Attorney General v Maumasi [1999] WSCA 1; 07 1999 (27 August 1999)

COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 7/99

IN THE MATTER of the Judicature Ordinance 1961 and the Criminal Procedure Act 1972

AND

IN THE MATTER of an Appeal Pursuant to Section 164L of the Criminal Procedure Act 1972

BETWEEN

THE ATTORNEY-GENERAL
Appellant

AND:

HOWARD MAUMASI of Mulifanua, Computer Technician
Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 26 August 1999

Counsel: C Leung Wai and Leilani Tuala for Appellant
P Petaia for Respondent

Judgment: 27 August 1999

JUDGMENT OF THE COURT DELIVERED BY
LORD COOKE OF THORNDON

This is an appeal by the Attorney-General against a sentence of three and a half years imprisonment imposed in the Supreme Court on 2 November 1998, after a plea of guilty to manslaughter of a child.

The following, taken from the written submissions in support of the appeal, is an accurate and sufficient statement of the facts-

... The Defendant is a 41 year old male. The Deceased was the son of the Defendant's wife from another man before she married the Defendant. The Deceased was only 8 years old.

5. The Defendant was told by his niece that the Deceased had burnt her shoes. The Defendant was also told by his 5 year old son that the Deceased had cut the sole of his foot with a razor blade.

6. The Defendant sent for the Deceased from school. He was told to change into a lavalava before being taken in a room where he was beaten by the Defendant with a rubber hose until he was stopped by his wife. The Defendant then told his wife to bathe the Deceased and put him to sleep.

7. Shortly after the beating the Deceased experienced breathing problems and the pupils of his eyes became dilated. He was rushed to hospital but died before reaching it.

8. The pathologist's report concluded that the Deceased had:

"multiple bruises on his backside, lower back and left side of his face. Abrasions were also noticed in the bruised area which were consistent with rubber tube impressions. A bruise was also noticed on the right temporal region of the head consistent with blunt trauma such as a punch. The pathologist was of the opinion that the Deceased died from shock as a result of the beatings."

The accused is a first offender. The pre-sentence report of the probation officer includes this passage-

"Sir, this is a very serious offence in the nature of mankind. However, Our Service only wishes to highlight the issue that the defendant himself had been physically abused by his father during his childhood and this offence reveals the effects of such abuse on him. It is sad to see the defendant believing that he wouldn't have a better life if he had not gone through the beatings and abuse from his father. Having lived with that, he now offers the same treatment to his children with the same hope to learn for a better future. During the interview, he appears confused and helpless still not knowing what to do. He is still in shock as a result of this incident."

In his sentencing remarks, Sapolu C.J. expressed concern about the cases involving child abuse by adoptive or step parents which are starting to come before the Court. He described the facts somewhat generally, making no specific mention of two features which make this case a particularly bad one of its kind.

The first of these is that, unlike cases where a parent has lost temper and beaten a child suddenly on provocation, this was a premeditated beating. The accused caused the boy to be sent for from school, and when he came back, questioned him, prepared him for beating, and did beat him most cruelly with a rubber hose. In his signed police statement the accused said he did not remember how many times he hit the boy with the hose, but acknowledged that the beating was serious. Possibly - we cannot say - he became carried away in the course of it; but the cruelty began after time for reflection and with a degree of planning.

Secondly, there were blows, not merely to the lower party of the body, but to the face and head. We need hardly stress the gravity of such assaults.

This was a terrible crime by any standards, but Mr Leung Wai has rightly reminded the Court that the Convention on The Rights of the Child, adopted by the General Assembly of the United Nations in 1989 and ratified (with an immaterial exception by Samoa in 1994, includes the right not to be subjected to cruel treatment or punishment (Article 37). All Samoan Courts should have regard to this Convention in cases within its scope.

The nearest Samoan sentencing case found by the Attorney-General's office appears to be a more recent one, summarised as follows -

In Police v Taimi Peleuaga (SC April 1999 per Sapolu C.J.) the Defendant struck the Deceased (his own daughter of 7 years) twice with an "iofi" (Samoan tong made out of the wood). When the iofi broke he slapped her twice. The first slap made the Deceased's mouth bleed whilst the second slap caused her to fall down and hit her head on the cement floor. The assault happened in the morning but the Defendant refused to take the Deceased to the hospital until 9.00 o'clock at night. The Deceased died that same night at 10.15. The defendant pleaded guilty and was sentenced to four years imprisonment.

The present is a worse case, as here the fatal injuries were inflicted directly.

It is this Court's duty to increase the present sentence. Only our respect for the Chief Justice's assessment of what is appropriate in Samoan society leads us not to increase it more than we now do. If any truly comparable case unfortunately arises in future, an even longer sentence is likely to be justified.

As it is, the appeal is allowed, the sentence quashed and imprisonment for five years substituted.

THE COURT OF APPEAL

Solicitors:
The Attorney-General's Office, Apia, for Appellant.
Richard's Law Firm, Apia, for Respondent.