Police v Apelu [2010] WSSC 178 (20 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

AKALITA APELU
female of Malie.
Defendant

Counsels: G Patu and P Valoia for prosecution
L Tamati for defendant

Sentence: 20 December 2010

SENTENCE

The defendant appears for sentence on one count of procuring an abortion contrary to section 73 A (1)(b) of the Crimes Ordinance. She carried out the offence by using instruments to wit a duck speculum and a uterine sound machine on one Ruby Slade with intent to procure a miscarriage by that person. Slade was also charged in this matter and was dealt with by the court last year in Police v Slade [2009] WSSC 94. She was sentenced to a term of 22 months in prison. Now it is a matter of imposing sentence on the other primary offender in this matter the defendant.

The summary of facts which the defendant has accepted through her counsel relates the defendant agreed to assist Slade in aborting her two month pregnancy. The summary says that Slade who was an inmate at Tafaigata prison discovered that she was 2 months pregnant and sought out the defendant to deal with her pregnancy. The defendant was picked up from her home on Saturday 14 March 2009 and had lunch with Slade. At the meeting Slade requested the defendants help to abort the child she was carrying. The defendant agreed and explained to Slade what was involved and the procedure and also the medical instruments that would be required. She was given $50.00 by Slade to purchase the equipment and they set a date to carry out the abortion. It was scheduled for Friday 20 March and that evening Slade picked up the defendant from her house and headed to a vacant premises at Vaitele-uta where the operation was to take place.

Upon arrival at the house they went into a room where Slade undressed, laid down on a table on her back and put her legs up on the side. The procedure was then carried out by the defendant using the duck speculum and the uterine sound instrument. The process lasted for about 20 minutes. The summary continues that the defendant then handed the instruments to Slade wrapped in a black plastic bag and placed in a school bag belonging to Slade. The arrangement was that Slade was to hold onto the instruments and the defendant would pick them up the following week. Slade who was on weekend parole had to return to the prison but on the night of Sunday 22 March at 9.00pm she was taken to the national hospital with severe labour pains.

At the hospital that night she delivered a live premature female infant weighing 760 grams. The baby was rushed to the neonatal unit for resuscitation but this was unsuccessful and it died of respiratory failure due to extreme prematurity and neonatal sepsis. The medical report in this matter states that the instruments used by the defendant had introduced infection to the mothers uterus and this is what induced labour. The bag containing the instruments was subsequently obtained by the police from Slade. The defendant was originally charged among other things with manslaughter but these charges were withdrawn on trial day and she then pleaded guilty to one count of procuring an abortion for which today she appears for sentence.

Her counsel has argued quite passionately that while abortion is against the law of this country there exists a social need for it and said the defendant has been asked on numerous occasions to perform abortions on unwanted teenage pregnancies or in cases where the parents are unable financially, physically or mentally to "tausi" or properly care for and raise the child. Also cases of a married women falling pregnant outside her marriage to someone not her husband such as is the situation here. One could possibly add to that list cases of pregnancy resulting from a rape or a forced intercourse. Counsel also pointed out that Samoas approach to this complex issue is contradictory. This country is party on the one hand to the United Nations Convention on the Rights of the Child which focuses on safeguarding of children and a childs right to life and co-existence but on the other hand it is also party to CEDAW or the United Nations Convention on the Elimination of all forms of Discrimination against Women which advocates the right of a women to decide what is in her best interests.

As pointed out to counsel for the defendant the difficulty with these arguments is that notwithstanding our beliefs in relation to what I concede is a complicated and controversial subject it is a criminal offence to do what the defendant did. People in any societal grouping are not free to decide whether or not to follow the law depending on their personal views. No one is free to say I will follow that law because I think its a good law but not that law because I think its a bad law. If we went down that path we would end up in a society subject to a lot of chaos. This country through its elected representatives namely Parliament has chosen to take a pro-life stand and have legislated against abortion except when it is necessary to preserve the life of the mother: see section 73 (3) of the Crimes Ordinance as recognised by this court in Police v Apelu [2004] WSSC 8. Parliament having enacted that law the courts duty is beyond question, it is required to enforce the laws of the land. The rightness, wrongness or morality of such a law is debated in the building next door, not in this one.

