State v Lal - Sentence [2024] FJHC 668; HAC21.2021 (11 November 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 21 of 2021

STATE

V

PRIYANKA PAYAL LAL

Counsel: Ms. Saini Naibe with Ms. Shreta Prakash for the State
Mr. Paula Gade with Ms. Losana Taukei for the Accused

Sentence Hearing: 26 September 2024
Sentence: 11 November 2024

SENTENCE

[1] Priyanka Payal Lal, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged with the following offence:

FIRST COUNT

Statement of Offence

ATTEMPTED MURDER: Contrary to Section 44(1) and 237 of the Crimes Act 2009.

Particulars of Offence

PRIYANKA PAYAL LAL, on the 14^th day of November 2020, at Vatulaulau, Ba, in the Western Division, attempted to murder her INFANT BABY.

ALTERNATIVE COUNT

Statement of Offence

FAILURE TO PROVIDE NECESSARIES: Contrary to Section 264 of the Crimes Act 2009.

Particulars of Offence

PRIYANKA PAYAL LAL, on the 14^th day of November 2020, at Vatulaulau, Ba, in the Western Division, being charged with the duty of providing for her INFANT BABY the necessaries of life, without lawful excuse failed to do so, whereby the life of her INFANT BABY was endangered.

[2] This matter was first called in the High Court on 5 February 2021. The Disclosures relevant to the case were filed in Court on 12 February 2021, while on 9 March 2021, the DPP filed the Information in Court and the matter was fixed for plea.

[3] Priyanka, on 4 October 2021, you were ready to take your plea. On that day you pleaded not guilty to the charge and the alternative charge against you in the Information. The matter was then fixed for finalizing of Pre Trial Conference (PTC) documents and hearing. Thereafter, the matter was fixed for trial from 14 November 2023 to 16 November 2023.

[4] On 14 November 2023, you wished to take your plea once again. On that day you pleaded guilty to the First Count against you in the Information. This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charge against you and the consequences of your guilty plea.

[5] Thereafter, on 16 February 2024, the State filed the Summary of Facts. On 5 March 2024, the Summary of Facts were read out and explained to you and you understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the count of Attempted Murder in the Information, and found the said count proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you of the charge of Attempted Murder.

[6] On 18 April 2024, when the matter was taken up for sentence hearing, it came to light that the more appropriate charge against you should be one of Attempted Infanticide, contrary to Section 44(1) read with Section 244 of the Crimes Act No. 44 of 2009 (Crimes Act). Even the Summary of Facts filed by the State reveals that at the time of the incident your state of mind may have been disturbed as a result of your condition associated with your pregnancy.

[7] As such, on 8 August 2024, this Court ruled that in the interest of justice you cannot be found guilty and convicted of Attempted Murder, but the lesser offence of Attempted Infanticide. Accordingly, I found you guilty on your own plea and convicted you of the lesser offence of Attempted Infanticide, contrary to Section 44(1) read with Section 244 of the Crimes Act.

[8] This Court also directed the State and the Defence to file Supplementary Sentencing Submissions and Supplementary Mitigation Submissions, which both parties complied with.

[9] Priyanka, I now proceed to pass sentence on you.

[10] The Summary of Facts filed by the State was as follows:

“The accused in this matter is PRIYANKA PAYAL LAL, at the material time was 22 years old, cashier of Tokotoko, Navua.

On 14^th November 2021, at about 6.30 am, LITIANA TUWAI (PW1), Staff Nurse at Ba Mission Hospital was on duty when it was brought to her attention by the night shift staff stating that the accused had a miscarriage at home. The accused was brought to the prep room by a relative namely KAJAL KARTIKA PRASAD (PW2).

On the above date, at about 5 am, the accused was having stomach aches. PW2 woke up and saw blood everywhere and she thought the accused had a miscarriage or had her menses because the accused appeared to be very weak. PW2 noticed that the accused stomach was slightly big and she asked the accused whether she was pregnant but the accused denied this. PW2 took the accused to the hospital and at the hospital she was told that the accused will be transferred to Lautoka Hospital. PW2 then went back to her home in Vatulaulau to pack some of the accused clothes. PW2 reached home and went to the room to pack the accused clothes. PW2 then lifted a bag and noticed that it was heavy and she felt suspicious. PW2 called her husband to open the bag. The bag was opened and she saw a wrapped towel, PW2 opened the towel and saw a baby’s leg. PW2 then saw a naked baby inside the bag and the baby was alive and moving. PW2 rushed back to the hospital with the baby and handed the baby to PW3.

Dr. LUISA PETUELI RABUKA (PW3) examined the accused and the history related to her by the accused was that she was bleeding at home and her lump had been around September making her look like she had a miscarriage and was around 2 months pregnant. PW3 asked the accused numerous times about delivery of a baby but the accused denied it. PW3 noted that the accused initial presentation correlate to a post-partum mother. PW3 then later received a baby from PW2 which was found inside a bag. The accused then admitted to PW3 that she delivered the baby.

The accused was arrested and interviewed under caution whereby she stated that in 2018 when she gave birth to her first child she had a lot of problems with her husband and mother in law (Q & A 23). In March 2020, she discovered she was pregnant again and it was on the 14^th of September 2020, she had a dispute with the husband and she left Balevuto and came to Yalalevu, Ba and went to Suva to her parents, leaving her husband and son (Q & A 24). She returned to Ba end of September 2020 and was staying with PW2 and husband at Vatulaulau Stage 2, Ba, where they were renting. On the alleged date at 3.00 am to 7.00 am she was at home in Vatulaulau with PW2. The accused went to sleep in one room whilst PW2 slept in another room. At around 3.15 am, she claimed that she went to the toilet to relieve herself and she returned to bed with a stomach ache. The accused stated that she could not sleep since she was having pain in her stomach and at around 4.30 am she went back to the washroom. The accused stated that she was still in the bathroom when she gave birth, the baby went inside the pan and she picked the baby up (Q & A 39). The accused said that it was a fully formed baby girl and she used a towel to wrap the baby, it was not breathing, never cried and baby colour was blue (Q & A 40-41). The accused said that she was frightened, she got hold of a white tape which was a plaster tape and made a string and tied it around the baby’s mouth. She went into the cupboard, opened it and got hold of a school bag and wrapped the baby and put her inside the bag (Q & A 42-43). The accused then took the bag and placed it inside the room, near the bed and placed a blanket over the bag (Q & A 44). The accused further said that she was feeling weak and she woke PW2 and told her that she was bleeding and she thought she had a miscarriage where she took her to hospital (Q & A 45). At the hospital she was asked whether she gave birth and she kept telling them she did not (Q & A 46-47). The accused then stated that she was told that she was going to be transferred to Lautoka Hospital due to loss of blood so PW2 went to bring her clothes. PW2 went to get her clothes but she came with the bag which she placed the baby in, the baby was outside and alone when the doctors asked her about the baby, she then told them that the baby is hers and she was the one who placed it in the bag.

The accused was shown the medical report of the baby that showed that there was a cloth tied around the mouth of the baby, she admitted that she had tied the plaster around the mouth of the baby (Q & A 53 & 56). She also admitted that she placed a blanket over the bag (Q & A 54). She also admitted that she placed the baby inside the bag and this was not known to PW2 (Q & A 55). The accused confirmed that it was an offence when she attempted to cause the death of a fully formed baby by tying her mouth and putting her inside the school bag after giving birth.

The accused was later charged for one count of Attempted Murder contrary to Section 44 (1) and 237 of the Crimes Act 2009.”

[11] Priyanka, you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[12] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[13] Furthermore, Section 4(2) of the Sentencing and Penalties Act provides that a Court must also consider the following factors when sentencing an offender:

(2) In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

[14] Priyanka, I have duly considered the above factors in determining the sentence to be imposed on you.

