State v Joseph [1992] PGNC 90; [1992] PNGLR 238; N1067 (8 May 1992)

N1067

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

FAMBIN DIOFILIA JOSEPH

Kavieng
Jalina J

6 May 1992
8 May 1992

CRIMINAL LAW - Practice and procedure - Infanticide - Indictment for infanticide - Accused convicted of infanticide rather than concealment of birth - Discretion of Judge whether to convict accused of infanticide or concealment of birth discussed.

CRIMINAL LAW - Infanticide - Indictment for infanticide - Plea of guilty - Convicted of infanticide rather than concealment of birth - Sentence - Sentence for infanticide - Linked to sentence for manslaughter - Whether sentence other than custodial sentence can be imposed - Criminal Code ss 301, 302 and 19.

CRIMINAL LAW - Infanticide - Indictment for infanticide - Plea of guilty - Sentence - Object of legislation - Need for protection of newly born infants - Custodial sentence should be imposed in appropriate circumstances.

CRIMINAL LAW - Sentencing - Infanticide - Relevant considerations.

Facts

The accused, who was married with two children, became pregnant with a third child at a time when her husband was in jail. Whilst collecting shells on the beach in the early hours of the morning, she went into labour and gave birth to a child. She was subsequently discovered lying on the beach by villagers and the body of the child was found drifting in the sea sometime later. She pleaded guilty to infanticide.

Held

The trial judge, in sentencing her to two months imprisonment "with hard labour", elaborated on sentencing principles for the offence of infanticide.

Cases Cited:

State v Asamakan [1964] PNGLR 193.
Wamela v The State [1982] PNGLR 269.

Counsel:

S Madana, for The State.
G Gendua, for the accused.
Cur adv vult

8 May 1992

JALINA J: This accused has pleaded guilty to and has been convicted of infanticide pursuant to s 301(1) of the Criminal Code Ch 262.

The brief facts of this case are that the accused, who was married with two children, became pregnant with her third child while her husband was serving a 3 year sentence in jail for an offence occurring out of a land dispute. The father of the child, the subject of this charge, was away in Rabaul. At about 6 o'clock in the morning of the day of the offence, the accused went down to the reef to look for shells as it was low tide. She was almost 9 months pregnant. While looking for shells she saw a fish and threw a stick at it. She then felt pain and tried to return quickly to the house, but on the way she felt that her legs were weak and shaking and she fell down and gave birth to the child. She then wrapped it in a cloth, carried it and was looking for someone who might be nearby to help her, but she felt dizzy, thus resulting in her falling down with the child. She left the child from her grasp and, after lying there for some time she got up and tried to walk, but she fell down again. She was lying there when people from her village were alerted by Nekor Nemet, who was fishing in his canoe some distance off shore that morning. Only the womb was found drifting in the sea. The evidence of Nekor Nemet of seeing the accused stand up and sit down on the reef on more than one occasion is consistent with the version of facts given by the accused to the police in the record of interview.

The accused was carried to the village and then taken to the hospital. The body of a fully developed baby girl was found drifting in the sea sometime later while the accused was in the hospital.

Section 301 of the Criminal Code provides:

"(1) Where:

(a) by a wilful act or omission a woman causes the death of her child under the age of 12 months; and

(b) at the time of the act or omission the balance of her mind was disturbed by reason of:

(i) her not having fully recovered from the effect of giving birth to the child; or

(ii) the effect of lactation consequent on the birth of the child.

She is guilty of infanticide, and may be dealt with and punished as if she had been guilty of the manslaughter of the child.

(2) On the indictment for the offence of infanticide the accused may be convicted of an offence under s 313.

(3) On an indictment for wilful murder, murder or manslaughter, a woman may be convicted of infanticide".

It should be noted that on an indictment for infanticide pursuant to sub-section (1) there is a discretion in the Court pursuant to sub-section (2) to convict the accused of concealment of birth. This discretion must, of course, be exercised in light of the facts and circumstances of each case. Where the facts warrant the exercise of the Court's discretion such that an accused person should be convicted for an offence of concealment of birth rather than infanticide, it is the duty of counsel, particularly counsel for the accused, to bring to the attention of the trial judge, the Court's powers pursuant to sub-section (2).

Having exercised its discretion in favour of either infanticide or concealment of birth, the Court would proceed to consider the appropriate penalty to be imposed. Having exercised my discretion and convicted this accused with infanticide, as it did not appear from the facts that she had concealed the birth of the child but had in fact caused its death through circumstances beyond her control, it is now necessary to determine what kind of punishment would be appropriate upon conviction for infanticide which was committed under such circumstances.

By virtue of s 301(1) of the Criminal Code, the penalty for infanticide is that which is applicable to manslaughter. The penalty for manslaughter pursuant to s 302 of the Criminal Code is life imprisonment subject to s 19. By prescribing life imprisonment as the maximum penalty for manslaughter, Parliament is deemed to have considered this offence to be among the most serious of offences known to the law. By prescribing the penalty for infanticide similar to that of manslaughter, Parliament no doubt considered the offence of infanticide to be as serious as manslaughter. This is clear from what Mann CJ said in R v Asamakan [1964] PNGLR 193 at 198 regarding the intent and purpose of the Infanticide Ordinance 1953 - 1956 which was later incorporated into the Criminal Code Act 1974 (now Criminal Code Act Ch 262).

"The Infanticide Ordinance is expressly to apply to causes where the "balance of mind" is "disturbed". These words are not appropriate to describe the kind of insanity which relieves a person from criminal responsibly for his action. A whole range of emotional disturbances, such as jealously, anger, revenge or lack of self-control, are excluded from section 27, (see Armanasco v Regina), and these are typical of matters affecting mental stability or balance, as distinct from insanity.

