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State v Venzakie [2008] PGNC 231; N3678 (6 October 2008)

N3678

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1177 OF 2006

BETWEEN:

THE STATE

AND:

ROSELYNE NAMUI VENZAKIE

Lihir: Gavara-Nanu, J

2008: 6 October

CIMINAL LAW – Sentence – Plea of guilty – Criminal Code Act, Chapter No. 262; s. 313 – Concealing birth of a child – Still birth – Accused needing counselling and support – Appropriate punishment – Fully suspended sentence of 6 months – 1 year Good Behaviour Bond.

Cases cited:

The State v. Meli Heti [1977] PNGLR 173.

Counsel:

S. Kesno, for the State
O. Oeveka, for the Accused.

1. GAVARA-NANU J: The accused pleaded guilty to a charge that she on 8 February, 2006, at Bulame village in Masaket Island, New Ireland Province, delivered a child which she endeavored by a secret disposition of the body of the child to conceal the birth and thereby contravened s. 313 of the Criminal Code Act, Chapter No. 262.

2. The offence carries the maximum penalty of 2 years imprisonment.

3. The brief facts of the case are these; on 8 February, 2006, the accused who was about 3 months pregnant started having labour pains at about 9.00am. Later that day, when her parents were away, she gave birth to a baby boy. It was a still birth, the accused got the body of the baby and buried it near her house. She lost a lot of blood during delivery. The birth was later discovered when some villagers saw the pigs dug up the body and were carrying it away. The accused was later taken to a nearby Health Center and treated.

4. She did not tell anyone about being pregnant including her parents for fear of being ridiculed and assaulted especially by the father. The parents also came to know about her pregnancy only after she gave birth.

5. There is no dispute that the child was already dead when it was delivered. There is also no dispute that the accused buried the child to hide the birth from the parents for fear of being assaulted by them. The accused was already a single mother of two and was living with her parents at the time of the offence. One can therefore understand why she was fearful of her parents, especially the father.

6. It is clear from her statement to the police that her actions in burying and concealing the body of the child were due to her disturbed mind resulting from the birth of the baby. All these in my view, pointed clearly to the need for the accused to be helped rather than punished. She was in need of support and comfort to help her get over the physical and emotional trauma she had been through during her pregnancy and the still birth of her child.

7. She pleaded guilty to the charge and has expressed remorse. She is a first time offender and is about 23 years old. She attained Grade 7 education. She has had employment in the past. She is a single mother of two children who are aged 1 and 9.

8. As I said, the case begs more for support and sympathy for the accused from the community, including her immediate family members than to be met with a punishment.

9. In these circumstances, I adopt what was said in The State v. Meli Heti [1977] PNGLR 173. The accused in that case was also charged with concealing the birth of her new born baby by throwing it into a toilet after convincing herself that the child was dead upon birth. Keaney, J (as he then was) said:

"...I must say, with respect, that I do not think the prisoner should have been prosecuted at all for this or for any other offence. She was entitled to the compassionate solitude and concern of society, rather than to the rigour of the criminal law."

10. I respectfully agree with his Honour’s remarks as being entirely appropriate in the circumstances of the case.

11. I am also of the firm view that accused in this case also needed sympathy and support of the community more than the rigour of the criminal law.

12. Consequently, I sentence the accused to 6 months imprisonment in light labour. I suspend the whole term and place her on Good Behaviour Bond for 1 year from today. I order that her K500.00 be refunded to her forthwith.

_____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused