Police v Rosa Loi [2005] WSSC 33 (2 December 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ROSA LOI
of Palisi and Falefa.
Accused

Counsel: K Koria and P Chang for prosecution
Accused in person

Sentence: 02 December 2005

SENTENCE

The charge

The accused is charged under s.77(1) and(2) of the Crimes Ordinance 1961 with failing to provide necessaries of life for her new born baby which carries a maximum penalty of seven years imprisonment. To the charge the accused entered a plea of guilty at the earliest opportunity.

The offending

The accused is a 26 year old mother with a de-facto husband. From that de-facto relationship she has five children including her new born baby whose abandonment by her is the subject of the charge in this case.

The accused is employed as a factory worker making ice cream at the Apia Bottling Co. Ltd. at Taufusi. Her husband is also employed by the same company. In January 2005 the accused became pregnant to her husband and her pregnancy was expected to reach its full torn in October 2005. On 26 October, the accused went to work as usual. At lunch time that day she felt some pain in her stomach and she went to the bathroom. Whilst in the bathroom she gave birth to a child. She then wrapped her baby in a dry towel and left it beside the bathroom. Her intention was to abandon her baby.

When the accused left the bathroom she felt weak and she called out to another employee for help. This employee informed the accused’s husband. The accused was then taken to the hospital. It must have been shortly thereafter that the baby was found lying on the floor beside the bathroom wrapped in a dry towel. The baby survived. If it had died, the accused could have been charged with infanticide.

The accused was later interviewed by the police and she readily admitted to abandoning her baby. The accused was also interviewed by the probation service and on the basis of that interview the probation service prepared a pre-sentence report. It is clear from that report that this offence stemmed from the accused’s mixed emotions, that is, confusion, emotional breakdown and feelings of despair due to her domestic problems with her husband over the years. The accused informed the probation service of her husband’s neglect and mistreatment of her and her children over the years due to his affairs with other women. In the week prior to the present incident, the accused’s husband eloped with another woman.

The accused

As already mentioned, the accused is a 26 year old mother with five children including her new born baby. These children range in age from five weeks to eight years and are still dependent on the accused for their maintenance and upkeep. The accused is a factory worker. She had an average level of education. She has no previous convictions and is a first offender.

Mitigating factors

The accused’s plea of guilty to the charge against her at the first opportunity, the fact that she is a first offender, and the fact that she has five young children including her new born baby, who are all dependent on her for their maintenance and upkeep are all factors which can be taken into account in mitigation of penalty. In addition, it is clear from the pre-sentence report that this incident was the result of mixed emotions such as confusion, emotional breakdown and feelings of despair on the part of the accused due to domestic problems over the years which arose from her husband having affairs with other women. Even in the week before this incident occurred the accused’s husband eloped with another woman. All these matters can be taken into account in mitigation of penalty.

Aggravating factors

Apart from the inherent seriousness of the accused’s conduct in abandoning her new born baby, there is really no aggravating circumstances in this case.

Relevant sentencing guidelines

This is the first case which involves the abandonment of a new born baby that has come before this Court for sentencing. As the baby survived, the police have charged the accused with failing to provide necessaries of life. If the baby had died the accused could have been charged with infanticide.

It has not been possible to find any authority on the type of sentences passed in other jurisdictions for the offence of failing to provide necessaries of life to a new born baby. But there are a number of authorities on the type of sentences that Courts in other jurisdictions have imposed in cases of the closely analogous offence of infanticide. Those authorities are helpful in determining the appropriate sentence for the present case.

In R v Wright [2001] NZCA 138; [2001] 3 NZLR 22 Anderson J in delivering the judgment of the New Zealand Court of Appeal said at p.27 paragraph [27]:

“In New Zealand the maximum penalty for infanticide is three years imprisonment but more merciful sentences than that are imposed in practice. For example, in R v M (High Court, Christchurch, T 65/89, 4 April 1990, Williamson J), R v Setefano (High Court, Wellington, S 6/91, 8 March 1991, Heron J) and R v Moke (High Court, Wellington, T46/97, 19 August 1997, Neazor J), the sentence in each case was two years supervision. A similar pattern is evident in England. In R v Sainsbury (1989) 11 Cr App R (S) 533 the Criminal Division of the Court of Appeal reduced a sentence of 12 months detention to one of probation. The Court was informed that in 59 cases of infanticide dealt with between 1979 and 1988 there had been no custodial sentences, all defendants having been dealt with by means of probation, supervision or hospital orders.”

Subsequent New Zealand cases have followed the guidance provided by R v Wright [2001] NZCA 138; [2001] 3 NZLR 22 and pass sentences of supervision instead of imprisonment on offenders convicted of infanticide. In R v H (High Court, Auckland, 19 March 2004, Williams J) a sentence of two years supervision was imposed on a guilty plea to infanticide; and in R v Metuatini (High Court, Auckland, 18 November 2003, Harrison J) another sentence of two years supervision was passed on a guilty plea to infanticide.

In Australia, a similar pattern of imposing non-custodial sentences in infanticide cases appears to exist. For example in R v Cooper [2001] NSWSC 769 the accused pleaded guilty to infanticide and was ordered to enter into a bond of good behaviour for four years; in R v Pope [2002] NSWSC 347 the accused pleaded guilty to infanticide and was ordered to enter into a bond of good behaviour for three years; and in R v Azzorpardi [2004] VSC 509 the accused pleaded guilty to infanticide and was made the subject of a community based order.

It is normal human nature for a mother to love her child. People often talk of motherly love which is the natural love of a mother for her child. It is therefore sad to see this type of case coming before the Courts because it runs contrary to normal human nature. However, when this type of case happens it would be reasonable to suspect that something may have gone seriously wrong with the mother concerned. It should therefore be the ordinary practice in cases which involve the abandonment or causing the death of a baby to obtain a report on the condition of the mother from a psychiatrist or psychologist or both for the purpose of sentencing.

The decision

In view of the mitigating circumstances and the type of sentence imposed for the closely analogous offence of infanticide in other jurisdictions, the accused is convicted and sentenced to 2 years probation. As a condition of the accused’s term of probation, a report should be obtained on the condition of the accused from a psychiatrist or psychologist or both. The report or reports to be paid for from legal aid if the accused cannot afford the costs of such report or reports. The reason for this is that the accused will still be living with her young children including her new born baby who are all dependent on her. It is essential to know if the children are still safe to live with the accused given what has happened. It is also necessary to know the condition of the accused in case she may need psychiatric or psychological treatment.

CHIEF JUSTICE