State v Tawake [2010] FJHC 359; HAC019.2009 (26 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 019 OF 2009

BETWEEN:

STATE
PROSECUTION

AND:

MARIA MIRIAMA TAWAKE
ACCSUED PERSON

Counsel: For State - Ms. Leweni, T.
For Accused Person - Mr. Vakaloloma, A.

Date of Hearing: 2nd, 3rd, 4th, 5th, 6th, 9th, 10th, 11th August, 2010.

Date of Sentence: 26th August, 2010.

SENTENCE

Maria Miriama Tawake you were charged for the offence of Murder of your new born child and after Trial, you were convicted for the offence of Infanticide.

The facts of the case were, you were impregnated by your boyfriend and he left you when you got pregnant.

You were a student at FIT, and were residing with your younger brother and aunt who were also students. You did not inform anybody that you were pregnant as you were scared of your parents.

On 21st June 2007 you got labour pains and when you went to hospital, you did not get proper attention from the staff, and you delivered the baby in the labour ward toilet. Then you stuffed gauze into baby's mouth to avoid him crying, as you were scared of the Nurses, left the baby in the rubbish bin and left the hospital.

The maximum punishment for Infanticide is imprisonment for life.

Tariff for infanticide cases in Fiji and in other commonwealth countries, is a non custodial sentence with counseling or hospital orders.

(State v Kesarari Tinairatu Tumuri [2002] FJHC 6; HAC 0008J. 2001S [5TH September 2002]).

In this case the aggravating factors are that you put end to the life of your new born child by putting a piece of gauze to her mouth, when you were duty bound to protect her as the mother.

The mitigating factors are that you were 21 years old, you are now married with one child who is now 1 year old. You were attending FIT as a student at the time and that you are remorseful.

Further the court will consider your previous good character and the circumstances which led you to commit this offence.

In case of State v Kesarari Tinairatu Tumuri (Supra) Hon. Justice Shameem said:

".......... The community's need to see justice done does not lead inevitably to a punitive terms of imprisonment for someone who has already been subjected to deprivation and solid disadvantage and a mental illness caused by the effects of child birth...."

In the above mentioned circumstances and considering the aggravating and mitigating factors I find a non custodial sentence is appropriate in this case.

I further consider that this offence was committed on 21/06/2007 and now 3 years has lapsed, and now that you are married and having a child of more than 1 year old.

I further consider that there is no evidence of you having any mental disorder or imbalance for last 3 years.

Considering the above, I sentence you to 1year imprisonment suspended to 2 years.

You have 30 days to appeal.

Priyantha Fernando
Puisne Judge

At Suva
26th August, 2010.