State v Jacob [2024] PGNC 370; N11042 (15 October 2024)

N11042

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 386 OF 2023

THE STATE

V

LAVINA JACOB

Baisu: Toliken, J
2024: 15^th October

CRIMINAL LAW – Sentence – wilful murder – maternal filicide – three counts – guilty plea – Criminal Code, s 299 (1); Criminal Code (Amendment) Act 2022, No.10 of 2022, s 4.

SENTENCE – maternal filicide – status and motives of filicidal mothers discussed.

SENTENCE – aggravating and mitigating factors considered – appropriate sentence – life sentence for each count.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Kumbamong v The State (2008) SC1017
Steven Loke Ume v That State (2006) SC836
Manu Kovi v The State [2005] SC789
The State v Onda (2011) N4988

References:

Hatters Friedman S, Resnick PJ. Child murder by mothers: patterns and prevention. World Psychiatry. 2007 Oct;6(3):137-41. PMID: 18188430; PMCID: PMC2174580.

Resnick PJ. Child murder by parents: a psychiatric review of filicide. Am J Psychiatry. 1969; 126:73–82. [PubMed] [Google Scholar]

Counsel:
L Jack and T Kagl, for the State
D. Pepson, for the Prisoner

SENTENCE

15^th October 2024

1. TOLIKEN J: The mighty Kagul River, bordering the Western Highlands and Southern Highlands Provinces has probably taken a lot of victims, but never had it simultaneously swallowed three beautiful, precious, and innocent young souls so tragically than on 13^th October 2022. That day between 12.00 p.m. and 1.00 p.m., 8-year-old Kilon Pais and his younger sisters, 5-year-old Jenila Pais, and 15-month-old Felis Pais were hurled into the raging torrents of the Kagul by their mother Lavina Jacob, the prisoner here. What started as a seemingly ordinary argument over bananas between Lavina and her husband Pais John ended with the horrific death of their three children.
   
2. Soon after the argument Lavina immediately took the three children to the Kagul River. Before leaving she left a note for her husband telling him to come and find them at the Kagul River. When they arrived at a cane bridge at the Kagul she removed the children’s shirts, hung them on the bridge, and then jumped off the bridge into the river with them. She somehow survived but her children unfortunately drowned. The villagers later mounted a search but could not locate or recover the bodies. It was not until 2 weeks later that the body of the eldest child Kilon was recovered downstream in the Jiwaka Province. The bodies of his younger siblings were never found.
   
3. It is upon those facts that prisoner Lavina Jacob is now before the Court for sentencing after pleading guilty to three counts for the wilful murder of Kilon Pais, Jenila Pais, and Felin Pais in contravention of section 299 (1) of the Criminal Code (the Code).
   
4. The offence of wilful murders attracts the maximum penalty of life imprisonment without parole (Criminal Code (Amendment) Act 2022; No.10 of 2022, s 4). However, as is trite, the maximum penalty may only be imposed for the worst instances of offending. Furthermore, each case must be considered on its facts and circumstances to achieve proportionality between the sentence and the offending (Goli Golu v The State [1979] PNGLR 653; Lawrence Simbe v The State [1994] PNGLR 38).
   
5. There is no question that this is a worst instance of wilful murder when viewed objectively as well as subjectively. The only issue then, is whether the prisoner should be served the maximum penalty for each count.
   
6. The prisoner is about 25 years old and comes from Gomi Village in the Tambul – Nebilyer District of Western Highland Province. She is the 4^th of 6 children who are all still alive. Her father is also alive, but her mother has recently passed away. She is first of the two wives of Pais John and had three children (all now deceased) with him. She only completed Grade 6 after which she was given away in an arranged marriage to Pais John who later took on a second wife. She had been in custody since she surrendered to the police at Kaupena on 25^th October 2022 for 1 year 11 months and 10 days. She has no prior convictions.
   
7. The prisoner’s marriage was a very unhappy one. She suffered much under the hands of her husband. Her situation was aggravated when her husband took a second wife and almost immediately started to neglect the prisoner. The prisoner also had to suffer the shame and humiliation of having to go childless for some years, while the second wife almost immediately had a child and a couple more before the prisoner eventually had her first child. According to her, the second wife did not allow their husband to sleep with her in her house so, her husband had to take her into the bushes to have sex with her. All her children were therefore conceived in the bushes as a result.
   
