State v Elotesa [2007] PGNC 263; N5054 (17 August 2007)

N5054

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 501 0F 2007

THE STATE

V

ELIZABETH ELOTESA

Kimbe: Cannings J
2007: 18 July, 7, 17 August

SENTENCE

CRIMINAL LAW – sentence – infanticide – woman strangled to death her new-born baby immediately after birth – guilty plea – sentence of 8 years.

A young woman gave birth to a baby boy and strangled the baby immediately after birth, causing him to die. She threw the body over a cliff. She was distressed as the man who made her pregnant had promised to marry her but broke his promise and married another woman, leaving her alone and distraught.

Held:

(1) Under Section 301 of the Criminal Code a woman guilty of infanticide may be dealt with and punished as if she were guilty of manslaughter of the child. Accordingly the maximum penalty is life imprisonment.

(2) The practice has been to impose sentences considerably lower than the normal range of manslaughter sentences, reflecting the community view that a woman who kills her own baby is invariably in a disturbed, distressed or distraught emotional state, requiring compassion and sympathy from the law as well as punishment for taking away a human life. A fair starting point for sentencing purposes is eight years imprisonment.

(3) Mitigating factors in the present case are: death inflicted swiftly; child killed immediately; spontaneous act; co-operated with police; pleaded guilty; remorse; first offender; desperate personal situation.

(4) Aggravating factors are: child not handicapped; not pressured by anyone; child conceived consensually; not born in a remote location; undignified disposal of body; did not give herself up; no customary punishment; not a youthful offender.

(5) A sentence of 8 years was imposed. The pre-sentence period in custody was deducted and 4 years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Imiyo Wamela v The State [1982] PNGLR 269
Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Daniel Ronald Walus (2005) N2802
The State v Fambin Diofilia Joseph [1992] PNGLR 238
The State v Jacklyn Boni CR No 786 of 2005, 08.09.05

SENTENCE

This was a judgment on sentence for infanticide.

Counsel

F Popeu, for the State
B Tanewan, for the offender

17th August, 2007

1. CANNINGS J: This is a decision on sentence for a woman, Elizabeth Elotesa, who pleaded guilty to infanticide from the following facts. On 11 March 2007 she was living and working at the Navo Oil Palm Estate in the Bialla area of West New Britain Province. She was pregnant and at midnight felt labour pains. She went to the shower where she gave birth to a baby boy. She immediately strangled the baby, causing him to die, then wrapped the body in some clothes, walked 120 metres to the edge of a cliff and threw the body over the cliff. The body was found three days later by passersby. She had a disturbed mind, not having fully recovered from the effect of giving birth to the child. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted her of infanticide.

ANTECEDENTS

2. She has no prior convictions.

ALLOCUTUS

3. The offender stated:

I apologise for what I have done. I ask God for mercy and forgiveness. In that time of temptation I did not remember God's words. It was my own heart that made me fail and commit this sin. Once again I apologise. This is my first time to be in court. I will not do such a thing again.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). She cooperated with the police and made a full admission when interviewed a few weeks after the incident. When asked why she did it, she told the police "I don't want to look after him". However, there is a more extensive explanation in the pre-sentence report prepared by the Community Corrections and Rehabilitation Service. The father of the child was a security guard at Navo with whom she had a relationship. She says that it was a serious relationship and the man promised to marry her but reneged on his promise after she fell pregnant and entered a relationship with another woman. The offender had been married once before, but the marriage failed, her husband abandoned her and is now living in Rabaul. She has one child from that marriage and she was overcome by the prospect of bringing up another child as a single mother in the absence of the child's father who had married someone else. The prosecutor did not take issue with that version of events, so I will act on it.

PRE-SENTENCE REPORT

5. Other matters revealed by the pre-sentence report are set out below.

ELIZABETH ELOTESA: female, aged 32 years.

Residence: At the time of committing the offence she was living with her brother, an ambulance driver, at Navo in company-owned accommodation.
Family background: her parents are from the Mamosi area, WNBP.
Marital status: presently single with one child, her marriage having failed several years ago.
Education: grade 6, Sereguna Community School, 1995.
Employment: at the time of the offence she was employed by Hargy Oil Palms as a fruit collector – it was her first time in paid employment – has been told she can come back to work any time she wishes.
Health: OK.
Financial status: her job was providing her only source of income.
Plans: return to work and raise her child.
Offender's family's attitude: her two brothers are angry and ashamed of what she did, but understand why it happened and will support her if she is given a non-custodial sentence.
Religion: Catholic – attends church regularly.
The deceased child's biological father: he was interviewed and admitted the child was his – but has no intention of renewing the relationship with the offender – he prefers to stay with his current wife – will participate in any customary obligations regarding the child.
Attitude of community: the offender is well regarded at Navo.
Assessment: a low risk offender.
Recommendation: suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanewan asked me to follow the sentencing guidelines in The State v Fambin Diofilia Joseph [1992] PNGLR 238 and impose a sentence of three or four years, most of which should be suspended in view of the number of mitigating factors and the explanation the offender gave for committing the crime.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that a sentence of five or six years would be appropriate. The sentence must reflect the fact that a life has been lost. Only a partial suspension of the sentence is warranted.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what is the head sentence?
• step 4: should the pre-sentence period in custody be deducted?
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 301 (infanticide) of the Criminal Code states:

(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 an indictment for the offence of infanticide, the accused may be convicted of an offence under Section 313.

