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Police v Ulberg [2022] WSSC 50 (26 September 2022)

IN THE SUPREME COURT OF SAMOA
Police v Ulberg [2022] WSSC 50 (26 September 2022)


Case name:
Police v Ulberg


Citation:


Decision date:
26 September 2022


Parties:
POLICE (Prosecution) v EDWARD ULBERG, male of Vailoa, Faleata (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Niavā Mata K. Tuatagaloa


On appeal from:


Order:
The defendant is convicted and sentenced to 12 years + 4months imprisonment less time he has been held in custody to await sentence.

I issue the Coronial Finding that Elisapeta Lefao, mother of 34 years of Vailoa was pronounced dead on arrival at the Motootua Hospital on 1st December 2021 as a result of severe haemothorax inflicted by a knife. I further certify that alcohol was a factor in this homicide.


Representation:
Attorney General’s Office for the Prosecution
L. Su’a-Mailo for the Defendant


Catchwords:
Manslaughter – victim pregnant – custodial sentence - defendant and victim a couple – ifoga carried out – previous convictions – domestic violence – loss of human life and unborn foetus.


Words and phrases:


Legislation cited:
Crimes Act 2013, ss. 102; 109.


Cases cited:
Nepa v Attorney General [2010] WSCA 1;
Police v Ausage [2007] WSSC 28;
Police v Maposua [2017] WSSC 150;
Police v Matalavea [2006] WSSC 30.


Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E


Prosecution


AND:


EDWARD ULBERG, male of Vailoa, Faleata


Defendant


Counsel: Attorney General’s Office for Prosecution
L. Su’a -Mailo for the Defendant


Sentence: 26 September 2022


SENTENCING OF TUATAGALOA J

The charges

  1. The defendant was initially charged with two counts of murder, two counts of manslaughter as alternative and armed with a dangerous weapon to which he pleaded not guilty. The two counts of murder, one count of manslaughter and armed with a dangerous weapon were withdrawn by the Prosecution leaving only one count of manslaughter. The defendant then through Counsel vacated his not guilty plea to a guilty plea to the remaining charge of one count of manslaughter.
  2. The victim was 4 ½ months pregnant yet the Prosecution never charged the defendant for the crime of killing an unborn child pursuant to section 109 of the Crimes Act 2013 which provides for a maximum penalty of 14 years’ imprisonment. Prosecution also withdrew the charge of armed with a dangerous weapon when it is very clear that a kitchen knife was used to stab the victim. Both the victim and her unborn child died as a result of the offending.
  3. The defendant is to be sentenced today on the charge of one count of manslaughter. The penalty is maximum life imprisonment[1].
  4. There is no doubt that the circumstances of the offending warrants a custodial sentence. This is another case of domestic violence at its worst as it has cost a life of a mother who leaves behind three young children.

Background

  1. The defendant and the victim were in a de-facto relationship for seven (7) years. They have three young sons with a child on the way. According to the summary of facts and pre-sentence report (PSR) the defendant and victim resided at Vailoa on the defendant’s family land.
  2. On the day before the offending, 30th November 2021, the victim and her three children went and stayed with her aunt at Vaimoso-uta. The summary of facts says that the defendant in the early hours of 1st December 2021 went to Vaimoso-uta three times to try and get the victim to return with their children to Vailoa. He was said to be intoxicated and angry. First at 3am where he (defendant) slapped the victim on the face and the aunty intervened and scolded him. The defendant went away but shortly returned to drop off the victim’s shoes. The third time at between 4am-5am the defendant went back to Vaimoso–uta to pick up a laptop and phone charger. When the defendant arrived the victim gave their young son the laptop and charger to give to the defendant but the defendant chased the son back to tell the victim (his mother) to come and give him the laptop and charger. The victim went outside with her youngest child and the aunty heard the victim calling out to her. The aunty ran outside and saw the defendant pulling the pregnant victim’s head down by her hair whilst carrying their youngest child. Again the defendant was told off by the aunty and the victim’s brother and he left. The defendant did not stop there. He went home and continuously called the victim on her mobile.

The offending

  1. The victim later on in the morning of 1st December 2021 asked her aunty to drop her off with her children at their house at Vailoa. She was concerned with the defendant having told her that he had injured his hand and he needed her to bandage his hand. The summary of facts says that the cause of the injury was because the defendant had punched the louvre windows of their house angry with the victim having gone to her family at Vaimoso-uta.
  2. Shortly after the victim had arrived to their house at Vailoa she was seen running from their house to her in-law’s house with the defendant running behind her holding a knife. The victim tripped and fell and whilst on the ground the defendant caught up and stabbed her on the back. He went to stab her the second time but his sister caught his hand and took the knife away.
  3. The victim got up and tried to walk to the house but she collapsed. She was pronounced dead on arrival to the hospital at 9.44am on 1st December 2021. She was 4 ½ months’ pregnant.

