Police v AT [2021] WSSC 15 (31 March 2021)

SUPREME COURT OF SAMOA
Police v AT [2021] WSSC 15

Case name:	Police v AT
Citation:	[2021] WSSC 15
Decision date:	31 March 2021
Parties:	POLICE (Prosecution) AND AT female defendant. (Defendant)
Hearing date(s):
File number(s):	S1441/19
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of manslaughter, you will be convicted and sentenced to eleven (11) years in prison. Remand in custody time if any to be deducted. I will also make the further order that it is in the interests of justice and for the protection of your other two (2) children that an order issue pursuant to section 19(2) of the Family Safety Act prohibiting you from unsupervised contact with your other two children until they reach the age of majority or until such time as the court is satisfied that you have attended the necessary counseling and treatment services that in the opinion of the court qualifies you for unrestricted access to your said two children. I will also make the Coronial finding that your daughter PE died on 29 May 2019 en- route to Tuasivi Hospital in Savaii as a result of skull fractures and other head injuries inflicted upon her by you. I further certify that no alcohol was involved in this offending and that you have been dealt with according to law.
Representation:	L Faasii for prosecution C Vaai for defendant
Catchwords:	- permanent suppression order – value of a postmortem examination – blunt force trauma – acute subdural and subarachnoid hemorrhage – complexity skull fractures – severe application of force – corporal punishment – pattern of physical abuse – manslaughter – homicide -
Words and phrases:
Legislation cited:	Family Safety Act 2013
Cases cited:	Police v Crichton [2019] WSSC 33
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AT female defendant.
Defendant