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

10. The maximum penalty is the same as the maximum for manslaughter which, under Section 302 of the Criminal Code, is life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. Section 301 of the Criminal Code invites the court to punish a woman for infanticide in a similar way as if she were being punished for manslaughter. Though the maximum penalty is life imprisonment the practice has been to impose sentences considerably lower than the normal range of manslaughter sentences, reflecting the community view that a woman who kills her own child is invariably in a disturbed, distressed or distraught emotional state, requiring compassion and sympathy from the law as well as punishment for taking away a human life. The Supreme Court has not given sentencing guidelines for infanticide and there are very few published decisions of the National Court on the subject. Jalina J made some suggestions in The State v Fambin Diofilia Joseph [1992] PNGLR 238:

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 realize 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.

12. His Honour was thus saying that the sentence should generally be two to five years imprisonment depending largely on the method of killing the child. I have a slightly different view. I think that the method of killing, though a major factor, is only one of a range of considerations that should be taken into account. I consider it more appropriate to fix a single starting point and apply the mitigating and aggravating factors to it, when deciding whether to impose a lower or higher sentence or to leave the sentence at the starting point. The starting point I will use is eight years imprisonment. That is higher than the upper range proposed in the Joseph case but I consider the increase is justified by the general trend since 1992 towards heavier sentences for all sorts of homicide cases (wilful murder, murder and manslaughter, in addition to infanticide). Judges have commented in many cases over the last 15 years that our society has undervalued the sanctity of human life. Imposing heavier sentences for unlawful killings is an attempt to bolster the right to life, which under Section 35 of the Constitution is one of the fundamental human rights of every person in Papua New Guinea.

13. There are two other reasons I have selected eight years as a starting point. First, under the sentencing guidelines for manslaughter given by the Supreme Court in Manu Kovi v The State (2005) SC789, the lowest starting point range, for the least serious manslaughter cases, is eight to twelve years. Secondly, a sentence of eight years imprisonment is the lowest manslaughter sentence I have imposed for a single offender in recent times in this province. The highest sentence was in The State v Daniel Ronald Walus (2005) N2802. A young man pleaded guilty to manslaughter of his sister-in-law. He got angry with her as she allegedly swore at his wife and punched and kicked her to death. He was sentenced to 18 years imprisonment. The lowest sentence of eight years was in The State v Jacklyn Boni CR No 786 of 2005, 08.09.05. A young woman had a domestic dispute with her husband over a trivial matter and in the course of the fight slapped him on the back with a tree branch, rupturing his spleen. It would have to be an exceptional case, in my view, for a conviction of manslaughter to result in a sentence less than eight years.

14. A starting point of eight years strikes a balance between on the one hand the need for the court to impose, and be seen to impose, a significant penalty on a person for taking away another human's life and on the other hand the need to show compassion for a woman who in a disturbed emotional state has killed her own child and may well be emotionally scarred, ridden with guilt and shame by what she has done, for the rest of her life.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances in which the woman killed her child. Numbers 9 to 13 focus on what the offender has done since the incident and how she has conducted herself. Numbers 14 to 16 look at the personal circumstances of the offender.

1. Did the offender inflict death in a swift manner? This factor relates to the criterion highlighted in the Joseph case. If the child is killed instantly, in a way that minimises suffering, this would be a less serious case than if the child were put to a slow and agonising death or tortured.
   
2. Was the child killed immediately after birth? If yes, that may be a mitigating factor. It would seem that the older the child (bearing in mind that infanticide can only be committed if the child is under the age of 12 months) the more serious the offence would be; as the older the child the more its cognitive skills are developed and the more likely that it is able to feel pain and be disturbed by the actions of its mother.
   
3. Was the child suffering a major handicap, substantially impairing his or her life expectancy or quality of life? If a woman discovered that her child was suffering a serious and permanent mental or physical handicap, the offence might be categorised as a 'mercy killing', and this might in a special case be a mitigating factor.
   
4. Was the killing of the child a spontaneous act? If yes, this would appear to be a less serious case than if the death of the child were planned or pre-ordained. In Imiyo Wamela v The State [1982] PNGLR 269 a man had a sexual relationship with his step-daughter from which a child was conceived. He instructed his stepdaughter to kill the child at birth, his motive being both shame for his actions and fear of repercussions from fellow villagers. She did as she was told and killed the child. She pleaded guilty to infanticide and was sentenced to ten months imprisonment. The man was convicted of wilful murder, as he counselled his stepdaughter to kill the child. He was sentenced, on appeal, to five years imprisonment, the high degree of pre-meditation in the child's killing being an apparent aggravating factor.
   