The defendant

  1. The defendant is 34 years’ old, living with his partner who was pregnant and their three children. At the time of the offending he was employed by the Samoa Water Authority.
  2. The defendant in the PSR does not refer at all on the number of times he went to the victim’s house at Vaimoso and assaulted the victim. He only mentioned the victim and his children being dropped off at their home where he was still drinking. He said the victim was not happy with him still drinking that morning, they had an argument resulting in him chasing the victim around their house. The defendant got hold of a kitchen knife and ran after her when the victim ran to his parents’ house. The PSR says that he caught up with the victim and stabbed her on the back. The defendant relayed in the PSR that his mind was completely blanked out. Alcohol should never be easily allowed to be a defence or an excuse for any criminal behaviour.
  3. The defendant has previous convictions and is not of prior good character.

The victim

  1. The victim was 30 years’ old and was the de-facto partner of the defendant. The defendant says in the PSR that they had been in a de-facto relationship for about seven (7) years. As mentioned earlier, the victim was said to have been 4 ½ months pregnant at the time of the offending. There is nothing else said about the victim in the submissions or documents before the Court.
  2. The mother of the deceased from the Victim Impact Report (VIR) spoke of her grief and sadness for the loss of her daughter. Despite the devastation of losing her daughter in such a way, what’s most important to her now is to ensure that her daughter’s children are well cared for. She is comforted that they will be well looked after by the defendant’s family and has made arrangement with the defendant’s family for the children to visit their mother’s family.
  3. The mother confirms an ifoga by the defendant’s family through the Vaimoso Church Minister whom she said is a relative of the deceased’s father. She herself, has forgiven the defendant and accepted the ifoga by the defendant’s family.

The injuries

  1. A post mortem was carried out on 31st May 2022. The photo attached to the post mortem report have the stab wound located vertically on the upper back on the left measuring 32mm x 13 mm x140mm in dimension. To the front, the injury would lie on the right breast to the right side of the nipple. The injury is on the left side where the heart is.
  2. The cause of death was severe hemothorax as a result of the stab wound which partially severed the arch of the aorta interiorly.

The Prosecutions submissions

  1. The prosecution referred to various sentencings of the Court on manslaughter in particular to the case of Police v Maposua [2017] WSSC 150 (15 December 2017) where the Court sentenced the defendant to 15 years’ imprisonment. The deceased was the defendant’s 14 year old son who died from an injury to the neck when his father struck him with a bush knife. The Prosecution seeks for a starting point of 18 years’ imprisonment.
  2. They Prosecution identified as aggravating factors the following:

Defence Counsel Submissions

  1. Counsel submits that the defendant accepts he needs to be punished for his offending and that he needs to be held accountable. Counsel referred to various cases of manslaughter where the sentences imposed by the Court varies from non-custodial to custodial and the terms of imprisonment also vary greatly. She quite rightly puts it that “manslaughter embraces the widest range of circumstances in which the offence can be committed plus the varying degrees of culpability involved.”
  2. Counsel asks the Court to take a similar approach as the court in Police v Ausage[2] because of the similarity in facts in that both victims were pregnant, there was the use of an object but distinguished the present case from Ausage that a knife was used with just one stab whereas Ausage was a series of assaults involving the use of a rock. Counsel also distinguished the case of Police v Maposua[3] relied upon by the prosecution where a 18 year starting point was adopted on the facts that the defendant in Maposua struck his 14 year old son at the back of the neck with a machete.
  3. Counsel submitted that the Courts for spousal manslaughter have adopted starting points ranging between 7 years to 12 years with end sentences between 4 years and 8 years’ imprisonment. Counsel originally sought for a non-custodial sentence but later amended her submissions and seeks for a custodial sentence with a starting point of 8 years with an uplift of 2 years to make it 10 years starting point. Counsel identified the following to be the mitigating factors:
  4. The golden rule of sentencing is that each case is to be assessed in light of its own unique facts.
  5. I turn now to consider the aggravating and mitigating factors of this offending and those personal to the defendant (if any).

The aggravating factors

  1. I accept the following as aggravating factors of the offending:
  2. The summary of facts mentioned a second attempt to stab the deceased that was stopped by the defendant’s sister. The sister made a statement to the Police dated 1 December 2021 and mentioned a second stab by the defendant towards the victim but she stopped his arm midair and took the knife away.
  3. The culpability of the defendant is not an aggravating factor on its own but is the result after having assessed various aggravating factors. I find the defendant’s culpability to be substantial of medium to high.

