State v Wati [2010] FJHC 251; HAC068.2010S (16 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 068 OF 2010S

STATE

V

ULAMILA WATI

Counsels: Ms. T. Leweni for the State Ms. S. Vaniqi for the Accused

Hearing: 21st May and 9th July 2010
Sentence: 16th July 2010

SENTENCE

1. Ulamila Wati, on 21st May 2010, in the presence of your counsel, you pleaded guilty to the following charge:

Statement of Offence

INFANTICIDE: contrary to section 205 of the Penal Code, Cap 17.

Particulars of Offence

ULAMILA WATI on the 23rd day of May 2003 at Vunisenitoa, Verata, Tailevu in the Central Division, willfully caused the death of her new born son under the age of 12 months by inflicting grievous bodily harm to his body but at the time of such act the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to her son.

2. On 9th July 2010, the prosecutor presented her summary of facts in court. Briefly they were as follows. On or about August 2002, while working at Suva at the age of 21 years, you had a relationship with a young man from Gau. Soon thereafter, you returned home to your parents at Vunisenitoa Settlement, Verata, Tailevu. You later discovered in January 2003 that you were pregnant. You then hid your pregnancy from your parents and family, because you feared been assaulted by your father. You kept the pregnancy to yourself. No-one knew about it until 23rd May 2003.

3. On 23rd May 2003, at about 5am in the morning, you went to your pit toilet to relieve yourself. According to you, your baby came out of you and fell into the pit toilet. It was alive and crying. According to you, you used a coconut husker to draw the baby closer to you. You then went to a nearby dug pit toilet, brought some soil, and buried the child with it. You knew that by doing this, it would cause the child to die. You wanted the child to die to conceal your pregnancy. However, according to the post-mortem report, the cause of the child’s death was "shock due to multiple stabs wounds". In any event, you admitted, you wanted the child dead, and you caused its death. The prosecution choose to charge you with the offence of "infanticide", and as such, they accepted that, when you caused the death of your child, on 23rd May 2003, the balance of your mind was disturbed by reason of you not having fully recovered from the effect of giving birth.

4. After the prosecutor read her summary of facts, the court checked with your counsel to see that, all the elements of "infanticide" were satisfied in this case. Your counsel, on your behalf, agreed with the prosecution’s summary of facts, and agreed that all the elements of "infanticide" were present in this case and admitted by you. On that basis, the court found you guilty as charged and convicted you accordingly.

5. I note that you are first offender. I have read your antecedent report. I have also read your written plea in mitigation, and the sentencing submissions submitted by the parties.
6. The maximum penalty for infanticide is the same as that for manslaughter, that is, life imprisonment (sections 201 and 205 of Penal Code, Chapter 17). However, Her Ladyship Justice N. Shameem said the following in State v Kesaravi Tinairatu Tumuri, Criminal Case No. HAC 008 of 2001S, High Court, Suva:

"...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 was substituted.

Similarly in Australia in R v Cooper (2001) NSW 769, a 21 year old offender, who pleaded guilty to infanticide, was ordered to enter into a good behavior 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 behavior for 1 year..."

7. The aggravating factor in this case is the obvious loss of the life of an innocent young child, and especially so, from the person who is duty bound to protect that life from the beginning, that is, the mother. The manner in which this young innocent life was lost, was also an aggravating factor.

8. The mitigating factors were as follows:

(i) You are a first offender;

(ii) You pleaded guilty, and therefore saved the court’s time;

(iii) You are now married, with three young children to support. The children are aged 6, 4 and 1 year old;

(iv) Although you are remorseful, your offending will haunt you for the rest of your life.

9. This court was originally minded to pass a short, sharp prison deterrent sentence, given the loss of an innocent young life in this case, but given the authoritative nature of State v Kesaravi Tinairatu Tumuri (supra), and the parties’ submissions that this court follow the above case, the court will sentence you as follows:

(i) I order, having considered the nature of the offence, your character, home environment, and having obtained your consent through your counsel’s submission, that you be placed under the supervision of the probation officer responsible for Vunisenitoa Settlement, Verata, Tailevu, for a period of two years, pursuant to section 3 of the Probation of Offenders Act, Chapter 22;

(ii) The supervising court will be the Nausori Magistrate Court;

(iii) The probation order is subject to the following conditions:

(a) That you undergo counseling with the Department of Social Welfare as frequently as the Department sees fit;

(b) That you remain in residence at Vunisenitoa Settlement, Verata, Tailevu, subject to amendment under the schedule to the Probation of Offenders Act;

(c) 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.

(iv) A copy of this order will be sent to the probation officer responsible for your supervision, and to the Nausori Magistrate Court.

Salesi Temo
ACTING JUDGE

AT Suva
16th July, 2010