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Public Prosecutor v Akau [2005] VUSC 63; Criminal Case No 023 of 2005 (9 May 2005)

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

CRIMINAL CASE No. 23 of 2005

PUBLIC PROSECUTOR

-v-

ANNIE AKAU

Coram: Chief Justice Vincent LUNABEK

Counsel: Mr. Lent Tevi for the Public Prosecutor
Mr. Christopher Tavoa for the Defendant

SENTENCE

This is the sentence of the Defendant, Annie Akau. The Defendant was charged and pleaded guilty on one (1) count of Abortion, contrary to Section 117(1) of the Penal Code Act [CAP 135].

The relevant subsections of section 117 of the Penal Code Act provide as follow:

“117. (1) No woman shall intentionally procure her own miscarriage.

Penalty: Imprisonment for 2 years.

(2) No person shall intentionally procure the miscarriage of a woman.

Penalty: Imprisonment for 2 years.

(3) ...

(4) No prosecution shall be commenced under subsection (1) or (2) without the consent in writing of the Public Prosecutor.”

Written consent to prosecute the defendant for the offence of Abortion, contrary to section 117(1) of the Penal Code Act was given by the Public Prosecutor in accordance with section 117(1) of the Penal Code Act on 7 March 2005.

The brief of the facts of this case are summarized as follow:

On or about October 2004, the Defendant, Annie Akau went to Vila Central Hospital for pregnancy examination. Upon examination, she was tested positive of her pregnancy. On that date she knew her pregnancy. She then became worried. The reason for her worriness is that she is not married but has a strong relation with another person named Sial Roy of Eton village, Efate. From their relationship, they had a son. The Defendant and Mr Sial Roy, however, do not live together.

The Defendant on one occasion had another relationship with a Mr. Morris Rosby of Paama Island who lives at Forari area, Efate. From that relation, the Defendant got pregnant. On 9 February 2005, she went to Forari with the intention of procuring her own miscarriage. She then worked in the garden. She also decided to do heavy works, like washing and carrying heavy dishes to get rid of her pregnancy at its early stage. She decided to procure her own miscarriage at the early stage to please herself and Mr Sial with whom she intends to marry in the future. She felt that she would not visit Mr Sial and his family while pregnant as her pregnancy from another man could compromise her chance of marrying Mr Sial Roy.

On 12 February 2005, at Forari area, the Defendant and Orapa Kelep who uses to live with the Defendant’s family at Forari village went to the main road to get a taxi to bring the Defendant to Port-Vila. It was after lunch. The Defendant felt that she had stomach-ache. Before she left with Orapa Kelep to get a transport, she told her brother’s wife about her stomach problem. While Orapa searched for any transportation to bring the Defendant to Port-Vila, the Defendant gave birth to a child on the grass on the side of the road. The brother’s wife then told her husband. They went and took the body and buried it.

A medical report dated 14 March 2005 was produced. The report was carried out on 16 February 2005. It revealed that the body decayed, in a burial site was identified to have a young foetus approximately 8 to 12 weeks, only skull bones and parts of chest were identified.

In their submissions, the prosecution says that this is the first case in Vanuatu Courts. They submit that what the Defendant intends to do when she did the acts of washing and working in the gardens is to procure her own miscarriage. The prosecution says, it is the intention of the Defendant that she procures her own miscarriage to feel safe in the presence of Sial Roy whom she intends to marry. The prosecution further submits that the Defendant has the intention to procure her own miscarriage since that day when she was tested positive to pregnancy. The prosecution submits finally that the Court imposes the maximum term of imprisonment of 2 years as a warning to the community at large, girls and women especially that it is a serious offence to procure her own miscarriage under s.117(1) of the Penal Code Act [CAP 135].

The prosecution refers and relies on the case of R. v. Spicer (1955) 39 CR App R.49. In that case, the Accused inserted two fingers into a pregnant woman’s vagina. She had asked him (Spicer) to help her. He has told her that he had turned the foetus. She miscarried ten (10) days later. Experts say that these actions had no effect. Finnemore J directed the Jury (at 190):

“Whether this act does or does not procure a miscarriage does not matter. Whether it was a method which could or could not produce a miscarriage dos not matter. The question is what did he intend to do when he did the acts...”.

[Emphasis added].

In his mitigating submissions, counsel for the Defendant submitted as follows:

The Defendant is 29 years of age. She is living by herself. She has a son aged 6 years old with a man whom they lived together in a de facto relationship for 8 years. The Defendant’s de facto partner has since left her and her son. He now lives with another woman with whom they have a child.

The Defendant is unemployed and when she works, she does gardening. The Defendant used to work at Chuan Store as shop assistance until 1999. She is looking for an employment to support herself, her son and to look after her parents. In the meantime, she works in the gardens.

She relies heavily on her parents to support her with her six year old son. The Defendant’s highest educational level is class 6.

The Defendant is a first time offender. She has no previous criminal convictions. She pleaded guilty at her first available opportunity. She is remorseful. She has cooperated with the police investigations by admitting the offence to the police.

The defence counsel urges this Court to look into the circumstances of this case that led to the commission of the offence.

The Defendant has been living together in a de facto relationship with her de facto partner for 8 years. They had a son who is now six years old.

Her de facto partner left her and the son without informing the Defendant about the reasons for his leaving. At that time, the child was three years old.

Whilst living in their separate lives, the Defendant continues to have talks or discussions with the mother of her de facto partner about her de facto partner. The de facto partner did not make up his mind as to whether or not he will return to the Defendant.

As a result of that, the Defendant got into a sexual relationship with another man. She then got pregnant. Whilst pregnant, the Defendant continues to see the mother of the Defendant’s de facto partner. The Defendant later formed the view that the family of her de facto partner wants her relationship with her de facto partner to be restored. Further the Defendant wanted to return to her de facto partner because he is the father of her son. By having that thought, the Defendant decided to procure her own miscarriage which is prohibited under section 117(1) of the Penal Code Act [CAP 135].

The Defendant accepts and admits all the facts as alleged and summarized by the prosecution. Finally, counsel for the Defendant submitted that the appropriate sentence in a case such as this one, is one of suspended sentence under Suspension of Sentences Act [CAP 67] and the (English) case of R v. Spicer (1955) referred to by the prosecution should be disregarded by the Court as it is relevant to s.117(2) of [CAP 135] scenario but not section 117 (1) situation as in the present case.

I now consider the sentencing of the Defendant.

Section 110 of the Penal Code Act [CAP 135] provides for when a child deemed to be a person in this way:

“WHEN CHILD DEEMED TO BE A PERSON

110. A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother whether it has breathed or not, and whether it has an independent circulation or not, and whether the umbilical cord is severed or not.”
     

Abortion is the act of taking away the life of a child. Section 117(1) prohibits it. The maximum penalty is an imprisonment for 2 years.

The (English) case of R v. Spicer (1955) 39 CR App R 49, as a persuasive authority, is on facts relevant to a section 117(2) situation. However, the ratio decidendi is and can be applied to Section 117(1) of the Act [CAP 135] scenario as in the present case.

In Spicer case, Finnimore J directed in essence “... the question is what he [the defendant] intended to do when he did the acts...”.

Applying that legal rational in this case, I pose this question “...what did she [the Defendant] intend to do when she did the acts...” [of working in the gardens, doing washing and carrying heavy dishes while she knew she was pregnant].

In the present case, the Defendant/mother intended to kill the child which was living in her womb and killed it for her own safe return to her former de facto husband. The Defendant’s action is unlawful.

I have considered the submissions of the prosecution and the defence counsel. The circumstances of the case warrant a custodial sentence. I sentence the Defendant for 5 months imprisonment for the following reasons:

• First, to mark the gravity of the offence;
• Second, to emphasize and mark public disapproval;
• Third, to serve as a warning to others;
• Fourth, to punish the offender (Defendant in this case);
• To protect the right of a child to life.
  

I take out 2 months for the guilty plea and other mitigating factors. I sentence the Defendant Annie Akau to 3 months imprisonment. I consider whether or not to suspend it. I consider all the circumstances of this case, I decline to suspend the term of 3 months imprisonment. I order the Defendant to serve 3 months imprisonment with immediate effect.

14 days to appeal.

DATED at Port –Vila this 9th day of May 2005

BY THE COURT

Vincent LUNABEK
Chief Justice