Police v Paulo [2008] WSSC 3 (19 February 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

AKENESE PAULO
female of Saletele Fagaloa.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Su’a for prosecution
M Tuatagaloa for accused

Sentence: 19 February 2008

SENTENCE

The charge

1. The accused was originally charged with murder to which she pleaded not guilty. When the charge of murder was subsequently withdrawn by the prosecution and substituted with the charge of infanticide which carries a maximum penalty of 3 years imprisonment, the accused pleaded guilty to infanticide at the earliest opportunity. It is on the charge of infanticide that the accused is now appearing for sentence.
   

The offending
2. According to the summary of facts which was confirmed by the accused, on Sunday, 12 September 2004, the accused was at the house of her grandmother at the village of Sauano Fagaloa, when she started to get stomach pains. On Monday, 13 September 2004 around 12 noon, the accused’s stomach pains intensified so her grandmother massaged her stomach. Later on the accused drank a traditional medicine which made her feel better.

3. However, around 6pm in the evening, the accused’s abdominal contractions intensified and the pain became unbearable. So the accused asked her mother whom her grandmother had sent for, to take her to the hospital. Whilst the accused’s mother was getting a vehicle to take her to the hospital, the accused felt like going to the toilet and walked to the toilet.

4. When the accused reached the toilet, she sat on the toilet bowl and gave one push and felt something tear in her vaginal area. On her second push, a baby girl came out which she caught in her hands. The accused pushed for the third time and the baby’s placenta fell inside the toilet bowl.

5. The accused then tore off the placenta from the umbilical cord attached to the baby’s belly and wrapped it in a rag before putting it inside the toilet bucket.

6. The baby at the time started to cry whilst the accused was still sitting on the toilet bowl. She then pressed two fingers on the baby’s mouth. She partly opened the toilet door and then closed it immediately when she saw her father. The accused was crying at that time with her fingers still on her baby’s mouth.

7. The accused then tore the bottom of her wrap around (ie lavalava) and tied it severely around the baby’s neck. She then placed the baby’s head first into the toilet bucket before she covered it with toilet paper and continued to sit on the toilet bowl.

8. At that time, the accused’s vision started to blur. She remained there until her mother opened the toilet to check on her. When she tried to stand up, she fainted. The accused was taken into her grandmother’s house where her family massaged her until she regained consciousness.

9. The accused was then brought to the National Hospital in Apia. At that time, two ladies who had become suspicious of the accused’s condition checked out the toilet and found a baby girl in the toilet bucket.

10. The baby was brought to the National Hospital where it was pronounced dead on arrival. The cause of death was respiratory arrest due to strangulation.

The accused

11. The accused is from the village of Saletele, Fagaloa. She was 19 years old at the time of this offence. She dropped out of secondary school after completing Year 11. She has never had any formal employment but she is able to play the piano and conduct choir singing at her church and other religious dominations in her district.

12. It is not clear from the summary of facts how the accused became pregnant. However, it appears from the pre-sentence that the accused told the probation service she was raped by an uncle with whom she stayed when she went to one of the villages to conduct hymn practice for the church in that village.

13. Whether that was the cause of the accused’s pregnancy, she told the probation service that she had concealed her pregnancy from her parents as she was scared of her father and of what might happen if her family finds out the truth about her pregnancy.

14. Two psychiatric reports on the accused have been submitted to the Court. According to the report by Dr Ian Parkin, a consultant psychiatrist, who interviewed the accused, it is more likely than not that the accused suffered with a mental disorder as a result of her pregnancy and giving birth which materially contributed to her actions that led to the death of her child.

15. The other report on the accused is from Matamua Iokapeta Enoka, a consultant on mental health. According to this report, the accused told Ms Enoka that she was very fearful of her father so she kept her pregnancy to herself. Each day became a heavy burden and the accused often shivered with fear about the consequences if her father knew of her situation. As a result, the accused contemplated suicide so many times as a way out as she felt humiliated and embarrassed. The accused was also very ashamed of herself to think about what other young women of her village would say if they knew of her pregnancy. In Ms Enoka’s opinion, the accused suffered from a cognitive disorder of the mind which resulted in her causing the death of her child.

16. The accused is a first offender and the testimonials which have been presented together with the pre-sentence report show that she has been a person of good character prior to her commission of the present offence. She also expressed remorse to the probation service.

Mitigating features

17. The accused’s plea of guilty to the charge at the earliest opportunity, the fact that she is a first offender and was a person of good character prior to the commission of this offence, and her young age of 19 years at the time of the offence are all mitigating features in this case.

18. It also appears from what the accused told the probation service that she had been raped by an uncle which seems to suggest that that was the cause of her pregnancy. It also appears from Dr Parkin’s report that at the time of the offence it is more likely than not that the accused was suffering from a mental disorder as a result of her pregnancy which materially contributed to her actions that led to the death of her child. Ms Enoka is also of the opinion that the accused suffered from a cognitive disorder of the mind which resulted in her causing the death of her child.

Aggravating features

19. Apart from the act of strangulation by the accused of her baby, there is no other aggravating feature in this case.

Sentencing guideline

20. In Police v Rosa Loi [2005] WSSC 33, I referred to the type of sentence imposed in recent New Zealand cases on infanticide. I quote again from R v Wright [2001] NZCA 138; [2001] 3 NZLR 22 where Anderson J in delivering the judgment of the New Zealand Court of Appeal said at p.27 para [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."

21. I also pointed out in Police v Rosa Loi that subsequent New Zealand cases on infanticide have followed R v Wright. For instance, in R v H (High Court, Auckland, 19 March 2004, Williams J) a sentence of 2 years supervision was imposed on a guilty plea to infanticide, and in R v Metuatini (High Court, Auckland, 18 November 2003, Harrison J) a sentence of 2 years supervision had also been imposed on a guilty plea to infanticide.

22. I had also referred in Police v Rosa Loi to three Australian cases where non-custodial sentences were imposed on a guilty plea to infanticide. These cases were R v Cooper [2001] NSWSC 769 where the accused pleaded guilty to infanticide and was ordered to enter a bond of good behaviour for 4 years, R v Pope [2002]NSWSC 347 where the accused pleaded guilty to infanticide and was ordered to enter into a bond of good behaviour for 3 years, and R v Azzorpardi [2004] VSC 509 where the accused pleaded guilty to infanticide and was made the subject of a community based order.

23. Even though New Zealand and Australia cases are not binding on the Samoan Courts, they do provide very useful guidance in certain areas of the law. In my opinion, this is one such area.

24. For the closely analogous offence of failing to provide necessaries of life for a new born baby, which involved the abandonment of the baby, this Court on a guilty plea imposed in Police v Sipaia [2007] WSSC 16 a term of 2 years probation on the condition that the accused is to perform 200 hours of community service, in Police v Rosa Loi [2005] WSSC 33 a term of 2 years probation, and in Police v Fuimaono [2001] WSSC 37 a term of 2 years probation on the condition that the accused is to perform 100 hours of community service.

The decision

25. Having regard to the mitigating and aggravating features of this case and the relevant sentencing guidelines, the accused is placed on probation for a term of 2 years on the condition that she performs 150 hours of community service.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution
Brunt & Keli Law Firm