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Police v Sipaia [2007] WSSC 16 (13 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FAATAGA MAFUI’E SIPAIA
female of Vaega, Satupaitea and Vailele.
Accused

Counsel: L M Su’a for prosecution
Accused in person

Sentence: 13 March 2007

SENTENCE

The accused who is a 40 year old widow from Satupaitea in Savaii and Vailele-tai in Upolu is appearing for sentence on the charge of failing to provide the necessaries of life for a child under the age of 16 years which carries a maximum penalty of 7 years imprisonment. To the charge the accused pleaded guilty at the earliest opportunity.

On Sunday, 19 November 2006, the accused who was in her ninth month of pregnancy travelled to Apia from Savaii and stayed with her mother’s family at Vailele-tai. On Wednesday, 22 November 2006, around 7am in the morning, the accused started to get contractions and experienced pain in her stomach and backside. She then took a walk on the road passing the Mormon Church at Vailele-tai before she returned home. However, the pain intensified and she took another walk. This time she headed towards the Fagalii-uta golf course where she sat down under a tamaligi tree. When the pain became unbearable, the accused laid down on her back. As she was going into labour, the accused gave one push and a baby girl came out. The accused then laid the baby under the tamaligi tree and left. She then headed to a nearby spring where she cleaned herself.

At around 8am, the accused left the spring and returned home by taking the road furthered from where she had left the baby. She did not tell anyone of her family that she had just given birth to a baby.

At about 11am, a man working at the Fagalii-uta golf course heard the cries of a baby and walked to where it was coming from. He found the baby lying on the ground covered with dirt. He wrapped the baby in a lavalava and took her to his home. After the baby was bathed and breastfed, she was brought to the Apia Police Station. The police then took the baby to the hospital.

On Thursday, 23 November 2006, the accused returned to her family in Savaii. She was apprehended by the police on Monday, 27 November. When she was questioned by the police, she admitted what she had done. When she was asked by the Court as to why she had done this, she replied that she is a widow with three children. She had become pregnant from a male of her village who is younger than her and she was scared of being beaten by her father and her brothers. The accused was reluctant to say anything more. She is a first offender.

This is the third of this type of case to come before this Court. It is a sad type of case as one would normally expect a mother to have natural love for her child. So when a mother gives birth to a child and abandons the child, one is somewhat at a loss with words to describe such conduct from the mother. It is conduct which goes against normal human nature to which people are accustomed.

In the first reported case of this type of case that came before the Court, namely, Police v Toga Pe’e Fuimaono [2001] WSSC 37, Vaai J sentenced the accused to 2 years probation and imposed as a condition of the term of probation that the accused was to perform 100 hours of community service. In the second reported case of this type of case, namely, Police v Rosa Loi [2005] WSSC 33, I referred to the type of sentences imposed in some of the cases for the analogous offence of infanticide in Australia and New Zealand. Such sentences have been rehabilitative and non-custodial. I then imposed a sentence of 2 years probation.

Counsel for the prosecution in her well prepared and thorough sentencing memorandum has argued for a deterrent sentence in the form of a term of imprisonment. With respect, this will be the third reported case of its kind to come before the Courts to my knowledge. In any event, the usual type of sentence in such jurisdictions as Australia and New Zealand for the analogous offence of infanticide has been of a non-custodial nature. Sentencing policies and practices in those jurisdictions are, of course, not binding on this Court. But they are highly persuasive. In Police v Toga Pe’a Fuimaono [2001] WSSC 37 and Police v Rosa Loi [2005] WSSC 33, this Court had also imposed non-custodial sentences by way of terms of probation. The circumstances of the present case are similar though not identical to the circumstance of those two cases.

In passing sentence, I would also take into account in mitigation of penalty the accused’s plea of guilty at the first available opportunity, her ready admission to the police when she was questioned about this matter, and the fact that she is a first offender. On the other hand, I also have to take into account the seriousness of the offence.

In all the circumstances, the accused is convicted and sentenced to 2 years probation. As a condition of the accused’s term of probation, she is to perform 200 hours of community services as directed by the probation service.

Before leaving this case, I express the hope that the appropriate authorities and the non-governmental organisations who are concerned with the welfare of the family will have the time to investigate the cause or causes of why a mother would abandon a newly born baby and identify practical solutions.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution