Common law on sentencing
The defendant (D) and his wife lived with their two young grandchildren. One morning, the children woke at 5am. The wife was unable to get the children back to sleep, so she returned to bed and went to sleep. This angered D, who violently kicked his wife several times in the jaw. She died from the injuries. D pleaded guilty to manslaughter. The Supreme Court considered the appropriate sentence.
• What was the appropriate sentence?
The court considered that the crime was aggravated by the fact that D had killed his wife, and by the fact that it was caused by an unprovoked and violent act. The court stated that:
There seems to be a notion that in twenty first century (21st C) Samoa, assaulting your wife should be tolerated if she fails in her ‘wifely duties’. To those misguided enough to hold such an antique view and belief the court sends this strong message – no this sort of conduct is no longer acceptable and will not be tolerated.
To emphasise the seriousness of the offence, the court increased the ‘starting point’ for the sentence for manslaughter of a wife from eight years to ten years imprisonment. However, D’s guilty plea required a deduction of 3 years, and D’s previous good record plus the ifoga and customary settlement he made to the family of his late wife warranted a further reduction of one year. In the result, D was sentenced to six years imprisonment.
The court displayed considerable awareness of the gender based aspects of the violence in this case. First, the court rejected any notion that it was somehow acceptable for a man to use violence against his wife. Rather than being an extenuating factor, which might justify a lesser sentence, the court ruled that it made the offence more serious. The court also refused to accept any suggestion that the violence had been provoked by the wife undertaking her child care responsibilities in a manner that her husband found unsatisfactory. These pronouncements represent the kind of judicial response to domestic violence expected by international human rights norms, as set out in the case of Opuz v Turkey (reported earlier in this volume).
The only lingering concern from a human rights perspective was the reduction in sentence allowed for D’s apology and customary settlement with the victim’s family members. It has been noted in an earlier volume of this Digest (2 PHRLD 35) that allowing customary reconciliation to be used in mitigation in cases of gender based violence is discriminatory against women, as the overwhelming majority of offenders in such cases are men. Further, the victim’s opinion is often not considered (more so in this case, where the victim was deceased) and the remorse of the offender often plays little part in the process.