Police v Toam [2008] PGDC 35; DC702 (17 November 2008)

DC702

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE AT VANIMO]

CR NO: 388 OF 2008

POLICE

V

SEBLUM TOAM

VANIMO: A. ARUA
2008: November
13, 14 & 17

SENTENCE

Criminal Law – Sentencing – Charge of unlawful entry – Plea of guilty – Factors to be considered – Insanity – Whether available in mitigation.

Evidence – Medical report – Admissibility of – Report to be admitted through affidavit of doctor.

Cases cited:

1. State v Eric Gordon Berry [1977] PNGLR 128.
2. R v Don Marty Warite (Unreported Judgement) dated 27 May 1975.
3. The State v Danny Sakin Upaki (Unreported Judgement), 11th November 1976.
4. The State v Justus Taimbari Kauri (Unreported Judgement) dated 25th June 1987.
5. Levakia Koli v Motor Vehicles Insurance (PNG) Trust (1997) N1556.
6. Petrus Kumbio v Kukukova Famundi & Another (1998) N1717.

Chief Sergeant Simon Maigu for Police Prosecutions.

Conrad Karo for the defendant.

17 November 2008.

ARUA. Seblum Toam, you entered a guilty plea to a charge that on 28th October, 2008, at Wutung, you did enter into Papua New Guinea whilst not being a holder of an entry permit, thereby contravening to S. 16 (1) (a) of the Papua New Guinea Migration Act 1978.

The facts of the case are as follows. On 28th October, 2008, at around 2.30 pm you rode a Honda motorbike black in colour with an Indonesian registered number plate DS 2779 JM. 09.12 through the first main gate into the Papua New Guinea side. You then followed the road down the hill to the last gate which was still open and rode through it, heading
towards Vanimo township.

The Papua New Guinea border police were alerted and together with the quarantine officer they gave chase. You were finally stopped at the main road near Wutung government post and Wutung village. You were then escorted to the border police station and interrogated. During the interrogation you told the police that you wanted to travel to Vanimo. You further told the police that you had no travel documents on you. You were then brought to Vanimo Police Station where your particulars were obtained and you were formally charged and placed in the cell.

On your first appearance in court on 3rd November, 2008, before His Worship Mr. Thomas Morabang, you entered a ‘guilty’ plea through an interpreter Mr. John Rumbino. You didn’t have a lawyer representing you at that time. The court after going through the normal process confirmed you guilty and adjourned your case to 5th November, 2008, for further deliberations and sentencing. You were further remanded in custody at Vanimo Correctional Institution pending sentence.

On 5th November, when you appeared for sentencing you had for the first time Mr. Conrad Karo appear as your defence counsel. Mr. Karo, after informing the court of his authorization and formal release by his employer company Vanimo Forest Products Limited to represent you, then informed the court that he had been instructed to change your earlier plea of ‘guilty’ to ‘not guilty’, pleading the defence of insanity on the basis of your medical report.

Since the matter was at that point at the sentencing stage, the court then directed your counsel to file submission and address the court on sentence only. The case was then further adjourned to 7th November, 2008, for further deliberation and sentence.

On 7th November, the court after considering the submission on sentence from your counsel and your decision to change your plea to ‘not guilty’, ruled in your favour and amended your initial plea of ‘guilty’ to ‘not guilty’. The matter was then adjourned to 13th November for listing before another magistrate. It was at the listing on 13th November, 2008, that I was given carriage of the case.

At the commencement of the case before me on Thursday 13th November, 2008, Mr. Karo informed the court that since the earlier court had already amended your plea from ‘guilty’ to ‘not guilty’, it was not necessary for you to take another plea before me. He told the court that the ruling to change your plea to ‘not guilty’ was sufficient and on the basis of that plea you were now raising the defence of insanity. When asked by the court whether he had sought specific instructions from you on the plea, Mr. Karo told the court that he had not.

The prosecutor was then invited to address the court on the issue. He submitted that while your initial plea of guilty had been changed to ‘not guilty’, it was proper that the new magistrate presiding over the matter after a change of plea take a new plea.

I might add here that both the defence and the prosecution cited no authorities or case precedents to assist the court on this issue. However, it is a normal practice for courts to obtain new plea after a change of plea and since Mr. Karo had not taken specific instructions from you personally and, to avoid any further confusion on your correct plea, the court decided that it was proper that the matter be adjourned briefly for counsel to seek specific instructions from you to properly inform the court on your correct plea.

At the resumption of the case after about 30 minutes’ adjournment at 2.30 pm Mr. Karo informed the court that he had been specifically instructed by you to enter a plea of ‘guilty’. He also told the court that you regretted your earlier decision to change your initial plea from ‘guilty’ to ‘not guilty’ and that you admitted to the fact of entering Papua New Guinea without a valid entry permit. He further informed the court that having pleaded ‘guilty’, you were now relying on your medical report and the defence of insanity for mitigation of your sentence.

Having sorted out the issue relating to your plea, the court then invited the prosecution and your counsel to make submissions on sentence. Both informed the court that they had nothing further to add and would be relying on their written submissions filed on 6th November, 2008. They urged the court to consider those submissions and decide on the appropriate sentence.

On perusal of the submissions I noted that both placed much emphasis on whether insanity could be considered by the court as a factor for mitigation. It is therefore necessary that the court address the issue of insanity as a factor for mitigation. I restate their submissions in brief as follows.

The prosecution submission on sentence.

The prosecution submitted that illegal entry into a sovereign country was a violation of that country’s laws and was therefore a very serious offence. It was serious because of current issues such as transnational crimes, terrorism, spying, smuggling and trading of arms, drugs and prohibited goods.

While it is not suggested that you were involved in any such activities, you still committed an offence when you entered Papua New Guinea, an independent sovereign country without valid entry permit. Your actions showed no respect for Papua New Guinea laws, especially, it violated S. 3 of the Migration Act 1978 which states that;

3. Prohibition on entry without entry permit.

No person, other than a citizen, shall enter the country unless-

(a) he is the holder of an entry permit; or

(b) he is a person, or a member of a class or description of persons, exempted by the

Minister under Section 20 from the requirement to hold an entry permit.

It was further submitted that although you had pleaded insanity initially as a defence and then later as a factor in mitigation, the court must also consider other factors arising from the circumstances of your actions. These were:

1. Your identification documents identifying you as a member of the Indonesian Military (TNI).

2. Your previous movements in and out of Papua New Guinea, especially Sandaun Province before you were caught.

3. Your prior intention of coming to Vanimo as communicated by yourself to the police.

4. The distance it took you to ride your motorbike from Sentani, Indonesia to Wutung in Papua New Guinea which was a long distance with heavy traffic along the way. Had you been mentally affected as you claimed, you would have been involved in or caused an accident.

5. Failure by the Indonesian border police and the authorities to stop you at the Indonesian side of the border.

6. Failure by the Indonesian Consulate in Vanimo to show interest and assist in past cases of illegal entry by other Indonesian citizens, while in your case the Indonesian Consulate is all of a sudden very interested and concerned, which showed that you were not an ordinary Indonesian citizen but an important person in the military (TNI).

Because of the above factors and the manner you went about in entering Papua New Guinea illegally, coupled with your behaviour at the material time, was clear that you were not insane. You understood what you were doing, had control of your actions and were fully aware at that time that you were entering Papua New Guinea illegally.

Due to the above reasons, mitigation on the basis of your insanity should not be considered by the court. The court was urged to punish you by imposing custodial sentence in accordance with S. 16 (1) of the Migration Act 1978.

The defence submission on sentence.

Your counsel in response to the prosecution submission had initially raised the defence of insanity under S. 28 (1) of the Criminal Code on the basis of a report dated 16th September, 2008, by Doctor Samo Adi, a psychiatrist at Abepura hospital for mentally sick people. The report stated that between 12th to 31st August, 2006, you were "ever being treated" at the hospital for "Psychotic Acute", a condition purportedly related to mental disorder of a person’s state of mind.

It was submitted that as far as the law was concerned, a medical report from a foreign country, in this case Indonesia, was a report of a person’s health condition that must be given judicial recognition by the court. Where a party disputed such report, the onus was on that party to justify as a matter of law why the report should not be accepted.

I must state at this point that the admissibility of the report was not formally objected to by the prosecution. I will address the issue of admissibility later in the judgement.

