State v Senimoli [2015] FJHC 204; HAC161.2012S (20 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 161 OF 2012S

STATE

vs

ASENA SENIMOLI

Counsels : Ms. A. Vavadakua for State
Mr. S. Waqainabete for Accused
Hearings : 15, 16, 17 and 18 December, 2014
Summing Up : 19 December, 2014
Judgment : 19 December, 2014
Sentence : 20 March, 2015

SENTENCE

1. On 15 December 2014, on the first day of your trial, in the presence of your counsel, you pleaded not guilty to the following information:
   

Statement of Offence

MURDER: Contrary to section 237(a), (b) and (c) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ASENA SENIMOLI on the 19th day of April 2012, at Wainimala, Naitasiri in the Central Division, murdered her newborn child.

2. At the end of a four day trial, the three assessors found you guilty as charged. However, in a judgment delivered by the court on 19 December 2014, it disagreed with the assessors' verdict, and found you not guilty of murder, but guilty of "infanticide" [section 244(1) of the Crimes Decree 2009].
   
3. The brief facts were as follows. On 19 April 2012, you were 26 years old. You had an unfortunate family background. Your biological parents separated when you were young, and you were brought up by your grandparents in a village in Naitasiri. Your grandparents provided you with all the material and emotional needs you required until you went to live with your mother and stepfather in 2011. You already had a daughter at the age of 23 years old. You had a boyfriend in 2012, from which you conceived the deceased baby. You hid your pregnancy until the day you committed the offence. No-one was ever supportive to you during the pregnancy. You had some unresolved social problems. The balance of your mind was disturbed at the time you killed your child because you have not fully recovered from the effect of giving birth.
   
4. The crime of "infanticide" is a serious one, and the law had prescribed a maximum sentence equivalent to those found guilty of the manslaughter of a child [section 244(3) of the Crimes Decree 2009].
   
5. In State v Kesaravi Tinairatu, Criminal Case No. HAC 008 of 2001S, High Court, Suva, Her Ladyship Madam Justice N. Shameem said the following:
   

"...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 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 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..."

6. 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.
   
7. The mitigating factors were as follows:
   
   • (i) At the age of 26 years, this is your first offence;
   • (ii) You co-operated with police during the investigation;
   • (iii) You are remorseful;
   • (iv) You have been remanded in custody for approximately 4 months.
     
8. Given the authoritative nature of State v Kesaravi Tinairatu (supra), I 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 Cunningham Stage 1, Nasinu, for a period of two years, pursuant to section 3 of the Probation of Offenders Act, Chapter 22;
     
   • (ii) The supervising court will be Nasinu Magistrate Court;
     
   • (iii) The probation order is subject to the following conditions:
     
     • (a) That you undergo counselling with the Department of Social Welfare as frequently as the Department sees fit;
       
     • (b) That you remain in residence at Cunningham Stage 1, Nasinu, 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 Nasinu Magistrate Court.
     

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.