IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)
 
CRIMINAL APPEAL CASE No.01 OF 2002
 
BETWEEN:
 
KATHLEEN MATHIAS
Appellant
 
AND:
 
PUBLIC PROSECUTOR
Respondent
 
Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Roger Coventry
 
Counsels: Mr. Nigel Morrison for the Appellant
Ms Miranda Forsyth for the Respondent
 
Hearing date: 22 April 2002
Judgment date: 26 April 2002
 
JUDGMENT
 
On the 18th December 2001 the Appellant was sentenced to 8 years imprisonment after she had entered a plea of guilty on 6th November 2001 to one charge of Intentional Homicide under Section 106(1)(b) of the Penal Code.
 
The appeal is advanced on the basis-
 
(a)                that the learned Judge gave insufficient weight to the mitigating factors and that in all the circumstances the sentence was too harsh and for a greater term than was appropriate.
(b)               that the length of the sentence imposed by the learned Judge was disproportionate to other relevant sentences and the learned Judge failed to sufficiently apply considerations of consistency in sentencing.
 
The substantial problem which arises in this appeal is the lack of fundamental material about the relevant circumstances and the critical factors.
 
Ms Mathias is 25. She has given birth to 3 children. The first who is now approximately seven years of age is living with extended family in Tanna and has been since the mid 1990s.
 
The second child was a son Jimaco who was born on 28th May 1996. When Jimaco was about 16 months old, as a result of fungal infection, he became handicapped although the full nature and extent of the impairment we do not know.
 
A third child was born on 28th July 2000 who was in the care of the appellant from birth until it was removed from the mother after she had been imprisoned.
 
In the middle of 2001, Ms Mathias told Pastor Moses of the Revival Church at Fresh Water that she had killed her son Jimaco about a year earlier. Prior to this she had commenced a relationship with John Talo. She was pregnant to him. She had partly moved out of her mother’s house where she had been living with her son Jimaco and was living some of the time with John Talo and his family. We are told that most frequently the appellant spent nights at John Talo’s house but returned to her mother’s house each morning where she cared for her son  during the day while her mother was at work at USP.
 
Ms Mathias told the police that on an occasion, when she had returned to her mother’s house she had washed and changed Jimaco. She then decided to kill him. She went down to a garden in Fresh Water that belonged to her aunt and dug a hole. She carried Jimaco together with a red blanket and a plastic bag to Fresh Water. She wrapped Jimaco in the blanket, put him in the plastic and folded up the opening a few times. She put Jimaco in the hole and put two stones on top of his body and buried him. She threw the spade away into nearby bush.
 
Although rumours circulated it was about a year later, and following her confession to the Pastor that the appellant was spoken to by the police and confessed to the murder of her son. At first she said she had strangled Jimaco but after the police had explained that when the body was found doctors would be able to examine it and determine the cause of death, she made a further statement and said she buried Jimaco alive.
 
Extensive endeavours have been made to locate the body of the child but without success. This is not withstanding the fact that large areas have been searched and the appellant has taken police to identify the place where she says she buried the body. It was the opinion of Municipal workers who searched the area that the ground in this place had not been dug previously as it was hard and full of roots. Endeavours to find the body in other possible areas of concealment have been unsuccessful.
 
Although it was clear that Jimaco had some disability there was no question at sentencing or before us that any of the factors which can arise in what are sometimes described as ‘mercy killings’ had any application in this case.
 
The sentencing Judge rejected the submissions that have been made by both counsel that a short period of imprisonment should be imposed taking the view that there was a need for a clear deterrent sentence to deal with the circumstances of the case. He said:
 
“The defendant in dealing with the problem before her took the left in doing the wrong thing, rather than the right turn in seeking assistance, as how she can solve the problem. By putting him into a bag and burring him alive was very cruel act against a human life, and with no sense of feeling of the important of life. The child is a disable child and needs the care by the defendant’s relatives including the new husband and his relatives, in this case the disable society too involved themselves.  The society at large, must recognize, understand and accept disabled people as group of unfortunate human beings in the society we live in, because of the nature of their respective disability. What they require from us the able society is love and care as the hope of surviving they can get from us to enjoy life as close as possible to the able society. And that’s what Jimaco expected from his mother.”
 
