Public Prosecutor v Banga [2004] VUSC 21; Criminal Case 034 of 2004 (21 December 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 34 of 2004

PUBLIC PROSECUTOR

-v-

RELSON BANGA

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. John William Timakata for the Prosecution
Mr. Collin Leo for the Defendant

SENTENCE

This is the sentence of the defendant Relson Banga. The Defendant was charged with the offence of Intentional Homicide, contrary to Section 106(b) of the Penal Code Act [CAP. 135].

She made a confessional statement to the Police during her interview by two (2) police women. She first pleaded not guilty. After the voir dire hearing, it become clear that there is no basis for the challenge. She then changed her plea to a guilty plea.

Section 106(b) of the Penal Code Act [CAP. 135] provides as follows:

“106.(1) No person shall by an unlawful act or omission intentionally cause the death of another person.

(a) ...

(b) If the homicide is premeditate, imprisonment for life.

(2) For the purpose of subsection (1), premeditation consists of a decision made before the act to make a homicidal attack on a particular person or on any person who may be found or encountered.”

This is a very serious offence charged against a person under the Penal Code Act which carries a maximum penalty of life imprisonment.

This case is about a very sad and tragic case of a young mother who takes the life of her own natural baby just after the delivery.

The brief facts show as follows:-

• The Defendant is 21 years old. She was a science foundation student at the University of the South Pacific.
  
• On or about January 2004, she realised she became pregnant. On 24 August 2004, she delivered a new born baby girl. Immediately on self delivering her new born baby, she strangled her new born baby to death. That act which was unlawful was also premeditated in this way:-
  
• Through out the term of her pregnancy she made all endeavours to cancel her pregnancy;
  
• She perpetuated a lie to everybody including close members of her own family that she was not pregnant in order to cancel her own pregnancy; and
  
• She endeavoured to hide the fact that she had given birth;
  
• She went outside the home at about 4.00AM hours. She took with her an used red towel and a blue pair of scissors as she was about to deliver her baby. She was standing in the grass and pulled out the baby from her body.
  
• She strangled her new born baby girl to death. She used the pair of scissors to cut the umbilical cord. Before she did this, she took the hosepipe near her. She turned on the water tap. The water was running through the hosepipe ready for her to wash the blood of the baby.
  
• She checked carefully the baby to ensure that she died. Then she washed the blood on the baby. She took the used towel and rubbed on the body of the dead baby. She went inside the kitchen and took two (2) plastic bags and put the baby inside a bag and fastened the bag. She then put the bag containing the baby in the another plastic bag. She then fastened it and dropped the plastic bags inside the Municipal garbage bin.
  
• The Defendant later confessed to family members of her actions.
  
• She was taken to the police station by family members. The next day she made a full confession to the police of her actions.
  
• A medical examination was also made of the Defendant which confirmed her recent pregnancy and delivery.
  

On 15 November 2004, a Voir Dire was conducted purposely to challenge the voluntariness of evidence obtained by the police officers. Apart from a minor deletion of the answer given by the Defendant in the manner she delivered the baby, the evidence about intentional homicide remains unchallenged.

On 14 December 2004, the Defendant changed her not guilty plea to a guilty plea.

The Defendant is a first time offender. She was very sorry of what she did. Pastor Christopher Karu provided a reference showing that the Defendant behaved well since she was a child.

Mrs. Naomi Bolenga provided also a reference about the results of the courses taken by the Defendant at the U.S.P. in her Science foundation studies. She needs only one course to complete here foundation studies.

Mr. David Fagen, a physician at the Vila Central Hospital interviewed the Defendant on 15 December 2004. He said the Defendant had no psychotic signs or symptoms and only decided to kill the child when it was born. He cannot say if she was depressed in August after the delivery. There is a possibility as post natal depression is one of the commonest causes of infanticides. There is no evidence of the Defendant being depressed just after the delivery.

Custom ceremonies were performed on behalf of the defendant by the Lakalakabulu Council of Chiefs to relevant families and authorities to maintain peace in the community and the society at large.

I have taken and considered the mitigating factors and balanced them with the aggravating ones. The mitigating factors cannot out weight the aggravating features of this sad and serious crime.

This is a case of a young student woman becoming pregnant was caught between her parental duty, her life with the extended family and her schooling.

Her close members of families enquired about her condition. She lied to them that she was not pregnant. This was also coupled with child care problems as she was studying and unemployed. She decided then to deal with her own selfish needs and requirements, taking a wicked decision to kill her defenceless child although it is obvious that her close family relatives are ready to help and assist her.

This case represents the first scenario envisaged in the case of Mathias v. Public Prosecutor, [2002] VUCA 8; Criminal Appeal Case No. 01 of 2002 which I now apply in this case.

Children are our most precious possessions. They require and demand greater love, care, protection and concern from all, particularly their parents. The Court on behalf of the community must condemn in the strongest terms any who from their own selfish ends, breach the sacred trust which always exists.

The seriousness of this case warrants a custodial sentence. The appropriate sentence for a case such as this is 3 years imprisonment. Although she entered a guilty plea, she did not do it at the first opportunity. She deserved a minor discount of 2 months. She says sorry for what she did and performed custom ceremonies via her chiefs to the families and the community in her home Island of Ambae and to the Chief at Port-Vila, Efate, the place where the crime was committed. I took that into account.

I allow a discount of 5 months for the custom ceremony in accordance with Section 119 of the Criminal Procedure Code Act [CAP. 136].

The Defendant has been in custody since August 27, 2004 which is a period of 5 months. This will be also deducted in favour of the Defendant. A total of 12 months are deducted from the 36 months imprisonment sentence.

The Defendant is therefore sentenced to 24 months imprisonment. I consider suspending it. The circumstances of this case do not warrant a suspension of the sentence.

The Defendant, Relson Banga, shall serve a sentence of 24 months imprisonment with immediate effect.

Dated AT PORT VILA this 21^st day of December 2004

BY THE COURT

Vincent LUNABEK
Chief Justice