8. The neglect and ill-treatment were not confined to her only. Her husband did not treat her three children well as well. He neglected them, showering all his attention on the second wife and her children. The final straw came on the 13^th of October 2022 when the prisoner finally decided to take her own life.
   
9. It appears from her confessional statement that she initially did not intend to take the lives of her children. However, while sitting on the cane bridge across the Kagul, she decided to take their lives as well. She put the toddler on her lap, grabbed the hands of the two older ones, and jumped off the bridge with them into the surging torrents below. The prisoner also speaks of a time when she fainted unexplainably which she attributed to demon possession. She might have suffered a psychotic or delusional disorder of sorts because of the emotional abuse she was going through.
   
10. When addressing the Court on sentence the prisoner stated that had it not been for the ill-treatment and neglect of her and children by her husband during the 12 years of their marriage, she would not have done what she did. She wanted to die with her children, but God did not take her life and that was why she was alive to able to address the Court.
    
11. She apologized to God, the Court, and the family for taking the lives of her children. She finally pleaded for mercy.
    
12. More details of her unhappy marriage are revealed in her presentence report (PSR). She got married in 2010 when she was about 16 years old. For the next 12 years, she endured much abuse and ill-treatment by her husband. Apart from emotional abuse, the children often went hungry because their father would not support and provide for them.
    
13. On the date of the incident, the children woke up very hungry at around 4.00 a.m. There was no food in the house, so she went to the back and harvested a banana to feed the children. However, an hour later her husband came around and argued with her over the banana. He slapped her and then left. At that moment all that she and her children had gone through came flashing back. She got so angry that she decided there and then to end her life as well as the children’s.
    
14. As I alluded to above this case is a worst instance of wilful murder and would have fallen into Category 4 of the sentencing guidelines in Manu Kovi v The State (2005) SC789 which would have attracted the death penalty had the death penalty not been repealed. Be that as it may, the offending here is that of the worst type, one deserving of the maximum penalty. This is because it involved multiple victims, pre-planning and pre-meditation, cold-bloodedness, the killing of innocent and defenseless children, and total disregard for the sanctity of life according to the Manu Kovi guidelines.
    
15. Other factors that would have justified the death penalty (and by extension life imprisonment) are the killing of a child, a young or old person, or a person with some disability needing protection. (Steven Loke Ume v That State (2006) SC836).
    
16. Whether the prisoner gets the maximum penalty will, however, depend on whether anything can justify a determinative sentence of a term of years instead.
    
17. Both Ms. Jack and Mr. Pepson agree that this is a worst instance of wilful murder. Ms. Jack called for life imprisonment for each count while Mr. Pepson submitted that a sentence of 25 -50 years for each count would be appropriate because of her mitigating and extenuating factors which I shall presently come to. What appropriate sentences should therefore be imposed on the prisoner?
    
18. Let me start by first considering her aggravating factors:
    
    • There was an element of preplanning and premeditation.
    • There were multiple victims.
    • The victims – her very own children – were very young, innocent and defenseless.
    • The victims died slow and horrifying deaths.
    • There was a strong intention to kill.
    • The offence is prevalent.
      
19. In her favour though are the following factors:
    
    • She pleaded guilty early to the charges.
    • She is a first-time offender.
    • She cooperated with the police by surrendering herself after she survived the ordeal.
    • She expressed genuine remorse.
    • She was under extreme emotional and psychological pressure from years of neglect and abuse by her husband.
      
20. The aggravating factors outweigh the prisoner’s mitigating factors. The prisoner’s offending, therefore, as a matter of course and justice, ought to attract the maximum penalty for each offence unless there are compelling contrary reasons.
    
21. It should not pass without comment though that the prisoner here is another victim of domestic abuse within a polygamous marriage. Once again, polygamy has reared its ugly head and claimed another trophy, this time the tragic, senseless, and horrific deaths of three innocent children at the hands of their emotionally scarred mother.
    
22. Women in polygamous relationships continue to suffer immeasurable physical, emotional, traumatic, and psychological abuse at the hands of their husbands. Many have ended up killing co-wives or rivals. This has not escaped judicial scrutiny and comment because of an inordinately high rate of domestic killings and infliction of grievous bodily harm on women who get caught up in such relationships, whether willingly or forced by cultural practices.
    
23. Wives in polygamous marriages have and continue to kill and maim co-wives, mistresses, or their husbands. While there is no empirical evidence to show the real causes of such behaviour by offending wives there is ample evidence from the cases coming before the courts that the main reasons are unfaithfulness, lack of support, and unequal attention by the husband on his wives.
    
24. While homicides in domestic settings are prevalent filicide or the killing of a child by a parent appears to be rather rare in this country. Only one such case was cited to me. I will return to that presently. But why do parents, more so women, kill their children?
    
25. Writing in World Psychiatry^[1], Hatters Friedman and Resnick, cite from a review of world literature on maternal filicide by Resnick^[2] on the causes and motives of maternal filicide. Resnick found:
    

... filicidal mothers to have frequent depression, psychosis, prior mental health treatment, and suicidal thoughts. Maternal filicide perpetrators have five major motives: a) in an altruistic filicide, a mother kills her child out of love; she believes death to be in the child's best interest (for example, a suicidal mother may not wish to leave her motherless child to face an intolerable world; or a psychotic mother may believe that she is saving her child from a fate worse than death); b) in an acutely psychotic filicide, a psychotic or delirious mother kills her child without any comprehensible motive (for example, a mother may follow command hallucinations to kill); c) when fatal maltreatment filicide occurs, death is usually not the anticipated outcome; it results from cumulative child abuse, neglect, or Munchausen syndrome by proxy; d) in an unwanted child filicide, a mother thinks of her child as a hindrance; e) the most rare, spouse revenge filicide occurs when a mother kills her child specifically to emotionally harm that child's father. [Underlining supplied]

26. The authors then said that:
    

... mothers were often poor, socially isolated, full-time caregivers, who were victims of domestic violence or had other relationship problems. Disadvantaged socioeconomic backgrounds and primary responsibility for the children were common. Persistent crying or child factors were sometimes precipitants for the filicide. ...

27. I am not aware of a similar study in this country. I would, however, posit that there is a commonality between Resnick’s findings and the social background of filicidal mothers in this jurisdiction and their motives for this unnatural and unthinkable act.
    
28. The prisoner here was the victim of domestic abuse in a polygamous marriage. She suffered 12 years of physical and emotional abuse and neglect at the hands of her husband. She had to endure the humiliation of having to have marital relations with her husband out in the bushes because her younger co-wife would not allow their husband to sleep with her in her own house. She conceived all her children in the bushes as if she were a village prostitute. There is no doubt in my mind that the co-wife taunted and ridiculed her, because of her predicament adding to her emotional and depressed state. If that were not enough, she was the primary and sole caregiver of her children because her husband showered all his attention and financial resources on the second wife and her children. She would therefore have suffered economic hardship as well.
    
29. There is therefore little wonder that the prisoner entertained suicidal thoughts. She would have naturally been concerned about the welfare of her children and what would befall them if she were to take her life and leave them behind. Hence her decision to take their lives as well. According to Resnick, this was a case of altruistic filicide. The prisoner would have believed death to be in the best interest of her children. She would not have wanted to leave them behind with an intolerable and uncertain future.
    
30. And even though the prisoner may not have said it, there might also have been an element of spousal revenge involved here. She may have killed her children specifically to harm her husband emotionally.
    
31. Be that as it may, the prisoner has committed a most despicable and unthinkable crime – she took away the lives of her innocent children. One shudders to think of the terror the children felt in their last moments as they hopelessly fought against the surging current of the mighty Kagul, desperately gasping for air and keeping afloat.
    
