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State v Lamete [2007] PGNC 174; N4495 (26 October 2007)

N4495

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 870 0F 2007

THE STATE

V

CHARLICE LAMETE

Buka: Cannings J
2007: 24, 26 October

CRIMINAL LAW – sentence – manslaughter – Criminal Code, Section 302 – trial – woman, seventh months pregnant, negligently allowed a drug to be administered to herself, causing premature birth of baby; then gave birth without seeking medical assistance – sentence of 6 years

A 19-year-old woman was convicted of the manslaughter of her child. When she was seven months pregnant, she allowed a female friend to administer a drug that is used to induce child birth into her vagina. That caused the child to be born prematurely, soon afterwards; and the offender failed to seek medical assistance, resulting in the death of the child soon after birth. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of manslaughter, akin to infanticide, is 8 years imprisonment.

(2) Mitigating factors are: did not directly kill the baby; pressured to kill the baby; co-operated with police; expressed remorse; first-time offender; youthful offender; offender was in emotionally disturbed state.

(3) Aggravating factors are: killing not spontaneous; child not born in a remote location; did not give herself up; no reparation of wrong; did not plead guilty.

(4) A sentence of 6 years was imposed. The pre-sentence period in custody was deducted and 3 years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
The State v Charlice Lamete CR No 870/2007, 24.10.07
The State v Elizabeth Elotesa CR No 501 of 2007, 17.08.07
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for manslaughter.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

26 October, 2007

1. CANNINGS J:This is a decision on sentence for a 19-year-old woman, Charlice Lamete, convicted after trial of the manslaughter of her new born baby. In the early morning of Sunday 1 April 2007 she was seven months pregnant and gave birth, near a river, at Arawa. She was alone. The baby was born alive but died soon after birth. On the afternoon before she gave birth, Charlice allowed another woman to insert some medicine into her vagina: six Cytotec tablets. Also known as Misoprostol, this is a drug used to, amongst other things, induce labour. She felt labour pains soon after administration of the drug. She gave birth fourteen hours later in a public place, alone and unassisted. Administration of the drug caused the premature birth of the baby. Being born two months premature, the baby had a low chance of survival. The offender reduced the baby's chances of survival to a negligible level by giving birth alone and unassisted in a public place. She was found to have indirectly caused the death of the baby and therefore, by law, she was deemed to have killed the baby. Her conduct in allowing a drug to be administered to her when she was seven months pregnant, not knowing or caring what the drug was called and what its likely consequences would be, was gross negligence. She exhibited careless disregard for the life of the baby that she was carrying. Her original act of negligence (allowing the drug to be administered) was exacerbated by her failure to take herself to the hospital or at least seek assistance of some kind, having felt labour pains. The killing of the child was not authorised, justified or excused by the law. It was therefore an unlawful killing, ie manslaughter. Further details of the offence are in the written judgment on verdict in The State v Charlice Lamete CR No 870/2007, 24.10.07.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise for what I have done. This is my first time in court. I didn't know about this trouble that I got involved in. In front of the court, I have been found to have broken the law and I say sorry.

PERSONAL PARTICULARS

4. Charlice Lamete is 19 years old, of mixed Bougainville (Siwai)/Solomon Islands parentage. Her parents are alive but separated. She is the second born in a family of two; a member of the SDA Church. She was doing grade 7 at Arawa High School until she became pregnant. She has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Kaluwin submitted that the offender should be sentenced in line with the infanticide cases. It was not a direct killing. The offender was under great emotional strain and will carry the stigma of this offence. A sentence of five years, fully suspended, would be appropriate.

SUBMISSIONS BY THE STATE

6. Mr Rangan submitted that a sentence of eight to twelve years should be imposed. The evidence suggested that she intended to cause the death of the child, so it was a serious case of manslaughter. Also she did not plead guilty. As to the issue of suspension, no evidence has been presented to justify a suspended sentence.

DECISION MAKING PROCESS

7. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. Section 302 (manslaughter) of the Criminal Code states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

9. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness. However, this is such a peculiar manslaughter case, I do not feel that the Kovi categories are applicable, at least not directly. I agree with Mr Kaluwin that the circumstances of this case make the offence akin to infanticide: an emotionally disturbed woman has taken the life of her own baby.

11. I am going to use a starting point of eight years as I did in a recent infanticide case decided in Kimbe, The State v Elizabeth Elotesa CR No 501 of 2007, 17.08.07. Though the maximum penalty is life imprisonment the practice has been to impose sentences considerably lower than the normal range of manslaughter sentences, reflecting the community view that a woman who kills her own child is invariably in a disturbed, distressed or distraught emotional state, requiring compassion and sympathy from the law as well as punishment for taking away a human life.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. In Elotesa's case a young woman pleaded guilty to infanticide. She gave birth to a baby boy and strangled the baby immediately after birth, causing him to die. She threw the body over a nearby cliff. She was distressed as the man who made her pregnant had promised to marry her but broke his promise and married another woman, leaving her alone and distraught. I imposed a sentence at the starting point of eight years.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors.

1. Did the offender not directly kill the deceased? Yes.
   
2. Was the killing of the child a spontaneous act? No.
   
3. Was the offender pressured by someone in authority to kill the child? Yes.
   
4. Was the child conceived as a result of non-consensual sex? Neutral – unknown.
   
5. Was the child born in a remote location or a place where the child could not be expected to survive if the offender elected not to look after it? No.
   
6. Did the offender dispose of the child's body in a dignified manner? Neutral.
   
7. Did the offender give herself up after the incident? No.
   
8. Did the offender cooperate with the police in their investigations? Yes. She made admissions in her police interview.
   
9. Has the offender done anything tangible towards repairing her wrong? No.
   
10. Did the offender plead guilty? No.
    
11. Has the offender genuinely expressed remorse? Yes.
    
12. Is this her first offence? Yes.
    
13. Can the offender be regarded as youthful or are her personal circumstances such that they should mitigate the sentence? Yes, she is still a young woman.
    
14. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, the offender was under a lot of pressure – emotionally disturbed.
    

14. To recap, mitigating factors are:

• No 1 – did not directly kill the baby;
• No 3 – pressured to kill the baby;
• No 8 – co-operated with police;
• No 11 – expressed remorse;
• No 12 – first-time offender;
• No 13 – youthful offender;
• No 14 – offender was in emotionally disturbed state.
  

15. Aggravating factors are:

• No 2 – killing not spontaneous;
• No 5 – child not born in a remote location;
• No 7 – did not give herself up;
• No 9 – no reparation of wrong;
• No 10 – did not plead guilty.
  

16. The other factors (Nos 4 and 6) are neutral. After weighing all these factors (seven mitigating and five aggravating) I consider that the head sentence should be below the starting point. After comparing this case to the infanticide cases, I impose a head sentence of six years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one month.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

18. Yes, I consider that half the sentence should be suspended. That will mean that the offender will spend a considerable time in custody, marking the community's condemnation of the offence. She will then be released to serve the rest of the sentence outside prison, which will appropriately put her under the continuing supervision of the court for a few years. The following conditions will apply:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave ARB without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d) must attend her local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Buka on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour;
(h) must have a satisfactory probation report submitted to the National Court Registry at Buka every three months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.

19. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and she can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

20. Charlice Lamete, having been convicted of the crime of manslaughter, is sentenced as follows:

Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender