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Police v Keresema [2007] WSSC 68 (29 August 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

IMOKENE KERESEMA a female of Vailele and Togafuafua
Defendant

Counsel: Mr Petaia for prosecution
Mr Hoglund for defendant

Hearing: 22, 23, 24 May 2007

Submissions: 24 May 2007

Sentence Date: 29 August 2007

SENTENCE BY JUSTICE VAAI

Introduction

1. Defendant you appear today for sentence following conviction by the assessors on a charge of manslaughter. As counsel for the prosecution and your counsel contended, the assessors found you guilty of causing the death, by assisting the mother of the baby, following birth, by cutting the umbilical cord and allowing the baby to bleed to death before you wrapped it with a green cloth and threw it into a stream. Having regard to the unchallenged medical evidence that you could not have been the mother of the child, I shall proceed to sentence you, as counsels suggested, on the basis that you assisted with the birth of the child.
   
2. It is not disputed that on the morning of the 29th August 2005 a partly decomposed body of a baby wrapped in green cloth was found floating in a stream at Togafuafua village behind Chan Mow wholesale. As a result of police investigations you were arrested on the 13th September 2005. In response to a question by a police officer concerning the baby you said:
   

"I remember it was the 22nd August 2005, I felt my stomach hurting. I came home from work and rested. The next day the 23rd of August 2005, it was the same situation that I felt, then I knew that I was close to giving birth. On Wednesday 24th August 2005, I felt my stomach pain getting worse, and then I didn’t go to work.

In the morning at about after 10:00 o’clock I felt something was about to fall down from me, then I walked to our house. I sat on dirt beside and I saw someone (baby) falling down from me. I saw it was a baby boy. I used a razor blade to cut off a long thing that was stuck to the belly button of this baby then I saw blood flowing. When I cut this thing off I saw the baby was still breathing properly, however it wasn’t long after the blood was flowing from the exact part that I cut off that I saw the baby not breathing.

I then wrapped it in a plastic paper, together with a green cloth. That time blood was flowing strongly from my private part. I tried to block by using pieces of cloth. When the blood from me was about to finish, I went with the baby and wrapped it with a plastic bag and the green cloth and drowned it in the river behind our house".

3. You also told the police in the same statement that you told your work friend Solofua, several months before the baby was found, about your pregnancy and your friend Solofua requested you to give her the baby. As a result of what you said, the police went looking for Solofua. She confirmed with the police what you said as well as her request for the baby to be given to her. Her testimony also confirmed what you said to her.
   
4. It is accepted that you are not biological mother of the dead baby. The unchallenged medical evidence said so. It is also not disputed that you told the police in your statement you wrapped the dead baby in green cloth after it bled to death and placed it in the stream. Indeed the baby boy found in the stream close to your home was in fact wrapped in green cloth.
   
5. Those undisputed facts did not only lead the assessors in a fairly brief deliberation to reach its verdict but they also blatantly speak for the fact that you have deliberately chosen to protect the biological mother from prosecution. I must therefore assume that you have accepted to face the consequences.
   

Aggravating Factors

6. The accused deliberately assisted in the concealed birth; it was obviously so planned months ahead when you told her work mate. After birth, the umbilical cord was severed with a razor blade, then the baby was left to bleed to death and thrown into the stream.

I do not accept defence counsel’s submissions that this is a one – off incident which happened very quickly so that the degree of negligence was on the lower end of the scale. It seems quite obvious as I have already noted the concealed birth was planned. Secondly you were armed with a razor blade which points squarely to your prior knowledge that the cord has to be cut and you did cut it after which you watched the child bled to death.

Accordingly I reject counsel’s contention that the negligence is on the lower end of the scale.

7. I have also adverted to your harbouring of the biological mother of the deceased child. It is a clear signal of stubbornness and lack of remorse.
   

Mitigating Factors

8. At the age of 26 years the accused, a single female of Togafuafua and Vailele is a first offender. Your previous good record, as well as her honesty and trustworthiness at her places of employment are noted.
   

Discussion

9. Counsels agree this is the first case of manslaughter by omission to perform a legal duty, namely to provide the necessaries of life, to be dealt with in our courts. While the majority of cases which have come before this court involved deliberate offending resulting in the deaths or serious injuries to children, and for which the court has consistently imposed appropriate deterrent sentences, the sentencing principles remain the same although the law recognises human frailty. So that manslaughter by omission generally is usually regarded as less serious than those cases where death results from deliberate offending.
   
10. I agree with counsel for the prosecution that a distinction can be drawn between cases of manslaughter which arises from a single incidence of inadvertence or neglect to those cases which involved sustained period of deliberate neglect. I have been invited to consider New Zealand and English authorities in which custodial sentences of varying degrees and monetary fines have been imposed depending the circumstances of each case. The sentence to be imposed on this accused however should be comparable to sentences imposed by this court for manslaughter involving deliberate offending.
    
11. In Police v Maumasi (2/11/98) unreported the accused father was sentenced to 3 ½ years imprisonment resulting from the death of his 8 year old stepson upon whom he inflicted severe beating with a rubber hose. On appeal by the police the sentence was increased to 5 years imprisonment.
    

In Police v Taimi Peleuaga (1999) unreported a seven year old girl died as a result of being struck with a wooden tong (iofi) and twice slapped by her father causing her to fall and struck her head against the cement floor. On a guilty plea the accused was sentenced to 4 years imprisonment.

In Police v Tutogi 15/2/07 a 32 year old mother pleaded guilty and was sentenced to 2 years for swinging a stick at her 12 year old son who was running away to avoid being beaten. As a result of injury to the back of his head the son fell to the ground and died soon after. The three cases involved an otherwise good loving parent who has lost his or her temper and acted in an explosive fashion. They are cases of isolated acts without premeditation but the court nevertheless imposed custodial sentences of up to 5 years.

12. I have earlier indicated that manslaughter by omission generally is usually regarded as less serious than cases where death result from assaults. Your lack of remorse or contrition does not of itself add to the sentence which is otherwise appropriate; it simply means that, you are not entitled to a credit for it. For what it is worth I suspect you know and understand the magnitude of your crime.
    
13. Our criminal law reflects the moral values of our society. Despite a request by your work mate to give her the baby after birth you deliberately and with apparent blind determination decided otherwise.
    

I accept that you are of good character and a trusted employee but those qualities are not easy to reconcile with your actions for which you must now be punished. I also note that you recently lost your father.

Sentence

In considering sentence I emphasize the premium which society places on the value of human life, especially for the young and the helpless. The sentence must also convey a deterrent message both to you and to those others who may be tempted to follow the same as you. I sentence you to 2 years imprisonment.

JUSTICE VAAI