Police v Ini [2013] WSSC 7 (11 March 2013)

SUPREME COURT OF SAMOA

Police v Ini [2013] WSSC 7

Case name: Police v Ini

Citation: [2013] WSSC 7

Decision date: 11 March 2013

Parties: Police and Siatunuu Apulu Ini

Hearing date(s): 4 July 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Chief Justice Falefatu Sapolu

On appeal from:

Order: (Sentence)

Representation:
R Titi for prosecution
S Ponifasio for accused

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

R v Ngati [2007] NZHC 1850
R v Kuka [2009] NZCA 572

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

AND:

SIATUNUU APULU INI male of Tufulele.

Accused

Counsel: R Titi for prosecution

S Ponifasio for accused

Sentence: 11 March 2013

SENTENCE

The charges

1. The accused was originally charged with two counts of manslaughter one of which was preferred under the provisions of ss.76 and 77 of the Crimes Ordinance 1961 which provide for the duties to provide the necessaries of life. After a preliminary hearing on a number of legal issues, a written judgment was delivered on 9 July 2012. Following that judgment, the prosecution withdrew by leave both of the original charges and substituted them with three new charges which were essentially alternative charges. A plea of not guilty to all the new charges was then entered by counsel on behalf of the accused. The matter after two on three further adjournments was then set down for trial on 18 February 2013 before a panel of assessors. In the morning of the trial, the three new charges were read out again to the accused in the presence of the assessors. He pleaded not guilty to two of the charges and guilty to one of them. Counsel for the prosecution and for the accused did not expect the accused to change his plea of not guilty to one of guilty in respect of one of the charges. However, after a short adjournment for defence counsel to consult with the accused, the accused maintained his guilty plea. As a consequence, the prosecution withdrew the two charges in respect of which the accused maintained his not guilty plea.
2. It is alleged in the charge to which the accused pleaded guilty that on the 1st day of February 2011, the accused, by an omission without lawful excuse to perform or observe his legal duty to provide the necessaries of life, namely, proper and adequate care and attention and medical treatment, did cause the death of the deceased and thereby committed the crime of manslaughter. In the judgment of this Court in Police v Siatunuu Apulu Ini (judgement delivered on 9 July 2012) it was accepted that the concept of “necessaries of life” includes protection of a child from physical harm.

