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Chief Justice sentences father to one year in jail for death of infant son

reporters@samoanews.com

“The court understands that no parent plans or intends to kill his or her own child, but that doesn't minimize the crime. The crime is when you transport a child of a certain age in a vehicle — thou shalt restrain” — said Chief Justice Michael Kruse before handing down sentencing for Fireman Iuliano Tavale, who pled guilty in connection with the death of his one-year old son in a traffic incident two years ago.

Tavale was sentenced to one year in jail as part of his three-year sentence. The defendant was initially charged with manslaughter and homicide by vehicle, however in a plea agreement with the government, Tavale pled guilty to an amended charge of criminal negligent homicide, a class D felony punishable by a term of imprisonment of up to 5 years and/or a fine of up to $5000.

During sentencing, the defendant apologized for breaking the government’s law and also apologized to the mother of his son. Tavale pleaded with the court to allow him the chance to continue caring for his parents, his church and also continue his service to the people of American Samoa as a firefighter.

The defendant’s uncle took the stand informing the court that a traditional forgiveness ceremony, an “ifoga” had been conducted and he was the presenter. The uncle said that the ifoga was accepted by the family of the victim. He added that the defendant and his family presented fine mats, provided the casket and paid the expenses for the food during the funeral.

The uncle told the court that the defendant was a committed member of the church, the choir and the youth group and also takes care of his elderly parents. He said that Iuliano was never a trouble maker.

He further stated that the ifoga was conducted for the purpose of keeping the peace, and for the sake of forgiveness between the victim’s family and the defendant’s family.

This was done without any regard to the justice system, said the uncle.

The defendant’s father, a former Catechist, also took the stand, telling the court the defendant is the youngest of his children, he’s single, employed and also cares for them. He pointed out that all his children are married, but his son Iuliano told them that he will take care of them.

The father said Iuliano is dedicated to his job at the Fire Bureau with the Department of Public Safety, and many times he worked overtime without being paid, yet he still worked. He further said the defendant is the main provider for the family, and the person who pays the bills.

The father also informed the court that he (the father) is a dialysis patient and he pleaded to the court that they need Iuliano at home. The father noted that the incident brought pain not only to the victim’s mother, but also to him and his wife, given that their grandchild passed away as a result of the unintentional incident.

Acting Public Defender Leslie Cardin, representing Tavale told the court this is a tragedy and a sad situation which is heart breaking. “I can’t think of a greater punishment than to lose your child and to be the one responsible for it,” she said. “This is the burden that he will carry for the rest of his life”.

Cardin reminded the court that the incident was not intentional.

She stated that she sees on island many people who do not restrain their children while in a moving vehicle. “There is no prison term that the court can impose on the defendant worse than the punishment he’s already suffering,” she said.

The Acting PD asked that the defendant be placed on probation, saying that perhaps he could be a spokesman for youth events, where he could talk about the importance of child safety restraints, and maybe this would be of help so other families will not go through this pain.

Assistant Attorney General Julie Pasquale, who was prosecuting, called to the stand the victim’s great aunt, who cared for the baby that died in the incident. Pasquale informed the court the mother of the child was unable to come to the court given that she’s in the hospital.

The aunt told the court that their family up to this day are still mourning the death of her nephew. Regarding the ifoga, the aunt said in the Samoan culture, someone from the other family is covered with a fine mat, yet this was not the case in the ifoga that was conducted by the defendant’s family. According to the great aunt, they only presented traditional suas including fine mats.

“He was only a year old when the incident happened and I myself am still having a hard time coping with what happened because I was the one who took care of him on a daily basis. Even his mother is having a hard time since the incident,” she said.

The Chief Justice noted that the underlying conduct that gave rise to the defendant's conviction is that on July of 2010 he drove his 1-year old son in his pickup truck without restraining the child in a safety seat. “These are the consequences, at some point in the process of transporting the child, the child suffered traumatic injury that eventually led to his death,” said the Chief Justice.

The mitigating factors for Tavale in this case were his ready admission to the crime, his background, and that he's a contributing member to society.

Kruse said the facts of the case as highlighted by the defense counsel are that this is a tragic situation; it's quite obviously fraught with emotion, and setting aside the emotions, “the court understands that no parent plans or intends to kill his or her own child, but that doesn't minimize the crime.”

“The crime is when you transport a child of a certain age in a vehicle — ‘thou shalt restrain’. And obviously, there was a reason why the Fono passed that, and that reason was to secure the safety of the most vulnerable of our society, the individuals who can't think or fend for themselves.”

“So the argument that 'no parent intends to kill a child' is mixing apples and oranges,” he said. Kruse further stated that what was on purpose or intentional was omitting to restrain this child and the breaking of that law was very intentional and, unfortunately, the consequences speak for themselves.

Kruse agreed with Acting PD Cardin, that he, too, sees a lot of adults who have kids on one hand and the other on the steering wheel, so the fatal consequences of this crime, failing to restrain, is not minimized by the argument that the parent has suffered enough and never intended to kill the child.

“The submission that deterrence is not appropriate because obviously the defendant would never contemplate another incident like this is a little desperate; it’s a sad commentary if a person will only obey the law after killing somebody. He said apart from the parent’s dependency on the defendant, the other side, the countervailing side of the ledger is that we must look at all children similarly situated.

“So we've got to tell parents that having one hand on the steering wheel, the other hand on the child — that the grief of losing a child is not going to minimize the consequences of breaking that law,” said Kruse.

The defendant was sentenced to three years in jail, however execution of sentence was suspended and he’s placed on probation for a period of five years under certain conditions.

The defendant was sentenced to serve one year in jail without any release what-so-ever unless ordered by court or for genuine medical release, he must pay a fine of $2,000 and at the expiration of six months in jail the defendant will take up work release with the Warden. If work release is granted, he would be allowed to work from Monday to Friday, from 6AM to 6PM.

Additionally, the defendant’s drivers license will be revoked for 24 months and following that he has to undergo driving courses with the Office of Motor Vehicle before his driver’s license is returned to him.



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