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Police v Enele [2017] WSSC 123 (12 July 2017)

IN THE SUPREME COURT OF SAMOA
Police v Enele [2017] WSSC 123

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

VESI ENELE, female of Apia and Patamea, Savaii
Defendant

Counsel:
L Sio for the Prosecution
Te’o R Faaiuaso for Defendant

Sentence: 12 July 2017

ORAL SENTENCE OF JUSTICE TUATAGALOA

1. I have orally sentenced the defendant when she vacated her ‘not guilty’ plea to the charge of murder to ‘guilty’. Although the sentence for murder is mandatory life imprisonment, the Sentencing Act 2016 now provides for minimum terms when sentencing on murder convictions. It is therefore good practice to have the sentences imposed for murder in writing. This is the written providing the reasons for the minimum term of imprisonment imposed.
2. Counsels for the prosecution and defendant did not provide the Court with any written sentencing submissions for the reason that the penalty for murder is mandatory life imprisonment. As such, they see no need for any written sentencing submissions. The Sentencing Act 2016 (ss.64 – 68) makes it all the more necessary and it is a must for counsels involved to provide the Court with sentencing submissions.

The charges

3. The defendant is charged with the murder of her newborn baby on 27 May 2015 and the alternative charge of manslaughter. The defendant initially pleaded not guilty to the charges of murder and manslaughter. The matter was set for a three (3) day hearing scheduled to commence on 12 July 2017. Counsel for the defendant indicated the week before the hearing that there is a likelihood of a change of plea. On 12 July 2015, the defendant through her counsel vacated her ‘not guilty’ plea and pleaded ‘guilty’ to the charge of murder. The defendant when asked confirmed her change of plea. On the change of plea by the defendant to ‘guilty’ the prosecution with leave withdrew the alternative charge of manslaughter.
4. This matter has been in the Court system since 24 September 2015.

The offending

5. The following is obtained from the defendant’s cautioned statement to the police on 28 May 2015:
   • The defendant is 20 years old, single and was pregnant. The defendant in her cautioned statement said she gave birth to her baby on the toilet bowl. The baby came out and fell into the toilet bowl. She then threw toilet paper into the toilet to try and conceal the baby and left. The baby’s body was found that very same day.

Counsels

6. Counsel for the defendant said to the Court that although the penalty is life imprisonment the defendant will be eligible for parole after serving 10 years; to this the prosecuting counsel also agrees. Counsel for the prosecution was asked as to their views on which minimum term to impose by the Court whether s.65 or s.66; prosecution simply responded that it be left to the discretion of the Court.

The Sentencing Act 2016

7. Section 65 provides that, where a life sentence is imposed it must be accompanied by a minimum term of imprisonment of not less than 10 years. If any of the circumstances described in section 64 are present then a minimum period of imprisonment of at least 17 years must imposed, unless such a minimum term would be ‘manifestly unjust’. The learned authors of Adams on Criminal Law on Sentencing commentary on minimum terms at [SA86.02]:
   • “......the power to impose a minimum sentence under the Sentencing Act was intended for cases of such seriousness that the Court considered that even if there were no danger to the community, release after one-third of the sentence would represent insufficient denunciation, punishment and deterrence.”

Furthermore

“The decision whether or not to impose a minimum term is primarily dictated not by the nature of the particular charge, but by the context of the offending before the Court. This includes the conduct of the defendant both before and after the offence.”

8. The assessment of ‘manifestly injustice’ is said by the learned authors to be made in the context of the purposes and principles of sentencing and the aggravating and mitigating factors (Part 2 of Samoa Sentencing Act 2016). The circumstances of both the offence and offender are to be considered.
9. Section 10(1) and (2) of the Prisons Parole Board Act 1977 refers to the minimum period imposed under ss.65 or 66 and confirms what both Counsels said in Court that the defendant will only then be eligible for parole.

The sentence

10. The defendant is sentenced to life imprisonment. Pursuant to section 65 of the Sentencing Act 2016 she is to serve the minimum term of 10 years imprisonment. Such minimum term is appropriate to achieve the following purposes: (i) to hold the defendant accountable for what she has done; (ii) to denounce such conduct or offending; and (iii) to deter the defendant or other persons from committing the same or similar offence.
11. The defendant under s.10 of the Prisons Parole Board Act 1977 will be eligible to be released on parole after serving the minimum term of 10 years imprisonment term.
    

JUSTICE TUATAGALOA