State v Talim [2010] PGNC 40; N4041 (19 May 2010)

N4041

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. 358 of 2009

THE STATE

V

VUVU FRIDA TALIM

Kokopo: Sawong, J.
2010: 12 & 19 May

CRIMINAL LAW – Particulars of offences – Concealing birth of child – s 313
Criminal Code – Sentence – Plea – 18 months in remand

CRIMINAL LAW – Sentence – Concealing birth of child – Sentenced to time spent in custody – Discharged.

Cases Cited

State v Meni Heti [1977] PNGLR 173
State v Suwaine Mary Kua [2000] PNGLR 249

Counsel

Mr. N. Miviri, for the State
Mr. M. Efi, for the Accused

19 May, 2009

1. SAWONG J.: On the 12th of this month, you pleaded guilty to a charge under section 313 of the Criminal Code for concealing the birth of your dead new born child.

2. The facts of your case are very simple and quite clear. You are an unsophisticated villager, living in the village. You were engaged to a man from your village. Unfortunately that engagement fell through. As a result of that engagement, you become pregnant. After the engagement was broken off, you continued to carry the baby.

3. One night you were suffering from some illness and you went to the toilet several times during the night to relieve yourself. On the third occasion in the course of going to the toilet you felt labour pains and gave birth to the child. The baby’s life was short lived for immediately after it was born, it died. When you saw that you then went and got a spade and came and dug a small hole in a secluded place, covered the baby with a laplap and buried it. No one in your family knew that you were pregnant. Obviously you were embarrassed by what had happened and you did what you did.

4. Section 313 says that anyone who conceals or hides a baby after it is born, he or she may be sent to jail for up to two years imprisonment. There are not many cases in Papua New Guinea on this particular subject but I have found two cases which are to the point. First, the State v Meni Heti [1977] PNGLR 173, where Kearney, J. (as he then was) convicted the prisoner and sentenced her under Section 19(1)(f) of the Code and discharged her. The facts are quite similar to your case.

More recently in the State v Suwaine Mary Kua [2000] PNGLR 249, Justice Kirriwom sentenced the prisoner to the rising of the court.

5. There are a number of good things which are in your favour. First you pleaded guilty, secondly you are a first offender, thirdly, you said sorry to the court and to your own relatives. But, more importantly, I think this is going to live with you for as long as you live; that is that what you did is going to live with you. Like all mothers when a child dies, there is an emotional attachment to that. That in itself is some form of punishment that you have to live with. It is my view that no amount of penal punishment would substitute that feeling. So I do not think that I should send you to jail because in my view no further useful purpose would be achieved.

6. Your lawyer has urged me to sentence you to the time you have spent in custody and I accept that submission because you have spent one year and eight months in custody. That demonstrates our inability in the system to deal with these kinds of things speedily. This is a sad indictment on the system that we have. We should have picked this case up and dealt with it earlier. Now I have before me a person who has clearly served a sentence, which is near the maximum sentence. That to me is plainly unjust and unfair. I can not undo what has happened, except say that, I accept your lawyer’s submissions and sentence you to the time that you have already spent in custody.

7. Finally, I think this offence should not remain in the criminal justice system. I don’t see what benefit would be served by prosecuting mothers who bury or conceal their children, who die immediately before or after birth. In my view, no useful purpose would be achieved in prosecuting such mothers. In that regard, I would endorse what Kearney, J. (as he then was) said in Meni Heti (supra) at p;

"...I must say with respect, that I do not think the prisoner should have been prosecuted at all for this or any other offence. She was entitled to the compassionate solicitude or concern of society, rather than the vigor of the criminal law."

8. In the circumstances you are sentenced to the time already spent in custody. I Order that you be discharged forthwith.

__________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused