Police v Tauvale [2019] WSSC 43 (2 August 2019)

SUPREME COURT OF SAMOA
Police v Tauvale [2019] WSSC 43

Case name:	Police v Tauvale
Citation:	[2019] WSSC 43
Decision date:	02 August 2019
Parties:	POLICE (Prosecution) AND LUSE EMO TAUVALE also known as LUSI UILI female of Lefagaoalii Savaii. (First Defendant) AND LEUTOGI TE’O female of Faala Palauli Savaii and Tafitoala Safata (Second Defendant).
Hearing date(s):	-
File number(s):	S1273/18, S1271/18, S1248/18, S1249/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- Luse, on each count of manslaughter you are convicted and sentenced to five (5) years in prison but the terms are to be served concurrently. - On the second charge of attempting to obstruct and defeat the course of justice you will be convicted and sentenced to six (6) months imprisonment to be served cumulative to the term for manslaughter. So that the total term you will serve for this incident Luse is five and a half (5½) years in prison. If you have spent any time in custody awaiting dealing of this matter that is to be deducted in accordance with the normal practice. - Leutogi, on the charge of manslaughter, you will be convicted and sentenced to five (5) years imprisonment less any remand in custody time awaiting sentence.
Representation:	L Su’a-Mailo and Q Sauaga for prosecution M Tuimalealiifano on behalf of H Schuster for defendants
Catchwords:	MMR vaccine - vaccination protocols – manslaughter – negligence – discretion - criminal culpability - formal reconciliation - attempt to conceal - breach of protocols and standards - maximum penalty of life imprisonment
Words and phrases:	omission was the failure to take reasonable and prudent care - attempting to obstruct and defeat the course of justice
Legislation cited:	Sentencing Act 2016
Cases cited:	Nepa v Attorney General [2010] WSCA 7. State v Toka [2003] FJHC 183
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:

POLICE
Prosecution

AND:

LUSE EMO TAUVALE also known as LUSI UILI female of Lefagaoalii Savaii.
First Defendant

AND:

LEUTOGI TE’O female of Faala Palauli Savaii and Tafitoala Safata.
Second Defendant

Counsel:
L Su’a-Mailo and Q Sauaga for prosecution
M Tuimalealiifano on behalf of H Schuster for defendants
Sentence: 02 August 2019

