Review
Judgment
CHEDA J: This is a review judgment.
Accused
is 26 years of age. She was charged with
contravening section 48(1)(a) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] (Infanticide).
She
pleaded guilty to the charge, was convicted and sentenced to 2 years
imprisonment.
The
brief facts are that on the 5th day of January 2009 while she was 9
months pregnant, she gave birth to a live baby in her bedroom without
assistance from any person. She then strapped
the baby on her back and walked to a dam where she threw the baby in it. Two issues arise in this matter. Firstly, whether or not the trial magistrate
has considered a suspended sentence, it is now trite law that failure to
consider the suspension of a prison term in a non-mandatory sentence case is a
misdirection. On the same vein, failure
to consider community service for a sentence below 2 years where a mandatory
sentence is not called for is also a misdirection. The trial magistrate should have at least
considered a suspended sentence.
Secondly,
accused had just given birth to a live baby and in that state decided to kill
it. In a similar matter, in S v Ngwenya HB 9/04, I emphasized the
need to approach this type of offence from the basis of both psychological and
psychiatric point of view. Accused's
state of mind is a recognized medical condition referred to as puerperal
psychosis, (temporary madness).
This
condition which the medical fraternity recognizes, affects most women
immediately after birth. This condition,
in my view, together with accused's personal circumstances should have been a
guiding principle in the determination of a suitable sentence.
For
the above reason the sentence imposed by the trial court in my view is excessive
in the circumstances and is set aside and is accordingly substituted by the
following:
“24 months
imprisonment of which 6 months imprisonment is suspended on condition accused
does not within that period contravening section 48(1)(a) of
the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (infanticide) or an offence of
which violence is an element for which upon conviction accused is sentenced to
imprisonment without the option of a fine.
Effective – 18 months
imprisonment.”
Cheda J……………………………………………..
Kamocha J……………………………………………agrees
