State v Wati [2001] FJLawRp 88; [2001] 1 FLR 336 (9 October 2001)

STATE v PRABHA WATI

High Court Criminal Appellate Jurisdiction

9 October, 2001

HAC 0009/99L

Murder reduced to manslaughter - phenomenon of Battered Woman's Syndrome raised as defence for the first time in Fiji – extreme provocation- minimal time for premeditation – accused suffering acute stress reaction at time of offence - sentencing options for manslaughter

The accused was charged for murder and convicted for manslaughter of her deceased husband. The accused began living with the deceased husband when she was 16 years old and became a victim of domestic violence after giving birth to their first child. The accused was subject to sexual, mental and physical abuse for most of her married life. The Judge accepted that the accused suffered from battered woman's syndrome and proceeded to consider the range of sentencing options for manslaughter by taking into account the circumstances in which the event occurred. The Court took into account mitigating factors such as age, previous criminal record, she was cooperative with police, her medical condition and also the fact that the accused was in remand for a period of about 2½ years.

Held – The accused suffered from Battered Woman's Syndrome which was a result of domestic violence on the mental state, emotional and physical well being of the battered spouse, and was accepted as a mitigating circumstance in considering totality of sentence.

Accused sentenced to two years imprisonment suspended for two years.

Cases referred to in Sentence

State v Alumita Lewaisevu MC Cr. Case 1/90L
State v Koleta Rote [2001] HAC 005/01S 17 September 2001
State v Ramendra Chandra HAC 0008/99L 13 October 2000
State v Samuela Neimila & Josaia Nacika HAC 0011/98L 13 October 2000
Kim Nam Bae v State [1999] AAU 0015/98S 26 February 1999
State v Shakuntla Devi [2001] HAC 001/01S 4 July 2001

Kevueli Tunidau for the State
Babu Singh for the Accused

9 October, 2001

SENTENCE

Prakash, J

The accused Prabha Wati has been found Guilty of the offence of Manslaughter. She went on trial for the offence of Murder. The 3 assessors' unanimous opinion was that she was not guilty of murder but guilty of manslaughter. The Court has concurred with their opinion. Whatever analysis one undertakes of the assessors opinion - whether not guilty to murder due to lack of malice aforethought or guilty of manslaughter due to provocation, it is clear that the issue of domestic violence was central to the verdict in this case. This is apparently the first case in Fiji in which the phenomenon of Battered Woman's Syndrome was raised as the central plank of the Defense case.

In mitigation learned Defense Counsel urged the Court to give a chance to the accused to have some life for the rest of her days. As he stated she did not have much of a life during her marriage due to the history of domestic violence. It is evident that the accused began living with her deceased husband when she was about 16 years old. Her parents subsequently married her to him when she came of age. According to the evidence her problems began when her first child was born. Her husband was apparently unhappy that she had given birth to a girl. The situation compounded when she gave birth to 3 other daughters. Her husband's heavy drinking and womanising did not help matters. She was subjected to sexual, mental and physical abuse for much of her 35 or so years of marriage. It is clear from the evidence that she suffered from Battered Woman's Syndrome. Whatever conceptualisation one has of this phenomenon or theory it is essentially about the consequence of domestic violence on the mental state, emotional and physical well being of the battered spouse.

The accused arrived at the Courtroom door through circumstances she appeared to have minimum control, and after long years of suffering and brutalisation to face the most serious criminal charge in our Penal Code. The genesis of this crime has to be seen in the abuse meted out to her by her most intimate partner. It is a sad reflection of our male oriented society that domestic violence is not seen as the terror it is in many homes in Fiji. We in Fiji, together with the rest of the world, are currently focused on another kind of terror. This deals with guns, bombs, hijacking and high finance. But the terror inflicted on the lives of the many women and children by excessive use of alcohol, by fists and boots, and weapons readily available around the house are as much insidious as that which gets prime time on TV. Domestic violence is terror in our backyards. Imagine the effects on our young and the most vulnerable members of society.

It is true the dead cannot defend themselves. The living have to deal with the consequences of what their loved ones do. The poignance of this case is reflected in the daughter Dodo who gave evidence and is now burdened with putting her and her mother's life back to some semblance of normalcy. She had to come to Court to witness her mother stand trial, recount the intimate details of her parents' relationship and pick up the pieces from here. She was the one who tried to reconcile her parents after almost a year of separation. She witnessed the death which, maybe, she could have avoided. If only she knew what her mother was suffering from.