S E N T E N C E

1. Children are one of the most vulnerable groups in any society. It is therefore incumbent on that society to take particular care when it comes to the treatment, health and well-being of its children. In this tragic case the defendants completely and utterly failed to do this.
2. The facts of this matter revealed as per the Amended Statement of Facts dated 20 June 2019 from the Police that the defendants were nurses employed by the National Health Services at Safotu District Hospital in Savaii. The first defendant Luse was a registered nurse and at 59 years of age had been one for many years. She began working as a nurse in 1981.
3. The second defendant Leutogi was also an experienced nurse who had been one since 1988. She was employed as a Nurse Manager at the District Hospital. Both these ladies had therefore thirty (30) plus years experience in their trade. They can well be regarded as experienced professional health providers and caregivers.
4. As noted the second defendant Leutogi was the more senior. Her responsibilities as a Nurse Manager were of a supervisory nature and included managing and supervising all the resources of the District Hospital. Among this was the safe and secure storage of all vaccines, dilutants, syringes and other equipment used to mix and administer vaccinations. In particular, it was her job to ensure expired medications and vaccines and other medical supplies were properly accounted for and disbursed as and when required. And that pending their use they were properly stored in the appropriate area and places.
5. In the hospital storage room at Safotu District Hospital vaccines for children are stored in a special refrigerator designated for that purpose. Among the vaccines is the Mumps, Measles and Rubella vaccine commonly known as ‘the MMR vaccine’ designed to protect children against mumps, measles and rubella. It comes in a powder form and to create the vaccine the MMR powder is mixed with a special dilutant. Such dilutants are stored in another refrigerator in the storage room.
6. According to the Police summary of facts the process for mixing a vaccine is that the registered nurse who mixes it must check the MMR powder and dilutant and conduct a thorough inspection of the materials prior to mixing. Only registered nurses can mix such vaccines as they have been educated and trained under the Expanded Immunisation Program. Such mixing is to be done immediately prior to administration of the vaccine. One vial of MMR powder when mixed is sufficient to vaccinate up to five babies.
7. Vaccination protocols also require that prior to administration of the vaccine, the registered nurse must assess the baby to ensure the baby is healthy enough to receive the vaccination. On the date that this incident occurred the 6^th of July 2018 the defendants were on duty and Luse was responsible for mixing the MMR vaccine. Which she did sometime in the hour between 8:00 and 9:00 am.
8. At that time the two deceased children were brought to the hospital by their mothers for vaccination. The first deceased was Lannah Callysta Samuelu a one-year-old female of Sasina and Leauvaa. The second deceased baby was Lameko Opa Si’u a one-year-old male of Safotu village.
9. The Police summary states that in the administration of the vaccine registered nurses are required to follow the protocols closely which requires them to ensure they are treating the right person with the right medication and the right dosage. This meant that the nurse responsible for mixing the vaccine and who obtained the powder and the dilutant should check by examining the labels what they are mixing. In particular, to ensure that none of these have expired or passed the expiry date.
10. Unfortunately, Luse without checking the vial of dilutant mixed the powder vaccine with what she thought was a proper dilutant. In fact it was not. She had mixed the MMR powder with Atracurium Besylate which is an anesthetic. Designed to be used in medical operations to anesthetise patients. Such anesthetics are supposed to be stored in the clinic dispensary not where vaccination medications are kept. The facts also reveal the vial in question was clearly labelled ‘Atracurium Besylate’. And that after mixing the vaccine, she disposed of the vial she used in the rubbish bin together with the syringe she used for mixing.
11. Had Luse taken the simple step of checking what she was doing she would have seen this was not the proper dilutant at all. That action may well have avoided the tragic events that were then to follow. In failing to follow the required protocols and to carry out the necessary checks Luse breached relevant protocols and became grossly negligent in the discharge of her duties.
12. The mother and the first deceased baby Lannah Callysta were then called in. The vaccine was administered by a trainee nurse under Luses supervision. Following which, the baby and her mother left the hospital to catch a bus home.
13. Upon arrival at the bus stop located in front of the hospital, Lannahs mother noticed changes in her baby. The babys body felt cold, her eyes could not open properly and her legs were spasming outwards. She rushed back to the hospital for assistance. Nurses no doubt including the defendants tried to revive and save the baby but these efforts were in vain. Lannah Callystas young body stood no chance of recovering from the deadly mixture and she passed away.
14. The second defendant Leutogi being the supervisor on duty spoke to Lannahs mother and family immediately after the incident. It is not recorded in the police summary what was said or exchanged but one would expect emotions would have run fairly high. Be that as it may Lannahs family then left the hospital.
15. At this point applicable nursing protocols required that no further vaccination should occurred. Indeed, common sense should have alerted both defendants that something was amiss. Because it is not normal that an apparently healthy child dies immediately after vaccination.
16. It appears from the material before me that the defendants did not recognise the possibility that the problem was the vaccine. The defendants told the Probation Office when they were interviewed for their pre-sentence reports they concluded at the time that Lannah Callysta was allergic to the vaccine. A view they arrived at without a shred of evidence in support. A conclusion plucked out of thin air.
17. The police summary of facts also states that the second defendant Leutogi came to the conclusion and expressed this to other people that the said child “must have been sick that is why she died”, a fairly callous observation and again unsupported by evidence. For if the child was sick they should not have inoculated her in the first place.
18. In fairness to the defendants it is also to be noted that they reported the incident and what had happened to the on duty doctor at Tuasivi Hospital. Tuasivi Hospital seems to have issued no instruction or reacted to the report. Tuasivi Hospital must also share the blame for what was to happen next.
19. The police summary states the mother of the second baby after witnessing these events refused to have her child vaccinated. So Luse told her if that was the case she would need to sign a refusal to consent form. At this point the supervising nurse Leutogi entered the picture. She spoke to the mother and convinced her to have her child vaccinated. The police summary of facts says Leutogi was warned by other nurses but nevertheless used the same mixture. And personally inoculated the second deceased Lameko Si’u.
20. Not long after Si’us condition also rapidly deteriorated. And efforts to save and revive him were not surprisingly unsuccessful. These young babies stood no chance against the lethal concoction of MMR vaccine mixed with anesthetic. It took the death of the second child before the defendants finally realized the problem lay not with the children but with the supposedly safe vaccine.
21. At which point Luse then retraced her steps, went to the rubbish bin and retrieved the empty Atracurium vial and syringes. Whereupon she noticed that the bottle was the wrong bottle and that in fact the mixture in the bottle had expired. She told the Probation Office she did not immediately identify the substance to be an anesthetic but she knew it was not the dilutant it was supposed to be.
22. Being fearful of the consequences for her she concealed the vial and the rest of the vaccine in a plastic bag and put it in her pocket. She said nothing to anyone about what she had discovered and she took the materials home. She kept this information to herself until some two weeks later when on 23 July 2018 she disclosed to the hospital investigators what actually happened.
23. Postmortem examinations conducted on the two dead children confirm the cause of death to be from Atracurium toxicity. In other words death was a result of the children being injected with the lethal cocktail mixed by Luse which contained an expired anesthetic.
24. While the court normally in the course of sentencing for homicides expresses a Coronial Finding, in this case I decline to do so and refer the Colonial Investigation to District Court Judge Alalatoa Papalii to conduct. That is because it is necessary to determine who exactly did what and whether applicable protocols and other matters need to be revisited so that this does not ever occur again. I have no doubt the Coroner will issue the necessary important findings and recommendations in due course.
25. For the present case the two defendants have pleaded guilty to the charges arising out of these tragic events. Luse to causing the death of the two children in question represented by two counts of manslaughter. Luse has also pleaded guilty to attempting to obstruct and defeat the course of justice as a result of her behaviour subsequent to these tragic events. Leutogi has pleaded guilty to one count of manslaughter representing the death of the second baby Si’u Lameko.
26. As the nature of their offending and the charges against them are different these defendants need to be treated a little differently. But as to the charge of manslaughter which they both face I make some general observations applicable to both defendants.
27. In respect of the offence of manslaughter it is often stated that cases differ so much and so infinitely that there is no offence requiring such a large discretion in determining penalty:

“Cases of manslaughter differ individually and infinitely both in degree and circumstances. There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty”: Court of Appeal in Nepa v Attorney General [2010] WSCA 7.

This is a classic instance of this as the circumstances of the matter presently before the court have not previously arisen in this country.

28. In determining an appropriate sentence and start point for sentence it is important that the sentence reflect those matters set out in the Sentencing Act 2016. Firstly it must hold the defendants accountable for the harm that they have caused. Not only to the victims who are young babies and whose lives were taken before they were even begun. But also the harm to their families whose pain in this matter must be great. The mother of Lannah Callysta says this in her victim impact report.

“E fitu tausaga o ma taumafai mo se ma pepe ae faatoa maua lea o se ma tama ao lea ua toe motusia. E oo mai lava i le taimi lenei e le mafai ona faagaloina si a’u tama aemaise o le masina lenei e atoa ai lona lua (2) tausaga. E faigata lava ona faagaloina aua na o le pau lea o si ma tama na fanau mai lo’u manava (biological daughter). E le gata ia te a’u ao le aafia foi o le tina o si o’u to’alua aua o le grandchild muamua lava lea o le latou aiga. E le mafai ai ona galo i le matou mafutaga ma le afafine”.

29. The mother of the other baby Lameko Siu says:

“E oo mai lava i le taimi lenei e le mafai ona galo si a’u tama ia te a’u. E le galo ona uiga ma amioga e faailoa i le matou mafutaga. O ana amioga fai soo e muamua lava ala i le 5:00 i le taeao ma o ia uiga ua matou misia ai lava si o’u atalii. Ou te mautinoa ana leai le tui lea sa fai e oo mai lava i le taimi nei o loo ma mafuta pea ma si a’u tama. Ou te nofonofo i isi aso ma ou tagi pe a toe manatua le atalii ona e fai lava sina faagalogata i le matou mafutaga”.

30. The mothers in their statements also refer to another consequence of the defendants actions. And that is in relation to the community in general. Convincing people to vaccinate their children against potentially fatal and crippling diseases is an onerous struggle in many countries. Even in developed countries where people for different reasons sometime religious sometime non-conformist refuse to inoculate and vaccinate their children. In our country the medical authorities also face this problem. This incident has led to both these mothers refusing to inoculate their other children. Something which is quite understandable. But it makes these children vulnerable to many crippling and dangerous diseases. The defendants actions have eroded the confidence of these mothers in vaccinations. Something that can easily spread to other mothers and put at risk the entire vaccination program to the detriment of children of our society as a whole.
31. It is hoped the Coronial Inquiry into the deaths of these babies and the comments in this sentencing of the court will reassure the mothers of these children and everyone else that the reason for the death of these young babies was not the vaccine but the negligence with which it was administered by these two women. The sentence of the court must also therefore hold the defendants accountable for the harm that they have caused to the greater community in which we all live.
32. As well it must send a clear and unambiguous message to those responsible for the safety and well-being of children. About the need to take extra care and to be vigilant. It is simple - if in doubt, check it out. These deaths were both avoidable by the simple process of following the applicable protocols and application of common sense. Failure in this regard is not something the court can tolerate and it will have harsh consequences.
33. I also take into consideration those factors outlined in section 8 of the Sentencing Act 2016 as this offending involves children under 18 years of age. That section refers to the defencelessness of the victims, there is no more defenceless person than a one-year-old baby. And the section also refers to the gross breach of trust placed in the defendants by the mothers of these two children who took their children in to be vaccinated for their safety.
34. I also take into account the fatal consequence of the negligence of the defendants. I have been urged to consider non-custodial sentences for the two defendants. But there is no question in my mind that considering all relevant factors an imprisonment penalty is required. As stated by my colleague Shameem, J in the High Court of Fiji in State v Toka [2003] FJHC 183:

“All human life is precious, and when it is taken by the grossly negligent act of a person loved and trusted, a custodial sentence is inevitable. The community expects the courts to pass sentences which reflect the grave breach of trust committed when offenders fail to treat their children with the care they deserve”.

