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Public Prosecutor v Napat [2003] VUSC 45; Criminal Case No 027 of 2003 (1 August 2003)

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

Criminal Case No. 27 of 2003

PUBLIC PROSECUTOR

-v-

MARIETTE NAPAT
NOEL HARRY LOUMAN

JUDGMENT

Mariette Napat

Mariette Napat you have pleaded guilty to one charge of Intentional Homicide under clause 106(b) of the Penal Code.

The facts are inexpressively sad and can be briefly stated - they are not contested.

You became pregnant by your real brother. In September 1996 when everybody else in your family was asleep you became aware you were about to give birth. You asked your sister for help. Both of you went out of the house. You gave birth to your baby and your sister helped. Your sister cut the baby's umbilical cord and gave the baby to you. You then told your sister, you were going to kill your baby and your sister asked you not to. You stayed outside the house where you squeezed the baby's neck. The baby cried and then died. Later you dug a hole and buried the baby and, in the morning, you told your sister you had done this. None of this was reported to the police until this year.

Much has happen since this terrible occasion.

You have had two more children, once aged five and one nearly two. Your real brother is the father of the second child. He supports both children together with your oldest child who is not his child, born in 1995. Your relationship with your brother has continued for some eight years. He is the only member of the family who is said to provide support for you. He was charged with incest and in February of this year he was sentenced to prison for three years suspended for three years. He was also charged with aiding and abetting in procuring this crime but I have dismissed this charge because the evidence did not establish it.

Of particular relevance is the medical opinion given in this matter by Dr. Rachel Wells a specialist physician at Vila Central Hospital.

She refers to your denial of premeditation. She says "four months afterwards (you) describe crying all the time, being unable to sleep and frequently going without food for long periods" "She does not describe hallucinations or suicidal thoughts. She says she was aware of the need to continue caring for (your oldest child) and continues to do so".

The doctor concludes that her assessment is that you were "under enormous stress and suffering from major depression in 1996 when that (death) occurred. She is longer apparently depressed but she has a dependent, immature personality I do not believe she poses a risk to society or to her other children."

And finally the Doctor says "Clearly neither incarceration in jail, nor family pressure, has had any impact on changing the couples' feelings or behaviour towards each other.

In all these circumstances one view of the matter is that this calls for a sentence on the basis of a careful, and, a premeditated plan to kill your baby as soon as it was born in order to hide the unlawful relationship you have had with your brother. The sentence for intentional homicide is a sentence of a life time imprisonment and it is one view that this is called for in your case to deter others and to confirm respect for human life.

On the other hand the defence has argued, supported by the doctor's report that you were depressed at the time and that you acted under extreme emotional and physical distress and a time when you could not be said to be in any position to have formed a premeditated plan as alleged. Your mental state has not been advanced in a defence but I am prepared to accept that the defence position correctly sets out a position.

An appropriate sentence for you is a difficult balancing exercise. You are not a danger to the community yet there is a clear indication you may have further children to your brother if possible with the obvious attendant risks. You have three children to care for and I can accept your genuine remorse for the terrible actions you took in 1996. I can also accept the difficult indeed overwhelming pressures on you at that most vulnerable time. On the other hand an innocent human being has been killed. I have had other cases referred to me in particular the Mathias case as a guide to sentencing.

In the Mathias case the four year child was severally disabled - he was totally dependent requiring twenty-four hours care - he provided little or no response to anyone looking after him. The Court held that the defendant in desperation was acting irrationally when she killed the child - while she was heavily pregnant with another child.

The Court sentenced the defendant to two years imprisonment.

Internationally, many countries have established a separate offence of infanticide often based, as was the 1938 UK Legislation, on the presumption that mothers who kill their children within 12 months of giving birth suffer an imbalance of mind. That has of course been criticized by psychiatric and feminine authors on the basis of lack of psychiatric evidence and on sexist assumptions that women are not to be accorded full responsibility for their actions. (See "A Rationale for Infanticide Laws" 1993 Criminal L.R. 903 which concludes however that in fact there is a considerable body of scientific evidence available to support the U.K. approach.)

In the U.K. as in New Zealand where there is a maximum sentence of 3 years imprisonment, sentences of protection have been common. [See R v Wright 2001 BCL 531 CA]. In New Zealand in that case of Court of Appeal was informed that in 59 cases in 20 years there had been no custodial sentences imposed.

