Police v Fuimaono [2001] WSSC 39 (20 February 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TOGA PE’E FUIMAONO,
female of Faleatiu.
Defendant

Counsel: Ms S. Vaai & Ms H. Wallwork for the Prosecution
Mr S. Leung Wai for the Defendant

Date of Hearing: 17 January 2001
Date of Sentencing: 20 February 2001

SENTENCING REMARKS OF JUSTICE VAAI

Defendant you are 24 years of age, single and unemployed. You appear before me this morning for sentence on a very serious charge of failing to provide for your newly born baby boy by leaving the said baby in the bush, thereby endangering his life or impairing his health.

You were found guilty and convicted on the 18^th January 2001 of the offence after a defended hearing and the sentence adjourned to this morning for a preference report. I have read that report. I have also heard submissions from your counsel and I will refer to and consider them later.

The facts which I have accepted and referred to in my ruling on the 18^th January 2001 are as follows:-

In the early morning of the 6/11/2000 a newly born baby boy was found in the bushes near a track between the villages of Faleatiu and Satapuala. Taulalo Fareti who found the baby heard the noise of a crying baby as he was walking to work. He stopped to listen. He went off the track to search and found a baby under a cluster of needs wrapped in blue material. Mr Fareti returned home and fetched his common law wife’s mother. They both went to the scene and took the baby; had umbilical cord cut by a 73 year old lady and took the baby home where he was cleaned, bed and put to sleep. Later that afternoon the baby was taken to Leulumoega hospital where it was kept for treatments until the 9^th November.

On the 10^th November (i.e. some 5 days after the baby was found) you the accused heard that your baby has been found and you went to Leulumoega hospital to claim back your baby. You told the doctor that on the early morning of the 6^th November after having contractions for about 1 hour you walked from your home at Faleatiu to your sister’s place at Satapuala to give birth but the contractions became stronger while walking the track and you gave birth on the side of the road. You left the baby there and returned home to get a cloth to wrap the baby with but on your return 20 minutes later the baby was gone.

Police were informed and you were taken from the hospital for questioning. You gave the police a written statement and I quote part of your statement:

“I was pregnant without the knowledge of my family. I showed this to nobody. I am pregnant from my friend at Faatoia namely Tagaloa. It was sometimes in the beginning of this year that I live at Faatoia, then Tagaloa and I got together and the result of this friendship ended up with my became pregnant. In the early morning of Monday 6 November I felt labour pains almost to give birth. I then went into the bush border of Faleatiu and Satapuala and gave birth there. I wrapped this baby boy with a blue sheet then left it there in the bush and I left for our home. I did not like the baby due to my being afraid with my family. I am also ashamed if people of the village know this. I never returned to check at where I abandoned him. I heard speculations that he had been found by some people and is now at Leulumoega hospital now I feel my love for him. So I went to the hospital to return my baby to me. It is about five days now since I abandoned my baby. This is my complete statement about this incident and it has been read to me and it is correct.”

In my ruling which lead to your conviction I accepted what you told the police as the version of the events on the morning of the 6^th November. You only went to the hospital because you found out your baby has been found. In my view when you told the doctor that you went home after giving birth, to get a cloth to wrap the baby with is orchestrated lies because the baby was already wrapped in blue cloth when it was found. And secondly you could have taken the baby with you home to be wrapped up and taken care of. And thirdly the baby was found some distance from the track.

The probation service has referred me to your unfortunate background and the very limited educational opportunity available to you through hardship within the family. As the eldest child the probation report says the welfare of your family fell on your shoulders when your mother passed away. Your father who was also interviewed by the service for the purpose of compilation of your report told the Probation Service that you support the family financially by maintaining the plantation and selling produce at the market apart from looking after your younger siblings.

But you also told the police in your written statement that you got pregnant while you were living at Faatoia at the beginning of last year. If you were so living at Faatoia near Apia, then it is difficult to digest the information given to the Probation Service by you and your father that your younger siblings and your family rely heavily on you.

These kind of offences are unfortunately on the rise and the court must now consider deterrent sentences to convey society’s condemnation of such conduct by females such as you.

You left this new born baby in the bushes. You had no intention of returning to where you left him because you did not want his birth to be known as he was your second illegitimate child. Although you had very limited education you are old enough to understand the criminality if not the immorality of the actions. And you must be prepared to suffer the consequences. It is fortunate but not in your favour that the discarded baby was found that morning. It is also fortunate for you as you would probably be facing a much more serious charge if he was not found in time.

You are entitled to some leniency. I take into account your previous good conduct and I also accept through your counsel that you are truly remorseful. You have also spent time in custody. This case has attracted the attention of the media and you have been subjected to humiliation and share through the various publications. I accept that as part of your sentence.

You have also been subjected to the jurisdiction of the Village Fono and you have been fined but I do not accept the contents of letter from the Pulenuu that your fine of 100 pigs has been met.

Although the deterrent element of the sentencing process presses for a severe sentence upon I am also mindful of the rehabilitation aspect especially given your background and your previous unblemished record. Accordingly I am persuaded not to impose a custodial sentence. You are convicted and placed on probation for 2 years on conditions:

1. that you do 100 hours community work; and
   
2. you perform and undertake such under supervised courses as may be prescribed by the Probation Service.
   

JUSTICE VAAI