The offending

3. The facts of this matter are provided primarily from the prosecution’s summary of facts. As that summary of facts shows, the accused is a 50 year old male and the deceased was his 6 year old daughter. The deceased suffered from cerebral palsy which is a disorder of movement resulting from damage to the brain before, during, or immediately after birth. As a result of this condition, the deceased was mute (gugu) and crippled (pipili). She was severely restricted in her movements. Thus, she was completely dependent on her parents and family not only for food, clothing, and shelter, but also for protection and her physical well being. In other words, she was completely vulnerable.
4. At the time of this incident the accused stayed at home and looked after the deceased and perform the household chores while his wife went to work. On the day in question, the accused went about his usual chores while the deceased as usual rested in her bed as she could only minimally sway herself side by side. At about 3pm in the afternoon, the accused saw the deceased moving and he suspected that she had secreted in her clothes. He went to check on her and found his suspicions confirmed.
5. The accused then fetched a bucket of water and then carried the deceased to the bucket to be washed. While doing so, the accused slapped the deceased twice on the cheek and twice on the buttocks and scolded her not to do this again. After washing the deceased, the accused placed her on a suitcase which was on her bed and left her there by herself while he went out to hang the laundry on the line. While the accused was hanging his laundry, the deceased fell off from the suitcase and landed on the stone floor of their house. The accused went over, lifted up the deceased, and put her back on her bed. He noticed that there was no sound from the deceased but he made no attempt to take her to the hospital.
6. When the accused’s wife arrived home from work around 6pm in the evening she found the deceased lying in her bed with the right side of her face bruised. She asked the accused what had happened to the deceased but he replied that the deceased had fallen off the bed and landed head down on the floor. The accused’s wife and other members of the family took the deceased to the Leulumoega Hospital where she was then transferred to the Tupua Tamasese Meaole (TTM) Hospital because of the seriousness of the condition she was in. The accused did not accompany the deceased to the hospital. Upon arrival at the TTM Hospital, the deceased was admitted to the high dependency unit (HDU) where she gradually passed away the following morning.
7. According to the medical report from TTM Hospital, the deceased was unconscious and unresponsive to any form of external stimulus upon arrival. Bruises were noted on her right lower jaw and right shoulder. A CT scan showed a severe swelling of the brain as well as a haematoma (blood clot) and bleeding into the left side and back of the brain. It is not clear from the medical report what caused the brain swelling and injury. However, from the undisputed facts, it would be reasonable to infer that they must have been caused by the deceased falling off from the suitcase on her bed where she had been put by the accused and landing on her head on the stone floor. According to the medical report, the probable cause of the deceased’s death was cardio-respiratory failure due to severe primary brain injury and hypoxia which is secondary brain injury. There is no mention in the medical report that the failure to find medical treatment for the deceased caused her death.
8. Counsel for the accused in her written submissions refers to the accused’s cautioned statement given to the police where he told the police that his daughter landed on the top of her head on stones. He also told the police that he then called his young sister who came and massaged his daughter. I do not consider that this action by the accused meets the requirements of the duty of a parent to provide proper and adequate care for a 6 year old child who has just landed on the top of her head on stones after a fall from a bed.
9. Furthermore, when the accused’s wife returned home after work around 6pm in the evening, the deceased was lying in bed with the right side of her face bruised. The medical report from the doctor who received the deceased at the Leulumoega Hospital shows that she was unconscious on arrival. It is more likely than not that when the accused’s wife arrived home from work, the deceased was already unconscious. I also find it difficult to accept that it was impossible for the accused to find a car to take his daughter to the Leulumoega Hospital for medical treatment soon after she fell off her bed but his wife was able to do so when she arrived home about three hours later. However, it must again be noted that there is no evidence to show that this failure on the part of the accused resulted in the deceased’s death.

The accused

10. The accused and his wife’s only child was the deceased. At the time of this offence, the accused was the head of his family looking after his father, siblings, his wife and his daughter, the deceased. He had a decent plantation.
11. The accused also voluntarily came to the police and made a full confession of what happened to his daughter and how she fell off the bed where he had put her and landed on top of her head on the stone floor. He blamed his own carelessness for the death of his daughter. When he was interviewed by the probation service for the preparation of his pre-sentence report he was in tears and blamed his own carelessness as the cause of her daughter’s death.
12. The accused’s family had also effected reconciliation with the accused’s wife, the mother of the deceased, and they were responsible for performing all that which was required for the deceased’s funeral. The accused is also a first offender and appears to have been a person of good character prior to the commission of this offence. The accused has also pleaded guilty.

The deceased

13. As already mentioned, the deceased was the only child of the accused and his wife. She was 6 years old at the time of her death. She was looked after by the accused while her mother went to work. She suffered from cerebral palsy which is a disorder of movement resulting from damage to the brain either before, during, or immediately after her birth. As a result, she was a mute and a cripple and depended entirely on other people for her physical well-being. The death of the deceased has been a great emotional loss to her family.

Aggravating factors

14. 14. The most significant aggravating factor in this case is the vulnerability of the deceased as a handicapped 6 year old child. The other aggravating factors are the carelessness of the accused in placing the deceased on a suitcase on her bed and her subsequent fall onto the stone floor of their house, the severity of the injuries she suffered, as well as the failure of the accused to seek and obtain any medical treatment when it must have been evident to him that the deceased was in a serious condition as a result of her fall. This was after he had slapped the deceased twice on the cheek and twice on her buttocks.

