.

The facts in this case are - essentially that on the day in question around 8.00pm the victim was walking to a neighboring house. The defendant called out to her and she went over and the two had a conversation. Subsequently the defendant and the victim went to a secluded area of the road where the defendant asked the victim to have sexual intercourse with him. This is what then occurred. The defendant said the sex was consensual but consensual sex is of course no defence to a charge of carnal knowledge. It is however relevant to sentencing and for sentencing purposes, I will accept that the sex was consensual as the prosecution did not seek to call evidence to the contrary. At some stage the victims family noticed her absence and began searching for the victim. They found her at the family of the defendant. This lends some support to the defendants insistence that the sex was consensual and that the victim in fact wanted to elope with him.

The aggravating factors of this offending - these include the young age of the victim who is 12 compared to the defendant who is 25 years old. That is a difference of some 13 years and clearly the defendant is older, more matured and more experienced in life. There was some suggestion by the defendant through his counsel that he thought the victim was 16 years of age but this is contrary to the defendants own statement that he made to the police shortly after the incident which says that she told him she was 14. That statement also says that he knew the victim was young because the growth of her pubic hair was under-developed. I therefore reject the suggestion by the defendant completely.

The prevalence of the offence of carnal knowledge is such that the courts have a stated policy of imprisonment as a penalty unless there are exceptional circumstances warranting some other treatment. As stated many times in the past the reason for the imprisonment penalties is to protect immature young girls and to deter not only the offender involved in the particular case from this sort of behaviour but also to hopefully deter other like minded young men who may be thinking of having sex with girls under the age of 16 years.

Mitigating factors of this case include the fact that as counsel has pointed out the defendant is a first offender and he has pleaded guilty which has spared the victim the ordeal of a trial and saved some of the states valuable resources. Also in the defendants favour is the fact that the sex was consensual. There are good references attached to the documents before me which indicate the offending by the defendant was out of character. The defendant it is clear from the court file spent some time on remand in custody awaiting trial. As well there is his expression of remorse for the offending.

The court has read the reports placed before it and considered the submissions of both the prosecution and counsel for the defendant and I have come to the conclusion there are no exceptional circumstances in this case justifying a departure from the established sentencing policy in respect of the offence of carnal knowledge to impose a custodial sentence. Probation office has suggested that the defendant maybe responsive to a rehabilitative sentence. This may be so. But these considerations are outweighed by the gravity of the offending and the need for the court to uphold its sentencing policies in respect of the offence of carnal knowledge for the reasons already referred to. The fact that an offender may be responsive to a rehabilitative sentence is not by itself an exceptional circumstance justifying a departure from the normal practice of the court.

The prosecution has sought in this case imprisonment for at least twelve (12) months. I believe that to be appropriate considering all the circumstances of this matter. However there must be deducted the 2½ months that the defendant spent on remand awaiting trial. In respect of the offence of carnal knowledge therefore the defendant is convicted and sentenced to 9½ months imprisonment.

As for the indecent assault charge, the prosecution have not explained why this has been laid as an additional charge even though it relates to the same incident. The offence of carnal knowledge necessarily includes acts of indecent assault by definition and the court has already imposed a sentence on the defendant for carnal knowledge. It is a basic principle of our criminal law and indeed it is enshrined in the Constitution that no man should be tried twice for the same crime. On that charge the defendant is discharged without conviction under section 104 of the Criminal Procedure Act 1972.

JUSTICE NELSON