The mitigating factors

  1. I agree with the mitigating factors identified by Defence Counsel but do not accept the starting point she advanced.

Comments and Discussion

  1. This is a case of domestic manslaughter involving alcohol as a contributing factor to a fatal incident resulting in the sudden death of a mother and her unborn child. She leaves behind three young sons who will grow up without a mother and with the knowledge that their father, the defendant, was responsible for death of their mother and unborn sibling. It is violent offending. Although any sentence imposed will not bring back the mother to her children. Her death must not be in vain but a strong message needs to be sent out to men who continue to abuse their wives and partners, robbing them of their lives and impacting on children growing up without their mothers to nurture them. The Court will take a firm stance to eradicate such cowardly and barbaric behaviour. By a firm stance, the Court must always impose a custodial sentence the length should be reflective of their recklessness. These men should also not hide behind the excuse that the welfare of the children should be taken into consideration and the need for the father to be there to help raise them when it was their behaviour that have placed their children in such position.
  2. The victim lost her life at the hands of her partner when he stabbed at her with a knife on her upper left back while she was on the ground. At the time the victim was four months pregnant. Prior to the fatal offending the defendant assaulted the victim at her aunt’s house. Even when the victim was with her own family this did not stop the defendant from assaulting her. In the Samoan context the behaviour of the defendant in turning up to the victim’s family and assaulting her there would be viewed as challenging behaviour by the men of the victim’s family which usually ends up in retaliation by the male relatives of a female’s family. It is disrespectful and insulting to our shared understanding and worldview and with regards to our Samoan norms and values; it is a breach to the sanctity afforded to Samoan women and girls of being safe in the presence of their brothers or male relatives. The defendant should count himself lucky that this did not happen to him. The summary of facts has it that the second assault by the defendant of the victim at her aunt’s place, one of the victim’s brother walked over and told him to leave which he did. I got the impression this was not the first time that the defendant has assaulted his deceased wife.
  3. It is clear from the summary of facts and PSR that the defendant is a violent person with uncontrolled anger fueled by alcohol, he became lethal in behaviour. The defendant has previous convictions of grievous bodily harm (2010) and intentional damage (2018). The previous offending are offences that would involve violence and anger. These factors are very much present in the current offending.
  4. I would like to mention that the main point of difference between the Ausage case and the present is that Ausage is manslaughter by reason of provocation but there was no provocation in the present matter.
  5. Domestic violence against women is not particular to one society. In Samoa, despite numerous efforts to eradicate violence within the family through anti-violence initiatives there are still ‘men’ who see and treat women as their property. Unless and until these men change their mindset, Samoan women (and any woman for that matter) will always be vulnerable and in danger.

Conclusion

  1. The Court of Appeal in Nepa v Attorney General[4]echoed what the former Chief Justice Sapolu said in Police v Matalavea[5] on the varying degrees of punishment imposed by the Court on manslaughter. He said:
  2. Both Counsels are aware that, it is not possible to set a tariff or a start point that applies across the board to all cases of manslaughter. The start point for each case must depend on its own unique set of circumstances and facts.
  3. Despite the inadequacies of the prosecution with the charges, I cannot overlook the fact that there is an unborn child involved. I take into account the relevant parts of sections 5, 6 and 7 of the Sentencing Act 2016. The sentencing decisions referred to by both Counsels range from 7-18 years starting points with end sentences varying from 4 – 15 years’ imprisonment. Considering all relevant circumstances, I consider appropriate the starting point of 18 years.
  4. The defendant’s family performed a ‘ifoga’ to the deceased father’s family and village of Vaimoso. The Alii ma Faipule of Vaimoso confirmed the ifoga by way of letter. The family also contributed to the deceased’s funeral. The ifoga has a very significant role in the Samoan context as it is a sign by the family in the wrong to seek forgiveness, it is performed to maintain peace between the families so that there is no retaliation from the deceased’s family. For those reasons and the cultural significance of the ifoga I deduct 12months; I deduct 6 months for I accept that the defendant would truly regret his actions and feels remorseful. It is only human to feel that way but it is just too late as it will not bring the mother of his children back. This leaves 198 months or 16 years + 6 months. Lastly, I give 25% for the defendant’s willingness to plead guilty to the charge of manslaughter when the prosecution withdrew the charges of murder. The 25% discount amounts to 50 months or 4 years + 2 months. The end sentence is 148 months or 12 years + 4months.

Sentence Imposed

  1. The defendant is convicted and sentenced to 12 years + 4months imprisonment less time he has been held in custody to await sentence.
  2. I issue the Coronial Finding that Elisapeta Lefao, mother of 34 years of Vailoa was pronounced dead on arrival at the Motootua Hospital on 1st December 2021 as a result of severe haemothorax inflicted by a knife. I further certify that alcohol was a factor in this homicide.

JUSTICE TUATAGALOA

[1] Crimes Act 2013, ss102, 109.
[2] Police v Ausage [2007] WSSC 28 (30 April 2007).
[3] Police v Maposua [2017] WSSC 150 (15 December 2017).
[4] Nepa v Attorney General [2010] WSCA 1.
[5] Police v Matalavea [2006] WSSC 30.

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