In Wright the NZ Court of Appeal pertinently made observations of the difficulty in sentencing in some cases "often an imperative of public protection may overshadow considerations of reduced responsibility. But sometimes a Court is faced with balancing rightful condemnation of violent conduct, which has brought tragedy and grief to others, with a just appreciation of reduced moral responsibility because of metal disorder, in circumstances where issues of deterrence and risk to others have limited application"

In this case I accept the medical evidence, which supports the view that you were acting "under enormous stress and suffering from major depression" in 1996 when this tragedy took place. In these circumstances I am not prepared to hold that you were in a situation where you were able to carefully formulate and conceive a plan of premeditation in connection with the birth.

I must, however, pay proper respect to the decision in Mathias and particularly to the comments of the Court of Appeal in that case where it was said "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 the light of the needs of the youngest child".

Having regard to those comments and guidelines and to the early plea of guilty I consider an appropriate penalty to be 2 years imprisonment.

I intend to suspend the term for two years. I think that your obligations and responsibilities to the other children compel that. The Doctor's report confirms you are not a risk to society or the other children. There is no evidence of a wide spread practice in Vanuatu of baby deaths, which would warrant further consideration of general deterrence issues. It is relevant also to observe your brother will be serving a three-year sentence, which had previously been suspended, and that you seem now have the support of your Custom Chief in your important tasks as a mother.

Conclusion - Two years imprisonment suspended for two years.

You are advised of your right to appeal.

Noel Harry Louman

Mr. Louman you have pleaded guilty to the charge of incest. That is a crime punishable by a maximum of 10 years imprisonment.

The charge against you relates to your committing this offence with your real sister Mariette Napat.

The fact are clear - On the 12^th of February 2003, you were released from prison and lived with Francois Batick at Independence Park. You told Mr. Batick that you were not used to live in town so you went to Rentabau. At Rentabau, you heard rumors that your relatives were planning to send you back to Tanna Island. You did not like the idea so you ran away and hid in the bush. While hiding in the bush, you did not eat good food so you usually went to see your sister Mariette Napat either late at night or early in the morning to ask for food. Each time you went to ask for food from Mariette Napat you would have sexual intercourse with her.

You have previous offending of this nature. You have three previous convictions on the offence of incest. You were first convicted on 12 November 1996 and were sentenced to 2 years imprisonment but suspended for 1 year. On 15^th March 1999 you were convicted on two counts of incest and were sentenced to eight months on the first count and 3 months on the second count. You served them concurrently. On 11^th February 2003 You were convicted for incest again and were sentenced for 3 years imprisonment but suspended for 3 years.

In his Lordship judgment, Coventry J. stated in his judgment that "if this case comes to Court again you go to prison for at least 3 years".

The maximum penalty for this offence is 10 years imprisonment. This shows the seriousness of the offence. The Prosecution submits that the appropriate sentence must be a custodial sentence and must be 3 years and up wards.

You are convicted on this charge under the legal provisions for Suspension, of sentences this means you must now serve the 3 years sentence of imprisonment imposed upon you by Justice Coventry in February 2003.

I must also sentence you on this charge. This will be on 4^th conviction for incest. It is clear that the relationship continues in spite of family disapproval and periods of incarceration. It may be true that finally in this you have only each other. But I am impressed with what your counsel says about trying to half the vicious cycle which has such potential for harm for other for any other children yet to be born with all the angers of that and so harm to the existing children.

I agree that the Custom Chief has an important role to play in this. It will be helped by the sentence I impose now and by asking the Chief Registrar to contact the Custom Chief and seek his help in the meantime while you serve the period of imprisonment which follows:-

On this charge you are also convicted and are sentenced to probation for 2 years. This must follow the sentence of imprisonment since it cannot be concurrent. General conditions of Probation will be imposed but the important provision about the sentence lies in the duty on the probation Officer under cl. 49 of the Penal Code - to encourage readjustment and reintegration into your own family.

I am not adding to the imprisonment term. I no not see any public advantage in doing that.

Conclusion.

Suspended sentence activated sentenced to 3 years imprisonment followed by 2 years probation. Immediate effect.

You are advised of the right to appeal

Dated AT PORT VILA, this 1^st day of August 2003

BY THE COURT

D. J. CARRUTHERS
Judge