The problem which now confronts us is in knowing about the relevant and complete circumstances relating to this tragedy. Without that material it is impossible to assess the appropriateness of the sentence or compare it with other cases.
 
On the one hand it is possible to view the case as one in which a woman having commenced a new relationship was caught in bind between her parental duty and a new man and her life with his extended family. It has been said that they were taking the view that they did not want her to bring into this new relationship a child of another man and particularly one who was disabled. This was coupled with child care problems as her mother was unwilling or unable because of her unemployment to provide full time care. Ms Mathias therefore decided to deal with her own selfish needs and requirements, taking a heartless and wicked decision to kill her defenceless child.
 
On the other hand the matter may be viewed as a hapless woman in a precarious and vulnerable position shortly before the birth of another child, feeling fragile and unsupported from all sides, emotionally stressed and unable to make rational or sensible decisions in the circumstances, acting in an inexcusable but understandable way because of the impossible pressures which she found around her.
 
If the correct scenario is the first situation then the sentence imposed could not possibly be said to be wrong in principle or manifestly excessive. Children are our most precious possession. Disabled children require and demand even greater, love, care, protection and concern from all able bodied adults particularly their parents. The Court on behalf of the community must condemn in the strongest terms any who for their own selfish ends, breach the sacred trust which always exists.
 
On the other hand if this was a woman who was heavy with child, who was emotionally stressed, who was unable to get the support she needed either within her family, from those in close relationships around her, and who felt unable to relate to available community organisations, who in desperation while acting irrationally behaved like this, then the response of society must mirror that human tragedy as well.
 
The problem is that as matters progressed the gap between those two scenarios seems not to have been investigated or determined.
 
There was no professional evidence available as to the psychological or physical position of this woman at the time this death occurred. There is the worrying conundrum of the fact that the only evidence of the death is that which is provided in the confessional statement and yet it appears that the confession is not reliable at least in respect of where the body lies. One wonders how a heavily pregnant woman could have carried out what she says she did. One cannot but have concern as to what the finding of the body might demonstrate as to the cause and circumstance of the death.
 
Not without a degree of reluctance we have concluded that it is necessary in this case to return the case to the Supreme Court for further inquiry and consideration. Specific findings will have to be made with regard to the environmental circumstances which existed, the medical and health position of the appellant and the deceased at the time of the death and all other circumstances about the death and other relevant surrounding circumstances as can be now discovered.
 
Depending on the outcome of that inquiry, the Supreme Court will be in a position to determine whether this is a case where a penalty in the range of that imposed at the first sentencing is appropriate because the circumstances are near the first scenario which we have outlined or whether it is a case where the matter is to be viewed rather as in the second scenarios. In those circumstances, although a term of imprisonment would still be imposed to reflect the needless loss of a life, the term would be much less and there could exist the possibility of the term being suspended particularly in light of the needs of the youngest child. By the time there is a further hearing with regard to the outstanding critical issues the Appellant will have spent more than six months in actual custody both before the sentence was imposed and since.
 
Accordingly we allow the appeal. We quash the sentence that was imposed. We remit the matter for further inquiry to be made into relevant circumstances surrounding this homicide. In light thereof we direct the court to impose a sentence which reflects the principles which we have enunciated in this decision. This new hearing must occur as soon as can possibly be arranged but in meantime the appellant will remain in custody.
 
DATED at PORT-VILA, this 26th DAY of APRIL, 2002
 
BY THE COURT
 
V. LUNABEK  CJ
J.B. ROBERTSON  J
J. von DOUSSA  J
D. FATIAKI   J
R. J. COVENTRY  J