State v Tumuri [2002] FJHC 6; Hac0008J.2001s (5 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 008 OF 2001S

STATE

-v-

KESARAVI TINAIRATU TUMURI

Ms A. Prasad with Mr N. Nand for the State
Mr A. Wolf for Accused

SENTENCE

Kesaravi Tinairatu Tumuri, you have pleaded guilty today to one of count of Infanticide. The Information reads that on the 27^th day of January 2001 at Suva, you caused the death of your child when the balance of your mind was disturbed.

The State accepts that at the time of the offence the balance of your mind was disturbed by reason of you not having fully recovered from the effect of childbirth. The psychiatric report tendered by both counsel, shows that you are 23 years old and that since arriving in Suva from Savusavu in 1996, you have had a difficult time. You have not received family support, and you became pregnant as a result of a sexual encounter with a man whom you had only met once. You concealed your pregnancy, fearing the displeasure of your sister on whom you were financially dependant. Later on in the pregnancy you lacked any love and support from your family. On the 27^th of January 2001, you gave birth to your baby in the bathroom and wrapped him up in cloth and put him in a bucket. You suffered injuries during childbirth and lost a great deal of blood. The psychiatrist found that you were a mother who lacked adequate social and emotional support during pregnancy, that you received no pre-natal advice or care during pregnancy, and that the circumstances of the delivery contributed to your emotional stress which caused your mind to be disturbed.

The tariff for infanticide cases in Fiji and in other Commonwealth countries, is a non-custodial sentence with counselling or hospital orders. In R -v- Sainsbury (1989) 11 Cr. App.R(s), Current Sentencing Practice B1-63 the English Court of Appeal quashed a 12 month custodial term for an offence of infanticide committed by a 17 year old offender, saying that of 59 cases of infanticide in 10 years, all had resulted in orders of probation or supervision or hospital orders. The court said (per Russell LJ) that while the offence was a serious one “the mitigating features, in our judgment, were so overwhelming that without any hesitation whatever we set this sentence aside for it that which we think will best serve the interests not only of this appellant but of society as well.” A 3 year probation order was substituted.

Similarly in Australia, in R -v- Cooper (2001) NSWSC 769, a 21 years old offender, who pleaded guilty to infanticide, was ordered to enter into a good behaviour bond for four years with supervision and probation conditions, the sentencing judge holding “that a custodial sentence would be quite inappropriate to meet the circumstances of the case.”

In the Queen -v- Diseree Anne Wright (Ca 478/00) the New Zealand Court of Appeal said that infanticide cases in New Zealand usually led to two year supervision orders.

In Fiji, this has also been the case. In State -v- Envangeline Kiran Nair Crim. Case No. 32 of 1989, the offender was bound over under section 42(1) of the Penal Code to be of good behaviour for 1 year.

In the circumstances I accept the submissions made by counsel, that this is a case for a non-custodial sentence. The community’s need to see justice done does not lead inevitably to a punitive term of imprisonment for someone who has already been subjected to deprivation and social disadvantage and a mental illness caused by the effects of childbirth. I accept that you have already undergone some counselling and have benefited from it. I also accept that your family is now supportive, and that this experience has caused you to reassess your life and your priorities. Finally I take into account your plea of guilty, the fact that you were in custody from January 2001 to June 2002, and that you have already endured a trial on the charge of murder.

I therefore order, having considered the nature of the offence and your character, home surroundings and having obtained your consent, that you be placed under the supervision of the probation officer responsible for Samabula, Suva for a period of two years. The supervising court will be the Suva Magistrate’s Court. The probation order is subject to the following conditions:

1. That you undergo counselling with the Department of Social Welfare as frequently the Department sees fit;
   
2. That you remain in residence at Fulaga Street, Samabula, subject to amendment under the schedule to the Probation of Offenders Act;
   
3. If you fail to comply with the terms of this order or if you commit another offence during your period of probation, you will be liable to be sentenced for this offence.
   

A copy of this order will be sent to the probation officer responsible for your supervision and to the Suva Magistrate’s Court.

Nazhat Shameem
JUDGE

At Suva
5^th September 2002

HAC0008J.01S