I think that infanticide applies to cases where persons, not insane at the time, are so emotionally disturbed that the normal state of mental balance or stability is not fully present to help them resist influences which a person is normally expected by law to resist. It is also relevant, of course, to consider whether the lack of balance (but seemingly not the killing), was due to the effect of childbirth or lactation.

This provision cuts across the general principles of criminal responsibility, and was intended to do so. It is purely statutory in origin, and was introduced to overcome a practical situation in which public opinion regarded this as a unnatural offence and was so adverse to inflicting capital punishment on mothers who destroyed their own infants in these circumstances, that many escaped conviction or sentence in varying degree. Thus, in a roundabout way, the legislation is designed to give more effective and realistic legal protection to recently born infants, and, at the same time, to admit a reduced degree of criminal responsibility in the cases specified.

This legislation has a precise parallel in the statutory effect given to provocation under the Criminal Code."

What I understand his Honour to have meant was that the Infanticide Ordinance was introduced to overcome a practical dilemma that the authorities faced at the time because of the existence of capital punishment for homicide. Whilst on the one hand it was unnatural for a mother to kill her own child and, as such, she should be punished for doing so; on the other hand, because public opinion was against a mother being put to death, they escaped conviction or sentence in varying degrees. In order to provide a more realistic legal protection to newly born infants, it was considered that mothers who killed their children should be held responsible to some degree and be punished accordingly. Otherwise mothers would think that they could still kill their newly born child and go scot-free.

The penalty the courts have imposed for manslaughter has been for a term of years rather than life imprisonment, and these have ranged from 4 - 6 years depending on the circumstances of each case.

Because infanticide is committed less frequently than other kinds of homicide, there are very few reported cases on it, particularly cases on the appropriate penalty to be imposed. With the absence of adequate library facilities at the Kavieng Court House, I have been unable to ascertain the sentences other judges have imposed so as to enable me to determine the appropriate sentence from the range of sentences. The only reported case which I have been able to find and which contains a reference to a sentence for infanticide is Imiyo Wamela v The State [1982] PNGLR 269. That was a case where the appellant appealed to the Supreme Court against his conviction and sentence upon a plea of guilty to wilful murder of a child through his having counselled and procured his step-daughter to kill the child. In that case the appellant had a relationship with his step-daughter from which a child was conceived. Before she gave birth, he informed his step-daughter that she must kill the child at birth, his motive being apparently both shame for his actions and fear of repercussions from his fellow villagers. His step-daughter executed the killing of the child by "breaking its head with a stone". The daughter pleaded guilty to infanticide and was sentenced to ten (10) months imprisonment. She did not appeal against her conviction and sentence, nor did the Public Prosecutor appeal against her sentence on the grounds that the ten (10) months sentence was inadequate. The Supreme Court also made no comment as to its adequacy or lack of it. It, therefore, appears that the imposition of a custodial sentence as well as the duration of such a sentence was appropriate in the circumstances. That sentence was imposed on the mother for "smashing her child's head with a stone". From the facts, the situation that existed in that case as well as the mode of execution of the child's death is different from the facts in this case. A defence of accident does appear to be present in this case, which could have led to her being absolved from criminal liability through an acquittal. I cannot see, on the evidence as it stands, how the prosecution could negative the defence of accident, but the mother has been prepared to plead guilty to a serious offence, no doubt on the advice of Defence Counsel, Mr. Gendua.

The accused is aged 22 years and married with three (3) children. One is aged 6 years, one is aged 3 years and the youngest child is just 12 months old and is still being breast-fed. I noticed when the accused's husband brought the child into court that it is malnourished. Part of the reason for the child being in that state appears to be that it has been living with the accused at the Kavieng Corrective Institution and has been fed with rice and other food not appropriate for a child of such tender years. As this child was born after the child the subject of this charge, I hold nothing against the accused (as I would normally have done) for not thinking about this child before committing this serious offence. She has no prior convictions and has been in custody for two (2) months.

When I consider the circumstances of this case against that which occurred in Imiyo Wamela v The State, where the accused was sentenced to ten (10) months over a planned killing of her child and such killing having been executed in a manner no mother would normally do, I consider that an immediate custodial sentence is not necessary at this stage. This is not to say that a custodial sentence should not be imposed in an appropriate case.

Although this offence is not prevalent, leniency by the courts may lead women into thinking that they can commit a similar crime and go scot-free. Continued leniency may lead to the object of s 301 of the Criminal Code being defeated. Women must be made to realise that a child, once born and alive, has a right to life whether she likes it or not. When a child is born through the union of a man and a woman in the exercise of their free will, the mother should think twice before she kills the child, and if she does so, she must face severe consequences, including imprisonment. The kind of infanticide committed in Imiyo Wamela's case should, with respect, attract a penalty of at least 4 to 5 years, for it appears to be not only unnatural but cruel for a mother to "smash" the head of her own baby, helpless and innocent as it was at the time, with a stone. Infanticide by strangulation should attract a penalty of 3 - 4 years, as it is again cruel to do so to a helpless child. Infanticide by abandonment should attract a penalty of 2 - 3 years, since it shows a lack of motherly love for the child. A mother who causes the death of her child through any of the actions I have described should not be allowed to escape punishment or be given very low sentences because of the protection given to her by the law relating to infanticide.

In the circumstances of this case, however, I consider the appropriate sentence to be one that does not require an immediate custodial sentence for reasons I have given above. In light of the sentence in Imiyo Wamela's case, I sentence this accused to two (2) months imprisonment in hard labour. As she has spent two (2) months in custody, I consider that period to be sufficient punishment. I, accordingly, sentence her to the rising of the court, which will take place now.

_____________________

Lawyer for The State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.