SC1010

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 58 of 2000

BETWEEN:

PAUL OA OAKARE
Appellant

AND:

THE STATE
Respondent

Waigani: Amet CJ, Gavara-Nanu & Kandakasi, JJ.
2001: February, 22nd & 9th November

CRIMINAL LAW - Appeal against sentence - Wilful murder –– Appellant hearing voices telling him to kill the deceased – Killing deliberate – Evidence of premeditation –Killing done with a bush knife – Appellant having three prior convictions for simple offences - Sentence of life imprisonment – Appellant concealing the crime with lies – Appellant confessing the crime after a month following persistent questioning by relatives.

CRIMINAL LAW – Appeal against sentence – Wilful murder – Sentence of life imprisonment – Evidence – Appellant raising defence of insanity – Appellant examined by a psychiatrist – Psychiatric report shows appellant possibly suffering from a ""brief psychotic episode"" at the time of the offence - No evidence of severe mental illness – Evidence of appellant having below average level of intelligence – Appellant suffering from depression after marriage break down –Defence of insanity not established – Criminal Code Act, (Ch.No.262),ss.27&28 - Appellant suffering from abnormality of mind or diminished responsibility – Meaning of abnormality of mind - Other extenuating circumstances before the trial judge.

CRIMINAL LAW – Appeal against sentence – Wilful murder - Sentence of life imprisonment – Trial judge over emphasizing on appellant''s prior convictions – Trial judge taking into account irrelevant matters – Error established in the exercise of trial judge''s sentencing discretion - Sentence manifestly excessive – Appeal allowed – Supreme Court Act, (Ch.No.37), S.23(4) – Sentence of life imprisonment substituted with 20 years in hard labour.

Cases Cited:
 
Goi –v- The State [1991] PNGLR 161.
Kutapa Keapu –v- The State [1994]PNGLR 135.
The State –v- Berry [1977] PNGLR 128.
The State –v- Opayau Helai (N1533).
Ure Hane –v- The State [1984] PNGLR 105.
William Norris –v- the State [1979] PNGLR605.

Overseas Cases: 

Bratty –v- Attorney General of Northern Ireland [1963] AC 386.
Cooper –v- McKenna, [1960] QD R 406.
R –v- Byrne [1960] 2 QB 396.
Rose –v- R [1961] AC 496.
Skinner –v- The King (1913) 16 CLR 336.

Counsel: 

Appellant, In person
P. Kaluwin, for the Respondent

9 November, 2001

1.	BY THE COURT: The appellant was convicted for the wilful murder of his 5 year old son Ume Ao, (''the deceased'') on 30th April, 1998. He was sentenced to life imprisonment on 14th July, 2000, after a brief trial. Although the Notice of Appeal indicates that the appeal is against both conviction and sentence, the appellant having abandoned the appeal against conviction at the hearing of the appeal, this appeal is only against sentence.

2.	The appellant argued that sentence is excessive and should be reduced because he was mentally sick at the time of the offence.

Facts

3.	The relevant facts before the trial judge were that, on the morning of 30th April, 1998, the appellant took the deceased to Morata swamp and tried to drown him in the swamp by holding him under the water for sometime, but the deceased did not die. So, the appellant took the deceased to a hillside and cleared a spot under a tree and told him to sit down. The appellant who had a bush knife with him then cut the deceased with the knife on the left shoulder with a single blow. He delivered two more blows to the neck, killing the deceased instantly. He then smashed the deceased''s head into pieces with stones.

4.	A month later, the appellant confessed to the killing after persistent questioning by his relatives about the deceased. Prior to the confession, when first questioned by the relatives, the appellant told them that some highlanders stole the deceased. Later, he changed that story and told the relatives that he sent the deceased home with his big brother. But when the appellant''s big brother denied taking the deceased to the village, the relatives became suspicious and took him to the police who locked him up in the cell for a few days before he was released due to lack of evidence. The relatives searched for the deceased for a month until 2nd June, 1998, when the appellant confessed the crime to his small brother and led the brother and the police to the scene of the crime where the remains of the deceased were found and recovered.

5.	Prior to the murder, the appellant had been living separately from his wife. They separated in mid 1993, which was about six months after the deceased was born. The appellant was living with his sister at Gerehu until the day of the offence. His wife remarried in 1995 and was living in the village in Kairuku. The deceased was living with his mother in the village until early April, 1998, when the appellant''s sister took him to Port Moresby to look after. The appellant and the deceased were living with the appellant''s sister when this incident happened.

