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State v Paai [2012] PGNC 264; N4592 (3 February 2012)

N4592

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 63 OF 2012

THE STATE

V

AUGUSTA PAAI

Arawa: Maliku AJ
2012: 03rd February

CRIMINAL LAW- Concealing birth of a child – Section 313 of Criminal Code Act

CRIMINAL LAW- Sentence on guilty plea- First Offender- Appropriate scale of sentence - Suspended six months imprisonment considered appropriate

Cases Cited:

The State -v- Kua (2000) N1976

The State -v- Meli Heti [1977] PNGLR 173

Goli Golu –v- The State [1979] PNGLR 653

Avia Aihi –v- The State (No.3) [1982] PNGLR 92

Rex Lialu –v- The State [1990] PNGLR 487

Counsel:

Mr Kivu, for the State

Mr Misil Yawip, for the Accused

SENTENCE

3rd February, 2012

1. MALIKU AJ: The Charge: The accused is charged that on the 08th of May in 2011 at Siuru village, Buin District, Bougainville District did conceal the birth of the child thereby contravening Section 313 of the Criminal Code.
   

Plea

2. The accused having the benefit of the counsel's advice pleaded guilty and was convicted of concealing the birth of a child.
   

The Facts

3. On the 08th of May of 2011 between 3am and 5am the accused felt delivery pain. She went to some concealed place where she gave birth to a baby. During the process of child birth the baby died. The accused wrapped the baby with a cloth and left it in an empty box and went back to her house. She never told anyone about her delivery of the baby until she was questioned sometimes later during the week of whether she had given birth. She admitted giving birth and concealing the body of the baby. The State alleges that the accused secretly disposed of the body of the child so as to conceal its birth.
   

The central issues in contention

1. Issue 1: Does this matter fall in the worst type or worst category of cases?
   
2. Issue 2: What is the appropriate sentence to be imposed on the accused?
   

Allocutus

4. In her address to the Court on her allocutus the accused said: "Mi nogat

toktok long mekim" (I have nothing to say)

The mitigating factors:

1. The accused had pleaded guilty to the offence which saved the Court's time and other resources to conduct a trial.
   
2. She has been in custody since 2011.
   
3. She has had no prior convictions
   
4. She was deserted by her husband in 2001 and tried to raise her children but became pregnant from another man in 2011 to the child now the issue of this matter.
   
5. She was the subject of gossip in her village even by her own family members and relatives.
   
6. She was threatened by her own family members and it certainly affected her mindset during the period she was pregnant.
   
7. She gave birth to the child and concealed it because she was in fear of her relatives.
   
8. The child died in the process of delivery
   

Personal Background:

1. The accused is an adult person aged between 20 to 30 years old.
   
2. She comes from Siuru village, Buin District, Autonomous Region of Bougainville.
   
3. She is a single mother with six children
   
4. She completed Primary School.
   
5. At the time the offence was committed the accused was a villager.
   

5. Mr Yawip for the accused submitted the Court should consider the mitigating factors and personal background of the accused as well as her guilty plea and confession which she maintained from the date she was arrested and throughout the period she awaited her trial.
   
6. Mr Yawip relied on the case of The State v Kua (2000) N1976. In this case the accused was convicted of concealing the birth of a child because she was under the pressure of her relatives. The accused was sentenced to five months imprisonment. Mr Yawip urged the Court to consider a period of five months imprisonment appropriate for his client.
   

Aggravating factors

7. Mr Kuvi for the State conceded to the submission by Mr Yawip for the accused and cited the case of Rosalyn Namui Venzakie (2008) N3678 where a 23year old mother was pregnant and gave birth to a child. She then dug a hole and buried the baby. She never told anyone. She was convicted and sentenced to six months imprisonment.
   
8. The other case cited by Mr Kuvi is The State v Meli Heti [1977] PNGLR 173. In this case the prisoner was pregnant and driven by fear from being ridiculed she prematurely gave birth to a child. She concealed the birth of the child and was sentenced to six months imprisonment which was suspended wholly.
   
9. The Court had this to say when sentencing the prisoner: "I must say with respect that the prisoner should not have been prosecuted at all for this offence. She was entitled to assistance of the society rather than the legal law." I agree with his honour that the accused in the present matter should not have been prosecuted at all for this offence. She was entitled to assistance of the society rather than the legal law.
   
10. Mr Kuvi for the State conceded and in his final remark submitted with respect that it would appear that the Court in those two matters cited had taken into full consideration the emotional aspect of the prisoners and the fear of being ridiculed by the community.
    

Guideline on sentencing

11. The guideline on sentencing is well settled in our jurisdiction in the case of Rex Lialu - v - The State [1990] PNGLR and is: "Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". I am bound to follow this sentencing guideline.
    
12. I agree with both counsel that maximum prescribed penalties are reserved for the worst type or worst category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (NO3) [1982] PNGLR 92 at page 96. I am also bound by this guideline.
    

Does this matter fall in the worst category of cases?

13. I am satisfied that this matter does not fall in the worst type or worst category of cases.
    

The appropriate sentence

14. Mr Yawip for the accused submitted that the appropriate sentence for this matter is an imprisonment for a period between five (5) months to six (6) months.
    
15. Mr Kuvi for the State conceded and agreed with the counsel for the accused.
    

Address to the accused

16. You pleaded guilty to one count of concealing the birth of a child contravening Section 313 of the Criminal Code Act.
    
17. I heard what you told me in your allocutus. You said: "I have nothing to say".
    
18. I also heard what your counsel told the Court on your mitigating factors and your personal background.
    

Conclusion

19. In considering the appropriate sentence for the accused taking into account the interest of the State and that of the accused, I consider a suspended sentence is appropriate on this matter.
    
20. The accused is sentenced to six (6) months imprisonment with hard labour however the sentence is suspended and the accused is placed on a six months Good Behaviour Bond.

___________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused