Public Prosecutor v Nato [2005] VUSC 7; Criminal Case 032 of 2004 (18 February 2005)

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

CRIMINAL CASE No. 32 of 2004

PUBLIC PROSECUTOR

-v-

MALIA NATO

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. John William Timakata for the Prosecution
Mr. Peter Bartels for the Defendant

SENTENCE

This is the sentence of the defendant Malia Nato. The Defendant was charged with the offence of Intentional Homicide, Contrary to section 106(b) of the Penal Code Act [CAP. 135].

She made confession statement to the Police during her interview at the Police station and she pleaded guilty as charged.

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

The brief facts are as follows: -

• The Defendant is 19 years old. She resides with her Aunt and Uncle at Pango Village. She came to Efate Island in 2003 to live with her Aunt and Uncle at Pango village. It is the first time she was away. She completed class 6. She is unemployed.
  
• On or about October 2003 she entered into a relationship with a young man, which she described it as a bad relationship because her boyfriend is always demanding her for sex.
  
• On or about January 2004 the Defendant realised she was pregnant of which she felt ashamed and isolated to reveal her pregnancy to any one.
  
• Through out her pregnancy the defendant perpetuates to deny her pregnancy when she was confronted by her Uncle and Aunt, everybody at Pango Village and even close relatives except to one female friend about her age, that she was pregnant in order to cancel her own pregnancy.
  
• Throughout the terms of her pregnancy she made all endeavours to cancel her pregnancy but failed to so do.
  
• On Wednesday 4th of August 2004, the defendant during the early hours in the morning when to the outdoor of the bathroom, alone in the dark gave birth to her child. She then kills her newborn baby by strangling the baby’s neck. The baby cried once. She did it again to make sure the baby is dead.
  
• The defendant picked up the new born baby and concealed the baby behind the bathroom and went to have shower and then went to sleep.
  
• The Villager in Pango who saw the remaining of the baby eaten by dogs identified the baby and reported the matter to the Police.
  
• She endeavoured to hide the fact that she had given birth.
  
• The Defendant later confessed to family members of her action and made an admission statement to the police.
  
• A Medical examination also confirmed the recent pregnancy and delivery.
  

This is not the first time the offence of this kind is committed in Vanuatu. The defendant carried the baby to full term, without her relatives discovering that she was pregnant until she killed her child immediately after the delivery of the baby.

The defendant is a first time offender. She admitted her wrong doing at the first opportunity. She knows she has done wrong. She said she is very sorry and believes her child will go to heaven.

The defence provided a Psychological Pre-sentencing Report dated 31^st October 2004. The report has been prepared by Ms Kylie Powers a registered Psychologist in New South Wales, Australia. The report is based on an interview she made with the Defendant. Although, the report has to be read and considered with caution as under normal circumstances, a Psychological Report of this nature would involve more than one extensive interviews and possibly obtaining corroboration of some of the information provided, it provides few symptoms which lead to the killing and after the killing of the baby which are important to be considered for the purpose of sentencing the defendant in this particular case.

The defendant fear was of being a single mother and somewhat confused, irrational and too distressed about the consequences of her action. On the night of the offence she was experiencing emotional distress with unresolved sexual abuse issues and even thinking of how to nurse the new baby. It is said that had the Defendant been living with her parents, or had her boyfriend remained in her life, she would have kept her baby after it was born. This is an indication that the defendant was without support, which is the leading circumstances on this specific occasion, and her problems not dealt with properly.

After the commission of the offence, the defendant has considered suicide on many occasions. She has considered using a knife to end her life, and divulged that she made a poison out of herbs but then she did not do it as God spoke to her not to go through with it. She does not really want to die.

She had experiencing nightmares. She has been unable to eat properly and she cried everyday and every night since the death of her child. From the report, the defendant appears to be suffering from major depression or possibly Post Traumatic Stress Disorder.

I consider and accept the pre-sentencing report as a guide for the sentencing of the Defendant in this case.

The Pre-Sentencing Report provided shows that this case falls within the second scenario envisaged in the case of Mathias v. Public Prosecutor, [2002] VUCA 8 Criminal Appeal Case No. 01 of 2002, which will be applied in this case. That second scenario is spelt out in this way:

“A woman who is heavy with a child, who was emotionally stressed, who was unable to get the support she needed either within the 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” [Mathias v. Public Prosecutor, [2002] VUCA 8 Criminal Appeal Case No. 01 of 2002].

However, the offence committed under s.106(b) is a very serious offence indeed. A defenceless child was killed. The seriousness of this offence warrants a custodial sentence. The appropriate sentence of the case such as this, is 2 years. The Defendant pleads guilty at the first opportunity available to her and she is remorseful and say sorry for what she did. I allow a substantial period of deduction of 12 months to reflect that.

The Defendant was kept in the Women’s Prison House since 9 August 2004. This represents a period of 6 months and 1 week which will be also deducted from the total sentence in her case.

The Defendant Malia Nato, is sentenced to 5 months and 3 weeks.

I consider to suspend the sentence. I consider the circumstances of this case, read the report and consider the two (2) other cases referred to the Court: PP v. Mariette Napat, [2003] VUSC 45 Criminal Case No. 27 of 2003 and PP v. Martha Robson, Criminal Case No. 29 of 1995. However, the circumstances of this case are different. The two (2) cases of Mariette Napat and Martha Robson are about mothers who killed their new born baby and having other young children to look after. In this case, the Defendant is a young single mother like the Defendant in PP v. Relson Banga, Criminal Case No. 34 of 2004 which was dealt with by this Court on 21 December 2004. However, contrary to Banga case, the present case is within the second scenario described in the Court of Appeal judgment of Mathias and the term of imprisonment is shorter. Apart from the Pre-Sentencing Report which I have to apply with caution for the reasons I describe earlier in the judgment, I have seen no other reason to suspend the sentence. I therefore refuse to suspend the sentence. The sentence of imprisonment of 5 months and 3 weeks is a short term of imprisonment to mark the gravity of the offences, to punish the Defendant, to protect the community by deterring others not to do the same act.

The Defendant, Malia Nato, is sentenced to 5 months and 3 weeks with immediate effect.

DATED at Port-Vila this 18^th day of February 2005

BY THE COURT

Vincent LUNABEK
Chief Justice