6.	After several adjournments, the appellant appeared before the National Court on 14th November, 1999. When he was arraigned for murder, he told the Court that he was mentally sick at the time of the offence. As a result, no plea was taken and the case was adjourned to allow the appellant to see a psychiatrist.

7.	The case returned to the National Court on 28th December 1999. Upon a request by the defence counsel, the appellant was re-arraigned. He still maintained that he was mentally sick at the time of the offence. Thus a plea of not guilty was entered and the case was further adjourned to allow the defence counsel to obtain a psychiatric report on the appellant.

Evidence at the trial

8.	After several more adjournments, the case was eventually tried on 4th July, 2000. The original charge of murder was amended to wilful murder by the State. The appellant pleaded not guilty when he was arraigned on the fresh charge. The State did not call any witnesses, it only tendered witnesses'' statements by consent. Among those statements was the psychiatric report on the appellant by Dr Sanu Paul.

9.	The doctor''s report was tendered by the State as part of its case and the doctor was named as a witness for the State on the indictment, with the leave of the Court. That was despite the Court on 28th December, 2000, directing the defence counsel to obtain a psychiatric report on the appellant and produce it as part of the defence case.

10.	The evidence for the defence was therefore only from the appellant who gave evidence on oath. He continued to maintain that he was mentally sick at the time of the offence. 

11.	At one stage during cross examination, the appellant told the Court that, he did not commit the offence and insisted that he was mentally sick at the time of the offence, thus raising the possible defence of insanity, under s.28 of the Criminal Code Act, (Ch. No. 262) ("" the Code"").

Psychiatric Report

12.	According to the psychiatric report dated 12th April 2000, the appellant told Dr Sanu Paul that, on the day of the offence, he wanted to go and wash at Morata swamp and took the deceased with him. He said, while on his way to Morata swamp, he heard strange voices telling him to kill the deceased. The appellant told the doctor that he was mentally sick at that time. The report further states that appellant''s level of intelligence was ""less than average"" and the appellant was ""…not suffering from any severe mental illness. But, at the time of committing the crime, he might have had ''brief psychotic episode"". (Our underlining). 

13.	The report also states that, from the date of his arrest to the time of his examination by the doctor, the appellant did not have any psychiatric treatment. He did not suffer from epilepsy, (that was excluded only by clinical history), which might have led to that kind of temporary insanity. (Our underlinings).

Was the appellant insane? Or was he suffering from diminished responsibility at the time of the offence? 

Insanity

14.	Section 28 of the Code, provides:

Insanity.

(1)	A person is not criminally responsible for an act or omission if at the time
of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity- 

(a)	to understand what he is doing; or
(b)	to control his actions; or
(c)	to know that he ought not to do the act or  make the omission. 

(2)	A person –

(a)	whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and 
(b)	who is not otherwise entitled to the benefit of the provisions of Subsection (1),

is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusion to believe to exist.
 
15.	Section 27 of the Code, provides that, every person is presumed to be of sound mind and to have been of sound mind at any time that comes in question, until the contrary is shown. The onus is on the person claiming the defence of insanity to prove insanity on the balance of probabilities: Goi –v- The State [1991] PNGLR 161 at pages 167-168. 
 
16.	In order for the appellant to claim the benefit of s. 28 of the Code, he has to establish or prove that, at the time of the offence, he was suffering from a mental disease or a natural mental infirmity which deprived him of his capacity to (a), understand what he was doing or (b), control his actions or (c), know that he ought not to do the act or make the omission. 

17.	The evidence necessary to displace the presumption of mental capacity was stated by Lord Denning, in Bratty –v- Attorney General of Northern Ireland [1963] AC 386 at 413:
 
""In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental capacity. It is not sufficient for a man to say, "" I had a black out "", for a blackout as Stable J. said in Cooper –v- McKenna; Ex parte Cooper [1960] Qd R 406 is one "" of first refuges of a guilty conscience and a popular case excuse . (Our underling).

See, also Goi –v- The State (supra) at page 168. 
 
18.	The evidence before us shows that, at the time of the offence and after the commission of the offence, the appellant fully understood what he was doing and his actions in committing the offence were voluntary.

