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Public Prosecutor v Tom [2005] VUSC 74; Criminal Case No 035 of 2005 (9 June 2005)

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

Criminal Case No. 35 of 2005

PUBLIC PROSECUTOR

–v-

JACQUELINE TOM

Coram: Justice P I Treston

Mr. Kalmet for Prosecution
Mr. Tavoa for Accused

Date of Sentencing: 09 June 2005

SENTENCE

Jacqueline Tom, you have pleaded guilty to a charge of intentional homicide. Although the charge appeared initially to have been laid under section 106 (1) (a) of the Penal Code Act [CAP. 136] where the maximum penalty is twenty years imprisonment, it is clear, as your counsel accepts, that the charge in fact should have been laid under section 106 (1) (b) because this homicide was clearly premeditated in term of the legislation and the maximum term in that instance is imprisonment for life. That is so because section 106 (2) provides that the premeditation consists of a decision made before the act to make a homicidal attack on a particular person.

This was of course a tragic circumstance. It seems from the submissions that you had come to Efate from your home island of Paama in 2004. You met someone with whom you had intercourse as a result of which you became pregnant. It seems from the submissions that that may have been forced intercourse but you made no complaint to the police. You did not tell your de facto husband back in Paama what had happened nor did you reveal your pregnant condition to him because you feared that he would not accept you nor support a child who would be born and you became emotionally stressed and worried as to who would look after the child. When you confronted the person on Efate with whom you had intercourse about the circumstances, he denied that the baby was his and said that he was engaged to someone else. You had been staying with relations in Beverly Hills, Port Vila, and on 28 April this year, you left where you were staying to walk down via Freshwota to Ohlen Fresh wind area. It was about 7pm when you felt pain in your stomach, which you thought was minor but then it became birth pain. In fact you gave birth to a child in a garden plot. You then put the baby in a plastic bag and walked to the Freshwota playing field where you struck the plastic bag in which the baby was on the goal post causing the child to die. Later in the early hours of 29 April 2005, you went down to Fatumaru Bay to throw the body into the sea. After a short discussion with some security officers whom you came across you did that. For one or two days you bled after the birth and had to bath yourself frequently. It was on 30 April 2005, that a young boy found the body of your baby on the beach at Malapoa point.

As I have indicated the maximum potential sentence for premeditated intentional homicide is life imprisonment.

The Prosecutor refers to the cases of Public Prosecutor v Nato CR 32 of 2004 and to Public Prosecutor v Napat [2003] VUSC 45; Criminal Case No 027 of 2003 where sentences of two years imprisonment were imposed for similar matters. In one of those cases the sentence was suspended in the other one it was not and in another case of Public Prosecutor v Mathias [2001] VUSC 117; Criminal Case No 027 of 2001, a two year sentence was imposed for the killing of a disabled child who was four years of age.

The Prosecutor submits that a custodial sentence of two years imprisonment would be appropriate because of your intention to kill the child and dispose of its body to avoid detection. In those circumstances the Prosecution submit that a suspended sentence would be inappropriate.

On your behalf, I am advised that you are thirty three years of age without prior criminal history. You have back on Paama your de facto husband and three children aged seventeen, six and four years. Your intention was to return back to your family after a short time here staying with your relatives at the Beverly Hills area. It is submitted that you have admitted your wrong doing at the first opportunity and know that you have done wrong. It is said that you were emotionally stressed and worried as to who would support the deceased child which caused you to take the actions that you did. Your remorse, it is said, is clearly obvious and you have suffered other consequences of your wrong doing. It is said that you pleaded guilty at the earliest opportunity and you have expressed remorse and have other children to look after.

In the Mathias Case the learned Judge suspended the two year sentence for two years in view of the accused's circumstances and her responsibility for other children. When the Court of Appeal dealt which the Mathias situation it said that the accused in that case was a woman who was emotionally stressed and could not get the support that she needed from her family or close relatives. They said on the one hand that accused decided to deal with her own selfish needs and requirements in taking a heartless and wicked decision to kill her defenceless child and on the other hand the matter could be viewed as a involving a hapless woman in a precarious and vulnerable position, 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. In that case of course there was a wealth of information available to the Court to consider.

When the Court approaches the question of sentencing, it must look at various factors. There must be in general terms an accountability for harm done to the community generally by this behaviour. Your conduct must be denounced and there must be contained in the sentence elements of deterrence to prevent these sad circumstances happening in the future.

Sentencing involves a balance of aggravating and mitigating factors.

The aggravating factors here include the use of violence causing death, the harm resulting from the offence which was the death itself, your abuse of trust effectively to a child born of your body and the particular vulnerability of a new born infant to the actions which you took. As the Prosecutor said from the interview, it is clear that there were elements of premeditation because you always intended to do away with the child to solve your own particular problems.

Of course, mitigating factors must be taken into account. You have pleaded guilty at an early stage, you were candid with the authorities in your admission of responsibility, you have expressed remorse and you are previously of good character.

Sentencing you in the circumstances is not an easy task, but I must say that the Court of course accepts that the intentional homicide in this case was not a crime of passion or a matter of that kind. In general terms I agree that the sentence must be at the lower end of the scale in your circumstances bearing in mind the maximum penalty of life imprisonment.

The general tenor of the previous sentences in relation to similar offending appears to be a sentence of around the two year imprisonment level, which is of course in recognition of the particular circumstances of the offence. A suspension of a sentence was sought by your counsel, and under the Suspension of Sentences legislation if the Court considers that in view of the circumstances and in particular the nature of the crime, and the character of the offender it is not appropriate to make the offender suffer a penalty, it may in its discretion suspend any sentence of imprisonment. With the greatest respect in one of the other cases that I have cited, the learned Judge suspended the sentence because of the responsibility that the accused had to other children. While that was a merciful approach it does not seem to sit easily with the structure of the Suspension of Sentences Act. Of course the circumstance of responsibility to family is a circumstance which may be taken into account but it is the nature of the crime that is more relevant to consider. As I have said, I sympathize with you and your family commitments, I sympathize with the stresses that you were facing in all the circumstances which have been put forward in submission only. I balance, of course, the aggravating and mitigating features that I have referred to in detail. Certainly, your character previously has been unimpeachable but I do not consider that this is an appropriate case to suspend a sentence of imprisonment. You carried out a deliberate and premeditated course of action, which deprived your new born child of his life and as I am sure you realize, you must now face the consequences.

The appropriate penalty is two years imprisonment, I am not prepared to suspend that sentence. You have been in custody for approximately one and a half months, I deduct that one and a half months from the sentence of two years so you are today effectively sentenced to twenty two months and two weeks imprisonment.

You have 14 days to appeal that sentence.

Dated AT PORT VILA, this 09th day of June 2005

BY THE COURT

P. I. TRESTON
Judge