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Police v Tutogi [2007] WSSC 6 (15 February 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

PEMITA TUTOGI
female of Faleapuna
Accused

Counsel: P Chang and L Sua for Prosecution
A Roma for Accused

Sentence: 15 February 2007

SENTENCE

The accused, who is a 32 year old mother from the village of Faleapuna, appears for sentence on the charge of manslaughter which carries a maximum penalty of life imprisonment. To the charge the accused has pleaded guilty at the earliest opportunity.

The facts which appear from the summary of facts confirmed by the accused show that the deceased was the eldest son of the accused and was 12 years old at the time of his death. On Saturday afternoon, 14 October 2006, the accused was looking for the deceased to look after the children so she and her husband could attend to other chores. When the accused discovered that the deceased was playing "lafo tupe," a game which involves playing with monetary coins, she became angry with the deceased. As the deceased approached the accused from the eastern side of their house, the accused grabbed a stick lying on the ground and swung it at the deceased. At that moment the deceased turned around to run away and the stick struck the back of his head. The deceased continued running until he collapsed and fell on the lawn of the neighbouring house. The accused’s brother who was standing nearby came over and tried to revive the deceased who had passed out by massaging him and splashing water onto the face. The deceased was then taken to the hospital at Lufilufi but he was dead on arrival.

The report of the post-mortem examination that was carried out on the deceased shows that a haematoma measuring one and a half inches by one inch was present over the right frontal region of the deceased’s scalp on the right side of his forehead. Blood clots were also present over the frontal, parietal and temporal lobes of his brain. In the opinion of the pathologist, the deceased died due to failure of the vital centres of the brain following brain haemorrhage from a blunt trauma to the head.

Given the nature of the injury shown from the post-mortem report and the fact that it resulted in the deceased’s death, I draw the inference that the stick with which the accused struck the deceased must have been quite a hard stick. The strike must also have been quite forceful. These inferences are consistent with what happened shortly afterwards when the deceased collapsed, fell to the ground and passed out. He died soon after. These inferences are also consistent with the fact that the accused was acting out of anger. This was therefore a serious assault by a mother on her own son.

The accused is a first offender. The pre-sentence report shows that she had a good education and employment history. She had been an accounts clerk at the University of the South Pacific before she became the properties clerk at the National Provident Fund where she is still working up to now. She is also married with four young children who are all dependent on her as the sole income earner for the family. Her parents and other members of her extended family also depend heavily on her for financial assistance.

I accept the submission by counsel for the accused that this is a sad and tragic case and that the accused is truly sorry and remorseful for the loss of her eldest son. The fact that she had caused the death of her own son will remain with the accused throughout her life and that is punishment in itself.

The testimonials from the accused’s church, current employer, the paramount matai of her village and a relative with whose family she stayed in Fiji for several years all show the accused as a respectful, honest and hardworking person with a pleasant and cheerful personality. Her employer also describes her as a reliable, dedicated and exceptional worker. So this offence is totally out of character.

The accused must have been angry with the deceased when she looked for him to look after the children and discovered he was playing lafo tupe. This is a game which involves the use of monetary coins that one would not expect a young boy of the deceased’s age to be involved with. One of the traditional ways for a Samoan mother to chastise or discipline her children is to give them an appropriate beating with a broom (salu tuaniu) or hibiscus branch. However, such beating with a broom or hibiscus branch is not known to have resulted in the death of a child. In my view, the accused over-reacted in this case. As a result she went beyond what is reasonable chastisement to child abuse.

Young children are usually in a vulnerable position. They depend on their parents not only for their maintenance and upbringing but also for their safety and protection. So when a parent reacts with excessive violence towards a child, the child becomes defenceless and his safety is at a serious risk.

I do not think it is right that there was no premeditation on the part of the accused. She was already angry with the deceased before he came to her. When the deceased approached her, she grabbed a stick lying on the ground and swung it at him. In these circumstances, the reasonable inference to draw is that the accused had in mind to beat up the deceased before he approached her. I accept that the accused did not intend to cause the death of her own son. However, the nature of the stick and the strike that was delivered show that the accused was indifferent to the safety of the deceased. And the fact that the strike hit the deceased on the head would tend to suggest that that was where the strike was aimed.

In Police v Taimi Peleuaga (1999) (unreported decision of the Supreme Court delivered in April 1999) the accused struck his seven year old daughter with an iofi (wooden tong) and when the iofi broke the accused slapped his daughter twice. The first slap made the deceased’s mouth bleed and the second slap caused her to fall down and hit her head on the cement floor. She died soon afterwards. The accused was charged with manslaughter to which he pleaded guilty at the earliest opportunity. He was sentenced to 4 years imprisonment. In the subsequent case of Police v Howard Maumasi [1999] WSCA 1, the accused inflicted a severe and sustained beating with a rubber hose on the deceased who was his eight year old step-son. Shortly after the beating, the deceased experienced breathing problems and the pupils of his eyes became dilated. He was rushed to the hospital but he died before reaching it. The post-mortem report revealed multiple bruises and abrasions on the deceased’s body. The accused pleaded guilty to manslaughter at the earliest opportunity. The Court of Appeal imposed a sentence of 5 years imprisonment with an indication that if any truly comparable case arises in the future, an even longer sentence is likely to be justified.

I have referred to the cases of Taimi Peleuaga and Howard Maumasi because those cases involved a parent being charged with the manslaughter of a child and in that respect are comparable to the present case. Both cases also demonstrate that 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 in 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. It would also appear to me that the gravity of the offending in this case is at a lower level of the scale compared to the gravity of the offending in Taimi Peleuaga and Howard Maumasi.

In passing sentence I take into account in mitigation of penalty the accused’s plea of guilty at the earliest opportunity, her remorsefulness, the fact that she is a first offender, the fact that she is a person of good character and that this offence is totally out of character, and the fact that she will live the rest of her life with the thought that she has caused the death of her own son. On the other hand, I must also take into account the gravity of the offence, the nature of the object and the force used, the need for protection of young children who are usually in a vulnerable position, and the usual need for deterrence in this type of case.

In weighing all these circumstances, the accused is convicted and sentenced to 2 years imprisonment.

CHIEF JUSTICE