19.	The following questions and answers from the Record of Interview make this clear: 

Q.62	I put to you that you have [sic] a plan to kill UME AO so got the knife secretly from NINI''s premises, and he is from Goroka. You have concealed the bush knife on you and took UME AO away to Morata Swamp area and killed him with the bush knife. What do you say to this?

A.	Yes that''s correct.

Q.65	Paul, what was the thought in your mind when don''t [sic] have the love and sympathy and killed your son without reasons at all? 

A.	My thought was I''ve divorced my wife INAI OROA long time ago and I never get in touch with her. Then I normally tell my two sons not to stay with INAI OROA and her new husband. My elder son normally follow my advice but the younger one doesn''t follow my advice, which I normally have a head ache about it, that INAI and her new husband will say something at the back of me which is not good. So I had a trouble that UME must stay away from INAI OROA and I killed my son UME AO.

20.	These excerpts from the Record of Interview clearly show that the killing was intentional. The appellant knew and understood what he was doing when he committed the offence. This eliminates possible defence of insanity under s.28 of the Code. 

Diminished responsibility and other extenuating features

21,	Diminished responsibility is not a defence under the Code, but it is a mitigating factor. Abnormality of mind resulting from low intelligence, mental disturbance or imbalance caused by fear, anger, anxiety, emotional disturbances which would impair the ability to think rationally and to control actions would constitute diminished responsibility: The State –v- Berry [1977] PNGLR 128, at page 129; Ure Hane –v- The State [1984] PNGLR 105 at page 113, Goi –v- The State (supra) at page 168, Kutapa Keapu –v- The State [1994] PNGLR 135, at page 136, The State –v- Opuyau Helai (N1533). See also R-v- Byrne [1960] 2 QB 396 at page 403; [1960] 3 All ER 1 at page 4 and (1960) 44 Cr App R 246 at page 252, where Lord Parker CJ. in discussing the meaning of ""abnormality of mind ""said: 

""''Abnormality of mind ''… means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind''s activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgement, whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgement.""

22.	This definition was subsequently adopted as authoritative and correct by the Privy Council in Rose –v- R [1961] A.C 496, [1961] All ER 859; (1961) 45 Cr App. 102. See also discussions in Carter''s Criminal Law of Queensland 7th Ed. at page 280.

23.	The psychiatric report shows that appellant''s level of intelligence was below average. According to the authorities cited, this was a relevant factor on diminished responsibility. There is also evidence from Vai Oa, the brother-in-law of the appellant, whose statement was tendered in evidence that appellant went through difficulties in his marriage, which resulted in separation between him and his former wife. The appellant in his Record of interview also said that he killed the deceased because the deceased was not listening to his advises when he stopped him from seeing his mother, he said that used to cause him head aches. His Honour alluded to this in his judgement when he said:

""They were prolonged, extreme and unsettling situation in which you lived. There was a separation between you and the mother of the slain son and the living son. It seems you had a dark cloud over you every minute – this is in my observation in court – as you sat, as you gave evidence, as you talked in court. The chief psychiatrist report has given credibility to an extent to this view"". 

24.	So his Honour did accept that appellant had a mentally impaired or disturbed mind as a result of the break down of his marriage, but did not take it into account on sentence.

25.	The appellant''s below average level of intelligence however, was not addressed by the trial judge.

26.	We find that when appellant committed the offence, he was mentally disturbed as a result of his broken marriage and his below average level of intelligence. He was therefore suffering from diminished responsibility. 

27.	On sentence, his Honour referred to the appellant''s three prior convictions, which were all dealt with by the District Court; first of which related to drugs for which he was sentenced to 3 months and the other two were for simple stealing in 1997, for which he was sentenced to 7 and 5 months respectively. In addressing this factor, his Honour said:

""…But in this case, putting the marriage aside, other pressures were brought about by the prisoner''s own lifestyle attitude. The strings (sic.) of convictions for summary offences speak for themselves."" (Our underlining).

28.	There were only three prior convictions and to refer to them by his Honour, as ""strings"" of convictions was an over emphasis. This factor in our view did have an influence on his Honour''s mind when passing sentence. This was an error. The other error as we noted earlier was his Honour''s failure to take into account the appellant''s below average level of intelligence. 

29.	The basis upon which this Court may interfere with a sentence have been well stated in William Norris –v- The State [1979] PNGLR 605 at pages 612-613, where the Supreme Court said:

""To succeed in an appeal against sentence an appellant (other than the prosecutor) must persuade this Court that a more lenient sentence was warranted in law and should have been imposed; when so persuaded, this Court must quash, and substitute the sentence which should have been imposed – S.24 (4) of the Supreme Court Act, 1975. In practice, in order to persuade this Court, an appellant will usually be required to show some error on the part of the trial judge, going to sentence; that approach accords with the approach followed by this Court and other appellate courts when reviewing any exercise of discretionary power….

So the question in practice on a sentence appeal is usually this – has the appellant shown that an error occurred which has the effect of vitiating the trial judge''s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly taken into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously ( and not merely arguably ) excessive, although no identifiable error can be shown, for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion"". 

See, also Skinner –v- The King (1913) 16 CLR 336.
 
30.	Over emphasis on the appellant''s prior convictions and the failure to take the appellant''s diminished responsibility into account on sentence by his Honour are identifiable errors. The trial judge therefore erred in the exercise of his sentencing discretion which should vitiate the sentence imposed. 

For these reasons, we allow the appeal.

Appropriate sentence 

31.	In the cases referred to above, where the accused suffered diminished responsibility, the sentences imposed ranged from eight to sixteen years. The sentence of sixteen years was substituted for life imprisonment by this Court in Ure Hane –v- The State (supra). In that case, the appellant stabbed the deceased who was his de facto wife many times with a knife. He pleaded guilty to wilful murder. The offence was committed after the build up of domestic tensions between the deceased and the appellant and rejection of the appellant by the deceased''s family and his own family. He was also provoked by the deceased in a non-legal issue.

32.	In The State –v- Berry (supra), the accused killed the deceased, who was the Deputy Principal of the then Administrative College, after the deceased terminated the accused from his job as the Registrar of the college. Six months before the offence following his termination, the accused made an elaborate plan to kill the deceased. The plan included a special trip to Arizona, USA; the purchase of weapons from a black person in USA, their (weapons) dispatch to Papua New Guinea in tins, his eventual return to Papua New Guinea equipped with pressure packs for disablement and hand cuffs. In Port Moresby, he went about disguising himself with long hair, beard and glasses, using a false name as he set up a camp in the bush. In the end, being tired of wasteful days, he decided to attack the deceased as he sat in his car. He shot the deceased four times with a pistol at close range, then to make sure that he was dead, he backed a motor car over the deceased''s dead body. The accused had a history of being violent and had marital problems. The court found that he suffered from obsessional personality disorder, hence diminished responsibility. He was sentenced to twelve years. 

33.	In The State –v- Opuyau Helai (supra), the accused pleaded guilty to murdering his wife. At the time of the offence, the accused was suffering from severe mental depression after being accused by his father-in-law of failing to make a traditional feast for his first born son. This caused him anxiety and depression. There were arguments between the accused and the deceased over his inability to make the feast. When he could not bear the pressure any more, he chopped his wife with an axe inside their house, he then pulled her outside and proceeded to cut her again with the axe. The deceased was cut on the neck resulting in her instant death. The accused was sentenced to eight years.

34.	The appellant in this case, did not plan the killing over a period of time. The decision to kill the deceased was made on the day of the offence. The appellant says, he killed the deceased after he heard strange voices telling him to kill him, although, there is other evidence that he got the bush knife, from one Nini''s house with the intention of killing the deceased with it. Nonetheless, there is no evidence that he planned to kill the deceased before that day. The deceased was killed with a bush knife with a couple of blows. 
 
35.	Unlike the prisoners in the other cases referred to above, the appellant''s level of intelligence was below average, this together with the other factors and circumstances, we consider the sentence of 20 years with hard labour to be appropriate punishment for the appellant. 

36.	Therefore, by virtue of the powers given to us by Section 23 (4) of the Supreme Court Act, Ch.No.37, we quash the sentence of life imprisonment and substitute it with the sentence of 20 years in hard labour, effective from 04th July, 2000. 

37.	The appellant was arrested on 2nd June, 1998 and remained in custody until 4th July, 2000, when he was sentenced by the National Court. The total period spent in custody before trial and part of the sentenced he has served is 2 years 10 months, we deduct this period. 

38.	The appellant will therefore serve 17 years 2 months in hard labour, effective from 04th July, 2000. 

____________________________________________

Lawyer for the Appellant: The Appellant in person
Public Prosecutor: Lawyer for the Respondent