SUPREME COURT OF SAMOA
Police v Taina [2014] WSSC 11

Case name:  Police v Taina
Citation: [2014] WSSC 11   
Decision date: 20 February 2014
Parties: 
POLICE (prosecution) and SEUTATIA TAINA female of Falelauniu and Vaitele-fou
Hearing date(s): 
File number(s):  S2893/13, S2894/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
L Su’a-Mailo for prosecution
Accused in person
Catchwords: 
Sentence, failing in her duty to provide the necessaries of life, abandoning a child under the age of 6 years ,infanticide, aggravating and mitigating features
Words and phrases:
Legislation cited:
Crimes Act 2013 s.85 (1) s.86
Cases cited:
Police v Fuimaono [2001] WSSC 37,
Police v Ini [2013] WSSC 7
Police v Niusila (2013) 
Police v Rosa Loi [2005] WSSC 33,
Police v Sipaia [2007] WSSC 16 
R v Ash and Herchkop (2005
R v Burney [1958] NZLR 745 
R v G (1990) 
R v Golovale – Siaosi [2007] NZHC 1429
R v Laufau and Laufau (2000) 
R v M HC Christchurch T65/89, 
R v Metuatini 
R v Moke 
R v Moore [1954] NZLR 893
R v Sainsbury (1989) 11 Cr App R (S) 533
R v Setefano HC wellington S6/91, 
R v Small and Others (2004) 
R v Tribble [2005] NZHC 438, 
R v Wright [2001] 3 NZLR 22 
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

FILE NOS: S2893/13, S2894/13

BETWEEN

P   O   L   I   C   E
Prosecution

A  N  D
SEUTATIA TAINA female of Falelauniu and Vaitele-fou.
Accused

Counsel:	L Su’a-Mailo for prosecution
		Accused in person
Sentence:	20  February 2014

S  E  N  T  E  N  C  E
1.	The accused appears for sentence on two charges, namely, failing in her duty to provide the necessaries of life to her new born baby contrary to s.85 (1) of the Crimes Act 2013 and abandoning a child under the age of 6 years contrary to s.86 of the Act.  Each of these charges carries a maximum penalty of 7 years imprisonment.  To both charges the accused pleaded guilty at the earliest opportunity.
The offending
2.	In August 2013, the accused moved out of her aunty’s place at Falelauniu and moved in with another woman at Vaitele-fou.  This woman is referred to in the prosecution’s summary of facts as the accused’s “friend” and in the pre-sentence report as the accused’s “guardian” or “aunty”.
3.	On Friday 27 September 2013, the accused awoke at about 5:00am.  She was feeling stinging pain in her stomach.  She then got off her bed and went to the bathroom and sat on the toilet seat where she gave birth to a baby.  The baby fell into the toilet.  
4.	According to the pre-sentence report, the baby was stillborn, that is, the baby was lifeless or dead at birth.  This must have been what the accused told the probation service.  The prosecution’s summary of facts is silent on this except that it says that the baby did not cry.
5.	The accused then picked up her baby and looked at it for a few minutes before the placenta was delivered.  She then detached the baby from the placenta, took it to the shower and lay it on a towel.  The accused then fainted and became unconscious for a short period of time.  When she recovered, she found herself on the floor of the shower.  The accused then had a shower and cleaned herself.
6.	After showering, the accused cleaned up the bathroom.  At that time, according to the prosecution’s summary of facts, the baby was still lying on the towel and was not crying.  The accused then wrapped up her baby, took it out of the bathroom, and laid it under a small tree behind the bathroom.  She then had another shower and went to sleep.
7.	On Sunday morning 29 September 2013, a resident of Vaitele-fou noticed his dog dragging the remains of a baby to his house.  The police were informed and the baby was taken to the hospital where  its body was found to be in the late stages of decomposition.
8.	On those facts, if the baby was stillborn, that is, lifeless or dead at birth, then the charge of failing in her duty to provide the necessaries of life is without foundation.  However, the unrepresented accused has pleaded guilty to both charges against her which implies that the baby was alive at birth.  Secondly, this case reflects to some extent the features of what might have been an infanticide.  Because of that, I called for a psychiatric report on the accused.
The psychiatric report
9.	The report from Dr Parkin, the consultant psychiatrist who examined the accused, states that it is probably that the accused’s episode of collapse was related to blood loss which could have resulted in less blood going to the brain.  This would have affected the accused’s judgment at the time.  Dr Parkin also says in his report that the accused’s description of her mental state at the time of the offences suggests a dissociate state, that is to say, the splitting of the conscious mind from the emotions.  This can occur in vulnerable people under great stress and can lead to poorly considered actions.  Dr Parkin then says that the accused’s action of leaving her baby under a tree near the house she was living in was consistent with that.  This also raises the question of whether the accused had the capacity at the time of the offence to truly form a guilty mind.  Dr Parkin then goes on to say that the accused is a young woman with primitive psychological defences and will need ongoing support which should be part of her management.
The accused
10.	The accused is 25 years old.  She has separated since October 2012 from her husband from whom she had one child who has been adopted by her uncle.  Her second child is the victim in this case and the father of the victim is unknown.  She was employed in the accounts section of the Ministry of Communications and Information Technology but has been suspended from her work because of this matter.
11.	The accused is not a first offender.  In 2009, she was convicted of offences of a different nature.  However, the reports from the three Government ministries in which she had been employed all show that she is a very good worker.  The testimonial from the accused’s “guardian” state that what has happened to the accused is completely out of her character.
12.	The accused has also had a good level of education.  She reached university level and studied for a certificate in commerce at the National University of Samoa but did not complete her studies because of financial difficulties.
13.	 The accused has also been penalised by the council of her village.  This penalty was in the form of two large fine mats, a cattle beast, two large boars, twenty five boxes of canned fish, and twenty boxes of biscuits.  The total value of these items was about $6,000.  According to the letter from the pulenuu of the accused’s village this penalty has been paid.  The accused has also been banished from her village.  However, the pulenuu in his letter also shows that the accused has been a very good person in her village and church.
The aggravating and mitigating features
14.	The circumstances of this case are not easy.  On the basis of the accused’s plea of guilty to the charges which suggests that the baby was born alive notwithstanding what the accused told the probation service that the baby was stillborn, the following are the aggravating circumstances: (a) failure by the accused to provide the necessaries of life to her new born baby and (b) abandoning the baby under a tree.  The mitigating feature of the offending is the mental and emotional condition of the accused at the time of the offending as it appears from the psychiatrist’s report.
15.	In relation to the accused as offender, I will not consider her previous convictions in 2009 for offences of a different nature as an aggravating feature.  On the other hand, there are mitigating features personal to the accused.  These are the hefty penalties already imposed on her by the council of her village and her plea of guilty at the earliest opportunity.
Sentences in previous cases of failing to provide the necessaries of life 
16.	In previous cases that have come before this Court where a mother is charged with failing to provide the necessaries of life to a new born baby, non-custodial sentences have always been imposed.  In Police v Fuimaono [2001] WSSC 37, the mother was sentenced to 2 years probation.  In Police v Rosa Loi [2005] WSSC 33, the mother was sentenced to 2 years probation.  And in Police v Sipaia [2007] WSSC 16 the mother was also sentenced to 2 years probation. I have been considering whether failing to provide the necessaries of life was the most appropriate charge in the circumstances of those cases.
17.	In the recent case of Police v Niusila (2013) (per Sapolu CJ, sentence delivered on 20 September 2013), the young 17 year old mother who was charged with concealment of birth was discharged without conviction on the condition that she was to enter into a recognizance to be of good behaviour for 7 months.
18.	The case of Police v Ini [2013] WSSC 7 was not concerned with a mother failing to provide the necessaries of life to a new baby.  In that case, the father was charged with manslaughter for failing to provide the necessaries of life to a 6 year old daughter.  After a guilty plea, the father was convicted and sentenced to 3 years imprisonment.  That is different type of case from this one.
19.	Perhaps I should also refer to the New Zealand cases where parents were charged for failing to provide the necessaries of life not to a new born baby but to a grown  child.   These cases are set out in the judgment in R v Tribble [2005] NZHC 438, para 16.  In R v Moore [1954] NZLR 893, the caregiver of a 3 year old child was sentenced to 2 years probation for failing to provide the necessaries of life by way of medical treatment to the child.  In R v Burney [1958] NZLR 745 an infant child died of severe malnutrition, pneumonia, anemia and chronic skin sepsis.  The mother was convicted of failing to provide the necessaries of life to her child and sentenced to 2 years probation.  In R v G (1990) (HC Wellington, T109 – 110/90, 29 November 1990, per Savage J), the parents were convicted of failing to provide their daughter with the necessaries of life, that is, by not giving their daughter insulin as a result of which the child died.  The parents were convicted and discharged and given name suppression.  In R v Laufau and Laufau (2000) (HC Auckland, T000 759, 2 October 2000, per Potter J), the child died of a cancerous tumor on his leg.  The parents were convicted of failing to provide their child with the necessaries of life by way of medical treatment.  They were given a suspended sentence of 15 months imprisonment.  In R v Ash and Herchkop (2005) (DC Manukau, CR 103 – 057 – 1570, 25 November 2005, per McAuslan DCJ), a 2 year old child died of pneumonia, serious head injuries, and a broken arm.  The mother of the child and her partner were convicted of failing to provide the child with the necessaries of life by way of medical treatment and both were sentenced to 2½ years imprisonment.  In R v Small and Others (2004) (HC Dunedin, CRI 2003 – 012 – 005776, 21 January 2004, per Chisholm J), a child was subjected to violence by her mother who was suffering from depression.  The mother was convicted of failing to provide her child with the necessaries of life and sentenced to 18 months imprisonment with leave to apply for home detention.  In R v Tribble [2005] NZHC 438 the parents of a 3 month child died of illness and the parents were found guilty of failing to provide the necessaries of life by way of medical treatment.  They were convicted and discharged.
20.	It is clear from the New Zealand cases that the type of sentence imposed in cases of parents convicted of failing to provide the necessaries of life for their children is usually non-custodial.
Sentences in infanticide cases
21.	Even though the accused in this case was not charged with infanticide but with failing to provide the necessaries of life and with abandoning a child under the age 6 years, I have decided to take this opportunity to refer to the type of sentence imposed in other jurisdictions for the offence of infanticide.  In  Police v Rosa Loi [2005] WSSC 33, this Court said:
“In R v Wright [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, 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.”
22.	In the more recent case of R v Golovale – Siaosi [2007] NZHC 1429, the mother was found guilty of infanticide committed on her new born baby.  In passing sentence, Hansen J said at paras [6]  and [7]:
“[6] There are no tariffs for offending of this sort.  The maximum penalty is one of three years imprisonment, but a review of cases shows that much more merciful sentences than that are imposed in practice, which recognises the psychological and psychiatric difficulties that attend the giving of birth in circumstances such as this and also the impact on particular individuals in what can be described as unusual circumstances.
“[7]  A review of cases shows that supervision (that is a non-custodial sentence) is the course that is almost invariably adopted by the Courts.  A similar pattern is evidenced in the United Kingdom, as can be seen by reference to the decision of R v Sainsbury (1989) 11 Cr App R (S) 533.  In New Zealand there are the cases of R v RHH HC Auckland T023428, 19 March 2004, Williams J; R v Metuatini HC Auckland T025795, 18 November 2003, Harrison J; R v M HC Christchurch T65/89, 4 April 1990, Williamson J; R v Setefano HC wellington S6/91, 8 March 1991, Heron J; R v Moke HC Wellington T46/97, 19 August 1997, Neazor J.  In all of those cases supervision was considered the appropriate response to sentencing for offending very similar to yours”
23.	One would have thought that	the offence of infanticide committed by killing a new born baby would be more serious than the offence of abandoning a new born baby pursuant to s.86 of the Crimes Act 2013 which is one of the offences with which the present accused has been charged.  But as the New Zealand and English cases show, non-custodial sentences are almost invariably imposed in those jurisdictions in cases of infanticide.  I would therefore expect that the offence of abandoning a new born baby would also almost invariably result in a non-custodial sentence.   
The decision 
24.	Having considered the circumstances of this case and the Samoan and New Zealand cases mentioned, I have come to the view that a non-custodial sentence should be imposed.  On both charges against the accused, she is sentenced to 2 years probation.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution