The Queen v Epifania Suluape - [2002] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND CA249/01

THE QUEEN

EPIFANIA SULUAPE

Date: 21 February 2002

Coram: Anderson J

Williams J
Baragwanath J

Appearances: K Ryan QC for Appellant

K Raftery for Crown

Judgment: 27 March 2002

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JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

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The appellant was tried by a jury for the murder of her husband. The Crown alleged that on 24 November 1999 she had killed him while he sat in a sleepout at the rear of the family home in South Auckland, by striking him a number of times on the head with an axe. On 22 June 2001 she was convicted of manslaughter, to which she had intimated willingness to plead guilty. She appeals the sentence of 7½ years imposed by the High Court.
The appellant contends that the sentence did not reflect the cumulative effect upon her of a long process of abuse and degradation to which she was especially vulnerable by reason of her ethnic and cultural background and to which her offending was an ultimate response. The Crown’s contention, accepted by the sentencing Judge, was that the killing was committed in cold blood and without significant mitigating elements.

The facts

The appellant, who was 53 years of age at the time of the killing, had then been married to the deceased for 24 years. She had been born on the island of Savai’i and educated to the seventh form in what was then Western Samoa, coming to New Zealand in 1967. Her exposure to New Zealand society had been largely limited to work in rest homes and hospitals as a cleaner or laundress. Her role throughout the marriage was described by Mr Ryan QC, for the appellant, without challenge by Mr Raftery for the Crown, as being governed by traditional Samoan norms
For a woman of that generation – you marry, you make your bed and you lie on it – you keep up the front to prevent shame for the family and in particular your husband.

That role contrasted sharply with that of the deceased, who was well known internationally as a Samoan tattooist and travelled widely, leaving the appellant to bring up the children and look after the household.

The appellant and her first husband had four children. Following his death in 1975 she married the deceased with whom she had five children who at the time of the offence were aged 21, 19, 17, 15, and 13. In addition the appellant had cared for the four children of her first marriage, the deceased’s mother who was confined to a wheelchair, and eight children of the deceased's brother, whose wife had died.
The Probation Officer reported that the marriage had been strained for many years, because of the deceased’s extensive travel and time away from home. While the Judge considered that the degree of physical and emotional abuse allegedly suffered by the appellant had been exaggerated, Mr Ryan told us, without objection from the Crown, that the relationship between the appellant and the deceased involved physical and emotional violence, including bashings, cutting with a machete, infliction of a venereal disease and continued infidelities.

In October 1999 the deceased organised a tattooists convention at Apia which attracted overseas visitors and was of great cultural significance to the Samoan community, in which the appellant’s family in Savai’i were prominent. The deceased was accompanied to the event by a female tattooist, a European woman with whom the deceased had previously formed an association and with whom he there cohabited openly. The deceased’s conduct was a grave insult to the appellant and to her family.
It was common ground that the appellant intended to kill the deceased. The issue at trial was provocation. As perceived by the Probation Officer
The offence demonstrated impulsivity and a low [level] of self-control in a woman whose consistent behaviour would appear to have been the opposite…
Mr Suluape and her husband had a chronically dysfunctional marriage characterised by physical and emotional abuse by her husband, lack of support on his part, an unequal relationship and a history of poor communication and lack of conflict resolution between them. Mrs Suluape had limited social intercourse and she and the children were afraid of Mr Suluape…
Mrs Suluape demonstrated significant anger and violence in relation to the offence. The circumstances and environment may well have generated an anger that became her nemesis. There appears to be no other evidence to suggest that anger and violence were a feature of her behaviour towards others…
Their 24 years of marriage would appear to have been iniquitous and unequal, with Mrs Suluape frequently a victim…Traditional Samoan cultural values also have had an impact in terms of the prescribed roles and behaviour of the leading players and supporting cast. I am told that the traditional ifonga process has taken place between the two families.

The Judge’s approach

In passing sentence the Judge described the homicide as a brutal killing. He said
[6]...You had become aware of the affair in September, two months beforehand. You had been discussing your husband’s intentions with him at various stages during the day while you were both at your home. Matters came to a head towards the end of the day when you had another discussion with your husband. He made it clear he was leaving you for the other woman and would not be coming back. You then went into the house where, on your own account of the matter, you spent between 10 and 15 minutes having a drink of water and talking to the children who were inside the house. You then took an axe and walked out to the sleep-out at the rear of the house where your husband was playing the electric organ. By this time, it was about half past seven. On your own account, your husband did not see the axe and you put it on a chair near where he was sitting. You asked him once more what the position was regarding your marriage. Again he said he was leaving you for the other woman. You then picked up the axe and approached your husband from behind while he continued to play the organ, unaware of the fact that you had an axe. You then struck him on the head with the flat end of the head of the axe and at some point he fell to the ground but you continued to attack him.
[7] The pathologist’s undisputed evidence was that there were at least nine blows to the head, most of which were to the back of the skull, with one to the right forehead which must have been inflicted while he was on the ground. The blows were struck with such force that they shattered the skull in what the pathologist described as comminuted fractures. The evidence was that death would have ensued within a few minutes. At some point you turned the body over and tried to move him. It is not clear whether this was at the time or at some later stage after he was dead.
[8] It was suggested to the pathologist that the number of blows indicated a frenzied attack. He did not accept that suggestion because in that case, he would have expected the blows to have been distributed over a wider area. Instead, all but one were concentrated around the head at the vulnerable part of the skull. I am satisfied that this could not be described as a frenzied attack. It had a strong element of deliberation about it.
[9] Evidence was called for the defence from a registered psychologist who gave her opinion that you were suffering from battered woman’s syndrome at the time of the offending. She described battered women’s syndrome as a type of post-traumatic stress disorder. She was of the opinion that this had arisen from various assaults which your husband had inflicted on you during the course of the marriage. You said yourself that you were subjected to frequent assaults. However, there was a good deal of undisputed evidence from your own children which indicated that the number of assaults were not as great as had been suggested.
[10] Certainly there were assaults at various stages during the marriage but I am satisfied they did not occur with the frequency assumed by the psychologist and referred to by you in your own evidence. The psychologist gave her opinion that you were fearful of your husband and motivated by overwhelming fear at the time you carried out the attack. In evidence, you said your husband had attacked you on that very day but you later modified this to say that you were fearful of such an attack. That was the first time such a suggestion had been made, despite lengthy interviews with the police and despite a previous trial when it was not raised.
[11] I am satisfied that your husband did not assault you on the day of the killing or threaten to do so. Nor was there any reliable evidence that you were acting out of fear on that occasion. Indeed, in your statement to the police shortly after the event, you made it absolutely clear that the attack occurred because you were angry with your husband over the affair. There was nothing in your conduct on the night which suggested you were fearful. At the time of the attack, you were not under any threat whatsoever from your husband, given that he was quietly playing the organ at the time of the attack.
[12] I am satisfied on the basis of the evidence I heard that you killed your husband as a result of his advice that he was leaving you for the other woman. You became incensed and killed him in a fit of anger. In doing so, you knew what you were doing. In view of the jury’s verdict, I must accept for sentencing purposes that the Crown has not excluded provocation as a defence beyond reasonable doubt and that there was a reasonable possibility that you lost your power of self control as a result of the undoubted provocative conduct by your husband. That conduct included not only the affair and his advice that he was leaving, but also the trip shortly beforehand to Samoa where he was accompanied by your 18 year old daughter. I accept that this would have been an insult to any woman, but particularly a person of the Samoan culture.
[13] Your callous conduct after the killing is also a relevant factor in your sentencing. You went inside the house, showered and changed your clothes, and then sat down and watched television with the children before going to bed. The next day you took the younger children to school while your 18 year old daughter was still at home. You did that, knowing that your husband lay dead in the sleep-out in a pool of blood. In the end, it was your daughter who went and found the body the following morning, and the police and ambulance were telephoned. You could have spared her the trauma of that by contacting the police and ambulance the night before, but you did not do that. When you arrived back at the property, you denied any involvement and continued to deny your involvement to the police until you were confronted with the evidence of bloodstained clothing found in your bedroom. At that point you showed the police where the axe was hidden in your bedroom behind some blankets. It still had blood on it. You also co-operated with he police at that stage, showing them how you carried out the killing.
The Judge observed
[15] ...Although the report describes your marriage as being chronically dysfunctional, I have already indicated my view that the degree of physical and emotional abuse alleged to have been suffered by you has been exaggerated.
He concluded
[25] I accept the Crown’s submissions that this case must be regarded at the relatively high end of manslaughter given the brutality of the killing, the number and severity of the blows, and the weapon used. The callous manner in which you acted after the offending is also an aggravating factor.
[26] The main mitigating factors are your age and state of health. Your husband’s provocative conduct is of course taken into account in reducing murder to manslaughter and a further reduction as a mitigating factor on that account is not appropriate. I accept, however, that you have had a difficult life in many respects and that the marriage had been unhappy for some time. I also note your responsibilities towards your younger children and your concerns about them.
[27] In my view, this is a case on the borderline of murder and manslaughter and the jury’s verdict may be regarded as merciful in the circumstances. Where a life is lost, the sentence must recognise the element of general deterrence. I adopt a starting point of nine years and after recognition of the mitigating factors and all other surrounding circumstances, I impose a term of imprisonment of seven and a half years.

The submissions

We received perceptive and helpful submissions from both counsel. Mr Ryan QC submitted that the Judge had focussed too closely on the events of the appellant’s sustained and violent attack on the deceased and not sufficiently on its circumstances, which entailed a response by a woman with an exemplary record who had been subjected to sustained and ultimately irresistible provocation. Mr Raftery emphasised the findings of the experienced Judge who had had the advantage of conducting the trial.

Discussion

The Judge observed
[22] Mr Ryan has … [cited] the Law Commission Report published recently on the issue of battered woman’s syndrome. As I indicated during argument, I fully accept that there is a condition known as battered woman’s syndrome and that in appropriate cases the Court can take that into account in reaching an appropriate sentence. However, for the reasons I have already given, I do not accept that this syndrome is made out on the facts of this particular case.

For the reasons that follow we think that a focus on the so-called “battered woman syndrome” has deflected attention from a related but in the circumstances of this case a much more pertinent consideration of the provocative nature of chronic domestic abuse and humiliation.

There is considerable modern literature concerning the effect of sustained abuse, much of it dealing with women who having been physically abused appear as defendants to prosecutions. The Law Commission’s Report 73 “Some Criminal Defences with Particular Reference to Battered Defendants” referred to by the Judge, is a recent authority which examines the issue. It identifies a human behaviour of submission, for a complex of reasons, to chronic abuse and humiliation. One of many reasons may be cultural impediment to obtaining protection or support from outside the domestic environment. The Commission does not support use of the term “battered women’s syndrome” to describe such behaviour.
But the explicability of the submission is not the real point in this case. The crucial matter, identifiable without requiring recourse to psychological literature, is the cumulative impact on a person of the repeated expression of abuse.
The Law Commission’s discussion makes the point, which we accept, that the absence of brutality on the part of the batterer during the period immediately prior to the victim’s attack does not of itself neutralise the effects of long term abuse or necessarily deprive the victim of an argument for substantial mitigation. Both the history of abuse and the cultural factors are highly germane to an assessment of the appellant’s criminality.
Furthermore, while the defence evidence in this case was founded on the so-called “battered women’s syndrome”, its expert witness did not address the vital element that the appellant was a woman of a traditional culture, to whom much of the analysis in R v Fate (1998) 16 CRNZ 88 is relevant. That was an unsuccessful Solicitor-General’s appeal against the sentence of 2 years imposed for the provoked manslaughter of her husband on a woman who had come to New Zealand from the small island of Nanumea, which is part of the Tuvalu Islands. The facts of that case were much stronger for the defence than those of the present case. Mrs Fate spoke no English and was isolated within a small close-knit Wellington community of 12 or so families. The report records
But there is a reasonably close analogy in the culturally influenced acquiescence in shameful treatment, ultimately erupting in fatal violence.
The Samoan community in New Zealand is of course much more extensive and well integrated than that of the Tuvalu people. The appellant’s personal circumstances and the facts of this case could not warrant the unusually modest sentence in that case for the intentional killing that is entailed in any verdict of manslaughter by reason of provocation. But Fate illustrates the importance of a true perspective of all the circumstances of the offence, which may offer some explanation for a violent killing apparently wholly disproportionate as a reaction to infidelity.
What is relevant here is
·     the exemplary past behaviour of the appellant
·     the sustained pattern of abusive and insulting conduct of the deceased and their progressive cumulation
·     the gross humiliation of the appellant and her family by the deceased’s conduct in Samoa
·     the appellant’s perception, from what seemed to her a position of subordination within her home and her culture, of a lack of realistic options available to her to do anything effective to relieve herself of what had progressively become an intolerable burden.
The Courts do not and must not make light of any deliberate killing. But they do and must take careful heed of the whole of the circumstances in which it was committed. These include in this case the cumulative factors that set the stage for the appellant’s decision to kill her husband as well as the events immediately attending his homicide.
We have reflected on and given full weight to the Judge’s advantage in conducting the trial, but we are satisfied that in focusing on the events of the day of the killing he looked too narrowly at a complex of relevant features. The past history of the relationship and its effects upon the appellant were matters highly material to sentence.
We also have difficulty with the Judge’s assessment of “callous conduct after the killing”. The appellant’s lethal attack upon the deceased was a response to a sustained pattern of conduct by him and we think allowance should have been made for the shock to her of the enormity of her actions after years of submission. There is nothing in her life-time of service to her family in the face of spousal abuse and humiliation to suggest that callousness was any part of her character. It would be wrong to attribute to callousness a shock induced denial which judicial experience suggests is not an uncommon response in circumstances like these.
We are satisfied that a statement by the Judge towards the end of the sentencing remarks was not intended to mean what it appears to say – that the deceased’s provocation having been taken into account in reducing murder to manslaughter, a further reduction to recognise that provocation as a mitigation factor is not appropriate. The Judge reduced the theoretical maximum term, of life sentence, first to a starting point of nine years and then because of the appellant’s age and state of health to 7½ years imprisonment. But we consider that a greater allowance for mitigating factors is required.
The appellant’s conduct seriously infringed the criminal law and requires a substantial term of imprisonment. But the violence and apparent indifference to its results were, as Mr Ryan submitted, more than a jealous response by a jealous wife of her husband’s transferring his affections elsewhere. They were in our opinion to such extent a consequence of the deceased’s treatment of her over two decades, and of her limited perception of means by which it might be resisted, as not to warrant the sentence of 7½ years imposed. Our assessment is that the term must be reduced by 2½ years.

Result

The appeal is allowed and a sentence of five years is substituted for the term imposed by the High Court.

Solicitors
Crown Solicitors, Auckland