�The defendant in dealing
with the problem beforetook the left in doing the the wrong thing, rather
than the right turn
in seeking assistance, as how she can solve the problem.
By putting him into a bag and burring him alive was very cruel act
against a
human life, and with no sense of feeling of the important of life. The child
is a disable child and needs the
care by the defendant�s relatives including
the new husband and his relatives, in this case the disable society too
involved
themselves. The society at large, reco recognize, understand and
accept disabled people as of unfortunate human beings in the
society we live in, because of the nature of thei their respective
disability.
What they require from us the able society is love and care as the hope of
surviving they can get from us
to enjoy life as close as possible to the
able society. And that�s what Jimaco expected from his mother.�
The problem which now cnts
us is in knowing about the relevant and complete circumstances relating to
this tragedy.
Without that material it is impossible to assess the
appropriateness of the sentence or compare it with other cases.
On the one hand it isible
to view the case as one in which a woman having commenced a new relationship
p
was caught
in bind between her parental duty and a new man and her life with
his extended family. It has been said that they were taking
the view that
they did not want her to bring into this new relationship a child of another
man and particularly one who
was disabled. This was coupled with child care
problems as her mother was unwilling or unable because of her unemployment
to provide full time care. Ms Mathias therefore decided to deal with her own
selfish needs and requirements, taking a
heartless and wicked decision to
kill her defenceless child.
On the other hand the matter
may be viewed as a hapless woman precarious and vulnerable able position
shortly before the
birth of another child, 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.
If the correct scenar the
first situation then the sentence imposed could not possibly be said to be
wrong in principle
or manifestly excessive. Children are our most precious
possession. Disabled children require and demand even greater, love,
care,
protection and concern from all able bodied adults particularly their
parents. The Court on behalf of the community
must condemn in the strongest
terms any who for their own selfish ends, breach the sacred trust which
always exists.
e other hand if this was a
woman who was heavy with child, who was emotionally stresstressed, who was unable
to get the
support she needed either within her 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.
The problem is that as matters
progressed the gap betweese two scenarios seems not to have been
investigated ated or determined.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
There was no professional
evidence availas to the psychological or physical position of this
w woman at the time this
death occurred. There is the worrying conundrum of
the fact that the only evidence of the death is that which is provided in
the confessional statement and yet it appears that the confession is not
reliable at least in respect of where the body
lies. One wonders how a
heavily pregnant woman could have carried out what she says she did. One
cannot but have concern
as to what the finding of the body might demonstrate
as to the cause and circumstance of the death.
Not without a degree
of reluctance we have concluded that it is necessary in this case to return
the case to the
Supreme Court for further inquiry and consideration.
Specific findings will have to be made with regard to the environmental
circumstances which existed, the medical and health position of the
appellant and the deceased at the time of the death
and all other
circumstances about the death and other relevant surrounding circumstances
as can be now discovered.
Depending on the outcome of
that inquiry, the Supreme Court will be in a posito determine whether
t this is a case
where a penalty in the range of that imposed at the first
sentencing is appropriate because the circumstances are near the
first
scenario which we have outlined or whether it is a case where the matter is
to be viewed rather as in the second
scenarios. In those circumstances,
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 particularly in light
of the
needs of the youngest child. By the time there is a further hearing with
regard to the outstanding critical issues
the Appellant will have spent more
than six months in actual custody both before the sentence was imposed and
since.
Accordingly we allow the
appeal. We quash the sentence was imposed. We remit the matter for
further inquiry uiry to be
made into relevant circumstances surrounding this
homicide. In light thereof we direct the court to impose a sentence which
reflects the principles which we have enunciated in this decision. This new
hearing must occur as soon as can possibly
be arranged but in meantime the
appellant will remain in custody.
DATED at PORT-VILA, this 26th
DAY of APRIL, 2002
BY THE COURT
V. LUNABEK span>/p>
J.B. ROBERTSON J
J. von DOUSSA J
D. FATIAKI J
R. J. COVENTRY J<
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