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State v Helai [1997] PGNC 18; N1533 (26 February 1997)

Unreported National Court Decisions

N1533

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1573 OF 1995
STATE
V
OPUYAU HELAI

Goroka

Sawong J
18 February 1997
26 February 1997

CRIMINAL LAW - Sentencing - Charge of murder - Plea of guilty - Factors to be taken into account.

DIMINISHED RESPONSIBILITY NOT AMOUNTING TO INSANITY - Depression - Amok Syndrome - Whether diminished responsibility to be taken into account on sentence and to what extent.

Cases Cited

The State v Berry [1977] PNGLR 128

The State v Justus Taimbari Kauri [Un numbered and Unreported Judgement of Kidu CJ 25 June 1987]

Kutapa Keapu v The State [1994] PNGLR 135

Counsel

C Ashton-Lewis for the State

G Gendua for the Accused

26 February 1997

SAWONG J: Opuyau Helai of Gimi, you have pleaded guilty to a charge that on 21st day of September 1995 at Ivaki Village Okapa Papua New Guinea, you murdered Ido Opuyau. The late Ido Opuyau was your wife.

The facts of the case are very short. You and your late wife have been married for a number of years. Out of that relationship you had a baby daughter who was approximately aged 2 years at the time of the incident. She was your first born child. During the cause of your marriage, you were suffering from a severe depression over your inability to make a traditional feast for the birth of your first child. Whilst you were broading over this, your father inlaw came and visited you and your wife. He came and stayed with you and your family for about 2 weeks. Whilst he stayed with you he complained to you about your inability to make a feast inrespect of your first born daughter. He complained because the wife was expecting your second child. And so taken together with his complaint and your depression over your inability to provide a traditional feast, this caused you much more anxiety and depression.

On the night before the incident there was a singsing which took place at your village. You and your late wife did not observed the singsing nor did either of you take part in it. You went to sleep but you did not sleep well that night. There is no evidence to suggest that there had been any arguments between you and your wife.

On the morning of 21st September you and your wife woke from your sleep. When you woke up you got an axe and chopped some firewood’s and gave the firewood to your wife to make a fire. While you were doing that your mind was affected to the extent that you were influenced to chop your wife. You there upon used the axe and cut your wife. You cut her once inside the house. You then pulled her outside of the house and then proceeded to cut her again with your axe. On both occasions you cut her on her neck. Your wife was killed instantly.

After that you gave chased in an attempt to cut some of your other villagers but you were overcome and the axe was removed from your hands.

The post mortem report describes the nature of the injuries that were inflicted on the deceased.

The evidence is clear that you were under no physical disability. On the medical evidence of Dr. Brother Andrew you suffered no mental illness at the material time. It is not suggested that you did not know what you were doing or that what you were doing was wrong so as to raised the defence of insanity. However the case has been put forward by your counsel that at the time you committed the offence you suffered from a temporary mental disorder which was caused by cultural based depression known as the amok syndrome. As I understand your counsels submission it is that the temporary mental disorder that you were suffering at the relevant time would fall within the meaning of the provisions of Section 28(2) of the Code. He submit that the temporarily mental disorder that you suffered at the time of commission of the offence could not exonerate you and that you would held criminally responsible for your actions.

His submission is supported by what the Supreme Court said in Kutapa Kiapu v the State [1994] PNGLR 135. The facts of that case is fairly shot. The appellant was charged with two counts of wilful murder and one count of attempted murder. He pleaded not guilty to all the charges. Mark of the facts were not in dispute at the trial in the National Court. On 3rd April 1989 at the Village at about 6.00pm in the evening, the appellant was set to have gone “beserk” and was using an axe and chasing people in the village. One of the victims an elderly women could not escaped and run away. She was trapped in her house. The appellant hit her once with the axe and she fell down unconscious. She was admitted to the hospital and died two months later.

Subsequently a day later (4th April 1989), the appellant confronted a group of men and struck another man on his shoulder. That man did not die. Then on the same day appellant went to another village. He approached a women and as she came out he struck her with the axe and she died instantly. The appellant did not call any evidence but handed a medical report by Dr Brother Andrews MBBS, by consent. After the trial the trial judge at the National Court convicted the appellant of the two wilful murder charges only and sentence him to 25 years in hard labour on each count to be served concurrently. The appellant appeal against the conviction and against the severity of the sentence.

The appellant raised the defence of insanity under Section 28 of the Code. At the trial the Trial Judge rejected the defence of insanity on the basis that from the doctor’s report the defence of insanity had not been established. The ground of the appeal against the conviction was that even though the medical report fell short of establishing a defence of insanity under Section 28 of the Code, nevertheless the evidence established that the appellant suffered from “abnormality of mind” or “diminished responsibility”.

However the relevant part of the medical report showed that the appellant’s mental capacity and understanding was not affected. In other words the doctors stated that the appellant did not suffer any abnormality of the mind or diminished responsibility. The Supreme Court held that diminished responsibility is not a defence under the existing provisions of the statute, namely the Code. In that case the appellant or rather his counsel did not pursue with any vigour the other ground of the appeal namely the appeal against the severity of sentence. The Supreme Court therefore did not make any ruling on this particular point.

However it has been quite well established that a temporally mental disorder or diminished responsibility of the mind of the accused person may be taken into consideration as a mitigation factor on sentence. See State v Eric Gordon Berry [1977] PNGLR 128, R v Don Marty Warite (Unreported Judgement) dated 27 May 1975 Raine J, The State v Danny Sakin Upaki in (Unreported Judgement), 11th November 1976 by Saldanha J, The State v Justus Taimbari Kauri (Unreported Judgement) dated 25th June 1987, Kidu CJ.

In State v Berry, the facts of the case was as follows (from the head notes). The accused pleaded guilty to a charge to a wilful murder, in circumstance where with a long formed intention going back at least 6 months to his dismissal by the (deceased/victim) as registrar at the Administrative College, he shot the deceased with the pistol at least 4 times at close range, then back or reversed his motor vehicle over the deceased body. Expert evidence was given by two psychiatrists that the accused was suffering from a mental condition which did not amount to mental illness but was a personality disorder term “obsessional”. In that case Frost CJ, held that the diminished responsibility not amounting to a defence of insanity under the Code, ought to be taken into account in mitigation of sentence. He took it into account as one of the mitigating factors in favour of the accused.

In Kauri he was also charged with wilful murder of one Johnson Ojari. He pleaded not guilty and a trial was conducted. The facts of the case are as follows. He was charged that on the 26th day of May 1986 he wilfully murdered one Johnson Ojari. On that day deceased left his house at Singi village at about 2 pm to go to his garden. He was carrying a bush knife tucked under his armpit. As he walked past the accused house, the accused jumped down from the verandah of his house where he was sitting with his brother and ran towards the deceased, pulled the bush knife from under the deceased armpit and chopped him once on the head. The decease/victim tried to run away but the prisoner chased after him and chopped him once again on the back of the head and the decease/victim fell down. While he was on the ground the accused once again chopped him on the head. At that time the decease/victim’s brother ran over to them and grabbed hold of the prisoner and pulled the knife from him. The victim died shortly after that from injuries he that had inflicted on him. Those facts were not disputed by the defence except that at the relevant time the accused was insane when he committed the offence.

There was some evidence relating to his behaviour on the day before the incident. On that day he started acting strange by taking his clothes off shouting and abusing people. He assaulted his wife and tried to take her clothes off too. The man’s history showed that he had never suffered any mental illness before.

There was however evidence that there had been some argument between the decease who was his cousin and the prisoner over land. Dr Brother Andrew conducted an examination on the prisoner. The doctor said that the prisoner could not be said to be insane within the meaning of S. 28 of the Code. However the doctor did say that the prisoners capacity to know what he was doing at the relevant time was reduced. He described that condition as an “Acute organic brain Syndrome” which, is a reduction of the total capacity to comprehend activities.

The court found the accused guilty of wilful murder. The late Chief Justice sentenced the prisoner to 5 years imprisonment in hard labour. It is obvious that the court there took into consideration as a mitigating factor the mental state of the prisoner. In other words the court there accepted as a mitigating factor the prisoners reduced mental capacity.

What these cases established is that the court can and ought to take into consideration, as a mitigating factor, in an appropriate case, on the basics of the facts and relevant medical evidence, an accused mental condition which may not amount to a defence of insanity.

In the present case a psychiatric report prepared by Dr. Brother Andrew was tendered into evidence. This is dated 5th October 1996. The doctor concluded and gave his opinion on the mental status of the prisoner at the relevant time as:

“1. He was fit to plead.

2. He was not suffering from a mental decease at the time of the offence within the meaning of S. 28 of the Code. That is the prisoner was not insane.

3. He suffered from a temporary mental disorder which caused serious impairment of his capacity to know what he was doing, ability to recognise the wrongness of the act and to exercise the full control of his actions.”

He stated that this temporary mental disorder could not amount to a defence of insanity under S. 28 of the Code.

On sentence, the doctor has stated that a determinate sentence is in his opinion preferable as he considered that the prisoner will not be a danger to other prisoners nor to the general population after he is released from prison.

On the basis of the authorities that I have cited I have come to the firm conclusion that in the circumstances of this case the mental capacity of the prisoner as described by doctor ought to be taken into consideration and mitigation of the sentence.

And so what is the appropriate sentence that should be imposed. The maximum penalty for the crime of murder is, subject to S. 19 of the Code, life imprisonment. I do not consider the in the circumstances of this case the maximum sentence is call for. I consider that a sentence of higher than the highest tariff for or range of sentences for manslaughter but in the lower range of sentences for murder ought to be imposed. Mr Gendua has submitted that a sentence in the range of manslaughter cases ought to be imposed. I do not think I can do that. I am of the view that the prisoner has been convicted of the crime of murder. Whilst I take note of the circumstances of the commission of the crime nevertheless, in my view that should not warrant the imposition of a sentence within the sentences for manslaughter cases.

The prisoner was a married man at the time when the offence was committed. He was married to the deceased/victim. From his antecedent report I note that he completed grade 2 at the Asaro Community School. It is not clear when he completed that. At the time of the offence I note that he was a subsistence farmer and note that he had a female child aged about 2 years.

I take into the prisoners favour the following the mitigating factors. First that he has pleaded guilty to a serious crime which carries a sentence of life imprisonment. Secondly I note that he had co-operated with the police when he was arrested and he readily made admissions to the police. In these circumstance I consider that his plea of guilty before the court is a genuine plea and I give due weight and consideration to that.

Thirdly he is a first offender. There are no prior records which the court should take into consideration. Finally on the evidence of Dr Brother Andrew, which I accept, you were mentally disturbed temporally. In other words I accept the doctor’s report that you suffered a temporary “mental disorder” which caused serious impairment of your capacity to know what you were doing. Accordingly I consider that justice requires that I should take your diminished responsibility into account of your sentence.

There are several aggravating factors which I should also take note off. I note that you used a dangerous weapon namely an axe to attack your wife. She died directly from the injuries which you had inflicted upon her. Her death was caused by a weapon.

In all the circumstances I considered that a sentence of higher than the range suggested by Mr Gendua is appropriate.

In all the circumstance I sentence you to eight (8) years imprisonment in hard labour. I deducted the period of 1 year three (3) months, leaving a balance of six (6) years and eight months. I order that you serve your sentence at Bihute Corrective Institution Service.

Lawyers for the State: Public Prosecutor

Lawyers for the Accused: Public Solicitor