Police v Key [2017] WSSC 1 (18 January 2017)

IN THE SUPREME COURT OF SAMOA
Police v Key [2017] WSSC 01

Case name:	Police v Key
Citation:	[2017] WSSC 01
Decision date:	18 January 2017
Parties:	POLICE (Informant) and WISER KEY, male of Vaiusu & Toamua (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	Convicted and sentenced to 16 months’ imprisonment.
Representation:	L Sio and V Afoa for Prosecution J Brunt for the Defendant
Catchwords:	Unlawful sexual connection with a minor – 28 year age disparity – first offender – apology to victim’s family – early guilty plea – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 59(1); 50
Cases cited:	R v AM [2010] 2 NZLR Key v Police [2013] WSCA 03 Police v Makei [2015] WSSC 94 (02/07/15)
	Attorney General v Lua [2016] WSCA 1 (19 Feb 2016) P v Mekisateko, Unreported (22 September 2014)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

WISER KEY male of Vaiusu & Toamua
Defendant

Counsel:
L Sio and V Afoa for Prosecution
J Brunt for the Defendant

Sentence: 18 January 2017

SENTENCING OF TUATAGALOA J

1. The accused appears for sentence on one charge of unlawful sexual connection with a girl under 16 years’ old under s. 59(1) of the Crimes Act 2013 which carries a maximum penalty of not more than 10 years’ imprisonment.

The offending:

2. The accused confirms the summary of facts by the Prosecution which says that:
   • On Tuesday, 03 March 2015 at around 9.00am the victim was at the Toleafoa Market at Fugalei when the accused drove by in his taxi.
   • The accused stopped his taxi and asked the victim what she was doing there. The accused then asked the victim to accompany him to Lotopa.
   • The accused then drove off with the victim. The victim asked the accused to take her to her house at Aleisa and the accused asked her if she has any money to pay for her fare and the victim replied ‘no’.
   • The accused drove to a motel at Lotopa, paid for a room and told the victim to go wait for him in the room to which the victim complied.
   • The accused had sexual intercourse with the victim in the room. Afterwards the accused told the victim to wait in the room while he went to run an errand and left.
   • The manager of the motel took the victim to the police station.

The accused:

3. The accused is 43 years old of Vaiusu and Toamua, married with children and is a taxi driver. The pre-sentence report says the accused since this happened no longer drives a taxi.
4. The accused wife said that the accused is a caring and loving husband to her and their children. The accused pastor also vouches for his good character and said that what happened is out of character of the accused.
5. The accused has apologised to the victim’s family and has been accepted.

The victim:

6. The only information about the victim is, she is 15 years' old and is from the village of Aleisa and does not attend school anymore.

The aggravating factors:

7. There are several aggravating factors of this offending:
8. Firstly, the accused targeted a vulnerable young woman sitting by herself with no one else around or near her. There is also the age difference of 28 years between the accused and victim.
9. Secondly, the accused had a plan thus the reason why he approached the victim. This plan turns out to be one with the intention to have sexual intercourse with the victim.
10. This sort of offending upon young girls will always have an impact upon the young victims.

The mitigating factors:

11. Previous good character – For previous good character something more needs to show as evidence of the accused previous good character. The accused wife says that accused is a caring husband and loving father. The pulenu’u of Toamua where the accused lives with his wife says that he is an honest and reliable member of the aumaga and taulele’a who serve the village of Toamua. The accused Pastor also says that the accused is a responsible, trustworthy and reliable member of the church. All these in my view confirm that the accused was of good character until this offending.
12. Apology – The accused and his family have apologized to the victim’s family and has been accepted. This is a sign of remorse on the accused part and his accepting responsibility for his behavior.
13. Early plea – The accused pleaded guilty to having sexual intercourse with the victim much earlier when the matter was mentioned in Court. The delay in sentencing was not the accused fault. The court gives a 25% discount for the early guilty plea.

Discussion:

14. I agree with prosecution that the reason behind the law is out, of the need to protect young girls not only from people like the accused but also the young victims from themselves as in this case.
15. In the circumstances of this case, a custodial sentence is most appropriate. The only question is how long.
16. The New Zealand Court of Appeal in R v AM^[1] identified two categories of offending:
    • (i) Sexual violation where the offence is rape involving penile penetration or violation with an object; and
    • (ii) All other forms of unlawful sexual connection including digital penetration and connection between the mouth or tongue of the offender with the genitalia or anus of the victim.
17. The offence of sexual connection with a young person under 16 years old involving penile penetration of the genitalia falls within the first category of offending as identified in R v AM^[2] and adopted by Key v Police^[3] except that this offending under section 59(1) carries a maximum penalty of 10 years’ imprisonment and not life imprisonment as in rape.
18. Section 50 Crimes Act 2013 defines sexual connection as:

(a) Connection occasioned by the penetration of the genitalia or the anus of any person by (i) any part of the body of any other person or (ii) any object held or manipulated by any person; or (b) connection between the mouth or tongue or any part of the body of any person and any part of the genetalia or anus of any other person; (c) the continuation of sexual connection as described in either subsections (a) or (b).

19. I agree with Aitken J in Police v Makei^[4] that s. 50 is broader than the offending in category (i) and (ii) in R v AM.^[5] The sentencing bands in Key v Police^[6] for rape is set with the view of the penalty of life imprisonment but this offending under s. 59(1) of sexual connection with penile penetration is maximum 10 years’ imprisonment. The bands in Key v Police^[7] therefore do not apply nor do the bands in R v AM^[8] as it is sexual connection other than penile penetration.
20. The case of Attorney General v Lua^[9] provide the sentencing bands for unlawful sexual connection with child under 12 years old which penalty is life imprisonment (s.58). The Court of Appeal in Lua at the same time said that the sentencing bands in Key applies where to children under 12 years old whenever the lead offence involves a penetrative act of the kind defined in s.50. The sentencing bands in Lua also do not apply as those sentencing bands apply to unlawful sexual connection offending against children under 12 years. In the present case it is unlawful sexual connection offending against a girl over 12 years but below 16 years old.
21. The prosecution has provided the Court with a range of sentencing imposed in varying circumstances where these offences were committed. In particular the prosecution in their amended sentencing memorandum submits that the Court adopt a starting point of two (2) years as in P v Mekisateko^[10] a case of sexual connection of penile penetration involving a girl over 12 years but less than 16 years old. The difference is in Mekisateko the accused and victim were in a relationship and the age difference is less than the present case.
22. In the circumstances of this particular offending, taking in to account the aggravating factors I take as appropriate the starting point of three (3) years. I deduct 12 months for previous good character and the apology which leaves 24 months. I give 25% discount for the early plea which is 8 months. The end sentence is 16 months.
23. The accused is convicted and sentenced to 16 months imprisonment.
    

JUSTICE TUATAGALOA

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^[1] R v AM [2010] 2 NZLR
^[2] ibid.,
^[3] Key v Police [2013] WSCA 03
^[4] Police v Makei [2015] WSSC 94 (02/07/15)
^[5] R v AM [2010] 2 NZLR
^[6] Key v Police [2013] WSCA 03
^[7] ibid
^[8] R v AM [2010] 2 NZLR
^[9] Attorney General v Lua [2016] WSCA 1 (19 Feb 2016)
^[10] P v Mekisateko, Unreported (22 September 2014)