State v Rose [2008] PGNC 294; N3870 (13 November 2008)

N3870

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1215 of 2008

THE STATE

-V-

MATUANU SERIMA ROSE

Buka: Kandakasi, J.
2008: 12th &13th November

CRIMINAL LAW –Sentence – Concealment of birth of a child – Child dying shortly after birth – Dead body wrapped, placed in a bag and hung at home – Parents and relatives not treating prisoner and her other children well – Husband killed in a fight – Guilty plea – First time offender – No serious aggravating factor – Pretrial custody period of 6 months sufficient sentence – Prisoner sentenced to the rising of the Court – Sections 313 and 19 of the Criminal Code.

Cases cited:

The State v. Suwaire Mary Kua [2000] PNGLR 249

Counsel:

D. Mark, for the State
P. Kaluwin, for the Accused

DECISION ON SENTENCE

13th November, 2008

1. KANDAKASI J: Matuanu Serima Roses, the prisoner, pleaded guilty to a charge of concealment of birth of a male child contrary to s.313 of the Criminal Code. She submitted through her lawyer that a period of six months she has already spent in custody awaiting her trial is sufficient punishment and has thus argued for her to be sentenced to the rising of the Court. The State did not make any submissions to the contrary.

2. The issue for me to decide therefore is, is the period of 6 months already spent in pretrial custody sufficient punishment for her? This issue can be resolved by reference to the relevant facts, the sentencing trend, if any, for the offence under consideration and factors operating for and against her.

Relevant Facts

3. The first factor to consider then is, what are the relevant facts? The facts are straightforward. Mutuanu is a mother of 5 children. She is a widow, her husband being killed in a fight sometime ago before the commission of the offence. She had difficulty with her relatives including those from her own now deceased husband's side. The relatives did not treat her and her children well and made her and her children unwelcome. She was at the relevant time pregnant with her sixth child.

4. Given the kind of negative treatment, Matuanu and her children were receiving, she was in a dilemma of either delivering her sixth child and let that child go through the kind of treatment those ahead of him were receiving or somehow avoid it. On 12th February 2008, her labour pain came and she went into a bush quite far away from the village and the house she and her other children were staying. There, she gave birth to a life male child. However, soon after his birth, the child died. Matuanu, then wrapped up the dead body of the new born child and put it in a bag. She took the bag home with the dead child in it. When she got home, she hung the bag in the house and she left out of fear for her life. Later, her relatives discovered the bag with the dead child in it. They took the dead body out and buried it.

5. Matuanu's relatives on her deceased husband's side reported her to the police. Based on that report, the police arrested her and remanded her in custody form 8th May 2008. She is now before this Court as a remandee.

The Offence and Sentencing Trend

6. With these facts in mind, I now turn to the offence and its sentencing trend. Section 313 of the Criminal Code creates and prescribes its penalty for the offence of concealment of birth of a child. It is in the following terms:

"313. Concealing the birth of children.

A person who, when a woman is delivered of a child, endeavours, by any secret disposition of the dead body of the child, to conceal the birth, is guilty of a misdemeanour whether the child died before, at or after its birth.

Penalty: Imprisonment for a term not exceeding two years."

7. As can be seen, this is not a serious crime. It is only a misdemeanor punishable up to a maximum of 2 years imprisonment. Under s.19 also of the Criminal Code, there is an unfettered discretion in the Court to impose sentences well below the prescribed maximum. It is now well established law in our jurisdiction that, the maximum prescribed sentence must be reserved for the worse type of the offence under consideration.

8. Both counsel were not able to assist me with any case on point, saying, this was the first time they came to deal with a case like this. This is also my first time to deal with such a case. However, I managed to do a bit of research overnight. That took me to the decision of my brother, Kirriwom J., in The State v. Suwaire Mary Kua.[1]

9. In the above case, His Honour considered a period of 5 months already spent in custody by the prisoner was sufficient punishment and sentenced her to the rising of the Court. The facts in that case were similar to the present. The prisoner's husband passed away and she was forced to marry one of her deceased husbands' brothers. Things did not go well because her new forced husband was already married and his wife was also opposed to the forced marriage. That caused the prisoner to force her new forced husband to go and live with his wife and she lived on her own. Unfortunately, before that, she had already become pregnant with her forced husband's child. Seven months into her pregnancy, she felt labour pain so she went into the nearby bush and delivered a child who fell to the ground during delivery and died as result of the fall.

10. The prisoner was in no position to help or otherwise avoid the fall of the child as she was very weak. Later, on realizing the child had died, the prisoner took the child to a nearby cemetery and buried it. She did that to avoid shame and ridicule for marrying though against her will to another man soon after the death of her husband and becoming pregnant and delivering a child.
    

Factors For and Against Matuanu

11. I will allow myself to be guided by the above case in order to arrive at an appropriate sentence in the case before me. Additionally, it will be necessary to take into account the factors operating both for and against Matuanu. Turning firstly to the factors against her, I note there is none save only the commission of the offence. Even then, she did not actually conceal the birth of her child completely. She wrapped the dead body of the child and put it in a bag and took it to the house where she used to stay and hung it there. If she really wanted to conceal it completely, she would have disposed of the child but she did not.
    
12. She does have a good number of mitigating factors operating in her favour. Firstly, she is a first offender. That means, she has not been in trouble with the law in the whole of her live. She has therefore stepped out of character and committed this offence. I find however that, she was forced to do what she did because of the pressure exerted on her by her relatives. I note that, her relatives reported her to the police and wanted her to be locked away after putting her under much pain and trouble. In that way, they contributed to her commission of the offence. There is no evidence of what steps, if any the relatives have taken to share in the punishment or making things right for Matuanu, her children and others that may be affected.
    
13. Secondly, Matuanu pleaded guilty to the charge. That saved the State much time and resources that it could have been spent to secure her conviction. It also saved the Court much time and trouble, arriving at a decision on her guilt or innocence.
    
14. Thirdly, the State has not alleged and Matuanu did not plead guilty to any allegation of killing the child and then trying to conceal his birth and the commission of her offence. If she did that, that could have been far worse and could have easily attracted the maximum penalty or a sentence closer to it.
    
15. Finally, I note that, Matuanu, is not an educated person and a person of some means to help avoid the pressures that were exerted on her or seek and secure help from outside her immediate community and her relatives. She was in her own little unsophisticated world with no option but do what she did.
    
16. Carefully considering and weighing all of the foregoing factors, I consider an appropriate punishment for her to be no more than a short few months. I note that, she has already spent 6 months in custody awaiting her trial. I consider that is more than sufficient penalty for the offence she committed. Accordingly, I sentence her to the rising of the Court.
    

_____________________________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

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^[1] [2000] PNGLR 249.