Mitigating factors

15. The mitigating factors in this case are the accused’s belated plea of guilty, the fact that he is a first offender and appears to have been a person of good character before the commission of this offence, the fact that the accused’s family has already effected a reconciliation with the deceased’s mother and were responsible for everything in relation to the deceased’s funeral, as well as the accused’s co-operation with the police.
16. I also accept that the accused is truly remorseful and in my view he is unlikely to re-offend. I also accept the submission by the accused’s counsel that the accused is also suffering from the loss of his only child and will live the rest of his life with the thought that it was because of his carelessness that his daughter died. This is punishment in itself.
17. Counsel for the accused also submitted that this is not a case of sustained neglect by a parent over a period of time to perform a legal duty owed to a child. Rather, it is a case of one incidence of parental carelessness resulting in tragic consequences to the child.

The decision

18. As this must be the first case of manslaughter by an omission without lawful excuse to perform a legal duty to have come before the Samoan Courts, counsel for the prosecution referred the Court to two New Zealand cases where the accused was charged and prosecuted for failing to provide a child with the necessaries of life. In the case of R v Ngati [2007] NZHC 1850 the two accused who were a de-facto couple, were charged, inter alia, with two counts of manslaughter for the death of the female partner’s 3 year old son. The first count related to the blows with a canoe handle delivered by the female partner to her son and the blows delivered by the male partner with a baseball bat to the deceased. It was found that these blows were a substantial and operative cause of the child’s death and each of the accused was sentenced to 8½ years imprisonment after taking a starting point for sentence of 11 years imprisonment in respect of the female partner and a starting point for sentence of 10 years imprisonment in respect of the male partner. In respect of the second count of manslaughter which charged both accused for having caused the death of the deceased by failing in their duty to provide the deceased child with the necessaries of life, namely, medical treatment, each of the accused was sentenced to 4 years imprisonment. The sentences were made concurrent.
19. In the case of R v Kuka [2009] NZCA 572, the accused, the mother of the deceased child, was convicted of two counts of manslaughter, one alleging an omission to provide the deceased with the necessaries of life, namely, medical treatment, and the other of failing to protect the deceased from violence thereby causing death. On the first count the accused was sentenced to 9 years imprisonment and on the second count she was sentenced to 7 years imprisonment. Both sentences were made concurrent. On appeal to the New Zealand Court of Appeal, the appeal was dismissed. The principal offenders in that case were the accused’s de-facto partner and his brother. Both were convicted of the murder of the deceased child.
20. I have read the facts of the cases of R v Ngati and R v Kuka and they are far more serious compared to the facts of the present case. However, those cases provide some guidance on how to approach the question of sentence in this type of case and for that I am grateful to counsel for the prosecution.
21. Having regard to the maximum penalty for manslaughter which is life imprisonment, the need for deterrence in this kind of case, and the aggravating factors relating to the offending, there being no real mitigating factors relating to the offending, I will set the starting point for sentencing at 5 years imprisonment. For the one aggravating factor relating to the offender, namely, the failure of the accused to obtain medical treatment for the deceased, I will add 12 months. That brings the starting point up to 6 years. For the mitigating factors relating to the accused personally, I will deduct 12 months for the fact that at the age of 50 years he is a first offender and seems to have been a person of good character prior to the commission of this offence. That reduces the starting point to 5 years. For the other mitigating factors relating to the accused, namely, his co-operation with the police, his remorsefulness, the fact that he is not likely to re-offend, the fact that he will live the rest of his life with the thought that his only child died because of his carelessness, which is punishment in itself, and the reconciliation between his family and his wife as well his family performing everything required for the funeral of the deceased, I will deduct a further 12 months. That leaves 4 years. For the accused’s belated plea of guilty, I will deduct another 12 months. That brings the starting point further down to 3 years.
22. The accused is convicted and sentenced to 3 years imprisonment. Any time the accused has already spent in custody is to be further deducted from that sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution
Ponifasio Law Firm for accused