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State v Marty [2015] PGNC 271; N6189 (17 June 2015)

N6189

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 863 of 2015

THE STATE

-V-

RUTHLYN MARTY
Defendant

Namatanai: Kangwia J
2015: 16th & 17th June

CRIMINAL LAW – Concealing birth of a child – Two years maximum prescribed penalty - First time offender who pleaded guilty – Remorseful – Recommendation for customary compensation and probation not appropriate –Prevailing custom should be left to operate on its own way and timing– Sentenced to the time spent in custody awaiting trial

Cases Cited:

The State v Roslyn Namui Venzakie (2006) N3678,

The State v Meli Heti (1997) PNGLR 173,

The State v Mary Kua (2000) N1976

Counsel

B. Gore, for the State.
A. Tunuma, for the Prisoner.

17th June 2015

1. KANGWIA, J.: Ruthlyn Marty appears for Sentence after this Court convicted her on her guilty plea to one count of concealing the birth of a child, an offence under s 313 of the Criminal Code Act.
   
2. The prisoner gave birth to a baby girl on the 24th June 2014 at the back of the dormitory at Raulili Allied Career School, the school she attended as a student.
   
3. She placed the dead baby on an old tree stump in a cocoa plot.
   
4. Upon her return to her dormitory she felt pain in her abdomen and was rushed to the Namatanai Hospital. There the nurses discovered heavy bleeding and fresh signs of her having given birth. When questioned she admitted to killing the baby girl she gave birth to. She was referred to the police who charged her with concealing the birth.
   

The State alleged no priors.

5. According to the Pre Sentence Report (PSR) and her Counsel's submissions, the prisoner is 21 years old, single and eldest in a family of three. She comes from Kono village, West Coast of Namatanai. Her parents are both alive. At the time of the offence she was attending Raulili Allied Career School. She is a follower of the SDA Church.
   
6. On her allocutus, she apologized to God and the Court for what she did. She undertook to make this court appearance as her first and last. She requested the Court to consider her concerns for education and her will to look after her parents. She then asked for Probation or Good Behavior Bond.
   
7. On her behalf, Mr. Tunuma sought a non-custodial sentence of 6 months with conditions and highlighted the following considerations as supporting the application:
   
   1. That the prisoner pleaded guilty early;
   2. She was remorseful;
   100. She is a first time offender;
   4. The PSR considered her to be a suitable candidate for probation;
   5. Her mother was supportive of her for customary reconciliation as shown in the PSR.
      
8. Mr. Tunuma referred the Court to the following cases as appropriate guides:
   
   • (i). In The State –v- Roslyn Namui Venzakie (2006) N3678 the prisoner pleaded guilty under the same provision for burying a baby boy she had given birth to. The Court in sentencing her to a wholly suspended sentence of 6 months said that the case begged more sympathy from her parents and the community than punishment.
     
   • (ii). In The State –v- Meli Heti (1997) PNGLR 173, the prisoner after giving birth to a child threw it into a toilet thinking it was dead. In sentencing the Court said the prisoner should not have been charged at all. Compassionate solitude should have been offered instead.
     
   • (iii). In The State –v- Mary Kua (2000) N1976 on a guilty plea the prisoner was sentenced to 5 months she had spent in pretrial custody citing it as sufficient.
     
9. In the present case, Mr. Tunuma submitted that the prisoner had spent 11 months 2 weeks and 6 days in pretrial custody. The Court was asked to consider the sentence sought in light of the cases referred to.
   
10. For the State, Ms. Gore while conceding the submissions by the Defence adopted the cases referred to in her submission. It was submitted that the prisoner was a youthful offender who pleaded guilty early. The Court was asked to consider the PSR which showed the prisoner to be a suitable person for probation and her mother's position in relation to customary reconciliation proposals and suggestions.
    
11. The offence of concealing a birth under s. 313 of the Criminal Code Act prescribes a maximum penalty of 2 years imprisonment. The maximum prescribed penalty is subject to the discretion conferred by s. 19 Criminal Code Act. The offence would be an alternate verdict to infanticide under s. 301 Criminal Code Act under given circumstances.
    
12. Where the law prescribes a maximum of 2 years imprisonment, it is logical to conclude that such offence was not considered serious by the lawmakers. The law deals only with concealing a birth. It matters not whether in the process of concealing the birth, a child capable of living was unduly terminated of its life. If life was purposely terminated then a charge with a more serious offence would naturally follow.
    
13. In the present case the factors operating in favour of the prisoner outweighs those in aggravation. The circumstances of the present case are similar in nature to the 3 cases cited by Counsels.
    
14. The prisoner will live with the memory of the consequences she faced from her unwise judgment for the balance of her life. I am of the view that the prisoner will be better focused and oriented to live a different life from the one she experienced. That is achievable without punishment or interference in her daily life.
    
15. Any sentence which is higher or entirely different from the cited cases would amount to a departure from the principle of parity and consistency in sentencing.
    
16. The PSR is well balanced and proposed to go one step further for rehabilitation purposes. It sought probation orders and fulfillment of customary obligations.
    
17. The prisoner pleaded guilty to concealing a birth and not of the more serious offence of Infanticide even though there is an element of strangulation of the new born baby.
    
18. The decision the Court makes should be confined to the offence charged and not the offence that should have been.
    
19. In view of the less serious charge the prisoner pleaded guilty to and the time spent in pretrial custody any sentence imposed should not attach additional conditions or impose obligations on the prisoner.
    
20. The prisoner is 21 years old and no longer a teenager requiring some close or structured supervision. I am of the view that the fears associated with unwanted pregnancy and birth caused the prisoner to do what she did. How she faces life after this should be left to her own and her relatives' judgment. That is better achieved without government agencies following her home.
    
21. As to the recommendations in the PSR I deem them inappropriate in light of the sentences imposed in the cited cases and the circumstances of this case.
    
22. As to the recommendation for customary settlement and reconciliation, I deem it appropriate to let the prevailing custom of the prisoner's area apply according to its own way and on its own timing. That should happen without supervision by any State agency.
    
23. I am least impressed with less serious cases like the present case taking 11 months to reach trial. By spending 11 months in pretrial custody as an accused, the prisoner has effectively served more time than what I would have imposed if I sentenced her. I have no choice but to order that the period spent in pretrial custody shall be her sentence.
    
24. The prisoner is therefore sentenced to the rising of the Court.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor: Lawyer for the Prisoner