State v Baleiniusiladi [2010] FJHC 358; HAC042.2009 (25 August 2010)

THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 42 of 2009

BETWEEN:

STATE
PROSECUTION

AND:

MEREWALESI BALEINIUSILADI
ACCUSED PERSON

Counsel: Ms N. Tikoisuva - For State
Mr. T. Terere - For Accused-Person

Date of Hearing: 23rd August, 2010
Date of Sentence: 25th August, 2010

SENTENCE

1. The accused-Merewalesi Baleiniusiladu was found guilty of murder after trial as charged by the Director of Public Prosecution under Sections 199 and 200 of the Penal Code. The assessors were unanimous in their opinions. I directed myself with my summing-up and the evidence in the case and concurred with the opinions of the assessors. The accused was accordingly convicted of the offence of murder.
   
2. Submissions were invited from counsel to exercise the powers of court in terms of Section 18 of the Sentencing and Penalties Decree No 42 of 2009 (the Decree). Counsel for the prosecution and for the defence have filed written-submissions and they are helpful to form the opinion of court as to the imposition of the minimum sentence under the Decree, which was otherwise the mandatory term of life-imprisonment.
   

3. The deceased was the accused's own baby-boy, who was just born in the early hours of 26.02.2009; but, he was made to make his first and the last breaths within seconds in the arms of the accused upon whom the nature usually bestows motherly compassion, affection and caring comfort. That was not to be in this case.

4. At the trial, the accused sought to take refuge in 'infanticide' under Section 205 of the Penal Code on the basis of alleged 'post-natal' and 'post-partum' depression. The assessors were clear in their opinions as to the absence of such conditions to attract liability for the lesser offence of infanticide or any other.

5. In light of the above, I propose to weigh the aggravating and the mitigating factors as advanced by counsel.

6. The aggravating factors that court has to be essentially mindful of are:

(i) That you took away the life of an infant with malice aforethought when he was yearning for life;

(ii) That you planned the killing of the infant while you were carrying him and you carried-out the plan mysteriously in the heat of a silent night after deceiving everyone in your midst on 26.02.2009;

(iii) After causing the death of the infant, you secretly organised everything to dispose of the body having concealed it in a plastic bucket;

(iv) You dumped the bucket at a stream to ensure that it drifted away so as to conceal the entire episode from the whole world; and,

(v) You misled your aunt, who was indeed an aunt in your timely hour of need and betrayed the trust reposed on you by giving all her support for a safe child-birth.

7. Your acts and the conduct surrounding your pregnancy, the birth and the death of your child in every sense sound evil and leave no room to earn sympathy. The occurrence of this kind of killings in Fiji has become frequent. Therefore, deterrence should accompany with the sentence that this court is going to impose on you upon conviction after trial.

8. Court, accordingly, takes into account the criteria laid down in terms of Section 4 of the Decree and wishes to consider the mitigating factors as advanced by your counsel. Mitigating factors were:

[i] 'You co-operated with the Police and confessed as soon as you were arrested and interrogated;

[ii] You were sorry for what happened and you are apologizing to and through the Court for your actions;

[iii] You are acknowledging now that what you did was wrong and taking responsibility for your actions;

[iv] You have no history of violence and do not have an adverse record; and

[v] You are now in a de facto relationship with another man and you are now 2 months pregnant.'

9. His Lordship Justice Temo in his ruling dated 12.08.2010 in State v Mahendra Sharma – HAC 091/2009S imposed a minimum period of 13 years concerning the murder of a son by a father having regard to the extenuating circumstances in that case, though initially sounded that a minimum of 18 years of imprisonment was appropriate to send a message to the parents who take the lives of their own children. I consider that 18 years of imprisonment is a realistic minimum sentence to be set in this case in light of the impermissible aggravating factors. This conclusion is reached as the mitigating factors adduced on behalf of the accused are not good enough to consider in favour of the accused but for one.

10. That is, you are two-month pregnant as of now, as submitted by your counsel. This court is not unconscious of the possible psychological trauma that may set in by a long jail term even though your unconscionable crime well deserves to attract such a length of imprisonment. This court, within its means, ought to take away any possible impact against the unborn in imposing the sentence.

11. I sentence the accused to life imprisonment. Acting under Section 18 (1) of the Decree, I order that the accused is eligible for parole after 12 years from 25th, August, 2010, the date of this sentence. I further order the prison authorities to submit the prisoner to constant medical counselling and keep her under observation both during and after pregnancy.

Priyantha Nawana
Judge

At Lautoka
25th August 2010