35. But I also remind myself that the criminal culpability of the defendants is to be tempered by the fact that their actions were not intentional or deliberate. Neither Luse nor Leutogi set out to do harm to either of these children or to their families. Their crime is one of omission not commission and the omission was the failure to take reasonable and prudent care in their treatment of these two children.
36. Manslaughter carries a maximum penalty of life imprisonment. However taking all considerations into account an appropriate start point for sentence in this case in my view is eight (8) to ten (10) years. I will use the lower and end of the start point I have identified.
37. Luse I deal with you first because you face the more grievous of the charges. Eight (8) years in prison, is the sentence you should receive but for the mitigating factors which I now refer to. Firstly it is clear from your pre-sentence report that you are a responsible mother of seven (7) children, some of them very grown up adult children. I have no doubt you were a caring mother to all those children. And that you looked after them like every Samoan mother. I also accept you are a useful member of your community, your family, your ekalesia, your village.
38. Many testimonials have been attached to your pre-sentence report, they all speak highly of you. Although I do express surprise that some of your colleagues, some of them very senior in the medical profession would choose to provide a character reference for someone who has seriously breached the standard and ethics of the profession. That signals to the court there is some tolerance by your profession of your breach of protocols and standards. I hope I am misreading that signal but people should think long and carefully before they elect to file character references in these sorts of cases concerning behaviour of a member of their own fraternity.
39. I have no hesitation however accepting the testimonies of your faifeau and pulenuu on your behalf. It is also clear you have a clean record and that you are of previous good character. To reflect these factors I apply the usual deduction of six (6) months from the start point of sentence, leaves a balance of seven and a half (7½) years in prison.
40. I also accept you are remorseful for your actions. You did not as noted intend for this to happen, you are in fact a registered nurse and have been for many many years. I have no doubt the knowledge that your actions led to the death of two young children is something you will carry to your grave as will the parents of these children. Your guilty plea reflects your remorse for what happened and for your guilty plea and remorse a significant deduction must be made. Your guilty plea has also not only saved the courts precious time and resources but has also spared the parents of these babies and their families the harrowing ordeal of a trial and reliving these tragic and sad events. Normally I would deduct one-quarter (¼) of penalty to reflect these factors but in this case I make an exception because of its exceptional nature and deduct one-third of the remaining sentence or a deduction of two and half (2½) years. That leaves a balance of five (5) years in prison.
41. Normally there would also be a deduction for ifoga and reconciliation but in this case the information before the court comes from your own lawyer and I quote:

“No formal reconciliation took place between Luse and her family and the families of Lannah and Samuelu but the National Health Service as the employers of Luse and the co-defendant Leutogi conducted an ifoga and provided assistance to the families of Lannah and Samuelu”.

42. That information accords with what is in the Victim Impact Reports filed by the mothers of these two babies. The apology by your employer is not in my view a traditional and formal reconciliation and ifoga from you to the parents and family of the deceased children. It may be an ifoga by the people that you work for but that is no substitute for an ifoga from you personally. I cannot therefor in good conscience allow a deduction for that process.
43. There are no other matters that require adjustment to your sentence Luse, on each count of manslaughter you are convicted and sentenced to five (5) years in prison but the terms are to be served concurrently.
44. On the second charge of attempting to obstruct and defeat the course of justice. This is a charge the maximum penalty for which is three (3) years in prison. It is a serious offence and arises out of your attempt to conceal what really happened. It was not until two weeks later that you finally confessed to the Health Department investigator and the Police what actually occurred. This constitutes a clear attempt by you to avoid responsibility for your actions. That cannot be condoned or tolerated by the court. It must be punished separately from the manslaughter charge because this is a separate and distinct offence. But I do take into account in your favour that you did eventually relent and reveal what happened and that you have pleaded guilty to doing so. I also take into account all the other mitigating factors referred to above in your favour.
45. On that charge you will be convicted and sentenced to six (6) months imprisonment to be served cumulative to the term for manslaughter. So that the total term you will serve for this incident Luse is five and a half (5½) years in prison. If you have spent any time in custody awaiting dealing of this matter that is to be deducted in accordance with the normal practice.
46. Leutogi you face only one count of manslaughter that is in relation to the death of the second baby Lameko Opa Siu. Again yours was a crime of negligence and everything stated above I do not propose to repeat because much of it also applies to your case. If anything you being the most senior of the two of you should have exercised greater care. Furthermore, the death of the second infant did not need to occur. But you ignored the applicable procedure and actively persuaded the second mother to have her baby inoculated. And according to the police summary of facts ignored the warnings from some of your colleagues. There is however in my view no sufficient reason to treat you differently. I consider your criminal culpability to be on par with your co-defendant and the same factors in mitigation also apply to you.
47. On the charge of manslaughter, you will be convicted and sentenced to five (5) years imprisonment less any remand in custody time awaiting sentence.

JUSTICE NELSON