Reported Decision : 116 A Crim R 31 New South Wales Supreme Court CITATION : Regina v Mika and Sagato [2000] NSWSC 852 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70031/2000; 70203/2000 HEARING DATE(S) : 24/07/2000; 11/08/2000 JUDGMENT DATE : 11 August 2000 PARTIES : Regina v Penetito Mika; Regina v Siniue Sagato JUDGMENT OF : Michael Grove J at 1 COUNSEL : B. Newport QC (Crown) I.J. MacElbing, Solicitor (Accused) SOLICITORS : Solicitor for DPP (Crown) MacElbing Mednis & Associates CATCHWORDS : Criminal Law and Procedure - Manslaughter - Primitive Religious Beliefs - Exorcism - Supporting Roles of Offenders DECISION : Sentences Imposed THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION MICHAEL GROVE J Friday 11 August 2000 70031/00 - REGINA v SINIUE SAGATO 70203/00 - REGINA v PENETITO MIKA SENTENCE 1 HIS HONOUR: Each of Penetito Mika and Siniue Sagato has been indicted for the manslaughter on Samani Amete and each has pleaded guilty to that indictment. 2 The victim was aged three years seven months at the date of his death on 17 June 1999. The circumstances were unusual, indeed bizarre, and although it will take some time to describe them, I consider it is appropriate to make some extensive reference to the background which led to the crimes. In so doing I will draw very substantially upon the very helpful statement of facts which was prepared by the Deputy Senior Crown Prosecutor and tendered at the beginning of the proceedings. 3 The offender, Penetito Mika, is a cousin of Matelina Amete, the mother of the victim. The evidence shows that it was she who caused her son to drown by an unlawful and dangerous act when she forced water into his throat. The reason that she did that was that she had become obsessed with the belief that the child had had his body entered by a demon and what she was doing was by way of exorcism. I should mention that Mrs Amete has been tried on a similar indictment, that is to say for manslaughter, but was found not guilty on the ground of mental illness and she would be dealt with in accordance with appropriate statutory requirements. 4 All of the persons relevant to the matter originally come from Samoa. All of them have been exposed during their lifetime to intense religious conditioning. It appears from material which has been gathered that a number of the persons involved have during their lifetimes moved from various christian sects into other sects but at the time of the death of the victim, they were members of what is described as the Samoan Assembly of God Church. This group apparently had a meeting place in the western suburbs of Sydney. 5 It is, I am satisfied, common to the belief of the members of the congregation that the devil exists and that either he or demons allied to him are capable of possession of human beings. I should mention, however, that the evidence shows that the exorcism which was sought to be administered to the child who died was not part of the regular belief of the Assembly of God congregation. 6 Odd behaviour on the part of Matelina Amete was noticed in about mid June of 1999. Mrs Amate's husband, who was the father of the victim, left at about that time to attend the funeral of his father which was being conducted in New Zealand. He was not present, or indeed even in the country, when the tragedy which led to the death of the little boy took place. In a number of conversations at about this time Mrs Amete made comments about the devil and references to the Bible. One of the recipients of these comments was Penetito Mika, her cousin, and Siniue Sagato who is his wife. 7 Another person whose existence should be noted is Mrs Ailaoe Lemalu who is generally known as Peka. It will be convenient to refer to her as such. She was a member of the congregation and apparently had a reputation amongst its members for having some skills in relation to spiritual problems. 8 I interpolate that so far as the church was concerned her official position was no higher in rank than being a Sunday school teacher. However, the growing problem which led to the tragedy began to manifest itself at a service which was being held in a girl guide hall when Mrs Amete indicated a wish for special prayers and blessing and was observed to fall to the floor salivating and vomiting and uttering words which were not able to be understood. She was engaging in strange acts, including scratching at the floor and such words as could be understood seemed to refer to someone or something exercising power over her. 9 From about 17 June 1999, Mrs Amete started to perform actions, the like of which ultimately led to the death. In fact, she and some of her children were at the home of her cousin and his wife, that is to say the present prisoners. One of the first things that needs to be noted is that Mrs Amete spoke of the children being covered by the blood of Jesus and ordering them to get down on the floor and pray. She rubbed the face of her daughter aged about 14 years in the carpet and forced water upon another girl aged a little younger. This caused difficulty in breathing. Peka was present at this time. Later in the evening the child Deborah was pinioned and water was poured from a bottle into her mouth with her mother repeating phrases to the like of, "This is the blood of Jesus" and "Get that devil out of her" and rebukings in the name of the founder of Christianity. The child was old enough to struggle away from her choking. She felt she was blacking out. Her mother then apparently began to apply mouth to mouth resuscitation but thereafter she again lay on the floor salivating I gather in a way not dissimilar to what had been seen in the church hall. It can be noted that at about this time the prisoner Sagato's mother, Seilal Sinafea, arrived with a gentleman called Joseph Frost. Mrs Sinafea no doubt wondered what was going on and, amongst other things, she discovered a bucket containing green liquid and chopped leaves. The leaves were ultimately identified as some form of privet. Peka informed her that this concoction was designed to drive away the devil. It appears that Peka had applied it on occasions to the face and body of Mrs Amete for this purpose. 10 In any event, despite the arrival of Mrs Sinafea and Mr Frost, Mrs Amete gathered everybody into the garage and told them that they should pray. She sent her second daughter, Melissa, one of those I have previously referred to as having gagged upon some water given to her, to get some more water. This was obtained in a large cordial bottle. Mrs Amete began to apply this into the mouth and ears of a child, Simon, and this seemed to restrict his breathing. The prisoners and the woman Peka involved themselves in restraining this child. I am conscious that this particular event is not part of the charge against the prisoners and I am relating it merely as a matter of history leading up to what eventually resulted in death. 11 The assault upon Simon was terminated when Mr Frost came in and told people to leave the boy alone. However, Mrs Amete commenced similar action upon a child, Josephine, aged two years. This activity was again stopped as a result of intervention by Mr Frost. Peka persuaded Mr Frost and Mrs Sinafea to take those children, that is to say Simon and Josephine, to their home and they left. A prayer meeting of sorts again followed. Eventually, the children of Mrs Amete who were present, and these numbered five, retired for the night into a bedroom. For reasons which are not clear, Mrs Amete then told them that they had to move to another room. The children complied although the prisoner, Mika, told his cousin that she should leave the children alone. The little boy Samani, who was the ultimate victim, then began to yell abuse at his mother in the Samoan language. Apparently this persuaded his mother that he had been possessed by a devil and she took this child into another bedroom saying that, "He's the only one that's got the devil in him". Initially, the prisoner Mika said that he would ring the police if she did not stop but later he apparently changed his mind and assisted his cousin in restraining the child. It is hardly difficult to infer that the child was struggling. Melissa was sent to get more water. The child continued to cry and struggle and the prisoner Mika held his mouth open whilst the prisoner Sagato and also the child Deborah held him whilst his mother stood on his chest and poured water into his throat. It was this activity that caused the death. It was observed that a yellow substance issued from the child's mouth and nose. The prisoners have later indicated that they thought that this was an indication that the devil was departing from the body. It is obvious that the child was by now deceased. Although the mother said contradictory things suggesting that the child was now or at least his soul was now with Jesus, but performing other activities such as warming the body and so forth. 12 The conduct of the prisoners which gives rise to their liability for the crime to which they have pleaded guilty is that which I have just described, namely their holding the child whilst the mother poured the water for the purpose of this bizarre form of exorcism. It is not necessary to describe all the detail whereby eventually police came to the premises where the child's body remained and ultimately the whole group went to Bankstown Police Station. 13 Each of the prisoners was interviewed and initially the prisoner, Sagato, admitted that she was present during the incidents concerning Deborah, Melissa, Simon and Josephine but did not admit any involvement in her part. She admitted holding Samani's hand whilst he was struggling. The prisoner Mika admitted that he had helped Mrs Amete pour water down the throat of Samani by holding his mouth open, although he indicated that he had first refused to help. 14 As I have indicated, the principal actor in this tragedy was undoubtedly the victim's mother and she has been found not guilty of manslaughter on the ground of mental illness. The person Peka, whom I consider likely to have made a significant contribution towards the notions which led to the tragedy, was not personally present when the activity which resulted in death took place. I have noted that she was ordered to perform 150 hours of community service for her part in the assaults upon the children Deborah, Simon and Josephine. 15 Each of the prisoners comes before the Court without any prior conviction. They are the parents of four children of their own. I have a number of reports prepared by Dr Roberts, a consultant psychiatrist. These set out some matters of history and some views of Dr Roberts which are somewhat scantily referenced by way of authority. Nevertheless, I think it is a conclusion which I would share that each of the prisoners at the time had a sincere belief in the existence of demons and although they might have had some reservations about what was being done to exorcise considered possession, they nevertheless went along with it. That they did so I think was a result of a combination of lifetimes of conditioning to a variety of beliefs, their relatively unsophisticated background and their holding over a long period of time beliefs that can only be described as relatively primitive. Apart from the current matters, as their absence of prior conviction shows, they are persons of good repute within the community. 16 I have the benefit of two pre-sentence reports, one in respect of each prisoner. In relation to the prisoner Mika, the officer reported that the impression he gained of Mr Mika was that he was a good hearted man of average intelligence with strong but simplistic religious beliefs, particularly about the way that evil forces penetrate and influence human beings. The officer noted that the prisoner was involved in a church which seemed to emphasise spiritual phenomena and that it also preserved Samoan culture and therefore might be adjudged fairly insular and this probably caused difficulty in enabling him to deal effectively with the stresses and tensions of modern industrialised society. Nevertheless, the officer was able to report that the death of the child has affected him profoundly and that he seems anxious to revise his views. 17 In relation to the prisoner Sagato, the officer reported that it appeared that Ms Sagato's actions were carried out in the absence of malice and in a genuine belief that the victim was possessed by evil spirits. The officer further reported that she had shown remorse for her actions and now realised the inappropriateness of her behaviour. She realised the damage caused by the commission of the offence and the impact this has had on the family's future. 18 In relation to both the prisoners, it has been noted that they are deficient to a considerable degree in parenting skills and steps have been taken to have them educated in that regard. For that reason they are presently deprived of immediate custody of their older children, although they have custody of a baby born since the events which bring them before the Court. 19 The prisoner Mika has been employed as a full-time casual factory operator for some 15 months. His employer reports that he has proven to be an excellent worker and as long as there is work available, his employer will make use of his services. As I understand the letter, there is no suggestion that his employment is likely to be terminated. 20 Thus I turn lastly to what should be done in relation to these matters. The death of a human being is always a matter of seriousness. It is an aggravating matter when the victim is a defenceless child. No civilised community can tolerate fanatical beliefs, whether based upon religion or more accurately upon misinterpretation and misapplication of religion, and the prisoners should understand that the matter cannot be dealt with other than in the context of its seriousness. 21 Mr Newport of Queen's Counsel, the Deputy Senior Crown Prosecutor, in his helpful presentation of this matter before the Court has drawn my attention to the decision of the Court of Appeal in Victoria in R v Vollmer & Ors 1996 1 VR 95. That was a case where a number of people attempted to perform an exorcism upon a victim, in this case by applying force to a chest and throat and holding the tongue down rather than the administration of liquid. A number of people were dealt with at first instance in that case for their involvement and it suffices to observe that as nearly as possible as one can draw an analogy with the responsibility of these prisoners for comparison purposes with those involved in that case, the offenders there were sentenced to imprisonment which was either wholly or substantially suspended. 22 It was submitted by the Crown that the seriousness of these offences, that is to say the offence on the part of each prisoner, was such that it should be reflected by nothing less than the imposition of a sentence of full-time custody but that the Crown would not oppose an order for suspension of that sentence. 23 I have given careful consideration to that submission which I have been able to anticipate, given the reference to the case of Vollmer, and I have reached the conclusion that in all the circumstances that is the appropriate course to take. 24 In accordance with the suggestion of the Probation Officer, I propose to include a condition concerning the continued education and skills of parenting of the prisoners. I propose to impose identical sentences but I should do so individually. 25 Penetito Mika, for the manslaughter of Samani Amete, you are sentenced to two years imprisonment. I specify no non parole period as I intend to suspend that sentence for the full term of two years. I order the sentence to be suspended for the period of two years. I further order that the prisoner be released from custody on condition that he enters a good behaviour bond for a term of two years from today upon the following conditions: (1) that he will appear before the Court if called upon to do so at any time during those two years; (2) that he will be of good behaviour; (3) that he will inform the Registrar of the Supreme Court of any change in his residential address; and (4) that he will attend as directed at the Child Protection Family Services or any alternative counselling service to which he may be directed for the purpose of addressing parenting skills. 26 Siniue Sagato, for the manslaughter of Samani Amete you are sentenced to two years imprisonment. I specify no non parole period as I intend to suspend the sentence for the full term of two years. Accordingly, I order the sentence to be suspended for two years. I further order that you be released from custody on condition that you enter a good behaviour bond for a term of two years from today upon the following conditions: (1) that you will appear before the Court if called upon to do so at any time during those two years; (2) that you will be of good behaviour; (3) that you will inform the Registrar of the Supreme Court of any change in your residential address; and (4) that you will attend as directed at the Child Protection Family Services or any alternative counselling service to which you may be directed for the purpose of addressing parenting skills. ********** Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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