State v Videi [2010] FJHC 168; HAC068.2009S (21 May 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 068 OF 2009S

STATE

V

MILIKA VIDEI

Counsels: Ms. J. Cokanasiga for the State
Ms. S. Vaniqi for the Accused

Hearings: 3rd and 4th May, 2010
Sentencing: 21st May, 2010

SENTENCE

1. Milika Videi, you first appeared in this court, on a charge of "murder", contrary to sections 199 and 200 of the Penal Code, Chapter 17, on 24th July 2009. The matter then went through various pre-trial proceedings, until the beginning of the trial, on 3rd May, 2010. Pursuant to section 218 of the Criminal Procedure Decree 2009, your Counsel, on 3rd May 2010, indicated to the court that, you maintained your not guilty plea to the charge of "murder", but you were willing to plead guilty to the charge of "manslaughter". The prosecutor later consulted her superiors, and the information was later amended to one of "manslaughter".

2. The amended information were as follows:

Statement of Offence

MANSLAUGHTER: contrary to section 198 and 201 of the Penal Code, Cap.17.

Particulars of Offence

MILIKA VIDEI on the 13th day of March 2009, at Nailili Settlement, Burerua, Tailevu in the Eastern Division caused the death of her newly born baby boy by an unlawful act that is by strangling him to death.

3. In the presence of your Counsel, the amended information was put to you and you understood the same. You then pleaded guilty to the offence. The prosecution then read her summary of facts to the court. It said, on 13th March 2009, you returned to your parent’s residence at Nailili settlement, Burerua. You were 9 months pregnant at the time. At 7am, you had back and abdominal pains. You went to bed after 7pm, after having your dinner. At about 9pm, you had regular labour pains. You then gave birth to a baby boy at 10.30pm, in a bedroom, at your parent’s home. You then cut the umbilical cord with a scissors. The baby boy was alive.

4. You then took off your long sleeved T-shirt, tied the same tightly around the baby’s neck and pulled it tightly. The baby died as a result. You then wrapped the baby boy with your skirt, put the same in a plastic bag, carried it to your outside pit toilet, and threw it inside the same. In the morning, you cleaned yourself up, and told your mother you had a miscarriage, and the baby was in the pit toilet. You were later taken to Korovou Hospital for medical examination, and treatment. The matter was reported to police. They recovered the baby’s body from the toilet pit, on 16th March 2009. The police cautioned interviewed you on 17th March 2009, and you admitted strangling the baby to death on 13th March 2009, and dumping the body in your parent’s toilet pit. On 20th March 2009, a post mortem was done on the baby and the cause of death confirmed your admission to the police. You were then charged for murder on 21st March2009.

5. The court then checked with your Counsel, to see that all the ingredients of the offence of "manslaughter" were admitted by you. On your behalf, your Counsel admitted that, when you strangled the baby’s neck and threw his body into the pit toilet, you committed an unlawful act. Your Counsel also admitted, on your behalf that, the above unlawful act caused the baby’s death. As a result of the above admission by your Counsel, on your behalf, the court found you guilty as charged, and convicted you accordingly.

6. I have carefully read your 17th March 2009 police caution interview statements, in order to properly understand your offending. The police asked you 216 questions and you provided 216 answers. I have carefully read the post-mortem report of your dead child, dated 20th March 2009. I have also considered your antecedent report. I have read and considered your written plea in mitigation, including the authorities submitted by your Counsel.

7. In note you are a first offender. You are 28 years old now, living in a de facto- relationship with Mr. Hakim Shah, and residing at Waivou Settlement in Lodoni, Tailevu. I note you are now four months pregnant, and being shown the love and support of your de facto-husband, including his family. I note you regretted what you’ve done and you are remorseful. You are the youngest in a family of five siblings. You reached a class 7 education, and you were already a mother at the age of 15 years old. Your daughter is now 9 years old.

8. Manslaughter is a serious offence. It carries a maximum sentence of life imprisonment. However, case laws in Fiji seemed to show that penalties for manslaughter range from a suspended sentence to 12 years imprisonment. Sentences in the upper range were reserved for cases where the degree of violence was high and the provocation given was minimal. Sentences at the lower end of the scale were often reserved for cases where the violence used was minimal and the provocation given was in the extreme: see Kim Nam Bae v The State, Fiji Court of Appeal, Criminal Appeal No. AAU0015 of 1998S: The State v Frances Bulewa Kean, Criminal Case No. HAC 037 of 2007; State v. Amali Rasalusalu Criminal Case No. HAC 003 of 2003, High Court, Suva. The actual sentence passed will depend on the presence or otherwise of strong mitigating and/or aggravating factors.

9. The aggravating factors in this case were as follows:

(i) you planned to kill the baby boy while you were carrying him for nine months. This was because you had moved into your present de facto- relationship, when you were two months pregnant. The baby boy was conceived from an earlier relationship. You planned to kill the baby because he was not your de facto-husband’s. In this state of mind, you obviously had no regard for human life;

(ii) the violence you inflicted on the baby was in the extreme. He looked to you for safety and support. You were his mother, and was expected to ensure his safety, and welfare. He was helpless a few minutes after birth. You then decided to end his life by tying your T-shirt around his neck and strangled him to death. Your distaste for his life was obvious, and your act to end his life was nothing short of evil;

(iii) after ending the baby boy’s life, you mislead everyone including your mother, that you had a miscarriage. You wrapped the baby boy’s body with your skirt, put him in a plastic bag, and threw him down your parent’s pit toilet. Even in death, you showed total disregard to the memories and human dignity of this short and innocent life.

10. The mitigating factors were as follows:

(i) you are a first offender, at the age of 28 years old;

(ii) you pleaded guilty to the amended charge of manslaughter, and therefore saved the Court’s time. However, this mitigating factor must be considered in the light of you having first being charged for the offence of murder, and had the same proceeded to trial, a conviction was not remote, given what you said in your police caution interview statement, dated 17th March 2009.

[see Questions 101, 102, 104, 105, 114, 115, 122, 123, 139, 180, 181, 183, 184, 199, 201, 210, 211 and Answers]. So by pleading guilty to manslaughter, you avoided a possible life sentence;

(iii) you are now 4 months pregnant, and you are being fully supported by your de facto-husband and his family;

(iv) you are a mother of a 9 year old daughter;

(v) you received a limited education, reaching only Class 7 at Ratu Filimoni Loco Memorial School;

(vi) you fully co-operated with the police during their investigation;

(vii) you have spent 2 months in remand, while awaiting the trial of this matter;

(viii) you regretted what you’ve done and you are remorseful.

11. This was not a case of infanticide. The balance of your mind was not disturbed by reason of you not having fully recovered from the effect of giving birth to the baby boy. You planned to kill the baby boy while you were carrying him for 9 months [see your caution interview statement, dated 17th March 2009, Question 211 and Answer]. As a result, the non-custodial sentences normally reserved for infanticide cases, does not apply to you.

12. Article 6(1) of the United Nation’s Convention on the Rights of the Child reads, "...State parties recognize that every child has the inherent right to life..." Article 3(1) of the same Convention reads, "...In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration..."

13. A deterrent lesson had to be sent out to mothers who find themselves in your position. Don’t take away the life of an innocent child, otherwise you will risk a custodial sentence. There are other peaceful alternatives – adoption.

14. I start with a sentence of 2 years imprisonment. For the aggravating factors, I add 3 years imprisonment, making a total of 5 years imprisonment. I deduct 2 years imprisonment for the mitigation factors, leaving a balance of 3 years. I sentence you to 3 years imprisonment.

Salesi Temo
ACTING JUDGE

AT Suva
21st May 2010