R v Para [2019] SBMC 34; Criminal Case 01 of 2019 (5 July 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 01 of 2019

REGINA

-V-

CHARITY METOLO PARA

Date of hearing: July 3^rd, 2019
Date of sentence: July 5^th, 2019

Ms. Olivia. Ratu for the Crown
Mr. John. Smith. Pitabelama for the Accused

SENTENCE

Introduction

1. The accused person was charged with a count of concealing the birth of a child contrary to section 220 of the Penal Code^[1]. She was arraigned on the 3^rd of July, 2019, and entered plea of guilty to the said charge. I entered conviction on her own guilty plea and now proceed to deliver the sentence for her case.
   

Agreed Summary of Facts

2. The agreed summary of facts stated that, on the 1^st of January, 2019, the accused was at home when she felt pain in her belly. She then walked down towards the seaside, as she got to the depo shed, she slipped and fell, at that very moment she quickly widened her legs and the baby fell out from her vagina.
   
3. The baby came out of her vagina and fell onto the ground which was kind of rocky surface. The baby cried out for few seconds and then it stopped. While she was still at the Depo shed Jimmy Pina name and saw her. He asked her what she was doing but she did not say anything, she just kept quiet and remains standing there. Mr. Pina saw blood on her body so he went and told Mr. Robert who is related to the accused as uncle. The uncle then told some aunties and the aunties went to the shed but the accused had already left.
   
4. The Accused stood there for five minutes and when no one was around she left the baby and went back home, had her shower and went with her parents to the church to pray. She did not mention anything to her parents about giving birth to a child.
   
5. It was when her aunties came and asked her that she eventually told them about what had happened.
   
6. The matter was reported to the police. She did not deny giving birth to a child. She did not deny leaving the baby at the Depo she and went away. She confirmed that she did not tell anyone about the baby or her giving birth.
   

Prescribed Penalty for Concealing the birth of a child

7. It is acknowledged that concealing birth of a child is a misdemeanour. Misdemeanour is defined in section 4 of the Penal Code as “...any offence which is not a felony.” Section 220 of the Penal Code, does not expressly provide any specific penalty for concealing the birth of children, hence, in its absence section 41 of the said code provides that it shall be punishable with imprisonment for a term not exceeding two years or with a fine or with both such fine and imprisonment.
   

Aggravating factors

8. This is the only aggravating factor or matter which makes her case serious:
   1. Deliberate omission on her part to assist the smooth delivery of the child – She did not seek any help or assistance from her mother, aunties or relatives. Instead she kept quiet for the whole 9 months’ without saying a word about the pregnancy. I am convinced she knew that she will give birth on the date of offence, because giving birth is not a spontaneous occurrence. Nevertheless, she deliberately failed to inform anyone about it. Even after she gave birth to the child, she left it at the Depo shed and went away to church service. Hence, while I agree that she was in no proper state of mind, the actions leading up to the offence speaks volume on her criminal culpability.
      

Case Authorities

9. I must acknowledge counsel for the Crown to provide the case authorities for offence of concealing birth of child, I agree that it pains to look for a similar case precedent in this jurisdiction. Hence, I commend the effort to provide the cases of Papau New Guinea case, it is accepted to be considered as persuasive, although not binding and that their law is so similar, if not, mirrors the exact words of section 220 of Penal Code. This will help the court to make comparison and strike a balance on the appropriate starting point.
   
10. In case of R v Hong,^[2] the accused was fined with SBD$50.00. The facts are that she gave birth to a child and wrapped it and placed it on a rubbish heap, so as to appear that no birth had taken place.
    
11. In case Papua New Guinea case, State v Rose^[3] the accused was forced to marry after her husband died. She got pregnant and gave birth to a child. During labour, she was weak and did not pick up the child during birth. The child died shortly after. She took the child to a nearby cemetery and buried it. She did that to avoid shame and ridicule for marring though against her will to another man soon after the death of her husband and becoming pregnant and delivering a child. The accused had spent 6 months in custody before the date of sentencing. The Court sees that the 6 months is appropriate as her punishment and sentenced her to the rising of the Court.
    
12. In state v Talim^[4] the accused gave birth to a child and died shortly after and she wrapped it with laplap. She dug a small hole and buried the child. No one knew that she was pregnant. The accused had spent one year and eight months in custody. The Court considered all factors and sentenced her to the rising of the Court.
    
13. In State v Roselyn Namui Venzakakie^[5] the prisoner pleaded guilty under the same provision for burying a baby boy she had given birth to. The Court sentenced her to wholly suspended sentence of 6 months and said that the case begged more sympathy from her parents and the community than punishment.
    
14. Having carefully compare the above cited cases with the current case, it appears that this case falls between the lower and mid-range of the offence of concealing birth of child. I noted that she was not weak and had the opportunity to inform her mother or others of what she went through, but she deliberately withheld that fact. She left the baby and went back home, had her shower and went to church service.
    

Sentencing principle

15. The Courts during sentencing must adopt a balancing exercise approach on all the factors put forward by both the prosecution and defence to sit on a firm position before pitching the appropriate starting point. Blanket approach will entertain fallacy and as such, will never be adopted in this case for reason that all cases are determined per their own set of fact and that no two case are the same.
    

Starting point

16. Having thoroughly considered the circumstance of the offending and the apparent aggravating factor in this case, and having established this case in between the lower and mid-range of concealing birth of child offence, I accordingly pitch the starting point at 10 months’ imprisonment.
    

Mitigating factors

17. I find the following to be the mitigating factors for her case:
    1. Early guilty plea – the accused entered an early guilty plea to the offence against her, she appeared deeply remorseful in court, as such, I wholly accept it as genuine and accordingly issue the 25% discount as provided in the case R v Qoloni. Her early guilty plea saves that courts time from running a full trial and having to recount the already traumatizing and unsightly event. Further, the possible expenses are accordingly reserved for other cause because of her plea.
    2. Corporation with the Police – I must say that she has voluntarily cooperated with the police investigation since day one. She admitted during her record of interview and maintained the same when she was arraigned on the 3^rd of July, 2019.
    3. Previous Conviction – there is a clean criminal history against her name, this demonstrate that she is a first-time offender and the first time for her to have a brush with the law.
    4. Youthfulness – the accused was 18 years of age when she committed the offence. You have more years and things to experience in this life.
       

Sentencing remarks

18. This is an unsightly scene which a life was taken away untimely. This was done because the accused in this case remained quiet all throughout the 9 months, until she gave birth which was on the date of offence. Had it not for her silence, assistance would have rendered to her and things would have been different. Unfortunately, we are talking in a vacuum because it won’t rectify nor bring change to what has already been done.
    
19. I must say that she went through a lot, a lot that she herself can’t bear, a circumstance that she dreamt would be shared by two individual and or herself with the boyfriend, which turns out different. He rejected her and she solely bears the blame. The blame that she will live for as long as she survives, she had put her own life at stake, carry the child for 9 months’ but because of fear, worry and shame of being ridicule and degraded she kept quiet, and eventually met the darkest day of her life when she could not assist to properly give birth to the child.
    
20. Teenage pregnancy is a live issue in our country today. Some turn to abortion and others who can’t handle it committed suicide. The circumstance faced was unavoidable, the surface was rocky and the likelihood that the baby died from the rocky surface is high. She experienced bleeding, dizziness and weak, she was helpless because no one was around.
    
21. Although stating the above, I think it’s time that this court must say quite boldly, that those who wish to come down this same path will not expect any leniency from the court. It is better to tell someone and seek help than putting two lives at risk. Do not be ashamed of your mistakes, everyone makes mistakes and no one is perfect.
    
22. Even single mothers who gave birth in their teenage years became successful adults today. It must be clear that simply because you are carrying an unborn child it does not cripple all your dreams or future, no, there is so much more to life than such negativity.
    

Sentencing consideration

23. I reduce 3 months to consider your early guilty plea and genuine remorse. I further reduce 2 months to consider the fact that you’re a first-time offender and a youth when you committed the offence. I finally reduce further 1 month to consider your corporation with the police during investigation which has led to the quick disposal of this matter. Therefore, the resulting sentence is 4 months’ imprisonment.
    

Sentencing orders

24. I hereby sentence you, Ms. Charity Metolo Para to 4 months’ imprisonment.
    
25. The remaining task now is whether it is warranted that you should serve this term in custody or be suspended. I am convinced that your cry to further your education and become a meteorologist is a determined one, hence, I only see it appropriate that instead of dwelling too much on deterrence which would apparently become a barricade to your future goals and ambition, the court should place emphasis on how you can rebuild yourself and be the person you want to be in 10 or 20 years’ time. Further, having noted that you had spent 20 days in custody, I agree that is sufficient punishment already.
    
26. Having aver the above, I invoke section 44 of the Penal Code and have the 4 months’ imprisonment be suspended wholly for 2 years on condition that you do not commit any further offence. Breach of this condition will warrant reinstatement of this term suspended.
    
27. 14 days right of appeal applies.
    
28. Order accordingly.
    

THE COURT

...........................................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] Cap 26
^[2] [2004] SBHC 33
^[3] [2008] PGNC 294; N3870 (13 November 2008)
^[4] [2010] PGNC 40; N4041 (19 May 2010)
^[5] (2006) N3678