Police v Ken [2020] WSSC 66 (25 August 2020)

SUPREME COURT OF SAMOA
Police v Ken [2020] WSSC 66

Case name:	Police v Ken
Citation:	[2020] WSSC 66
Decision date:	25 August 2020
Parties:	POLICE v FIDELIS ETI KEN male of Matautu Lefaga and Vaipuna.
Sentencing date(s):	25 August 2020
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Convicted and sentenced to 2 years and 2 months imprisonment less time remanded in custody. - Order prohibiting publication in news media, internet or any other publicly accessible database the name and the village details of the complainant.
Representation:	A Matalasi and T Sasagi for Prosecution T Leavai for the Accused
Catchwords:	aggravating features of the offending – reconciliation – unlawful sexual connection – premeditation – starting point for sentence – sentence
Words and phrases:	unlawful sexual connection with a female under the age of 16 years the abuse of your position as a taxi driver; deceived and lied to her.
Legislation cited:	Crimes Act 2013, s.59(1)
Cases cited:	Police v Fretton (Unreported) WSSC 17 May 2017); Police v Key [2017] WSSC 1 (18 January 2017);
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FIDELIS ETI KEN male of Matautu Lefaga and Vaipuna.
Accused

Counsel:
A Matalasi and T Sasagi for Prosecution
T Leavai for the Accused

Decision: 25 August 2020

SENTENCE

1. Fidelis Eti Ken, you appear for sentencing after a defended hearing on a charge of unlawful sexual connection with R (“the victim”), a female under the age of 16 (S176/19) contrary to section 59(1) of the Crimes Act 2013 (“CA”).

The Offending:

2. I set out in detail in my judgment of the 10th July the facts to your offending. In brief, on the 29th December 2018, you went to V Beach in your taxi. There, you picked up the 15-year-old victim, a young girl who had gone to V Beach that morning to train and to swim. You found her alone. You then proceeded on a pattern of lies to the victim asking her first to go for a kiekie with you for your chore at Motootua. When you did not take the turn to Motootua, you told her you were going to KK Mart and when you drove past KK Mart, you told her you were going to Taumeasina to your family for a chore there. When you reached Taumeasina, instead of going to a family home, you went towards a fairly isolated location there and told her you went there to ‘evaeva’.
3. After paying money to a lady at Taumeasina, you then took her to a fairly isolated location and there, engaged in sexual intercourse with the victim. After you did so, you told her to wait for you there as you would go and buy some soft drinks and return. You did not return though you said in your evidence, until much later. She was left there by herself by you only to be found crying by children and by the lady that you had paid money to.

The Accused:

4. According to your Pre-Sentence Report, you are now a 33-year-old married man. I understand from your wife when she addressed the Court that you have a young child who has found separation from you very difficult.
5. You completed school to year 12. Since leaving school, you have worked various jobs including as a taxi driver. After you married your wife, you then owned and operated your own taxi for a living. You have positive character references in support of your character.

The Victim:

6. The victim is now approximately 17 years of age. A Victim Impact Report was prepared last year. In her VIR, she spoke of the physical pain associated with the sexual intercourse. She also speaks of her anger to you for what you did to her and for abandoning her there after what you did to her. I accept that your offending has had an impact on the victim and which I also observed in her demeanor when she gave her evidence.

Aggravating features:

7. The aggravating features of your offending are:
   • (a) the abuse of your position as a taxi driver, one of trust when driving a taxi;
   • (b) an element of premeditation. While your target was opportunistic, your offending was not. You picked her up and with your plan to engage in sexual acts with her, you deceived and lied to her in order to take her to an isolated location for that purpose;
   • (c) The age disparity with the victim; and
   • (d) The vulnerability of the victim.

The mitigating features:

8. There are no mitigating features to your offending. In terms of mitigating features personal to you, I take into account the reconciliation that has taken place between your family and the family of your victim last year. You have positive character references and no prior convictions. Having read the references in support of your character, I will extend in mitigation also prior good character.
9. You had earlier pleaded guilty then applied to vacate that plea which was granted. After trial, you have been found guilty. You therefore receive no discount for a guilty plea.
10. Through your counsel, you are said to be remorseful. This is reflected in your Pre-Sentence Report last year when you had earlier pleaded guilty. You however then pleaded not guilty and this matter proceeded to hearing. I will extend a nominal discount for remorse despite you subsequently changing your plea to not guilty.

Discussion:

11. Fidelis, on the 29th December 2018, you stopped your taxi to speak to your victim at V when she was alone and vulnerable. You did not know her and she did not know you. You lured her into your taxi with a lie. You then continued with a pattern of lies so that you could get her to Taumeasina to an isolated location where you could engage in sex with her. Your behavior had the elements of predatory behavior by an older man on a young 15-year-old school girl.
12. Taxi drivers hold a position of trust to safely transport the public (see also: Police v Fretton (Unreported) WSSC 17 May 2017). When they abuse the trust vested in them by the community, that is a serious aggravating factor. For taxi drivers who as they drive their taxis identify young vulnerable girls then deceive and lie to them with the purpose of sexually assaulting them as you have done, that conduct by taxi drivers is to be denounced in no uncertain terms. Taxi drivers and indeed any public transport driver who does this faces very serious consequences.
13. In sentencing you today, it is therefore with the purpose of denouncing your conduct and deterring you and others from committing the same or similar offending.
14. In their sentencing submissions, Prosecution applied for an 18 month start point for sentence. The authorities referred to by Prosecution did not include any cases involving this type of offending by taxi drivers. After questioning by the Court on similar fact cases involving taxi drivers, Prosecution filed further authorities including Police v Key [2017] WSSC 1 (18 January 2017). When I heard further from counsel on the 20th August, Prosecution amended their sentencing recommendations to 3 years imprisonment relying on Police v Key.
15. The facts in Police v Key [2017] WSSC 1 are very similar to this case involving the taxi driver stopping and asking the victim to accompany him to Lotopa. He then took the victim to a motel at Lotopa and had sexual intercourse with the 15-year-old victim there. A start point of 3 years imprisonment was adopted.
16. For the accused, counsel originally sought an imprisonment term of 4 to 6 months imprisonment. After receiving and perusing Police v Key, counsel distinguished this case from Key on the basis of a lower age difference between the accused and the victim, greater premeditation on Mr Key’s part and that Mr Key’s victim had been a passenger who asked to be driven to Aliesa.
17. With respect to counsel for the accused, I do not see materially any greater premeditation on the part of Mr Key to you Fidelis. Indeed, in both your case and his, the victim was apparently an opportunistic one. The only difference pointed to by counsel it seems to suggest greater premeditation was that Mr Key went to a motel room. That by itself does not lead to the inference of greater premeditation. Furthermore, that the victim in Key asked to be taken to Aleisa is also not materially relevant in the circumstances. The only real question is whether the age differences in your case and Mr Key’s case warrant a lower start point. In my view, the age differences noted between the two cases do not warrant a lower start point. There remains a significant age difference between you and the victim. Had you been a much younger man, then this submission may have carried more weight. She was 15 years of age and you were approximately 16 years older than her.
18. Having considered the authorities and the aggravating features of the offending, I adopt a 3 year start point for sentence. From that 3 years, I will also deduct 6 months for prior good character and 4 months for the reconciliation that has been extended on your behalf to the victim’s family and remorse.

Result:

19. Accordingly, on the charge before the Court, you are convicted and sentenced to 2 years and 2 months imprisonment less time remanded in custody.

JUSTICE CLARKE