Police v Slade [2009] WSSC 94 (3 August 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

RUBY SLADE
female of Vaivase-tai and Tafaigata Prison.
Defendant

Counsels: Ms L. Su’a-Mailo for the prosecution
Ms M. Tuatagaloa for the defendant

Sentence: 3 August 2009

SENTENCE

This is indeed an unusual and tragic case. The defendant appears for sentence on a charge of unlawfully permitting to be used on her various instruments with intent to procure a miscarriage, contrary to section 73B(b) of the Crimes Ordinance 1961. The end result was indeed a miscarriage of a 24-26 week old foetus which died as a result of premature labour brought on by the attempt by the defendant to abort her pregnancy. The defendant had previously arranged for the abortion to be done by a well-known third party who has achieved notoriety in the past for her abortion activities. The attempted abortion can only be described as a primitive back-yard kind of job which the third party completely botched causing infection in the defendants uterus which eventually contributed to the demise of the foetus. In truth there should be two people sitting in the dock this afternoon.

The severance of a human life is always a matter of serious consequence and while there is a modern debate as to whether and at what stage a foetus can be regarded as a human life form, the law of this country is abortions are illegal unless they are undertaken for the purpose of preserving the life or well-being of the mother. There is no evidence the attempted abortion in this case was undertaken for the purpose of preserving the life or well being of the defendant. The defendant has admitted that she fell pregnant to a person not her husband while an inmate at Tafaigata Prison where she is serving a three year term for a different kind of offence. While no suppression order has been issued in relation to publication of the defendants name I would only ask the press to respect her privacy to some extent in reporting this case. Because of the defendants guilt and shame at what happened, she made the decision to abort her pregnancy. I do not know that her actions have solved her problem because it would seem they have only served to bring more guilt and shame upon her but I do accept that it is something she will have to live with for the rest of her life. To some extent she has already begun serving her sentence for the offence.

Counsel for the defendant has sought the courts leniency and argues that an imprisonment sentence on people like the defendant is not a deterrence because young women in this position are more afraid of the social consequences of an unwanted pregnancy than going to jail. That may well be so but this is not the forum to investigate such a complex issue. The court in my view is still duty bound to impose a deterrent sentence for this sort of offending, firstly to mark and uphold the sanctity of life; and secondly to reflect the seriousness of this kind of offending. The sentence must also serve as a denunciation of such conduct by a society such as ours which professes to hold and follow Christian beliefs and principles. But in assessing an appropriate penalty the court must not overlook that the offence is one of a female procuring her own miscarriage under section 73B(b) and not the more serious one of a female killing an unborn child under section 73.

No guidance is offered by previous decisions as there appear to be none in this jurisdiction for this particular charge. The closest has been Police v Akalita Apelu [2004] WSSC 8 involving a charge of procuring an abortion under section 73A(1)(b). After a defended hearing the Chief Justice in that case imposed a penalty of 2½ years imprisonment per charge for offending that occurred over a four year period. The charge the defendant faces is also an offence under the laws of Vanuatu and a case in that jurisdiction has been cited by the prosecution, that of Public Prosecutor v Annie Akau [2005] VUSC 63. However the offence in that country carries the much lower maximum penalty of 2 years imprisonment as opposed to the 7 years prescribed by Samoan law. But I note that even in that case an imprisonment penalty was imposed.

The aggravating factors of the offence have been pointed to by the prosecution in their written submission which includes factors such as the seriousness and gravity of the offending, its pre-meditated and pre-planned nature, the fact that it was done to preserve the defendants reputation and not for any other reason plus the fact that what is involved at the end of the day is the loss of a human life. The prosecution submission also stresses the need to impose a deterrent sentence and convey the proper message to young women, indeed all women of our community.

Nevertheless this is a sad case and one cannot help but feel some empathy for the defendants dilemma. The question may well be asked – who is there in our community to help and counsel young girls or young women who fall victim to unwanted pregnancies? Those contemplating suicide have Faataua Le Ola and a 24 hour hotline to reach out to in their time of need. But how many young mothers do we all know who have suffered this problem and have no one to turn to for help or guidance? Had such been available it is clear from what I have read of the defendants statement to the police and the Probation Office pre-sentence report that there was a high probability that she would have reconsidered her decision and not trodden the painful road she has embarked upon.

The true criminality of the offending is in my view reflected by a start point of 4 years in prison. From that however will be deducted one-third of the term for the defendants guilty plea which shows not only her remorsefulness but which has saved the expense and time of a full trial. For the fact that the defendant is a first offender because her previous conviction is for another kind of offence and for the other factors in her favour as conveyed by her counsel and the pre-sentence report of the Probation Office, I deduct 6 months. In the exercise of my discretion of general leniency as sentencing judge, I deduct 4 months. That leaves a balance of 22 months, the defendant will be convicted and sentenced to imprisonment for that term. Because this offence is different from the offence you are currently serving a term for this is cumulative to your other term of imprisonment.

JUSTICE NELSON