As stated in the sentencing of Slade [2009] WSSC 94 in this matter the severance of 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 that the abortion in this case was undertaken for the purpose of preserving the life or well-being of the mother. As further stated in Slade the courts duty is to impose a deterrent sentence for this sort of offending. Firstly to mark and uphold the sanctity of life; secondly to reflect the seriousness of this kind of offending; thirdly to serve as a denunciation of such conduct by a society such as ours which professes to hold and follow Christian beliefs and principles.

This approach is also in line with the pacific jurisprudents of other pacific island nations. I refer here to the remarks of Chief Justice Lunabek in the Supreme Court of Vanuatu in Public Prosecutor v Akau [2005] VUSC 63 where in sentencing a defendant to prison he made similar observations. Likewise in the High Court of the Solomon Islands, Chief Justice Muria in imposing in R v Flyn [1998] SBHC 131 a sentence of 3 years imprisonment said;

"Until Parliament says otherwise, procuring abortion or attempting to procure abortion is against the law of this country. That it the wisdom which our law makers have in enacting such a law which protects innocent unborn children. That being so, no body has the right to do any act which would cause the destruction of such innocent unborn children. Those who do must be treated severely."

Similar statements were made by the Court of Appeal of Fiji in Devi v The State [1992] FJCA 30 when it upheld the trial judges sentence of 2 years imprisonment for this sort of offence under their law.

Of more immediate import is the decision of this court against this same defendant in Police v Apelu. There has been some difficulty in unraveling what occurred there but what appears to have happened is on 16 August 2004 the defendant was convicted and sentenced to 2½ years imprisonment on one count of procuring an abortion. Fifteen other similar charges against her were dismissed by the court but following an appeal were reinstated by the Court of Appeal with the result that on the 24 June 2005 she was resentenced by this court on the remaining 15 counts of procuring an abortion to a term of 1 year imprisonment to be served cumulative to the first sentence of imprisonment. In the absence of the Chief Justices sentencing notes I can only assume that this was made cumulative in order to reflect the total criminality of the defendants offending. The net result is that this defendant has therefore a recent previous conviction for similar offending for which she received a total term of 3½ years imprisonment. The defendants lawyer in her submission also argued that the emphasis of the offending in the present matter should fall on Slade whom pestered the defendant to carry out the termination of pregnancy. Something the defendant finally albeit reluctantly agreed to carry out. The simple answer to that submission is that it is of no assistance to the defendant in mitigation to say "she made me do it". The defendant had a choice, she has always had a choice. She chose to say "yes" and participate in the commission of an unlawful activity. One for which she had already gone to jail for. That is demonstrative of a lack of remorse on her part and shows a deliberate and utter disregard for the anti-abortion laws of this country.

This offence carries a maximum penalty of 7 years imprisonment. It is difficult to think of a worse case than an offender re-offending in such a pre-meditated and calculated manner on a serious offence. But there may be and I will therefore use as a start point not the maximum penalty but 6½ years in prison. That incorporates the existence of the defendants previous conviction, the delibracy of her action and her disregard for the law. An alternative methodology would be to start this sentencing at 5 years imprisonment for the offending but upgraded by 18 months to 6½ years to take into account the recent previous convictions for similar offences and the obvious lack of remorse and deliberate re-offending after serving a term of imprisonment for the same offence. The only factor in your favour that I can see Akalita is your guilty plea and only from the perspective that it has saved the necessity of a full trial. But it is not in my view a reflection of remorse considering the circumstances. You cannot be said to be sorry for doing something when you go to prison for doing it and come out and do the same thing again. The defendant will therefore not receive the full benefit the court would normally give of a one-third discount for her guilty plea, instead I deduct 12 months. There are no other factors that I can see that can be deducted in mitigation of penalty for your case. You will be convicted and sentenced to 5½ years in prison for this offence.

............................
JUSTICE NELSON