SUPREME COURT OF SAMOA
Police v Kopa [2015] WSSC 83

Case name: 	Police v Kopa	
		
Citation: 	[2015] WSSC 83	
		
Decision date: 	20 July 2015	
		
Parties: 	POLICE (prosecution) v PUNIPUAO KOPA(accused) female of Vaiafai Iva and Tuanaimato. 	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	Convicted and sentenced to 3 years and 3 months.	
		
Representation: 	M T Lui and L Sio for prosecution
Accused in person 	
		
Catchwords: 	abandoning a child under the age of 6 years - causing actual bodily harm with intent – maximum penalty – guilty – aggravating features relating to the offending – breach of trust – vulnerability of victim – cruelty – young age of the victim – mitigating features relating to the accused as offender – previous good character - sentence 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013s.86 s.119 (1) s.119 (2) 	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO:  S923/14-S924/14

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

PUNIPUAO KOPA female of Vaiafai, Iva, and Tuanaimato.
Accused

Counsel:	
M T Lui and L Sio for prosecution
Accused in person

Sentence:	20 July 2015
S  E N  T  E  N  C  E
The charges
1. 	The accused Punipuao Kopa stood trial on (a) one charge of abandoning a child under the age of 6 years, contrary to s.86 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment, (b) one charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Act, which carries a maximum penalty of 7 years imprisonment, and (c) an alternative charge of causing actual bodily harm by assaulting, contrary to s.119 (2) of the Act, which carries a maximum penalty f 5 years imprisonment. She was found guilty of the charges of abandoning a child under the age of 6 years and of causing actual bodily harm with intent.  It was therefore not necessary to come to a decision on the alternative charge of causing actual bodily harm by assaulting.
The offending 
2. 	The accused is a 33 year old mother and the victim is her 5 year old adopted daughter.  In early 2014, the accused and the victim went to Savaii to visit the accused’s’ father and stepmother who live inland of the sub-village of Vaiafai at the village of Iva.  On Friday 7 February 2014, the date of this offending, the accused and the victim had been staying with the accused’s father and stepmother for about a fortnight.  On the morning of that day, the accused’s father and stepmother went fishing leaving only the accused and the victim at their home.  
3. 	In the afternoon of the same day, the prosecution witness Salasalamaua Ape (Salasalamaua) whose open house is about 30 meters from the open house of the accused’s family was weaving a mat when she heard the victim crying loudly.  When she looked up, she saw the accused slapping the victim with her hands inside their house.  Sulusulumua said she saw the accused slapped the victim two to four times.  Sulusulumua further said that after the beating of the victim inside the house, the accused then led the victim out of the house.  They then sat down on the ground near their house and the accused continued to slap the victim about two to four times on the face.  The accused also used a sandal (seevae tosotoso) to hit the victim’s body.  During all that time, the victim was crying.  Sulusulumaua also said that while the accused was beating the victim, she heard the accused scolding the victim for non-hygienic behaviour inside their house.  When the beating of the victim stopped, Sulusulumaua returned to weaving her mat.  However, she soon heard the victim crying out again.  She looked up again and saw the accused holding what appeared to be a “mautofu” and hitting at a sack hanging from an unused electrical wire tied to the branch of a breadfruit tree near the house of the accused’s family.  Sulusulumaua then stood up and watched what the accused was doing.  She said that each time the accused hit the sack with the “mautofu”, the victim would cry from inside the sack.  The accused did this three or more times.  When the accused stopped hitting the sack with the victim inside, she returned inside her family’s house leaving the victim inside the sack hanging from the breadfruit tree.  It was not until about half an hour later when the accused’s father and stepmother returned home from fishing that the victim was let out from the sack.
4. 	The prosecution witness Alofa Maiava, the accused’s stepmother, said in her evidence that when she returned home with her husband, it was about 4:00pm in the afternoon.  It was an unusual sight for her to see a sack hanging from the breadfruit tree near her family’s house.  She therefore went and gave the sack a light slap to find out what was inside the sack and she was surprised to hear the victim answer from inside the sack.  Alofa then took down the sack and let the victim out.  It was fortunate for the victim that there were holes on the sides of the sack to allow in air for her to breathe.
5. 	Alofa further said when the victim came out of the sack she saw abrasions and bruises on her body.  Abrasions appeared on the victim’s hands and bruises were seen on her face.  The victim then said to Alofa that she was hungry.  
6. 	On 9 July 2014, the accused was interviewed by corporal Hilda Saunoa at the Tuasivi police station.  Even though the accused did not want to make a statement, she admitted that she assaulted her 5 year old daughter.
7. 	On Monday 10 February 2014, the victim was seen and examined by Dr Fualautoalasi-Lam at the Tuasivi Hospital.  The doctor in her report produced in evidence by the prosecution says she found the following injuries on the victim: (a) two abrasions (maosiosia) and one bruising (unooa) on the left ear, (b) three parallel, longitudinal bruising each measuring about 6cm along the right upper back, (c) a 2x3cm bruise on the front left shoulder, and (d) healed abrasions along the right elbow.  With some of those injuries, the doctor found evidence of skin penetration which in her opinion suggested the use of force with a blunt object having fine and/or sharp edges to cause to those injuries.
8. 	The accused when giving evidence admitted to beating the victim with a hand broom (salu lima) because of her non-hygienic behaviour inside their house.  She said her intention was to teach the victim a lesson.  She denied that she slapped the victim or hit her with a sandal.  The accused also said that the sack that was hanging from the breadfruit tree was her daughter’s swing (taupega) and she was present at the time her daughter was doing her swing because she is nervous with heights.
9. 	I had decided to reject the evidence given by the accused and to accept the evidence given by the prosecution witnesses as to how the accused had beaten up the victim not only inside and outside of the house but also inside the sack that was hanging from the breadfruit tree. The accused’s stepmother had also testified that it was an unusual sight for her to see a sack hanging from their breadfruit tree and when she took the sack down and let out the victim, she saw abrasions on her hands and bruises on her face. The evidence of Dr. Fualautoalasi-Lam also shows that some of the injuries she found on the victim were consistent with injuries caused from the forceful use of a blunt object with fine and/or sharp edges.
The victim
10. 	Since this incident, the victim has been sheltered and cared for by the Samoa Victim Support Group (SVSG). She does not want to go back to her mother. There is no report on any psychological impact of this incident on the victim.
The accused
11. 	According to the pre-sentence report, the accused grew up in Savaii where she attended school up to year 11. She then left for American Samoa in 1995 and returned to Samoa in 1999. She then had two different jobs as a babysitter until 2004 when she met her present husband. They have no biological children but two adopted children, a boy and a girl who is the victim in this matter. At present, the accused is unemployed.
12. 	The accused is also a first offender and the testimonials from her sister in law, the pastor of her church, and one of her former employers show that she had been a person of good character prior to the commission of the present offences.
13. 	It should be noted, however, that what the accused had told the probation service  that she had pleaded guilty to the charges against her and that her father had passed away prior to this matter are both incorrect. What the accused had told the probation service that the sack that was hung from the breadfruit tree was a swing used by her daughter is also untrue. The questions put by the accused to many of the prosecution witnesses during the trial and the evidence that she gave conveyed the impression that she is not remorseful for what she had done to the victim.
The aggravating features relating to the offending
(a)	Breach of trust
14. 	A child is entitled to trust her mother and to expect protection, love, and affection from her. However, what happened in this case was a significant breach of that trust and expectation and is an aggravating feature relating to the offending.
(b)	The young age of the victim
15. 	The victim was 5 years at the time of the offending and that is another aggravating feature relating to the offending.
(c)	Vulnerability of victim
16. 	At her young age, the victim was totally dependent on her mother which placed her in a particularly vulnerable position. The victim’s vulnerability arising from her total dependency on her mother is another aggravating feature relating to this offending. 
(d)	Cruelty 
17. 	The degree of cruelty involved in the somewhat prolonged beating of the victim,  placing her inside a sack,  hanging her from a breadfruit tree, and  leaving her there in the sack is also an aggravating feature relating to the offending.
(e)	Injuries to the victim
18. 	The injuries sustained by the victim are another aggravating feature relating to this offending. 
 The mitigating features relating to the accused as offender
	Previous good character
19. 	The only mitigating feature relating to the accused as offender is her previous good character as shown from the character testimonials presented on her behalf.
Discussion
20. 	The prosecution has asked for a starting point of 3 years for sentence.  In my view, this is lower than what I would consider to be the appropriate starting point.  Applying the totality principle for sentence and giving respect to the starting point suggested by the prosecution,  I will take a starting point for sentence of 3 ½ years bearing in mind that the maximum penalty for each  of the offences of abandoning a child under the age of 6 years  and causing actual bodily harm with intent is 7 years imprisonment.  I will deduct 3 months for previous good character.  That leaves 3 years and 3 months.
Result 
21. 	For the offence of abandoning a child under the age of 6 years, the accused is convicted and sentenced to 3 years and 3 months imprisonment.
22. 	For the offence of causing actual bodily harm with intent, the accused is convicted and sentenced to 3 years and 3 months imprisonment.
23. 	Both sentences to be concurrent.
24. 	Any time that the accused has already spent in custody is to be deducted from that sentence.
CHIEF JUSTICE