Public Prosecutor v Massing [2011] VUSC 1; Criminal Case 117 of 2010 (4 February 2011)

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

Criminal Case No. 117 of 2010

PUBLIC PROSECUTOR

V

AGNES MASSING

Coram: Justice D. Fatiaki

Counsel: Mr. T. Karae for the State
Mr. E. Molbaleh for the Defence

Date of Sentence: 4 February 2011

SENTENCE

1. On 7 December 2010 the Defendant pleaded guilty to an offence of Intentional Homicide contrary to section 106 (b) of the Penal Code Act [CAP. 135]. She admitted the facts outlined by the prosecution to the effect that on the morning of 23 October 2010 at about 10 a.m. she had intentionally suffocated her new-born baby boy after giving birth in an isolated spot near the beach at Pango Village. When interviewed by the police later that same day she admitted committing the offence.
   
2. The Defendant was convicted on her guilty plea and appears today for sentencing.
   
3. Intentional Homicide is the most serious crime in the Penal Code. It carries a sentence of imprisonment for life if the killing is premeditated. The offence recognizes the sanctity of human life and the importance and value that society places upon it.
   
4. Having said that, it is unfortunate that there is no offence of Infanticide in the Penal Code of this country as exists in many other neighbouring jurisdictions which recognize that child-birth can adversely affect a woman's mental capacity even if temporarily. In such circumstances the offence is treated as manslaughter or unintentional homicide (see also: the observations of D. Carruthers J. in PP v. Mariette Napat & Anor [2003] VUSC 45).
   
5. Equally unfortunate is the seeming lack of awareness and education in Vanuatu about sexual reproductive health and the consequences of unprotected sexual activity. This is clearly noted in a helpful letter from the Executive Director of the Vanuatu Family Health Association who has generously offered to counsel the defendant. In particular, the Director writes:
   

"According to interviews and evaluation done in our activities for the last 19 years of establishment in Vanuatu, other youths who never attend a workshop on sexual reproductive health are so blind about the development of their bodies and consequences of STI's, HIV, teenage pregnancy, unplanned pregnancy and unsafe abortion.

We suggest about 75% of youth living in Vanuatu today do not get these information to make right choices in life.

Therefore anyone committing abortion in Vanuatu who do not go through an awareness or workshop on sexual reproductive health will not know about how does a baby is form, where it is formed and is it safe to end the life of the baby and the consequences of doing it.

These youth are innocent unless they had gone through a sexual reproductive health workshop and the law department had run a workshop with them about the illegality of abortion in Vanuatu."

6. In similar vein are the observations of the former Chief Justice d'Imecourt when he said in PP v. Martha Robson [1995] VUSC12:
   

"I whole heartedly support the view that there should be more efforts put into providing some form of sexual education in schools and also to the public at large, so that parents could be taught to be more supportive of a child who unfortunately gets herself pregnant. I believe that the Vanuatu Council of Churches should play a more active role in villages, in letting it be known that those young girls who find themselves in the unfortunate position not to be able to talk to their parents, can come to the churches and discuss the matter with church leaders..."

7. I turn next to consider the Defendant's personal circumstances highlighted in the pre-sentence report prepared by Correctional Services. The Defendant is an unmarried young woman aged 23 years from Big Bay in North East Santo. She came to Port Vila in early 2010 and later moved to live with the complainant and her husband in Pango Village in August 2010. At the time she was already pregnant.
   
8. Although the Defendant is described as Mrs. Agnes Massing in the pre-sentence report, no mention is made of any marriage or husband or of the circumstances under which she became pregnant. That is an unfortunate omission as such circumstances would be relevant in considering an appropriate sentence.
   
9. The defendant told the probation officer however that she could not afford the hospital birthing charges and "did not want to place another burden to her parents in Santo." She also considered her actions as "selfish" and she had contemplated suicide at the time. She deeply regrets her actions and she frankly admits having no knowledge of contraception.
   
10. I am content for sentencing purposes, to treat the defendant as a single unemployed first-time mother.
    
11. State counsel in a helpful sentencing submission describes the offence as being in a category which: "... was always legitimately treated more leniently by the Courts ... (than) ... cases of intentional homicide where offenders killed victims while motivated by on-going disputes, anger, jealously or greed. For the 'infanticide cases' the courts have sentenced offenders ranging from wholly suspended sentences of imprisonment with an alternative sentence of supervision or some offenders are sentenced to imprisonment ranging from 1 to 3 years."
    
12. Counsel also highlights what he considers are aggravating factors in the case, namely:
    
    • Concealment of her pregnancy; and
      
    • Refusing to divulge the exact location where the baby was hidden;
      

and counsel recommends a starting point of 2 years imprisonment.

13. With regard to the concealment of her pregnancy, nothing in the evidence or facts outlined suggests that there was any concealment on the part of the defendant, indeed, the facts are to the contrary, in that the defendant voluntarily disclosed giving birth without being asked. Likewise the evidence and facts do not support the contention that she had refused to divulge the exact location of the baby's body when asked about its whereabouts by Ms. Kalsrap. The evidence is unclear as to what precise conversation transpired between the defendant and Ms. Kalsrap but, subsequently, the defendant personally escorted her to the exact location of the body. I do not consider that either is an aggravating factor.
    
14. By way of mitigation however, I note the defendant is a first offender and she actively assisted in the recovery of the body. She also freely admitted her actions when interviewed by the police and pleaded guilty to the charge at the earliest opportunity.
    
15. This is a truly sad case of a single first-time unemployed and uneducated woman giving birth to a child far from her parents and family support with no real prospect of being able to support and care for the child. It can never be an easy act for a woman to take the life of her innocent newborn child. Such an act is more likely to be an act of desperation and fear than a calculated act of a completely stable mind.
    
16. I am satisfied that this case falls fairly and squarely within the second scenario of cases identified by the Court of Appeal in its judgment in Mathias v. PP [2002] VUCA8, namely:
    

"... a hopeless woman in a precarious vulnerable position ..., 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."

In such a circumstance the Court of Appeal indicated that:

"... 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 ...".

17. Accepting that guidance I am satisfied that the appropriate starting sentence in this case is a sentence of 18 months imprisonment which is reduced to 12 months in recognition of the defendant's guilty plea and remorse. From the 12 months I deduct a further period of 3 months, 1 week and 3 days (rounded off to 3 months and 2 weeks) to reflect the period since the defendant was remanded in custody from 25 October 2010 thereby making a net term of 8 months and 2 weeks imprisonment. I have considered whether this term of imprisonment should be suspended and am satisfied that this is not a suitable case for suspension.
    
18. The final sentence of the Court is that the defendant Agnes Massing is required to serve a sentence of 8 months and 2 weeks imprisonment with immediate effect. Additionally, the defendant is ordered to undergo a sentence of supervision during that time with 2 special conditions:
    
    • that the defendant undergo counselling with the Vanuatu Family Health Association; and
      
    • complete the Niufala Rod programme as directed by the Probation Services.
      
19. You have 14 days in which to file a notice of appeal against this sentence if you do not agree with it.
    

DATED at Port Vila, this 4th day of February, 2011

BY THE COURT

D. V. FATIAKI
Judge.