State v Darshani [2006] FJHC 37; HAC0007.2005 (1 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION HAC0007.2005

THE STATE

V

PRIYA DARSHANI

Gates J

Mr A. Rayawa, and Ms Puamau for the State
Ms. B. Malimali and Mr Maitava for the Accused

1 February 2006

SENTENCE

Manslaughter s.198 PC; after trial on murder finding of guilty on lesser charge by reason of provocation, s.203, 204 PC; cumulative effect of history of serious provocation as well as provocative conduct on day of offence; tariff suspended sentence to 12 years imprisonment; 39 year old Accused; no prior convictions; drunken and violent deceased; sexual abuse of Accused’s children and of herself; sense of humiliation and shame; taunts of infidelity; intimate partner violence syndrome; one issue case, treated akin to a plea; final provocation and Accused "snapped"; irrational behaviour; remorse expressed to counsellors; had served on remand equivalent to 10 months imprisonment; probation rejected for resource reasons; Art 9 CRC children not to be kept from parents unless just and necessary; suspended sentence and recommendation to continue counselling and treatment.

[1] After trial on a charge of murder the Accused has been found guilty of the lesser offence of manslaughter by reason of provocation.

[2] The maximum term of imprisonment for the felony of manslaughter is life. The tariff for such offences has a wide range. In Kim Nam Bae v The State (unreported) Court of Appeal, Fiji Cr. App. No. AAU0015.1998S, 26th February 1999, the Court of Appeal (at pp.4-5) said:

"The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence there may have been grave provocation to 12 years imprisonment where the degree of violence is high and provocation is minimal. It is important to bear in mind that this range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts."

[3] For manslaughter cases of a serious category sentences can range between 7-10 years: Sashi Kapoor Rayan v The State Cr. App. AAU0028.2000S. As Shameem J commented in The State v Litia Leba Cr. Case No. HAC021.2003S, 11 February 2004 (at p.3):

"With the wide range in the tariff, picking a starting point can become fraught with value judgments as to what a "serious" manslaughter is."

[4] In State v Prabha Wati Lautoka High Court Cr. Case No. HAC0009.1999L, 9 October 2001, Prakash J (at pp.2-3) had this to say of spousal abuse in Fiji:

"However, it is now becoming evident from studies by the Fiji Women’s Crisis Centre, academics and other civil society organisations that spousal abuse is a major social problem in Fiji. It also has economic consequences. Due to the importance and sanctity of the family in the socio-cultural milieu in Fiji there is still considerable under reporting of spousal abuse. People do not want to intervene in the domestic lives of others. This concern for privacy and stigma attached to spousal abuse means that a considerable number of our women and children are deprived of support. Men themselves remain without counselling and the vicious cycle continues."

[5] This Accused had no means of independent financial support so that she could leave her partner. Counselling was limited and her family could not cope with solving the problem on their own.

[6] The Accused is aged 39 years. She left the father of her three school age children and went to live with the deceased. For 4 years thereafter she suffered a life of abuse. She endured grinding poverty because the deceased drank every day and could not and would not provide the bare necessities to the Accused and her children. He would not send the daughters to school, and instead sexually abused them at night with little attempt to conceal his activity, even from the 11 year old boy, their brother. It appears he was only prepared to take on the Accused, whom he treated as a sexual slave, but not her children. She was humiliated in front of her children.

[7] She had to witness her children being abused, treated in a hostile manner, and frequently assaulted with whatever came to hand. She lived in a state of constant shame, anxiety and fear. She was taunted with allegations of infidelity, and she and the children were abused with foul swear words. She was not allowed to go out to work. Always alert as to whether another assault was about to occur, yet she was unable to work out and to decide how to get away from this life of misery. Such a state of affairs was typical according to Dr Antico the psychiatrist, of cases of intimate partner violence syndrome, of which this case appeared to be a classic example.

[8] The Accused never suggested that she did not commit the act of killing. Through her counsel she denied the charge of murder. A considerable body of evidence was admitted by way of agreed facts, only provocation was in dispute. I shall approach the question of sentence as if a plea of guilty had been tendered.

[9] In Litia Leba the deceased died a painful death from burns after 6 days in hospital. In this case, the deceased appeared to have died almost immediately from excessive bleeding from the knife wounds. His last moments would have been unconscious ones.

[10] The Accused has not been in trouble with the police before. She has no prior convictions. She has been receiving counselling from the Women’s Crisis Centre and from St. Giles Hospital. Those supports should continue, and no doubt will assist in improving her mental and behavioural state. Other support agencies may assist in putting the Accused and her family back together again, although the traumas of the past and of this incident will probably not go away quickly or easily.

[11] The 25 January 2005 began well for you. Both you and the deceased were able to enjoy each other’s company out at the cinema and shopping. But once back home, the deceased’s drinking started again. The three incidents that caused you to snap were, the threat to assault you and your small son by coming inside the house, the attempt to strike your son on the road, and the shaming taunts accusing you of loose behaviour with other men which were shouted out for all the neighbours to hear, and who in consequence all came on the road to hear. These incidents together were the last straws.

[12] As in Litia Leba’s case, so in this case there was no planning, no deliberation. In your condition, with the long history of abuse you anticipated an assault to you and your son. Seeing the assault on your son on the road must have been extremely painful, for he had done nothing wrong and was only a small boy.

[13] You had expressed remorse during your counselling, when your reason returned, which your counsel has repeated to this court. At first you were remanded in custody for 196 days, equivalent to the serving of a sentence of 10 months imprisonment. I take both these factors into account.

[14] For this type of offence a suspended sentence has been considered appropriate both in Fiji and overseas: Prabha Wati (supra); Litia Leba (supra); Janet Susan Gardner (1993) 14 Cr. App. R. (S) 364. I had considered ordering probation, but assess, for the present, that Social Welfare is under resourced. This is likely to change, but for now the Department may be overstretched. I bear in mind also that by Article 9 of the Convention on the Rights of the Child that children are not to be kept apart from their parents unless it is just and necessary. I do not find it so in this case that you should be parted from them.

[15] Accordingly I sentence you to a term of 2 years imprisonment suspended for 2 years. I recommend most strongly that you continue with your counselling and with out-patient treatment and assistance from St. Giles Hospital. I will now explain the meaning of a suspended sentence.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused: Legal Aid Commission, Suva.