Teratabu v Republic [2008] KICA 2; Criminal Appeal 4 of 2007 (20 August 2008)

In the Kiribati Court of Appeal
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

Criminal Appeal No 4 of 2007

BETWEEN:

TEBWEUA TERATABU
Appellant

And:

THE REPUBLIC
Respondent

Before: Tompkins JA
Fisher JA
Smellie JA

Counsel: Giles O’Brien-Hartcher for appellant
Ruria Iteraera for respondent

Date of Hearing: 13 August 2008
Date of Judgment: 20 August 2008

JUDGMENT OF THE COURT

[1] On 2 August 2007 before the Chief Justice the appellant pleaded guilty to manslaughter, having been charged with murder. He was sentenced to life imprisonment with a non parole period of 8 years to run from 14 November 2006. He has applied for leave to appeal against that sentence.

The offending

[2] The Chief Justice described the offending:

"During the early afternoon of 1 September 2005 at Ronton on Kiritimati the victim, Rouben Teratabu was sitting with others watching a video. You suddenly appeared. You stabbed him with a toddy knife on the right side of his stomach. He died.

You admitted doing it. You said he had been making you angry by teasing you."
The sentence

[3] In sentencing the appellant, the Chief Justice referred to the appellant having been diagnosed as a manic depressive. He quoted the report of a psychiatrist:

"I am of the opinion that Tebweua Teratabu is likely to show violence in the future, could be even homicidal one, and the best criterion in his case is being the previous violent act which caused Reuben’s death.

The risk is considerable and still exists."

[4] He referred to the likelihood of the appellant doing the same thing again and concluded:

"By sentencing you to life imprisonment I am able to fix a non-parole period – that is the time before which you may apply to the Parole Board to be released.

I have decided to sentence you to life imprisonment – and to fix a non-parole period of eight years. I make a strong recommendation to the Parole Board that when considering your application for parole the Board asks the opinion of a psychiatrist on your mental condition at that time.

You are sentenced to life imprisonment. I fix the non-parole period at eight years to run from

14th November 2006."

Grounds of appeal

[5] Following an amendment granted at the hearing, the grounds of appeal were that the sentence was manifestly excessive, that the High Court failed to give an adequate discount for the plea of guilty and that there were insufficient grounds for a sentence of life imprisonment as a preventive sentence.

Medical evidence

[6] Dr Barbova is a consultant psychiatrist with the Ministry of Health. She first examined the appellant on 23 August 2006. The appellant was then aged 31. She found him to be well oriented in all respects, calm and obedient. He was free of any psychotic symptoms. His memory and intellectual capacity were intact.

[7] She examined him again on 28 September 2006. Again she found he was free of any psychotic symptoms, not showing any signs of mental illness or psychotic disorder, but he did display anxiety when asked to talk about the murder.

[8] She reported again on 14 May 2007, at the request of the High Court. This is a long and detailed report. It includes the following passage:

"To my opinion, a diagnosis of psychotic disorder cannot be made in this man. He is not mentally retarded as well. He has a history of alcohol misuse but there are no signs of or symptoms of addiction to alcohol or alcohol induced psychosis.

The violent act, which resulted in killing of Reuben, is an example of expressive aggression also known as angry aggression, reactive aggression or fear – induced aggression. Tebweua used a sharp object/a toddy knife and his primary goal was to harm Reuben. Tebweua was acting in response to his own feelings of hostility towards Reuben. Tebweua was angry, fearful and frustrated.

This type of aggression is usually impulsive /although may be planned. It is difficult to say was the violent act impulsive or planned."

[9] She concluded that he did not suffer from a psychotic disorder, his mood was stable and congruent and she did not see a need for any treatment.

[10] On the 5 July 2007 Dr Barbova supplied a further report to the Chief Justice. This report was not in the case on appeal, but was before the Chief Justice on sentencing as it includes the passage set out in § [3] above. The relevant parts of that report reads:

"I have identified several factors associated with risk of violence in this case.

They are as follows:

1. Alcohol misuse for many years.

2. Behavioural disturbances caused by alcohol misuse. It is stated in my previous report that Tebweua had been arrested 3 times after alcohol binge.

3. Previous episode of violence. The history given by the mother who stated that Tebweua was expelled from MTC after trying to strangle a fellow trainee. Tebweua gave another explanation but his response could be considered as a continuing denial.

4. Circumstances which provoked the violent act (alcohol misuse, living in extended family and conflicts between family members) are likely to occur again in the future.

5. During one of our sessions (03.07.2006) when I asked him if he has any intentions to harm somebody here in the hospital he answered, "No, because nobody is teasing me".

I am in opinion that Tebweua Teratabu is likely to show violence in the future, could be even homicidal one, and the best criterion in his case is being the previous violent act which caused Reuben’s death.

The risk is considerable and still exists."

[11] In a memorandum dated 23 January 2007 the Chief Justice recorded evidence given before him by Dr Eritane Kamatie. The appellant has been his patient on Kiritimati for five years or more. The doctor considered he was a manic depressive. For two or three weeks before 10 September 2005, the date of the killing, the appellant had been visiting the doctor every week and had been subdued while taking medication. Following an examination on the day he gave evidence, he found that the appellant had indications of mental disorder.

[12] In her report of 14 May 2007 Dr Barbova commented on Dr Kamatie’s statements to her that he thought the appellant suffered from schizophrenia and a manic depressive illness. It appears from her report that she disagreed with both.

Plea of guilty

[13] Counsel for the appellant submitted that the Chief Justice failed to give an adequate discount for the appellant’s pleas of guilty at the earliest opportunity

[14] It is well established that a sentencing judge should normally accept that a plea of guilty at the first appropriate time should be taken into account in mitigation of penalty. The appellant was charged with murder. When the appellant was arraigned on that charge on 23 January 2007, counsel for the Republic indicated that it was prepared to accept a plea of guilty to a charge of manslaughter. When the appellant was arraigned again, he pleaded guilty to a charge of manslaughter. We accept that that plea was made at the earliest opportunity.

[15] Although the Chief Justice referred to the appellant admitting the charge, he did not expressly refer to that plea being in mitigation of penalty. It is appropriate for the sentencing judge not only to refer expressly to the guilty plea but also to state the extent to which the sentence is reduced on account of that plea, unless there are good reasons for not doing so. However we have no doubt that he had the plea in mind when deciding on the sentence.

Life imprisonment

[16] Counsel for the appellant submitted that there was insufficient evidence to justify a sentence of life imprisonment.

[17] It is well established that a conviction for manslaughter can lead to a wide range of sentences. In Tajber v the Queen (1986) 13 FCR 524 at 538 Gallop J said:

"Manslaughter is a crime which encompasses a diverse group of situations ranging in their degree of heiniousness from cases akin to murder to those where no sanction, or only a symbolic one is called for."

[18] The maximum sentence for a person convicted of manslaughter is life imprisonment. In considering where in the range of sentences this case falls, the following are relevant.

• [a] The circumstances of the offending are set out in § [2] above. We have no more detailed information, but it is apparent that it was an unprovoked attack in which the victim was stabbed in the stomach with a knife.
• [b] The appellant has no previous convictions, but we note a comment in Dr Barbova’s report of 14 May 2007 that his mother said that he was expelled from MTC because he tried to strangle one of his fellows.
• [c] The attack on the victim was no doubt the result at least in part of his medical condition as described by
  Dr Barbova.
• [d] Because of that medical condition, he is likely to be, for some time into the future, a danger to the public.
• [e] We note the difference of medical opinion, but we think it probable that he does not suffer from any recognised psychiatric condition such as schizophrenia or manic depression.
• [f] His plea of guilty at the earliest opportunity.
  

[19] The Chief Justice imposed a life sentence because only then could he also specify a non-parole period, and he was understandably concerned to ensure that if his condition remains as it is now, the Parole Board should be able to keep him in custody in the interests of public safety until it was satisfied that he was no longer a risk, at least for the non-parole period.

[20] However, this is not the only way to achieve that result. If a sentence other than life is imposed, there can still be a period of supervision under parole. Section 11 of the Parole Board Act 1986, as amended by s 3 of the Parole Board Amendment Act 2005 provides that where there is imposed a sentence of more than two years, the person sentenced, if not undergoing imprisonment for life, is eligible for parole after one half of the sentence imposed.

Conclusion

[21] Taking into account the factors we have listed in § [18] above, we have concluded that a life sentence was not justified. This was no doubt offending at the higher end of the range, but not of a degree of heinousness that called for the maximum penalty. In our view an appropriate sentence is 14 years, reduced by two years for the plea of guilty to a sentence of 12 years.

[22] He will be eligible for parole after six years. We repeat and adopt the Chief Justice’s strong recommendation to the Parole Board that when considering his application for parole the Board asks the opinion of a psychiatrist on his mental condition at that time.

Result

[23] Leave to appeal is granted. The appeal is allowed. The sentence of life imprisonment is quashed. In lieu thereof he is sentenced to a term of imprisonment of 12 years.

Tompkins JA
Fisher JA
Smellie JA