Police v Lala [2023] WSSC 32 (16 June 2023)

IN THE SUPREME COURT OF SAMOA
Police v Lala [2023] WSSC 32 (16 June 2023)

Case name:	Police v Lala
Citation:	[2023] WSSC 32 (16 June 2023)
Decision date:	16 June 2023
Parties:	POLICE (Informant) v SUSANA LAVEA LALA, female of Toamua & Safotu, Savaii (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 accordingly convicted and sentenced as follows: (i) For the offence of manslaughter, two (2) years’ supervision; (ii) For the offence of armed with a dangerous weapon, six (6) months’ suspended sentence
Representation:	E. Tiitii-Lam for the Informant L. Strickland for the Defendant
Catchwords:	Manslaughter – armed with a dangerous weapon – defendant mother of deceased victim – threw a stone – hit victim on head – remorseful – apology – death of a child – breach of trust –- non-custodial sentence.
Words and phrases:
Legislation cited:	Community Justice Act 2008, s. 13; Crimes Act 2013, ss. 92; 102; 108; Family Safety Act 2013, s. 17(1); Police Offences Ordinance 1961, s. 25.
Cases cited:	Police v Afele Tiatia Laumatia 9 July 2022 (unreported); Police v Fiva [2008] WSSC 89 (28 October 2008);
	Police v Pemita Tutogi [2007] WSSC 6 (15 February 2007); Police v TT [2021] WSSC 5 (19 February 2021); Police v Tutogi [2007] WSSC 6 (15 February 2007); R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SUSANA LAVEA LALA, female of Toamua & Safotu, Savaii

Defendant

Counsel: E. Tiitii-Lam for the Informant
L. Strickland for Defendant

Sentencing: 16 June 2023

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentencing on one charge of manslaughter which carries a maximum penalty of up to life imprisonment;^[1] and armed with a stone (dangerous weapon)^[2] that caused the death of Aneta Maalo.
2. Before I proceed with sentencing I issue the coronial finding as follows. I find that the deceased Aneta Maalo, a 13 year old female of Toamua died on the 23 November 2022 at Moto’otua Hospital from severe traumatic head injuries namely a right pulmonary emboli as a result of blunt force trauma suffered by her as a result of being hit on the head with a stone.

The Offending

3. The summary of facts (“SOF”) was read out and accepted by the defendant and her counsel. On the 18^th November 2022 at around 6pm, the defendant was at home roasting cocoa beans in the outdoor kitchen. Also present were the defendant’s daughters Aneta (victim) and Aliitasi (younger daughter) who got into an argument. The defendant who was also pregnant told her daughters to stop arguing. The girls ignored their mother’s plea and continued, the victim then threw a coconut shell which hit the younger daughter on the hand and she cried. The defendant then used the stick that she was using to roast the cocoa beans to hit (sasa) the victim’s legs causing the victim to run away. The defendant then picked up a stone and threw it towards the victim’s head. The victim was said to have stopped and cried when the stone hit her on the head.
4. In the defendant’s pre-sentence report (“PSR”), the defendant confirmed that her two daughters were in the kitchen with her and the two girls argued over a coconut shell. She said that she then walked over with the stick that she was using to roast the cocoa beans and started beating (sasa) both girls with it. Both girls ran away and the defendant picked up a stone and threw it towards Aliitasi but hit the victim instead. The defendant said that she did not know where the stone hit the victim until later in the evening when her daughter Aliitasi told her that the victim was crying because her head was still sore from the stone that she threw that had hit the victim’s head.
5. According to the SOF and PSR, the defendant tended to her daughter (victim) massaging her head with lauti leaves and got her to take Panadol tablets. The next morning the father came home from fishing and was told of what had happened and the victim was then taken to the hospital. The victim underwent head surgery where she never regained consciousness and she passed away after a week in hospital. Her death was caused due to severe traumatic head injuries as a result of blunt force trauma suffered as a result of being hit on the head with a stone.

