State v Leki [2022] PGNC 129; N9574 (12 April 2022)

N9574

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1157 OF 2021

STATE

V

TERESE SILIK LEKI

Buka: Wawun-Kuvi, AJ
2022: 8^th & 12^th April

CRIMINAL LAW–SENTENCE –Guilty Plea- Concealing Birth of Child-section 313 of the Criminal Code – Offender young woman in Grade 10– Offender punched in the stomach- Baby still born- History of mistreatment by family members-Pursuant to section 19 (f) of Criminal Code, the offender is discharged and shall enter into her own recognizance without sureties and shall be of good behavior for the next 6 months.

Cases Cited

State v Marty [2015] PGNC 271; N6189
State v Paai [2012] PGNC 264; N4592
State v Talim [2010] PGNC 40; N4041
State v Rose [2008] PGNC 294; N3870
State v Venzakie [2008] PGNC 231; N3678
Yalibakut v State [2006] PGSC 27; SC890
State v Kua [2000] PGNC 20; N1976
The State v Heit [1977] PNGLR 173

Reference

Criminal Code, Ch 262

Counsel

Ms T Aihi, for the State
Mr F Lugubai for the Defence

DECISION ON SENTENCE

12^th April, 2022

1. WAWUN-KUVI, AJ: Terese Silik Leki (the offender) was convicted following her guilty plea to concealing the birth of her child. She was 20 years old, single, and pregnant. She lived with her siblings at Pisibelu Village in the Haku Constituency of the Autonomous Region of Bougainville. Her father died in 2014 and her mother was working at Arawa. She is the fourth born out of eight children from her parents’ marriage.
   
2. She was between 38-40 weeks pregnant on 13 July 2020.
   
3. On 13 July 2020, she went to the garden with her sister and her sister’s 5-year-old daughter, to harvest sweet potato or kaukau. While they were digging, the offender walked away into the nearby bush. After some time, the offender’s sister packed the kaukau’s into a basket and then informed her daughter to tender to their things as she went in search of the offender. Sometime passed and growing impatient, the young girl went in search of the women. Upon locating her mother and her aunt, she noticed blood on the grass but did not see or hear a baby crying. Her mother sent her back to the garden. Her mother and aunt then returned. They packed up and left the garden. On their way home, they encountered a fellow villager, who noticed that the offender was no longer pregnant.
   
4. The next day the body of the baby was found by children near or around the area where the offender was digging kaukau.
   
5. The offender accepted responsibility and pleaded guilty to concealing the birth of her child.
   
6. Having convicted the offender, I must now decide on the appropriate penalty.
   

Purpose of Sentencing

7. Sentencing is not limited to punishment of an offender. Sentencing involves many considerations and includes considering factors such as rehabilitation, deterrence, communicating that society does not condone the offender’s actions and in cases of violent and prevalent offences, for the protection of the community.
   
8. It has always been said that sentencing is not an exact science, it is about considering the offenders conduct, against his background and the peculiar circumstances surrounding the commission of the offence. Then balancing them with community considerations and principles of rehabilitation, reintegration, and punishment.
   

The Charge

9. The offender was convicted following a guilty plea to the charge of concealment of birth under section 313 of the Criminal Code.
   

Penalty

10. The offence is a misdemeanor and carries a maximum penalty of 2 years.
    
11. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case
    

Submissions

The Defence

12. The Defence submit for a term of imprisonment of 6 months and that the sentence be wholly suspended. It was submitted that given the peculiar circumstance of the case, suspension of the sentence is warranted.
    
13. In mitigation, it was submitted that the offender is a first-time offender, she cooperated with police by making admissions and pleaded guilty at the earliest opportunity.
    
14. Defence submits the following comparable cases.
    
15. State v Marty [2015]^[1], Kangwia, J: The offender pleaded guilty to concealing the birth of her child. She was about 20 years old. She gave birth and placed the baby under a tree stump. She was taken to the hospital when it was discovered that she was bleeding heavily. She was in custody for just over 11 months. The court was critical of the pre-trial detention and was of the view that the offender was in custody more than what she would have been sentenced to. She was sentenced to the rising of the Court.
    
16. State v Venzakie [2008]^[2], Gavara-Nanu, J: The offender pleaded guilty to concealing the birth of her child. She was 23 years old and a single mother to two children. She was living her parents at the time of the offence. She gave birth to a still born baby. She buried the baby. Pigs later dug up the remains. She had lost a lot of blood and was taken to the clinic. Her parents became aware of her pregnancy after she had given birth. She was sentenced to 6 months imprisonment which was wholly suspended. The offender was placed on a good behavior bond for 12 months.
    
17. State v Kua [2000]^[3], Kirriwom, J: The offender pleaded guilty too concealing the birth of her child. She was 30 years old and recently widowed. She was forced by custom to marry her brother-in-law who was already married. His wife fought with her. She told him to go back to his family but by then she was already pregnant. She was shunned by the community for being pregnant soon after her husband’s death. The child died after birth. She took the child to the graveyard and buried it. She had already spent 5 months in prison. She was sentenced to the rising of the Court.
    
18. The State v Heti[1977]^[4], Kearney, J: The offender pleaded guilty to concealing the birth of her child. Her parents were deceased, and she was living with an uncle. She was seduced by her uncle’s son and she became pregnant. She was ashamed and kept her pregnancy a secret. When she was approximately 5 months into her pregnancy she fell and hit her stomach. She gave birth shortly afterwards. She was discharged under section 19 (f) of the Criminal Code and placed on a K25.00 surety.
    
19. In all these cases, the offenders were not responsible for the deaths of their children. They were young women who were facing varying family pressures. The Courts in those cases have stated that imprisonment was not appropriate given the circumstances of their cases.

The State

20. The State submits for a term of imprisonment of 6 months imprisonment. The State makes no submission on suspension and leaves it to the Court to decide.
21. State concedes factors in mitigation. In aggravation, the State submits that she secretly concealed the baby by covering it under some leaves.
    
22. The State also relies on the case of State v Kua [2000]^[5] cited by the defence and additional refers the Court to the case of State v Rose [2008] PGNC 294; N3870 (13 November 2008). In that case, the offender pleaded guilty to concealing the birth of her child. The offender was recently widowed with 5 children. The baby was the sixth child. Her husband was killed in a tribal fight. She and her children were mistreated by her family as well as her in-laws. She gave birth to her child in the bush, but it died shortly after. She took the child and hung it in a bag in the house. The child was discovered and buried. Her in-laws reported her to police, and she was arrested. She was in custody for 6 months prior to sentence. Kandakasi, J (as he then was) sentenced the offender to the rising of the Court.
    

Other comparable cases

23. I have additionally found the following cases where the offenders have pleaded guilty and were facing family pressures.
    
24. State v Paai [2012]^[6], Maliku, AJ: The offender pleaded guilty to concealing the birth of her child. Her estimated age was somewhere between 20 and 30 years old. She was a single mother. She gave birth and her child died. She put the child in a box and returned to the village. She was questioned after it was noticed that she was no longer pregnant. She was sentenced to 6 months imprisonment. The sentence was wholly suspended, and the offender was placed on a good behavior bond for 6 months.
    
25. State v Talim [2010]^[7], Sawong, J: The offender pleaded guilty to concealing the birth of her child. She was engaged to a man and the engagement ended. She however fell pregnant to him. After experiencing illness, she went to relieve herself and subsequently gave birth. The child died. She took a spade, wrapped the child in a cloth and buried it. The Court held that nothing would be gained in sentencing her to imprisonment and sentenced her to the rising of the Court.

Personal Particulars

26. The offender is 22 years old and is from Pisibelo Village, Haku, Autonomous Region of Bougainville. She is the fourth child of a family of eight children.
    
27. Her mother works on the mainland at Arawa and her father is deceased.
    
28. She is a member of the Roman Catholic Church and attends church on occasions.
    
29. She is single and resides in her village.

Allocutus

30. The offender stated:
    

“This trouble started when I was a student in Grade 10. I came home and my family realized I was pregnant, and they were not happy with me. They never treated me very well and told me to leave the house. That is the reason for the charge in which I am now in Court. Your Honour, I apologize to this Court and to the Almighty God. I ask for the Court to have mercy on me. I won’t do it again. I ask for Probation and so that I can go back to school.”

31. Considering her admissions to police and early plea of guilty, additionally her expressions of remorse to the Probation Officer, I accept her statement as a genuine sign of remorse.
    

Pre-sentence Report

32. I thank the Probation Officer Ms. Isabel Tago for her assistance in completing the Pre-Sentence Report within a short space of time.
33. The Probation Officer interviewed the offender. She admitted to the offence and expressed remorse. The offender presently resides with her grandmother as her brother chased her out of the family home.
    
34. She is unemployed and is supported financially by her grandmother.
    
35. She was attending the Bishop Wade Secondary School when she fell pregnant to her boyfriend. She was expelled from school.
    
36. She wishes to continue her education.
    
37. The Probation Officer recommends Probation.
    

Mitigating Factors

38. I accept the following to be mitigating, that the offender cooperated with police and made admissions, she maintained those admissions and pleaded guilty in Court at the earliest opportunity, she expressed remorse and has no prior convictions.
    
39. Whilst there is some dispute as to whether the offender caused the death of her child, the facts to which she pleaded guilty do not state that she was responsible for the death of the child. Furthermore, the offender stated in her interview with police as recorded in the Record of Interview that she was punched in the stomach by her brother which was the cause of her child’s death. I therefore accept that she was not responsible for the death of her child and that the child died still born. The Supreme Court in Yalibakut v State [2006]^[8] is the basis for which I take this approach. It was held that : “If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.”

Aggravating Factors

40. What I find to be aggravating is that the offender failed to give the child a proper burial which led to dogs later consuming the child. Additionally, it was children who made the discovery and had to not only watch the dogs consume the body of the child but also attempted to save whatever remains were left. This undoubtedly will result in some trauma to these children.

Consideration

41. This is an unfortunate case that is entangled with cultural and societal expectations of young women. It is a case in which Court’s have long held that criminal sanctions are inappropriate.
    
42. The offender was a young woman in Grade 10 when she fell pregnant to her boyfriend. She was expelled from school and returned home in shame. She did not return to a happy and welcoming home.
    
43. I accept that she had no ill intent or desire to kill the child. She had carried the baby full term and had even attended to the antenatal clinic with her mother prior to the incident. That her child died because of being punched in the stomach by her brother.
    
44. The reason she is in Court today, is because she made the unfortunate decision to cover her baby under a pile of leaves instead of bringing him home and giving him a decent burial. A behavior that the law criminalizes.
    
45. Every case must be sentenced according to its own individual peculiar facts. I cannot ignore the prevailing circumstances surrounding the commissions of the offence. This was a village setting where cultural taboos and perceptions still very much set high expectations on young women. A woman that has a child outside of wedlock brings shame to her family and is the talk of the community. Her prospects of marriage are diminished or if she does get married, it affects how much bride price her family will receive. They are often assaulted by family members. They are treated badly. All of which I accept were faced by the offender.
    
46. The offender was expelled from school and returned to the village pregnant. This I accept was a further cause for shame on her and her family. It is evident that it is still difficult for her family to accept the shame as they have ostracized her, and she has become a pariah. This causes undue hardship to a lot of young women in similar situations. An individual cannot independently survive in a society that is so intricately intertwined. Because of the communal aspect of child rearing, the obligation is also placed on the family and so there is also anger over what is seen as an additional burden to already difficult and strained family dynamics. In this case, a family of eight children whose father was deceased and mother living far from home because of employment.
    
47. Whilst the offender was 20 years old at the time of the offending and by law considered as an adult, I cannot immediately conclude that she was an adult and should have known better. Age is quite different from maturity. She was in Grade 10 at the time she was pregnant. She was supported by her siblings. Most women continue to live with their parents or guardians until they are married. And the same rules that apply to minors continue to apply to them. They are scolded and assaulted just the same. As it was in this case.
    
48. Whilst there are many noble customs unfortunately for many women like the offender, rather than receive support they more than likely facing criticism and ridicule during their pregnancy. So instead of affording a proper burial to their children, they conceal the births.
    
49. I doubt that there is very little else that can be done to show to the offender that her actions were unacceptable in the face of her community and society. She had been shamed through this whole process on top of losing her child. It was quite evident in arraignment and allocutus.
    
50. Since the case of The State v Heit in 1977, the Courts have stated that in cases involving young women giving birth to still born babies, society must support the women and counsel them.
    
51. She is not a violent offender. She is the person that has suffered the most throughout the whole process.
    
52. As was stated in the case of The State v Heit [1977] PNGLR 173:
    

“She was entitled to the compassionate solicitude and concern of society, rather than to the rigour of the criminal law.

53. For the foregoing reasons, I exercise my powers under section 19(1)(f) of the Criminal Code and instead of passing sentence, I discharged the offender on her entering on her own recognizance without sureties, and to be on good behavior for the next 6 months.

Orders

54. The Orders are as follows:
    
    1. Pursuant to section 19(1)(f) of the Criminal Code, the offender is discharged and shall enter into her own recognizance without sureties and shall be of good behavior for the next 6 months.
    2. The Bail money is refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

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^[1] PGNC 271; N6189 (17 June 2015)
^[2] PGNC 231; N3678 (6 October 2008)
^[3] PGNC 20; N1976 (13 June 2000)
^[4] PGNC 17; [1977] PNGLR 173 (15 June 1977)
^[5] PGNC 20; N1976 (13 June 2000)
^[6] PGNC 264; N4592 (3 February 2012)
^[7] PGNC 40; N4041 (19 May 2010)
^[8] PGSC 27; SC890 (27 April 2006)