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State v. Tuanis

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State v. Tuanis

National Court of Justice

15 March 2013

CRC Provisions
Article 20: Protection of a child without family

Domestic Provisions:
Criminal Code Act, s. 19: Construction of Provisions of Code as to Punishments
Criminal Code Act, s. 299: Wilful Murder
District Courts Act, s. 96: Accused to be Asked Whether He Desires to Give Evidence

Case Summary:

The defendant mother was convicted of wilful murder of her boyfriend, who was the father of her three-year-old child. This case concerns the corresponding sentencing phase. The mother had been incarcerated for three years between pre-trial and sentencing. During those three years, she was caring for her child, who was living with her in prison.

Issue and resolution:
Separation from parent; best interests of the child. The court sentenced the defendant to 10 years’ imprisonment, with the previously served 3 years deducted and the remaining 7 years suspended and served on probation.

Court reasoning:
The Court determined that the defendant acted under “extreme extenuating circumstances”. In light of the mitigating factors, including the deceased’s abuse of the defendant, and largely in consideration of the best interests of the child, the Court decided that a sentence in the lower range was appropriate.

Excerpts citing CRC and other relevant human rights instruments:
This court is mindful of the fact that from the time of your pre trial custody to the day of sentence today, which I estimate to be almost 3 years from 24 April 2013, you have raised your infant child whilst in gaol. Whilst it could be argued that it was your fault and that you brought it upon yourself and your infant into this most unfortunate situation, I hold a more humanitarian view. The child is innocent and his rights are as important if not equal to those of an adult. My view is that any prolonged forced incarceration brought about by your actions is an abuse of the rights of the child. I say this in light of Papua New Guinea becoming a part of the international community to protect the right of children by ratifying the Convention on the Rights of the Child (CRC) in 1993. I quote Article 20 of The Convention on the Rights of the Child (CRC) as follows:

“A child temporarily or permanently deprived of his or his family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.”

The judiciary as an institution of the State is not exempted from this universal declaration in that it ratified the convention to ensure that children “shall be entitled to special protection and assistance provided by the State.” (Emphasis mine). This court’s attempt to honour this international convention, although insignificant in my view is a small step in the right direction to protect the rights of children here in Papua New Guinea.

CRIN Comments
CRIN believes this decision is consistent with the CRC. Article 3 provides that in all actions concerning children, the best interests of the child shall be a primary consideration. The State has an obligation under Article 9 to ensure that a child is not separated from their parents against their will unless it is necessary for the best interests of the child.

State v Tuanis [2013] PGNC 70; N5120 (15 March 2013)

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.