N10169

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 938 OF 2020

THE STATE

V

EMMA KUPA GEORGE

Wewak: Thoke, AJ
2022:  9th March, 21st March

CRIMINAL LAW-Practice and Procedure-Infanticide-Concealing Birth-Criminal Code S.313 –Plea Guilty- Prisoner Served Prison beyond Maximum Penalty-, Prisoner Discharged-State Exposed to Civil Liability. 

On the 17th of December, 2019, sometime between 1:00am and 2:00am at Murik Basis within Wewak District of East Sepik Province, the prisoner, Emma Kupa George experienced labour pain and contraction. She went to a place known as Stone Point to swim and there delivered a baby boy. After cleaning the baby, she went back in the water for a bath leaving the baby on the sand. When she returned, she realized her baby was noiseless and still.  She then dug a hole in the sand and buried him there.
 
A boy by the name of Jezreel found the corpse of the infant baby on the 19th of December 2019, between 6:00am and 6:30 am, while casually going to Stone Point for  a brief relief. Jezreel then alerted the community of the dead baby who was alleged to be buried by the prisoner after birth. She was immediately arrested, charged and has been under custody for 2 years, 2 months and 4 days.

Held:

1.The Prisoner served justice beyond the maximum penalty.
2.The extra time spent in custody are to the extent of illegality
3.  The prisoner is at liberty to file separate civil suit against the State

Cases Cited:
Avia Aihi v. The State [1982] PNGLR 92
David Wari Kofewi v. The State and 4 Others [1983] PNGLR 449
Kowi Nayu, Lun Komp and Wesu Ipsa v. Thomas Nabendio (Unreported Judgment) N291 dated March, 1981
Piwasa v. The State & Ors (Unreported Judgment) N667 March, 1992
Regina v Brigitta Asamakan [1964] PNGLR 193
Saperus Yalibakut v The State (2006) SC890
The State v Fambin Joseph [1992] PNGLR 238

Legislations Cited:
Constitution
Criminal Code Act 1974
Criminal Practice Rules 1987

Counsel(s):
Ms. Deborah Ambuk, for the State
Mr. Alex Kana, for the Accused

DECISION OF SENTENCE

21st March, 2022

1.	THOKE AJ: This matter came for hearing on the 21st March 2022 for decision on an appropriate sentence to be imposed on the Prisoner.

2.	Prisoner was charged under Section 313 of the Criminal Code, arrested on the 24th day of December 2019 and detained for 2 years 2 months and 2 days.

3.	However, I then ordered for immediate discharge on the Plaintiff upon my knowledge of the complaint that the plaintiff was detained in custody for period beyond the maximum penalty for Concealing the Birth of children.

4.	I quote Section 313 of the Criminal Code:

“313. CONCEALING THE BIRTH OF CHILDREN 

    “A person, who, when a woman is delivered of a child, endeavors, by any secret disposition of the dead body of the child, to conceal the birth, is guilty of a misdemeanor whether the child died before, at or after its birth.” 

“Penalty: Imprisonment for a term not exceeding two years.”
   
INDICTMENT & PLEA 

5.	Indictment of the Prisoner was presented on February 9th 2022 at Wewak National Court on one count of Infanticide, pursuant to section 313 of the Criminal Code Act.

6.	The indictment reads as follows;:

“EMMA KUPA GEOEGE of MENDAM VILLAGE, ANGORAM DISTRICT, EAST SEPIK PROVINCE, stands charged that she between the 17th day of December 2019 and the 19th day of December 2019 at Murik Basis No.2, Wewak, East Sepik Province of Papua New Guinea endeavored by secret disposition of the dead body of a child which she had then lately been delivered, to conceal the birth of that child.

7.	Accused Pleaded Guilty in accordance with his Counsel’s instruction.

ANTECEDENTS

8.	The prisoner was 26 years of age at the time of the offence and is from Mendam village, Murik Lake, Angoram, East Sepik Province

9.	The prisoner is a single mother (husband remarried) of 2 children aged 4 and 7 and has no formal employment. She has five other siblings.

10.	The prisoner left education after completing grade 6.

PRE-SENTENCE REPORT
11.	I have checked that she has never been supervised by any officer from the Probation Office.

12.	I have then found out that she has spent time beyond the maximum prescribed penalty in the custody.

SUBMISSION ON SENTENCE BY PROSECUTION & DEFENCE COUNSELS

13.	The counsel for state, Ms. Deborah Ambuk submitted that the mitigating factors outweighed the aggravating factors, hence asked for 6 months sentence.

14.	The counsel for the defence submitted that this case be fixed for half of the maximum penalty of 2 years and further asked that the period of 2 years, 2 months and 4 days already spent in custody be calculated in line with that mid -range penalty of the maximum penalty.

 ISSUES FOR THE COURTS DETERMINATION:

15.	The issues as posed by both the State and the Defence in that respect are as follows: 

1.	What would be the Appropriate Sentence to impose on the prisoner?

2.	What is the appropriate and just penalty/punishment that is fitting for the offence of concealing birth pursuant to Section 313 of the CCA?

16.	The issues analyzed by both state and defence counsels are central to determining an appropriate sentence that can be imposed on the prisoner. However, this is no longer an issue now as the Prisoner has already exceeded the maximum penalty while in custody during pre-trial. Hence, I am not concerned in assessing the mitigating and aggravating factors as I cannot impose any more penalties. As such, the issue of significance at this point is; whether the prolonged detention in custody during pre-trial is unlawful, and if so, does it expose the state to any civil liability?

17.	Section 313 of the Criminal Code Act precisely provides that pursuant to Section 19 of the Criminal Code Act, maximum penalty for this particular offence is 2 years. The law of Avia Aihi v. The State [1982] PNGLR 92 comes to force in this jurisdiction, that the maximum sentence is preserved for the worst case. I do not think this case attracts the maximum penalty. As such, I disagree with the Defence submission that the extra period spent by the Prisoner is 1 year, 2 months and 4 days because it is subtracted from the maximum penalty of 2 years.

18.	The state submitted that the mitigating factors out- weigh the aggravating factors and asked for 6 months sentence, whereas the defence asked for half of the 2 years maximum penalty for this offence. I am of the opinion that the appropriate penalty in this case would be eight (8) months.

19.	Taking into account the 2 years 2 months and 4 days that was already spent in the custody, I infer that the extra period spent in the custody is 18 months and 4 days. Thus, this length of time spent in custody is unlawful.

20.	There are many cases on point for unlawful detentions, which rendered the State to bear civil liability. In Piwasa v Jack Pondopis, Solomon Waima and State, Unreported Judgment dated March, 1992, the case which I was the counsel for the plaintiff, His Honour, late Justice Hincliffe reaffirmed the decision made by Justice Woods to release the Prisoner from custody on the ground of unlawful detention, having considered that the complaint was made to the National Court pursuant to Section 42 (5) of the Constitution. His Honour, late Justice Hincliffe’s key findings as indicated under paragraphs 6 and 7 of His Honour’s judgment in  Piwasa v Jack Pondopis, Solomon Waima and State  (supra) are quoted below for ease of reference:

“6. In short the plaintiff was arrested and held in custody for fourteen (14) days for being in breach of a Village Court Preventive Order. The Order indicated that he was to spend one year in prison but the said Order of Justice Woods was made fourteen days after the one year custodial period commenced.”

7. It would seem that the National Court has already, through Justice Woods, judged the unlawfulness of the said detention and it is not necessary or proper for me to consider the whole matter of unlawfulness again. That is, the National Court has already considered the matter and made a decision. All I say is that, that on the material and evidence before me, that fundal errors were made by the police and the State when incarcerating the plaintiff and it follows that I support the decision and the Order made by Justice Woods.

It would seem to me then that my task is to assess the amount of damage (if any) that should be awarded to the plaintiff together with interest and costs”

21.	In this case, I have ordered Prisoner to be discharged upon the acknowledgement of her complaint to me on unlawful prolonged detention. I see that this case is no exception to invoking Sections 37 and 42 of the Constitution as applied in the cases of Piwasa v Jack Pondopis, Solomon Waima and State, Unreported Judgment dated March, 1992 and David Wari Kofewi v. The State and 4 Others [1983] PNGLR 449 to make the state responsible. In doing so, it is subject to the plaintiff in this case to file a separate civil suit against the state.

ORDERS

22.	Accordingly, I make the following orders for the Plaintiff:

1.	The prisoner has been detained unlawfully for 2 years, 2 months and 2 days, which is higher than the maximum penalty.
2.	The Prisoner be discharged forthwith 
3.	The State is vicariously liable for a civil suit which is subject to Plaintiff filing a separate civil proceeding.

Public Prosecutor:  Lawyer for the State        
Public Solicitor: Lawyer for the Defendant