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Police v Niusila [2013] WSSC 74 (20 September 2013)

SUPREME COURT OF SAMOA

Police v Niusila [2013] WSSC 74

Case name: Police v Fugalaau Niusila

Citation: [2013] WSSC 74

Decision date: 20 September 2013
Parties:
POLICE (prosecution) and FUGALAAU NIUSILA, female of Faleatiu, Vaipuna and Sili, Savaii (accused)

Hearing date(s):

File number(s): S690/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:
Representation:
L Su’a for prosecution
E T Faleauto for accused

Catchwords:
Words and phrases:
Considerable mental and emotional stress
Concealment of birth

Legislation cited:
Criminal Act 2013
Criminal Ordinance 1961

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S690/13

BETWEEN

P O L I C E
Prosecution

A N D

FUGALAAU NIUSILA female of Faleatiu, Vaipuna and Sili, Savaii.
Accused

Counsel: L Su’a for prosecution
E T Faleauto for accused

Sentence: 20 September 2013

S E N T E N C E

The charge

1. The defendant appears for sentence on the charge of concealment of birth, contrary to s.117 of the Crimes Act 2013, which carries a maximum penalty of 2 years imprisonment. To the charge she pleaded guilty at the earliest opportunity.
2. Section 117 of the Crimes Act 2013 re-enacts with the same maximum penalty the offence of concealment of birth provided is s.74 of the now repealed Crimes Ordinance 1961. It provides:

“A person is liable to imprisonment for a term not exceeding two (2) years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, during, or after birth”.

3. Section 117 evidently makes it an offence for any person to dispose of the dead body of a child in any manner with the intent to conceal the fact of its birth. It is immaterial whether the child died before, during, or after its birth. The two elements of the offence are, firstly, there must be a disposition of the dead body of a child and, secondly, such a disposition must have been accompanied by the intent to conceal the fact of the child’s birth.

The offending

4. The defendant is 17 years old. She no longer attends school. On Saturday 11 May 2013 around 5am, the defendant felt pains in her stomach like the ones she experiences when she has her menstrual period. She then went to have a shower in her family’s bathroom. While having her shower, she felt something fell down between her legs. She looked down and saw that it was a baby. The baby was not moving or crying but had blood from its nose. The defendant then wrapped the body in a material that was hanging in the bathroom. According to the prosecution’s summary of facts which was confirmed by the defendant, the defendant then “intentionally put the baby on top of the shower ledge (talitali o le paipa) with the intention of hiding the baby from her family.” She then went and sat in another house at the back of her family’s property.
5. Between 4.00pm and 5.00pm on that same day the defendant’s sister saw a swarm of flies gathering at the shower ledge. When she reached over, she found a bundle. She brought it down and when she unwrapped it, she was shocked to discover the dead baby.
6. The defendant’s sister then asked members of her family about the baby but no one had any knowledge of the baby or who it belonged to. When the defendant was asked about the baby, she initially denied any knowledge but after persistent questioning by her sister she cried and admitted to giving birth to the baby and concealing its body in the shower. The defendant and her dead baby were then brought to the hospital by the family.
7. A pathologist at the hospital carried out a post-mortem examination of the deceased baby. That examination revealed that the baby is a female, its birth was premature (mid third trimester), and that it had died before birth due to an infection from prolonged rupture of the membrane. The hospital then referred the matter to the police. The pre-sentence report shows that the defendant told the probation service that she committed this offence because she felt so worried and ashamed if her family knows about her baby. She must also have had in mind the shame that would have been brought upon her and her family within her community if the people of her village became aware that she has given birth to a baby.

The defendant

8. As earlier mentioned, the defendant is 17 years old. She no longer attends school but stays at home and assists her mother with family chores. She appears a simple village girl. Since this incident, she is no longer staying with her family at her village but with her sister who lives in the Apia area.
9. The defendant has already apologised to her parents and to her family and her apology was duly accepted. She has also apologised to the probation service and pleaded for compassion and a second chance to redeem herself. She is very depressed and she expressed deep remorse to the probation service as what has happened has brought disgrace to her family.
10. The defendant is also a first offender. Her mother told the probation service that the defendant is a humble, respectful, and kind person in their family. The written testimonials from the pastor of the defendant’s church and the pulenu’u of her village also show the defendant to be a person of good character and confirm what the defendant’s mother had told the probation service about the defendant.

Discussion

11. I accept the submissions by counsel for the prosecution that in terms of s.117 of the Crimes Act 2013, the act by the defendant of putting her dead baby on the shower ledge of her family’s bathroom after she had given birth to it falls within the meaning of the words ‘disposes of the dead body of any child in any manner’. Such a disposition constitutes the first element of the offence of concealment of birth provided in s.117. The defendant’s accompanying intent of hiding from her parents and her family the fact that she has given birth to a baby falls within the meaning of the words ‘with intent to conceal the fact of its birth’. This specific intent constitutes the second element of the offence of concealment of birth.
12. Now this defendant is a 17 year old village girl. She is unemployed. She is also a first offender and had been a person of good character as shown from the testimonials from the her mother, the pastor of her church, and the pulenu’u of her village.
13. It seems to me that this young girl must have been under considerable mental and emotional stress for several months from the time she first became pregnant for fear that her family might know about her pregnancy. For that reason she concealed her pregnancy. Then on early Saturday morning 11 May 2013 she felt stomach pains. These must have been stinging labour pains felt by a woman before giving birth to a child. There must also have been a loss of blood. But she did not tell any of her family about any of that. The father of the baby was also not there to help her. The defendant had to go through all of that on her own. Then after giving birth to her baby she put it on the shower ledge of her family’s bathroom as she was scared that her parents and her family might know about it. However, that was not to be. Her family eventually came to know about the baby and that it was the defendant’s baby. The defendant then apologised to her parents and her family for what has happened. Her apology was accepted. But that was not to be the end of the matter for this young girl. After she was brought with her baby by her family to the hospital, the matter was reported to the police and the police charged the defendant with concealment of her baby’s birth. An offence which carries a maximum penalty of 2 years imprisonment. The defendant pleaded guilty to the charge against her at the earliest opportunity. When the defendant was interviewed by the probation service for the preparation of the pre-sentence report on her, she apologised and expressed deep regret to the probation service and pleaded for compassion and a second chance to redeem herself.
14. Counsel for the prosecution must have seen that this young girl has suffered enough already because at the end of her comprehensive submissions in which a number of relevant overseas cases are discussed, she does not seek a custodial sentence but leave the matter to the discretion of the Court. She also does not seek an order for costs in favour of the prosecution against the defendant. Perhaps this is because the defendant is unemployed and does not have the means to pay such an order for costs. The probation service in its pre-sentence report also recommends a community based sentence as an alternative to imprisonment.

The decision

15. In my opinion, this young village girl has suffered enough already. She had made a mistake which has brought upon her considerable mental and emotional pain and suffering. She has had to cope with the consequences of her mistake for a long time all on her own because of her fear of her parents and her family. Being subsequently charged with the present offence and having to appear in Court must be additional stress in itself for her. I am confident that after all this experience the defendant has been through, she must have deeply regretted the mistake she made and has learnt from her mistake. She told the probation service that she will live with the memory of the mistake she made for the rest of her life. I will grant her plea for a second chance to redeem herself while she is still a young girl.
16. The defendant is discharged without conviction upon entering into a recognizance to be of good behaviour for 7 months.
17. Finally, I wish to thank counsel for the prosecution for her submissions and citation of overseas authorities which I have found helpful in the preparation of this decision.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution
Stevenson Lawyers for accused