Download State v Litia Leba Judgement - Law Fiji

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 021 OF 2003S
STATE
v.
LITIA LEBA
Hearing: 6 th February 2004
Sentence: 11 th February 2004
Counsel: Mr. W. Kuruisaqila for State
Ms. B. Malimali for Accused
S E N T E N C E
Litia Leba, you have pleaded guilty, and have been
convicted of the offence of manslaughter, contrary to
section 198 of the Penal Code. The facts, which you have
accepted, are that on the 4 th of May, 2003, your husband
Lemeki Livani came home drunk and had an argument with you.
He was in the habit of having extra-marital affairs,
drinking and of staying out late. He slept and woke up at
7am when the argument continued. He stood up to assault
you and you ran outside. When you returned to the house,
you picked up a pot of boiling water on the stove and threw
it over Lemeki. He received 45-50% burns and you also got
burnt in the process. Lemeki went to hospital in a taxi.
He died 6 days later of septicaemia as a result of infected
burn wounds.

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On your behalf you yourself gave evidence of your
unstable marriage, frequent assaults, and on-going
infidelities. You also gave evidence that Lemeki left you
in the past, to bring up your son alone, and that you
worked in a garment factory to survive. You also gave
evidence that he frequently assaulted you and that on the
4 th of May you suddenly lost control and threw the water
over him in anger. You had never reported his assaults on
you to the police because of shame and fear.
Your sister-in-law Ana Waisale and your landlord
Mahendra Prasad gave evidence which supported what you
said. Your counsel has urged me also to read the statement
of Lemeki Junior, your son, on the depositions. I have
done so. He also said that throughout his life he can
recall frequent arguments about his father’s infidelities,
and that every argument concluded with an assault by his
father on you.
I note that you visited Lemeki in hospital every day
before his death, that you took his dinner daily and spent
every night at his side. I also accept that before his
death, you and Lemeki apologised to each other and
reconciled, and that Lemeki forgave you for what you had
done. All this is not only before me in sworn evidence,
but is also contained in the statement you gave to the
police on the 11 th and 13 th of May 2003.
The tariff for manslaughter in Fiji is a suspended
sentence to 12 years imprisonment. (Shashi Kapoor Rayan
–v- State Crim. App. AAU0028 of 2000S.) Sentences at the

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lower end of the scale are reserved for those cases where
the violence used was minimal and the provocation offered
was grave. In Shashi Kapoor, the Court of Appeal noted
that sentences for manslaughter of a serious kind range
from 7 to 10 years.
With the wide range in the tariff, picking a starting
point can become fraught with value judgments as to what a
“serious” manslaughter is.
Objectively, this is a serious case of manslaughter.
The throwing of boiling water on another person cannot fall
into the same category of a “single punch” or a drunken
brawl manslaughter. No matter how grave the provocation, a
starting point lower than 3 years imprisonment would be
difficult to justify, particularly when the deceased died a
painful death 6 days after the event. I therefore start at
3 years imprisonment.
There are compelling mitigating circumstances. One is
your justifiable anger about the deceased’s cavalier
treatment of you, his infidelities and his continuous
violent conduct. Another is the fact that it was when he
stood to strike you that you threw the boiling water on
him. Undoubtedly you knew of the assault that was about to
be inflicted on you. Another mitigating factor is your
remorse, and the way in which you demonstrated that remorse
in your nightly visits to your husband at the hospital.
Finally, I take into account your guilty plea and previous
good character.

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For all these matters, I reduce your sentence to 18
months imprisonment. Is this a case for suspension? I note
that section 29(3) of the Penal Code provides a legislative
disapproval of suspending sentences in cases of violence. I
also take into account the plight of your 10 year old son,
whom you are supporting and educating alone. His welfare
is a primary consideration in this case.
Finally, I consider the fact that your act of violence
was committed after years of emotional and physical abuse
in the hands of the deceased. There is no expert evidence
before me as to whether your case falls into the category
often referred to by criminologists as “the battered wife
syndrome.” However I find in your case that some of the
characteristics, usually present in cases of victims of
abusive relationships, are present. The characteristics
usually found are:
1. The victim is ashamed and afraid of
reporting the abuse;
2. The victim tends to relive her
experiences and if put in fear, her
thinking may not be clear and rational;
3. The victim is acutely aware of any
signal of danger from her partner;
4. The victim stays in the abusive
relationship because she fears that the
partner will find her or take revenge;
5. The victim may believe that she will one
day be killed by her partner.
(Osland v. The Queen (1998) HCA 75 High Court
of Australia)

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In an article in the Otago Law Review, Robertson J
(Battered Women Syndrome: Expert Evidence In Action Otago
Law Review 1998 Vol. 9 No. 2), said that the question of
whether the “battered woman syndrome” applied to the facts
of any case, either in relation to the defence of
provocation or of self-defence, depended on whether the
defences could accommodate the length and nature of the
abuse. In particular courts usually had to consider expert
evidence about whether a “cycle of violence” existed as it
did in a classic case of domestic violence.
This is not an appropriate case to consider whether
such a cycle existed in your case. You are not on trial,
and the question of the abuse you suffered is relevant only
to the sentence I must impose on you.
In R –v- Wang (1989) 2 NZLR 529, the Court of Appeal
considered a five year sentence imposed on a woman who
stabbed her husband while he was asleep, and who was
convicted of manslaughter. He had made threats to kill her
before he fell asleep, and there was medical evidence that
the accused was suffering from depression at the time. The
trial judge found that there was no remorse, and no
acceptance of other options available to her, in hindsight.
The Court of Appeal held that the sentence was not
excessive.
In R –v- Ross (1992) 9 CRNZ 55, a 12 month sentence
for manslaughter was quashed and substituted with a 4 year
term where the accused killed the deceased, her partner
after an unstable relationship over some years, and where

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the Court held that the offence had been planned and
deliberated and had not resulted from mental disorder.
In State v. Prabha Wati Case No. 0009 of 1999L Prakash
J found that the accused, who pleaded guilty to
manslaughter, had been subjected to 35 years of sexual,
mental and physical abuse, that her case was a case of
continued spousal abuse causing the accused to suddenly
retaliate, and that in those circumstances, a sentence of 2
years suspended for 2 years was the appropriate sentence.
The question of suspension must therefore rest on the
peculiar circumstances of the case. In your case, I accept
the lack of planning, the sudden “snap” after years of
emotional and physical abuse, the anticipation of assault
when the deceased stood up, your remorse and the welfare of
your child. In all these circumstances I consider it just
to suspend your sentence for two years.
You are sentenced to 18 months imprisonment suspended
for 2 years. If you re-offend within the next two years
you may be sentenced to serve the 18 months I have imposed
today together with the term imposed for the new offence.
…………………………………………………
Nazhat Shameem
JUDGE
At Suva
11 th February 2004