32. There is no denying therefore that the prisoner must be served her just dessert. She must be punished for her despicable, inhuman, and callous act. Despite the abuse she went through (verbal or otherwise), she had no right to take the lives of her children. Fair enough she was or may have been absorbed in her situation, however, she abandoned her humanity and moral compass when she took their lives.
33. Sentencing the prisoner or any filicidal mother for that matter is not an easy task. Here is a person who was depressed and going through a deeply emotional and psychological phase in her life. She did what she mistakenly believed best for herself and her children. She did not imagine she would survive to face the consequences, but she did. And she must face punishment. But for her multiple victims, she is exactly the kind of offender whom the Supreme Court in Kumbamong v The State (2008) SC1017 said should be given special consideration. There, among other things, the Court at [64] said:
    

This Court is ... of the view that, it is high time now to review the society''s approach to dealing with offenders through the courts. Not every case of human error is criminal and not every criminal case warrant imprisonment. The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.

34. Indeed, a sentencing court must identify and differentiate offenders who require incarceration and those who need correction outside the prison system. I also accept that the emotional needs of offenders – pre- and post-offence – must be addressed so a sentence that addresses both the offender’s and the State’s interests can be imposed.
    
35. However, where a parent, for whatever reason takes the life of her/his child, the court should not give the impression that such an act is acceptable and that an offender can get off with a light sentence. In my view, the interest and obligation of the State to fully protect children against all forms of abuse and their right to life must certainly take precedence over the rights of individual offenders who kill children.
    
36. That is not to say that the sentencing court must lay individual rights on the sacrificial altar to appease the State. Far from it! Offenders must be accorded the full protection of the law as guaranteed by section 37 of the Constitution, and the sentencing discretion provided under section 19 of the Code.
    
37. Several cases were cited to me by counsel. There is, only one that is pertinent and can assist me in determining an appropriate sentence for the prisoner here. It is the case of The State v Onda (2011) N4988. Interestingly that case occurred here in the Western Highlands Province. There the offender pleaded guilty to four counts of wilfully murdering her four children aged 8, 7, 5, and 2 ½ years.
    
38. The offender there had a 10-year tumultuous marriage. Because of the abuse she endured during the marriage she decided five months in advance to commit suicide and take the lives of her children as well. And so, on the night of the offence at about 11.00 p.m. she dressed up, dressed her children as well, and told them they would be visiting a relative at Warakum. She then took the children down to the Warakum River which flows through the outskirts of Mt. Hagen City. She waited with them by the banks of the Warakum until 4.00 a.m. when she executed her plan. She picked up the youngest child, already fast asleep, and threw him into the river. She then picked up the next child, also fast asleep, and threw her into the river as well. She then grabbed the hands of the two older ones and jumped with them into the river. She survived but all four children drowned and died. The offender later surrendered to the Police. The children’s bodies were recovered later by villagers. The offender was liable to be sentenced to death, but she was served four life sentences instead.
    
39. I think that the prisoner here should get similar sentences. She has said she has no desire to return to the village because no one will accept her, least of all, her husband. Besides she has nothing to live for after having killed her children, so she says. However, in her PSR she later expressed the desire to return to her village. These considerations are, however, moot because she is not entitled to parole anyway.
    
40. I therefore sentence the prisoner as follows:
    

1. Count One: For the wilful murder of 8-year-old Kilon Pais, the prisoner is sentenced to life imprisonment without parole.

Count Two: For the wilful murder of 5-year-old Jenila Pais, the prisoner is sentenced to life imprisonment without parole.

Count Three: For the wilful murder of 15-month-old Felis Pais, the prisoner is sentenced to life imprisonment without parole.

2. The sentences shall be served concurrently.

3. The prisoner shall serve her sentence at Baisu Corrective Institution subject to the Commissioner’s discretion to allow her sentence elsewhere.
4. The prisoner has the right to appeal to the Supreme Court within 40 days from today if she is aggrieved by her sentence.
   

Ordered accordingly.
________________________________________________________________
R Luman, Acting Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner

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^[1] Hatters Friedman S, Resnick PJ. Child murder by mothers: patterns and prevention. World Psychiatry. 2007 Oct;6(3):137-41. PMID: 18188430; PMCID: PMC2174580.
^[2] Resnick PJ. Child murder by parents: a psychiatric review of filicide. Am J Psychiatry. 1969; 126:73–82. [PubMed] [Google Scholar]