[15] Section 244 of Crimes Act reads as follows:

(1) A woman commits the indictable offence of Infanticide if—

(a) she, by any wilful act or omission, causes the death of her child; and

(b) the child is under the age of 12 months; and

(c) at the time of the act or omission the balance of her mind was disturbed by reason of —

(i) her not having fully recovered from the effect of giving birth to the child; or

(ii) the effect of lactation consequent upon the birth of the child; or

(iii) any other matter, condition, state of mind or experience associated with her pregnancy, delivery or post-natal state that is proved to the satisfaction of the court.

(2) The onus of proving the existence of any matter referred to in sub-section (1) (c) lies on the accused person and the standard of proof of such matters shall be on the balance of probabilities.

(3) In circumstances provided for in sub-section (1), notwithstanding that they were such that but for the provisions of this section the offence would have amounted to murder, the woman shall be guilty of Infanticide, and may be dealt with and punished as if she had been guilty of manslaughter of the child.

[16] In terms of Section 245 of the Crimes Act:

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother —

(a) whether it has breathed or not; and

(b) whether it has an independent circulation or not; and

(c) whether the navel-string is severed or not.

[17] Section 44 (1) of the Crimes Act provides that “A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed”.
[18] According to Section 244 (3) of the Crimes Act a person found guilty of Infanticide or Attempted Infanticide (when read with Section 44 (1) of the Crimes Act), may be dealt with and punished as if she had been guilty of manslaughter of the child. In terms of Section 239 of the Crimes Act, the maximum penalty for the offence of Manslaughter is 25 years imprisonment.
[19] Since the punishment for Infanticide or Attempted Infanticide is the same as that of Manslaughter, the maximum penalty for the offence of Attempted Infanticide would also be 25 years imprisonment.

[20] However, Her Ladyship Madam Justice Nazhat Shameem in the case of State v. (Kesaravi Tinairatu) Tumuri [2002] FJHC 6; HAC 0008J.2001s (5 September 2002); 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) NSWSC 769, a 21 year old offender, who pleaded guilty to infanticide, was ordered to enter into good behaviour 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 behaviour for 1 year..."

[21] In the case of (Merewalesi) Baleiniusiladi v State [2016] FJCA 32; AAU 070.2010 (26 February 2016); the Fiji Court of Appeal elaborated on the evolution of the law relating to Infanticide. It was held:

“It is admitted that the law relating to the instant case is the repealed Penal Code, as the offence was committed on 26th February 2009. The Crimes Decree 2009 (Crimes Act) came into operation on 1st of February 2010 and after trial in the High Court, the accused was convicted on 19th August 2010. Sentence was imposed under Section 18 of the Sentencing and Penalties Decree 2009 (Sentencing and Penalties Act). Criminal Procedure Decree 2009 (Criminal Procedure Act) also came into operation on the 1st of February 2010.

Though the appellant was charged under the Penal Code it is relevant to peruse the amended provision of the Crime Decree with regard to Infanticide. This perusal is carried out in order to examine the development of the law relating to Infanticide. Section 244(1)(c) is reproduced as follows:

“244(1)(c) at the time of the act or omission the balance of her mind was disturbed by reason of:

(i) her not having fully recovered from the effect of giving birth to the child; or

(ii) the effect of lactation consequent upon the birth of the child; or

(iii) any other matter, condition, state of mind or experience associated with her pregnancy, delivery or post natal state that is proved to the satisfaction of the court.

It is interesting to note that Section 244(1)(c)(iii) is an additional element for diminished responsibility of infanticide which did not exist in the Penal Code. This means factors such as social human experience, social condition, moral situation, cultural upbringing, economic plight and circumstance of the pregnancy can be considered as grounds to reduce the offence of murder to infanticide. It appears this section was introduced not as a result of accident or haphazardness. This was a result of a clever and deliberate move in giving effect to long standing common law principle that was practised in Fijian High Courts. There has been a consistent and established practice that considered the factors mentioned above in order to reduce the offence of murder to infanticide under section 205 of the Penal Code.”

