State v Mudaliar [2006] FJHC 47; HAC015.2005S (17 May 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case No: HAC015.05S

THE STATE

V

SACHIDA NAND MUDALIAR

Fiji High Court, Suva
17th May 2006
Gates J

SENTENCE

Manslaughter s.198, 201; maximum punishment life imprisonment; unlawful act first basis; late term abortion procedure; tear to uterus leading to excessive bleeding, shock and death; gross negligence secondary basis; non-referral from surgery bed to hospital; leaving overnight in unattended locked surgery; no patient notes or records; competent medical practitioner who comprehended risks involved; 57 year old; no prior convictions; conviction harsh burden for Accused; departure from reasonable community standards; need for deterrence.

Counsel:
Mr R. Gibson with Ms H. Tabete for the State
Mr M. Raza for the Accused

[1] The Accused has been found guilty after trial of one count of manslaughter contrary to sections 198 and 201 of the Penal Code. The maximum term of imprisonment provided by the Code for such an offence is one of life.

[2] A 20 year old USP undergraduate consulted the Accused, who is a specialist obstetrician and gynaecologist in private practice, seeking an abortion. The Accused agreed to do it and charged $950.

[3] The student was already 20 weeks into her term of pregnancy. At that term the procedure for abortion presents a greater risk than for a person who is 13 weeks or less into her pregnancy.

[4] Unfortunately the operation performed in the Accused’s surgery was not performed successfully. In the process the uterus was torn. This injury damaged the blood supply and led to massive bleeding. The bleeding caused shock from which the patient died.

[5] The first basis to be considered for the sentence is that an unlawful act had been carried out on the patient, namely the abortion, which act was a serious offence in itself. The patient’s life was not in danger prior to the abortion. This was not a case where such a medical procedure was necessary or justified. Nor did the Accused maintain that it was. He denied having carried out such an act.

[6] The second basis for sentence is the allegation of gross negligence in not treating his patient, once she was seriously ill and in peril, with sufficient regard for her health and safety. This comprised the failure to remove her to the intensive care unit at the CWM Hospital, the abandonment of her unattended in the locked surgery overnight whilst in this state, and the unprofessional manner in which she was handled. This included the complete absence of history, notes, and records, which would be required by a receiving hospital upon emergency removal.

Aggravating factors

[7] Clearly when anyone has his or her life taken away their right to life has been lost also. Once a person engages in unlawful and dangerous activity, the law places responsibility upon that person for harm that comes to others thereby.

[8] To carry out an abortion is a serious offence. To carry out a late abortion adds considerably to the obvious danger.

[9] The Accused, who is a knowledgeable, competent, experienced and able obstetrician and gynaecologist knew what he was doing. He knew of all the dangers in doing that procedure. From his eminent height he was well aware of the views of his profession on such conduct, and of those of the community.

[10] The decision not to transfer her to the hospital can be understood on the basis he would not have wanted the hospital authorities to know that he had carried out an abortion. But Poonam’s life transcended his (and her) wrong doing.

[11] His decision to leave her overnight in the surgery alone in that condition is less easy to understand. It must be viewed by objective standards. Mr Raza submitted a newspaper report of a similar case in the USA. The case of John Biskind, 4th May 2001 State of Arizona. In that case a 75 year old doctor operated on a 33 year old woman for a late term abortion. It was said he did not look after the patient adequately and she was left in the clinic without medical support whilst he went out to a shop. The court sentenced him to a term of 5 years imprisonment.

[12] In R v Creamer [1966] 1 QB 72 the Co-Accused of the appellant, the person who had carried out the criminal abortion was sentenced to 3 years imprisonment following the death of the patient. Lord Parker CJ described the crime in this way. He said (at p.82):

"A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended."

[13] In another newspaper reference Mr Raza referred me to a Californian case, Steir September 16th 2000 in which the Accused was sentenced to 6 months for manslaughter. Steir had carried out an abortion but perforated the patient’s uterus for which she bled to death. He had failed to call in medical help when her condition deteriorated.

[14] In Harry Surdiman [2004] CACC 486/2003 a Hong Kong case, the applicant had carried out an unsuccessful abortion from which the patient died after incorrect medication was administered. He was sentenced to 2 years imprisonment.

Mitigating factors

[15] The Accused is aged 57 years. He has been married for 30 years and has 3 children. All are residing in New Zealand now.

[16] The Accused is a man of prior good character. He has no convictions recorded against him.

[17] He has many years of experience as a doctor and as a specialist obstetrician and gynaecologist. He is well qualified, skilled, and competent in his field. He has given many years of useful service to Fiji, his patients, and to the public service, hospitals, and the Fiji Medical Association. I note the observations and commendations of all of the defence witnesses who spoke on his behalf.

[18] The conviction itself represents a particularly harsh burden for a professional person such as the Accused occupying a position of repute and respect, not least with his peers.

[19] I note the Accused had to spend 3 weeks in custody when first arrested on a more serious charge. He has also had to endure a long wait for his ordeal to be over. The conviction is not only, as Mr Raza said, an embarrassment to him it is also a personal tragedy for him. It is shared by his closest colleagues and patients.

[20] It is sometimes said in this type of case that the Accused had no intention to harm. I accept that. In Pesnak [2000] QCA 245 112 ACrimR 410, it was said:

"Whilst intention is relevant to sentence, a major factor in criminal negligence manslaughter cases is the extent of the departure from reasonable community standards which constitutes the criminal negligence."

[21] I also accept that the Accused has been a law-abiding subject and is unlikely to re-offend.

[22] He has exercised his right to plead not guilty. It is not possible to grant any discount in sentence for a plea of guilty therefore. There may be remorse expressed for the death of the victim Poonam which I note but not for the act itself which led to the death and the omissions in her treatment.

Conclusion

[23] Sentences in manslaughter cases vary greatly depending on their facts. This much is common place.

[24] The carrying out of the abortion at a late stage was by medical opinion dangerous. This must have been known to the Accused. I start on the tariff at 2 years imprisonment. I reduce it by half to take account of the strong mitigation.

[25] However, the Accused’s failure to respond to the victim’s obvious and increasingly serious symptoms constituted an extremely grave departure from reasonable community standards. The abandonment of his patient in that condition in the locked surgery overnight, completely alone, means that any term of imprisonment must be sufficiently substantial in the hope that it will deter others from engaging in such objectively dangerous and unacceptable conduct. For that I raise the sentence by a further 2 years to order a term of 3 years imprisonment.

[26] The Accused is sentenced to serve a term of 3 years imprisonment.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Messrs M. Raza & Associates, Suva