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State v Wong [2010] FJHC 495; HAC002.2010 (10 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 002 OF 2010

STATE

V

LAVENIA WONG

Ms. M. Fong for the State
Mr. A. Patel and Mr. N. Nand for the Accused

Date of Hearing: 10 November 2010
Date of Sentence: 10 November 2010

SENTENCE

1. The accused was originally charged with murder of her new born baby, but after protracted discussions, she by her Counsel has persuaded the State to reduce the charge to concealing the birth of a child contrary to section 220 of the Penal Code, Cap. 17, to which she has entered a plea of guilty. The offence being a misdemeanour attracts a maximum penalty of two years imprisonment.

2. The facts reveal a rather tragic state of affairs and the State's concessions are both meritorious and justifiable.

3. The accused lived with her parents and two sisters in Tavakubu Village, Lautoka until her mother died in 2002. Her father developed a relationship with another woman with whom the accused did not get along. She moved out to live with her maternal aunt nearby. In early 2008, the accused met a man from Suva and they embarked on a relationship that the man terminated when she told him she was 3 months' pregnant in May 2009.

4. Concealing her pregnancy from her family and employers, she worked all year of 2009 for a lawyer as a receptionist. Her workmates had no idea she was pregnant, nor did her aunt.

5. On the 19th November 2009, the accused was too ill to go to work, and on the 21st November she went into labour at about 4.00am. Dealing with the pain herself, she eventually gave birth on her bedroom floor, she cut the umbilical cord with sewing scissors and pressed the baby's nose to prevent it from breathing. After some minutes she wrapped the baby in rags and placed it in a plastic bag. She put the bag into a handbag and took a vehicle to Vunato where she dumped the bag in a cassava plantation.

6. In a most eloquent and moving plea in mitigation, Mr. Patel urges the Court to be merciful and lenient. He tells me that you are 25 years old, and reconciled and living with your father. You have returned to your former employment in the lawyer's office, with the understanding and blessing of that employer. From your meagre wage you are helping your younger sister with her education expenses. You quite understandably have moments of depression and regret and you have been the butt of gossip and ridicule in the village. With the support of your family and your employer you have every intention to take your lawful place in society and put this tragedy behind you.

7. It is hardly suprising that a woman who has gone right through her pregnancy without any family or medical support and who has probably been living in a state of denial, should at or just after birth act in a confused or depressed manner. Deserted by the father of the child and estranged from her nuclear family she could not possibly have the emotional health to cope with the new born child. The medical profession calls the condition postpartum depression which manifests itself in many forms. Experts agree that the cause is a combination of hormonal, environmental and psychological factors. Such a condition gives rise to one of the rare situations when the legal process must adapt to medical and psychological realities.

8. There is nothing to be served in punishing this accused with either a fine or a term of imprisonment. I am sure that she has had punishment enough and I am equally sure that there is no chance of her re-offending; her lesson having been learned. The community needs no protection from her, nor would this community in its mercy seek retribution from her.

9. Pursuant to the provisions of section 15(1)(h) of the Sentencing and Penalties Decree 2009, I record a conviction against your name Lavenia for concealing the birth of a new born child but I then discharge you completely without penalty.

Paul K. Madigan
JUDGE

At Lautoka
10 November 2010