5. Was the offender pressured by someone in authority to kill the child? If yes, this may be a mitigating factor, as in the Wamela case, where the woman was given a relatively light sentence.
   
6. Was the child conceived as a result of non-consensual sex? If yes, this may be a mitigating factor. For example, a woman made pregnant as the result of a rape might be so distraught as to want to kill the child.
   
7. Was the child born in a remote location or a place where the child could not be expected to survive if the offender elected not to look after it? And would it have been difficult to find a childless couple, who customarily are often keen to adopt unwanted children? If yes, this might be a mitigating factor. If no – where for example the child is born close to a hospital, such as in Kimbe or Port Moresby – the option of leaving the child somewhere where it could be found and cared for is readily available; and this would seem to make it less justifiable to take away the child's life.
   
8. Did the offender dispose of the child's body in a dignified manner? If yes, this may be a mitigating factor. It would be a less serious case than a woman who aggravated the lack of respect for human life by dumping the child's body in a rubbish bin or in a public place, where it might be discovered and be upsetting to innocent people.
   
9. Did the offender give herself up after the incident? If yes, this should, as with all offences, be a mitigating factor.
   
10. Did the offender cooperate with the police in their investigations? If yes, this should, as with all offences, be a mitigating factor.
    
11. Has the offender been punished or has the problem that resulted in the death been dealt with in some other way? Perhaps if the child is killed in a village environment, local custom may have already been applied to accommodate the problem. If so, this may be a mitigating factor.
    
12. Has the offender pleaded guilty? This is always a strong mitigating factor.
    
13. Has the offender genuinely expressed remorse? This is always a strong mitigating factor.
    
14. Is this her first offence? This is always a strong mitigating factor.
    
15. Can the offender be regarded as a youthful offender or are her personal circumstances such that they should mitigate the sentence? If, for example, the offender were a teenage girl, this may be a mitigating factor.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? This provides an opportunity to consider any other mitigating factors not captured by the previous questions.
    

16. I will now apply the above considerations to the facts of this case.

1. Yes, the offender inflicted death in a swift manner by strangling the child.
   
2. Yes, the child was killed immediately after birth.
   
3. No, there is no evidence that the child was handicapped.
   
4. Yes, the killing of the child seems to have been a spontaneous act.
   
5. No, the offender was not pressured by anyone to kill the child.
   
6. No, the child was not conceived as a result of non-consensual sex? She had a consensual relationship with a man who reneged on his promise to marry her.
   
7. No, the child was not born in a remote location. The offender was living at Navo. A clinic was close by. Indeed, her brother, in whose house she was living, is an ambulance driver. It was easy for her to get help.
   
8. No, the offender did not dispose of the child's body in a dignified manner. She threw it over a cliff and the body was not discovered until three days later.
   
9. No, she did not give herself up.
   
10. Yes, she cooperated fully with the police.
    
11. No, the offender has not been punished nor has the problem been resolved through custom.
    
12. Yes, she pleaded guilty.
    
13. Yes, her remorse is genuine.
    
14. Yes, this is her first offence.
    
15. No, she is not a youthful offender.
    
16. Yes, there are other circumstances that warrant mitigation: she was in a desperate personal situation due to her failed marriage and the failed relationship with the child's father. She was distraught and felt shame at the prospect of bringing up the child as a single woman, in the absence of the child's father who reneged on his promise to marry her.
    

17. After weighing all these factors and bearing in mind that there are eight mitigating factors and the same number of aggravating factors, the head sentence should stay at the starting point of eight years.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is four months and three weeks.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. Yes, the pre-sentence report is favourable and the offender is recommended for probation. I consider that half the sentence should be suspended. That will mean that the offender will spend a considerable time in custody, marking the community's condemnation of the offence. She will then be released to serve the rest of the sentence outside prison, which will appropriately put her under the continuing supervision of the court for a few years. The following conditions will apply:

1. must reside at Navo or another place approved by the court and nowhere else except with the written approval of the National Court;
   
2. must not leave West New Britain without the written approval of the National Court;
   
3. must perform at least six hours unpaid community work each week at her local church under the supervision of the Parish Priest;
   
4. must attend the Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;
   
5. must report to the Probation Office at Kimbe on the first Monday of each month;
   
6. must not consume alcohol or drugs;
   
7. must keep the peace and be of good behaviour;
   
8. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;
   
9. if the offender breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.
   

20. If any of the conditions are inappropriate an application can be made to the court for variation.

SENTENCE

Elizabeth Elotesa, having been convicted of one count of infanticide, is sentenced as follows:

Length of sentence imposed	8 years
Pre-sentence period to be deducted	4 months, 3 weeks
Resultant length of sentence to be served	7 years, 7 months, 1 week
Amount of sentence suspended	4 years
Time to be served in custody	3 years, 7 months, 1 week

Sentenced accordingly.
__________________________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the offender