[22] In the case of State v. (Vika Kelekele) Laliqavoka [2017] FJHC 544; HAC108.2016 (19 July 2017); this Court imposed a sentence of 2 years imprisonment, which term was suspended for 3 years, on an accused who was found guilty of Infanticide of her new born baby.

[23] Priyanka, as per my opinion, the aggravating factors in this case are that you did not provide the necessary care and warmth to your new born baby daughter. Instead you tried to conceal the birth of the child by tying a white tape/a plaster tape around the baby’s mouth. You then wrapped the baby and put her inside a school bag. You then placed a blanket over the bag.

[24] Priyanka, in mitigation you have submitted as follows:

(i) That you are a first offender and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you.

(ii) That you fully co-operated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.

(iii) You have submitted that you are truly remorseful of your actions. You have promised not to re-offend and said you are willing to reform.

(iv) That you entered a guilty plea during these proceedings, although belatedly.

[25] Considering the nature and gravity of the offending, your culpability and degree of responsibility for the offending, the aggravating factors and mitigating factors aforesaid, Priyanka Payal Lal, I sentence you to 2 years imprisonment for the offence of Attempted Infanticide, contrary to Section 44(1) read with Section 244 of the Crimes Act.

[26] The next issue for consideration is whether your sentence should be suspended.

[27] Section 26 of the Sentencing and Penalties Act provides as follows:

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[28] Priyanka, you are now 26 years of age [Your date of birth being 23 January 1998]. At the time of the incident you were 22 years of age. You are currently said to be residing at Nausori. You had been married when you were 19 years of age. You have two children – the eldest a 6 year old son and the youngest, your daughter, who will be turning 4 in three days’ time. You had separated from your husband while you were pregnant with your daughter, due to his extramarital affair.

[29] You are said to have studied up to Form 5 only. You have not completed your high school education. You are currently working as a Packer for a manufacturing company, earning approximately $160.00 per week.

[30] You had been in remand for this case for a period of 28 days. You were first produced in the Magistrate’s Court of Ba on 22 January 2021 and remanded into custody. You have been granted bail by the High Court on 19 February 2021.

[31] In Singh & Others v. State [2000] FJHC 115; HAA 79J of 2000S (26 October 2000); Her Ladyship Madam Justice Shameem held:

“....However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”

[32] In Nariva v. The State [2006] FJHC 6; HAA 148J.2005S (9 February 2006); Her Ladyship Madam Justice Shameem held:

“The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.”

[33] Priyanka, you have admitted to the Summary of Facts and taken full responsibility for your actions. At the time of this alleged incident you were 22 years of age and as such can be considered as a relatively young offender. You are a first offender with previous good character. You have fully cooperated with the Police in this matter and you have accepted responsibility for your conduct. You have submitted that you are truly remorseful for your actions and promised not to re-offend and stated that you are willing to reform. Although belatedly, you have entered a guilty plea during the course of these proceedings. You have also been in remand custody for this case for nearly one month. For these reasons, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentence.

[34] However, in order to deter you and other persons from committing offences of the same or similar nature, and also to protect the community we live in, I suspend your sentence for a period of 5 years.

[35] In the result, Priyanka Payal Lal, your final sentence of 2 years imprisonment, is suspended for a period of 5 years. You are advised of the effect of breaching a suspended sentence.

[36] Since 4 years has now passed from the date of the incident, I am not inclined to make further orders for counselling or probation.

[37] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT LAUTOKA
Dated this 11^th Day of November 2024

Solicitors for the State: Office of the Director of Public Prosecutions, Lautoka.
Solicitors for the Accused: Office of the Legal Aid Commission, Lautoka.