It is also telling that the deceased was seen as a good man, who liked his drink, shared jokes (dirty and otherwise) with his male friends. Those who visited his house to drink grog or alcohol saw his family life as normal However, at is now becoming evident from studies by the Fiji Women's Crisis Centre, academics and other civil society organisations that spousal abuse is a major social problem in Fiji. It also has economic consequences. Due to the importance and sanctity of the family in the socio-cultural milieu in Fiji there is still considerable under reporting of spousal abuse. People do not want to intervene in the domestic lives of others. This concern for privacy and stigma attached to spousal abuse means that a considerable number of our women and children are deprived of support. Men themselves remain without counselling and the vicious cycle continues.

The range of sentencing options for manslaughter in Fiji have varied depending on the infinite variety of circumstances. Learned Defense counsel has asked for a suspended sentence. Learned State counsel has submitted that this case merits the upper scale of the sentencing for manslaughter. He did not specify what factors merited such an exercise of discretion by the Court.

It is rare for the Courts in Fiji to deal with women who commit homicide against their husbands. According to a USP study, between 1982 to 1992 there were 25 episodes of husbands killing wives In the same period there were only 4 cases where the wife killed her husband (Adinkrah M (1996) Violent Encounters a study of Homicide Patterns in Society) Since 1992 there as no readily available data However, it is evident that it remains rare. In the above study only one case has similarities to the present case. In the case of State v Alumita Lewatsevu (Cr Case 1 of 1990L) the accused wife was also the victim of domestic violence. On the day of the killing the deceased husband came home drunk. He had an argument with his wife. He then beat his wife for roughly 3 hours stopping only after he was exhausted. He then got cane knife and threatened to kill the accused when he woke up. He left the cane knife beside his bed. The accused who had fled the house returned after about 30 minutes and saw her husband still in drunken slumber. The Court accepted that "she could no longer stand his ill treatment of her and she lost control" She grabbed the knife and chopped her husband's neck three times. She was sentenced to 2 years imprisonment suspended for 3 years.

In the latest case available and quoted by Defense counsel the accused was also sentenced to 2 years, suspended for 3 years. (State v Koleta Rote HAC 005 of 2001S.) In this case the accused wife was armed with a knife.

This Court had reviewed the authorities and applicable principles of sentencing manslaughter cases in its sentencing in State v Ramendra Chandra (Cr Case HAC 0008 of 1999L) and State v Samuela Nemila & Josaia Nacika (Cr Case HAC 0011 of 1998L). In the case of Samuela Nemila & Josaia Nacika the Court had also considered the case of Kim Nam Bae v State (FCA Cr. App AAU (0015 of 1998). This was the only case referred to by learned State counsel in seeking a sentence on the upper scale for manslaughter. It is quite clear that the case Kim Nam Bae, apart from being a spousal killing, has almost no relevance to the present case. In that case it was the accused husband who killed his wife arising out of a domestic dispute, and where the degree of provocation by the deceased wife was minimal.

In this case there was extreme provocation. No weapons were used. The wife apparently snapped due to years of domestic violence and the consequent effect of Battered Woman's Syndrome. There was minimal time for premeditation. After the event she was in "deep shock" and "tatters", as Prosecution witnesses described her. She cooperated with the Police and fire authorities. At the time of the offence she was diagnosed as suffering from Acute Stress Reaction, according to the Consultant Psychiatrist. She had been exposed to an exceptional mental and physical stress. This situation was particularly stressful because she was physically sick and disabled with diabetes mellitus, hypertension and right sided weakness as a result of stroke. She was further provoked into an uncontrollable emotional reaction, according to the psychiatrist.

The Court has considered all the relevant authorities available to it on sentencing for manslaughter by the High Court. It has also considered the sentence appeals from the High Court by the Court of Appeal. As the Court of Appeal has stated: "The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation to 12 years imprisonment where the degree of violence is high and the provocation is minimal (Kim Nam Bae (supra) p.4). The case of State v Shakuntla Devi (Cr Case HAC001 of 2001S) is also relevant. In this case the accused killed her elder sister who had provoked her. The accused was given a suspended sentence.

The Court takes note of the age of the accused, her clean record until this offence, and her medical condition. The Court also takes into consideration the fact that she was in remand from 1/1/99 to 06107/01, a period of about 2½ years. This period of detention would amount to a sentence of imprisonment of 3 years and 9 months (before remission).

In view of all that has been said above the Court sentences the Accused to 2 years imprisonment, suspended for 2 years. (The effect of the suspended sentence is explained to the accused.)

Suspended 2 year sentence imposed.

Ashika Bali