The Defendant

6. The defendant is a 39 year old female originally from Safotu, Savaii now residing with her de-facto partner and their children at Toamua-uta. When the incident happened, she was a mother of ten (10) children and the deceased is the 3^rd eldest. The defendant completed school at Year 12.
7. At the time of the incident the defendant was pregnant with her eleventh (11^th) child. She gave birth on 1^st of March 2023. The children are aged 3 months, 2 years, 3 years, 5 years, 7 years, 10 years, 12 years, 13 years, 16 years and her eldest son at 17 years old. The defendant stays home to look after the family. Counsel for the defendant in her submissions says that the defendant currently breastfeeds her youngest three (3) children.
8. To provide for their big family, the defendant sells crops from their plantation as well as fish that her husband as a fisherman, is able to catch. This shows a strong supporting relationship between the two in caring for their big family ensuring the kids are looked after and fed. The defendant told the Probation Service that she deeply regrets her actions and is worried about the welfare of her children, especially the thought of the possibility that she may no longer be able to care for them now that the matter is before the court.
9. The defendant apologised to her partner and his family who she lives with at Toamua-uta. Her partner confirmed the apology and he and his family have accepted that what happened, on the defendant’s part, was not intentional resulting in the death of their child.
10. I have read the character references in support of the defendant from the Pulenuu of Toamua and Puipaa and Senior Pastor of your Religious Ministry (Faith Hope and Love in Christ) who both spoke of the defendant as hard working who not only looks after her children but also her in-laws (tausi matua) and provides service to the village through the women’s committee and to her church.
11. I have also read the letter from the defendant apologising for what she had done and that she is truly remorseful on her part for her actions that has cost the life of one of her children.

The Victim

12. The deceased is the defendant’s daughter. She was the third eldest of the defendant’s ten (10) children. She was 13 years of age and was in Year 7 at Saina Primary School at the time of her death. Her death has had a devastating impact on her family and without a doubt her own mother (defendant).

Aggravating Factors

13. I accept the following as aggravating features of the offending:
    • (i) The assault resulted in the death of a child was within the context of a domestic relationship (section 17(1) of the Family Safety Act 2013;
    • (ii) A breach of trust as the assault happened at home;
    • (iii) The use of a weapon, that being a stone;
    • (iv) The injury sustained resulting in death; and
    • (v) The need to protect children
14. There are no aggravating factors personal to the defendant.

The mitigating features

15. In respect of the offending, I accept as mitigating the fact that the defendant attended to her daughter (deceased) by massaging her head with lauti leaves and giving her Panadol tablets. I accept that the defendant did not realise how serious the injury was at the time. There was no concealment by the defendant of what happened for she told her partner. They took their daughter to the hospital.
16. Personal to the defendant is her prior good character and the reconciliation with her partner and his family (in-laws) whom they live with. I accept without a doubt the defendant’s heartfelt remorse conveyed through her letter to the Court. The defendant’s guilty plea is evidence of her genuine remorse and acceptance of her wrongdoing. A spur of the moment reaction in disciplining her children that unfortunately has changed her life forever living with the guilt of what happened.

Discussion

17. It is always a tragedy when a child’s life is lost. While it may be so, it is becoming too common for children losing their lives at the hands of their parents, mostly out of anger or just pure negligence as with the present matter.
18. Prosecution submits that this matter does not warrant a departure from the imposition of a custodial sentence that is often imposed in cases of manslaughter when it involves defenseless children. Prosecution seeks an imprisonment term with a start point of at least 10 years’ imprisonment.
19. Counsel for the defendant on the other hand submits that a sentence of imprisonment is not warranted in the circumstances of this offending. The defendant through counsel seeks a non-custodial sentence of supervision term of up to 2 years with special conditions.
20. The maximum sentence for manslaughter is imprisonment for life. There is no guideline judgment or tariff for manslaughter sentencing. The sentences imposed by the Court vary from non-custodial sentences of supervision to lengthy custodial sentences due to the varying circumstances in which the offence of manslaughter is committed.^[3]
21. I have been referred to various authorities by Prosecution as well as Counsel for the defendant highlighting the range of sentences imposed for manslaughter to assist the Court in determining the appropriate sentence.
22. The cases of Police v Tutogi^[4], Police v Afele Tiatia Laumatia^[5] and Police v TT^[6] share the following similarities with the present matter - (i) The defendant is a parent; (ii) the victim is either a biological child or a nephew of the defendant; (iii) The victims were between 12 -14 years’ old and (iv) the victims died from severe head injuries. In all these cases a custodial sentence was imposed by the Court.
23. However, apart from those similarities the circumstances (gravity) of offending in those authorities and the present matter are very different. In Laumatia the defendant assaulted the victim by slapping him twice on the mouth, the victim ran away from the defendant and the defendant armed himself with firewood and threw it at the back of the victim’s head and hit him. In TT the defendant armed himself with a rock and walked towards the victim who saw the defendant and ran away. The defendant threw the rock at the victim and hit him on the head. The victim fell down and the defendant walked over with a tree branch and struck the victim twice on the back. In the case of Tutogi the mother (defendant) was angry with her son (deceased) when she discovered that he had been playing “lafo tupe”. She approached the son with a stick and swung at him. The son turned around to run away and the stick hit him on the back of the head.
24. In the above cases the assaults carried out by the defendants were deliberate and specifically aimed at the victims in which assault resulted in death. There was provocation in Laumatia and TT where the victims had sworn at the parent and grandparent. There is a discrepancy in the version of events of what happened as relayed in the SOF and PSR for the present matter. The SOF says that only the victim was beaten by the defendant who ran away from the defendant and the defendant threw a stone at the victim’s head. In the PSR, the defendant relayed that she beat (sasa) both her daughters because she was angry that they were arguing instead of getting the food ready as she had told them to do. Both girls ran away from the defendant with Aliitasi to be the first to run away and the defendant got hold of a stone and threw it at her (Aliitasi) but instead the stone hit the victim who was running behind or after her sister Aliitasi. I accept what the defendant relayed in the PSR as to what happened.
25. In Police v Tutogi ^[7] Sapolu CJ states:
    • “...deterrence is an important consideration when passing sentence in this type of case. However, the truth of the matter is that the appropriate sentence to be imposed depends on the ultimate analysis on the facts of each case. This is particularly more so with the crime of manslaughter which may arise from a wide range of varying circumstances and attracts a wide range of penalties.”
26. The question here is determining the degree of criminal culpability. I have set out at paragraphs 3, 4 and 5 what happened. The authorities referred to are distinguishable with the circumstances of this offending referred to in paragraph 25.
27. I accept that the defendant did not intend to cause death to her own child. No parent would want to cause death of his or her own child. The throwing of the stone in the direction of her daughters running away from her was negligent aptly described in Samoan as “lima kē kē”. She only realised that the victim had been hit instead when she heard the victim crying, but at the time had no knowledge of where the stone landed. The defendant did not think much of it because the victim got her youngest sibling and went to her grandparents’ house. There is nothing submitted for sentence that implies or refers to the defendant being an abusive mother towards her children. I find the culpability level of the defendant is of low to medium.
28. There is no doubt the defendant truly regrets that day and would be thinking “if only”. A split second reaction with serious consequences. I hope the defendant will be able to forgive herself because she will carry for the rest of her life the burden of knowing that one of her children died at her own hands. Never easy for a parent. This in itself is punishment for the defendant.
29. For the reasons in paragraphs 24 – 28 and the personal circumstances of the defendant of having 10 children ranging from 3 months to 17 years old and still breastfeeding 3 of her youngest children^[8], I find appropriate a non-custodial sentence of 2 years’ supervision.
30. Even if a custodial sentence is taken into consideration, I would still end up imposing a non-custodial sentence for the following reasons:
    • (i) Taking into account the aggravating and mitigating features of this offending, I consider 4 years start point for sentence as appropriate. From that, I deduct 6 months for genuine remorse. The defendant is a first offender at the age of 39 years and have supportive references that speak of her prior good character. I deduct 12 months for prior good character leaving 3 years and 6 months’ imprisonment. For the apology the defendant rendered to her partner and to his family shows true remorse on her part and acceptance of her actions. This (in my view) is particularly important for her 9 surviving children knowing that their mother accepted that her actions were wrong and she caused the death of her child, I deduct 9 months. That leaves 2 years and 9 months’ imprisonment. For the early guilty plea, I give 25% discount amounting to 9 months. This, leaves 2 years.
    • (ii) Section 13 of the Community Justice Act 2008 allows for the Court to sentence a defendant to supervision where the defendant is convicted of an offence punishable by imprisonment. The supervision term may not be less than 6 months and not more than two (2) years.
    • (iii) I find the personal circumstances of the defendant and the circumstances of the offending overwhelming to impose a custodial sentence, but let this be a reminder to parents they must always be mindful of the consequences of their actions.

Result

31. The defendant is accordingly convicted and sentenced as follows:
    • (i) For the offence of manslaughter, two (2) years’ supervision;
    • (ii) For the offence of armed with a dangerous weapon, six (6) months’ suspended sentence

JUSTICE TUATAGALOA

---

^[1] Crimes Act 2013, ss. 92, 102, 108.
^[2] Police Offences Ordinance 1961, section 25.
^[3] Police v Fiva [2008] WSSC 89 (28 October 2008) per CJ Sapolu; see also R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794.
^[4] Police v Pemita Tutogi [2007] WSSC 6 (15 February 2007).
^[5] Police v Afele Tiatia Laumatia 9 July 2022 (unreported).
^[6] Police v TT [2021] WSSC 5 (19 February 2021).
^[7] Police v Tutogi [2007] WSSC 6 (15 February 2007).
^[8] Defence Submissions on Sentencing, paragraph [7].