Counsel:
L Faasii for prosecution
C Vaai for defendant

Sentence: 31 March 2021

S E N T E N C E

1. This is a tragic case of a mother killing her own biological child a female who at the time was one-year-old. As per usual there will issue a permanent suppression order in respect of the details that can identify either the child, the defendant or the family of the deceased child. The case is to be reported in the law reports as Police v A.T.
2. The undisputed Police summary of facts says the defendant at the time of the offending was 23 years of age married and had three children the deceased girl being the youngest. On the day that this tragedy occurred the deceased was at home with her children while her husband was at work. She says in her pre-sentence report that she bathed and fed her daughter and put her down for a nap.
3. She went outside with the two older children to weed the grass and tidy up the property as she was expecting visitors. She then heard the baby cry and returned and breastfed her. The child fell asleep so she put her down and returned to her chores. She heard the child crying again and this angered her and she grabbed a “salu lima” (hand broom).
4. She told the Probation Office she struck the child twice with the “salu lima” while she was sitting on the floor crying. The baby did not stop. So she grabbed her right arm and threw her to the other side of the fale. She said the child hit the floor and according to paragraph 9 of the summary of facts upon hitting the floor the defendant noticed the victim was in a weaken stage as she barely moved her body.
5. The summary records that the defendant could barely hear the victims voice because she was still crying. According to the defendant she became alarmed and sought transport to take the child to the Tuasivi Hospital.
6. That process according to the summary took two hours for some reason that is not explained and the baby died en-route and was dead on arrival at Tuasivi. Efforts by the hospital staff to resuscitate the baby were useless. This is the version of the facts given by the defendant.
7. Following death the Coroner ordered a postmortem examination of the body. This was carried out about a month later by a duly qualified forensic pathologist from Australia. His report paints a completely different picture. And serves to illustrate the irreplaceable value of a postmortem examination and why such examinations are so important.
8. In the instant case a pattern of abuse is revealed and brought to the fore by the pathologist from his postmortem examination. I do not propose to examine in detail the very thorough twelve-page report of the pathologist but only to highlight his findings. Which showed firstly that the baby was “severely underweight and malnourished”. That is the baby was suffering from malnutrition a condition commonly caused by a poor diet and/or insufficient food.
9. The pathologist also found evidence of blows (“blunt force trauma”) to the babys head, torso, upper and lower limbs. Also multiple irregular abrasions and bruises and multiple linear abrasions to the face torso and limbs of this young child. The pathologist further found multiple skull fractures which caused extensive bleeding of the brain (“acute subdural and subarachnoid hemorrhage”). As well there were cortical contusions which is bleeding of the brain surface. These factors and injuries he noted to be recent.
10. What he found that was not recent was a healing displaced fracture of the right femur or leg. The pathologists finding and conclusions point to this young infant being one that had suffered prior abuse. He says in his conclusions the number and complexity of skull fractures indicates severe application of force to the head by greater than one application. He suggests that other potential mechanisms for causing these injuries include a severe compressive force applied to the head.
11. This evidence is not consistent with the defendants account that she threw the child across the room only once after smacking her with the “salu lima”. It suggests more than one application of force to the head and that at some stage severe squeezing of the babys head was involved that is what it meant by a compressive force applied to the head.
12. In relation to the old fracture of the right leg the pathologist says this was due to blunt force trauma by either a direct application of force or by a torsional or twisting mechanism or both. The force required to cause such an injury is “severe”. And that the presence of callous indicates the fracture had begun to heal and that the injury was greater than a few days old. There was no evidence this injury was treated or that the infant was taken to the Tuasivi Hospital for such injury. So this was a baby with a broken leg, no wonder it was crying.
13. More disturbingly the pathologist goes on to conclude and I quote “the distribution and number of injuries to the external surfaces of the body are greater than to be expected and are not in keeping with normal childhood activity for a one year old.” This indicates they are old injuries and is consistent with cases where there exists a pattern of physical abuse.
14. All this shows that you madam are not fit to be a mother. You clearly have no patience or parenting skills. And unfortunately like many in this country you believe that beating your child is the only way to change their behaviour. And that physically punishing them is the appropriate response to the normal tantrums and misbehaviour of a one-year-old.
15. I fear for your other children and I am going to ensure you come nowhere near them until you receive some intensive counselling and treatment such that will satisfy the court you understand the obligations and responsibilities of being a parent. Further that you are capable of rearing your children without resort to violence and the myth that beating of children and corporal punishment is the only way to educate them.
16. That is the way of the past. Modern science and study in the twenty first century tells us that corporal punishment does not work in the long term. You are from the big island of Savaii I am surprised that you are not familiar with the Samoan Tradition founded in the old saying “O fanau a manu e fafaga i fuga o laau a’o le fanau a tagata e fafaga i upu.”
17. I echo and adopt the words of my brother Justice Clarke in the case of Police v Crichton [2019] WSSC 33 when he dealt with a husband and wife domestic violence situation and said the following: “There continues to be a belief by some men that the beating or assault of a wife or partner is acceptable. Those views have no place in modern Samoa if indeed it ever had a place in our society.” I will extrapolate that to include children because beating and physical violence against children has no place in our society either if indeed it ever had. Our custom and tradition is to cherish children as gifts from the Heavens because as the saying goes “o au o matua fanau”.
18. You pleaded guilty on the date scheduled for your trial to information S1441/19 as amended which states that on 29 May 2019 at your home village by an unlawful act of assault you did cause the death of your one-year-old daughter. All other charges against you were withdrawn by the Police on that date. Although your guilty plea was entered late I will still give you some credit for saving the courts precious time and resources. And for sparing your other children who were the witnesses to this assault from having to testify in open court against their mother.
19. The maximum penalty for the offence of manslaughter that you have pleaded guilty to is life imprisonment. It is often said by the courts of this country that in relation to manslaughter the circumstances of each case are so different that every case is determined on its own particular and unique facts. In your case the prosecution say you should serve fifteen (15) years in prison for this offence. In other words, they are seeking a start point for sentence of fifteen (15) years in prison. They argue this is justified because of the severity of the injuries suffered by your daughter including her past injuries.
20. However the court must guard against punishing you for those matters as they are not the subject of any charges before the court. The value of those however is that they indicate a history of abuse of your child either by you or your husband or you both or some other unidentified party. But I tend to believe from the circumstances of this matter that because you are the primary care giver that you were the one responsible for those injuries, you certainly would have known about them. There is no evidence before the court anyone else inflicted these injuries or had a motive to do so or indeed was in a position to do so.
21. Your offending is therefore aggravated by the existence of this history of abuse. It is also an aggravating factor that your other children on the day in question witnessed what you did and were probably as horrified by it as we are. They are entitled to be brought up in a loving and safe not an abusive environment. This is a factor the court must have regard to pursuant to section 17(2)(b) of the Family Safety Act 2013 and by section 17(2)(a)(i) the court must also take into consideration the young age of the victim. The use of an object in this case a “salu lima” is also relevant. But I am fairly sure that in all probability this did not cause the skull fracture and other head injuries, unless of course you used the “au” of the broom. Those injuries were the effect of you throwing her across the room and no doubt the result of other things you did to her on the day and time in question.
22. A further factor that cannot be ignored is the defencelessness of a one-year-old child. There is no more defencelessness person than a one-year-old child. Totally reliant on you as the primary caregiver and mother. Completely unable to resist any physical thing you do to her. And as noted it appears this young child had a broken leg. There is a need in this case not only to hold you accountable for your actions in terminating the life of your child. Also to try and promote in you a sense of taking responsibility for your actions. You did the crime you must now do the time.
23. The courts sentence must also denounce your conduct as unacceptable and send a strong deterrent message to you and to the community at large that this sort of behaviour is not only illegal but intolerable and if you treat your children in this way an uncomfortable cell at Tanumalala awaits you.
24. The court is also mindful of those factors outlined in sections 7 and 8 of the Sentencing Act 2016 such as the vulnerability of the victim due to her age, the abuse by you as a parent of your position of trust and the magnitude of the breach of that relationship of trust.
25. I have read and considered carefully also the submissions of your counsel. And the suggestion that the court should follow the example of Police v TT [2021] WSSC 5 a case where in anger and frustration a father threw a rock at the head of his fourteen (14) year old son killing him. Suffice to say that TT is in my view distinguishable because the vulnerability and dependency of a one-year-old is simply not comparable to that of a teenager. And in the other cases suggested by your counsel there is no presence of a history of prior abuse.
26. I agree with the prosecution submission fifteen (15) years in prison is the penalty you should receive. Bearing in mind all relevant factors especially the need for a strong message of deterrence. But I agree with your counsel that from that start point allowance should be made for mitigating factors in your favour. He submits that there should be a deduction to reflect your clean record and previous good character and points to the character references attached to your pre-sentence report.
27. I agree you have a clean record. But I do not agree that your record shows you to be a good and upstanding person. Pathologists report speaks otherwise and is testimony to your true character in relation to the deceased. That shows that you physically abused her before and in particular on the day in question. I am sure if your character referees knew of this abuse that occurred in the privacy of your home they would not have given you such glowing references. You will receive a token deduction of three (3) months only for your clean record.
28. Counsel also argued for a short imprisonment term because of your other two children. My answer to that is simple. They are clearly better off without you. In this country there are always other alternative caregivers available in the family situations that we all live in.
29. I do however accept that a deduction is warranted for the ifoga and reconciliation carried out in relation to your husbands family as confirmed in the pre-sentence report. These are important matters and are in accordance with our “tu ma aganuu fa’asamoa,” a twelve (12) months deduction will be applied for that.
30. It is also confirmed in the pre-sentence report that your family has paid the “sala” imposed on you by your village council. While the “sala” in my view as a Samoan matai seems a bit inadequate for a homicide that is what was imposed by your village council and the court must respect that decision and take account of it. I wonder if they would have imposed such a fine if it had been a high chief of your village that had died. Six (6) months deduction applied to reflect the village council penalty.
31. Final deduction you are entitled to is for your guilty plea. As noted while this was entered late I will still give you credit for it for the reasons outlined earlier. A deduction of two (2) years will be applied for that.
32. The total of your deductions is three (3) years nine (9) months. From the start point of fifteen (15) years that leaves a balance of eleven (11) years and three (3) months in prison. As a gesture of leniency I will round that off to eleven (11) years in prison.
33. On the charge of manslaughter, you will be convicted and sentenced to eleven (11) years in prison. Remand in custody time if any to be deducted.
34. I will also make the further order that it is in the interests of justice and for the protection of your other two (2) children that an order issue pursuant to section 19(2) of the Family Safety Act prohibiting you from unsupervised contact with your other two children until they reach the age of majority or until such time as the court is satisfied that you have attended the necessary counselling and treatment services that in the opinion of the court qualifies you for unrestricted access to your said two children.
35. I will also make the Coronial finding that your daughter PE died on 29 May 2019 en- route to Tuasivi Hospital in Savaii as a result of skull fractures and other head injuries inflicted upon her by you. I further certify that no alcohol was involved in this offending and that you have been dealt with according to law.

JUSTICE NELSON