Counsel further submitted that the prosecution had failed to justify why your medical report should not be accepted. The court was told not to ignore the report on the assumption that it had been falsely designed by Indonesia to protect you. In all the circumstances of the case no reasonable court would do justice without material evidence to support its actions, in this case, the decision not to accept your medical report on a mere assumption that it had been falsely created to protect you. To do so would be erroneous and would amount to injustice on the part of the court.

Therefore, in the absence of a report to the contrary from the prosecution the court was urged to either acquit you of the charge or, because you had pleaded guilty, to consider your medical report in mitigation and impose a light sentence on you. Counsel then listed the following grounds as the basis for his submission.

1. There was sufficient proof that you were a person of insane mind.

2. There was no report on the contrary from another qualified medical practitioner stating otherwise than what was stated in your medical report.

3. It was unsafe for the court to proceed to conviction and sentence without regard to your medical condition.

4. A normal sane person would not have rode a motorbike through the PNG/Indonesia border the way you did, without stopping at the border offices for proper clearance.

5. The defence of insanity was a legal defence by virtue of S.28 of the Criminal Code of Papua New Guinea. Your medical report was evidence to the contrary to the presumption stated under S. 27 of the Criminal Code, which stated that every person is presumed to be of sound mind until proven otherwise. The burden was therefore on the prosecution to disprove your medical report, that you were sane or of sound mind and were fully aware of what you were doing and the consequences thereof, at the time of your illegal entry into Papua New Guinea.

Counsel also submitted that there were a lot of doubts in the circumstances and the court should extend the benefit of such doubts to you and impose light penalty against you. Counsel however did not state the light or alternative penalties he was proposing in place of the penalty provisions spelt out under S. 16 (1) of the Migration Act 1978.

I note however, that the submission by your counsel was filed after you had decided to change your initial plea of ‘guilty’ to ‘not guilty’. That may have been the reason why much emphasis was placed on trying to convince the court to acquit you on the basis of your insanity, than addressing the issues of mitigation. Your position has since changed after you pleaded guilty before me. Therefore, the defence of insanity and acquittal are no longer applicable at this stage.

I also note that counsel didn’t provide additional information on the issue of mitigation on the basis of your insanity. However, he only made a brief mention of it towards the end of the submission when he urged the court to consider your initial defence of insanity as a mitigating factor.

Having considered both submissions carefully, my observations are as follows.

The law is clear that because you entered Papua New Guinea illegally you must be punished in accordance with S. 16 (1) of the Migration Act 1978. S. 16 states that;

16. Offences.

(1) A person who—

(a) enters or remains in the country in contravention of this Act; or

..............

............. etc

is guilty of an offence.

Penalty: A fine not exceeding K5, 000.00 or imprisonment for a term not exceeding six months.

The prosecution submitted that since you were sane the court should not use the reason of your insanity to mitigate your sentence. Your counsel however submitted that since you had a medical report stating your medical condition of some two years back, the court should accept that report and apply your mental status in mitigation of your sentence.

My understanding of the applicability of insanity as a defence or a factor in mitigation is as follows.

Section 28 of the Criminal Code states that:

28. 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 delusions to believe to exist.

On reading S. 28, it is clear that the defence of insanity is a complete defence under the Criminal Code. Where one pleads it as a defence, he has to establish it by calling evidence through the normal judicial process. Once insanity is established the accused is entitled to be acquitted of whatever offence he has been charged with.

Because insanity is a complete defence, it is my view that you cannot plead guilty on your charge and then rely on it for mitigation. You either take it or leave it, i.e.; plead not guilty and raise and prove insanity as your defence which, if it was proven would have resulted in your acquittal and discharge or, plead guilty to your charge and raise other factors for mitigation but not insanity.

In your case you have pleaded guilty to the charge but have come back via your counsel’s submission to ask the court to impose a light penalty on you on the basis of your insanity as per your medical report. As I have explained earlier, you cannot have it both ways.

However, having said the above, I am mindful of the inference from your counsel’s submission that although he may not have specifically and in detail addressed other mitigation factors, the court should nevertheless consider other conditions of your mind that may have resulted from your medical condition of two years ago. Conditions such as temporary mental disorder or diminished responsibility of mind

It was implied that because you have a medical report stating your condition as "Psychotic Acute" and that you had been between 12th and 31st August, 2006, "ever being treated" at Abepura hospital for mentally sick people, it was likely that at the time you entered Papua New Guinea illegally, you were suffering from temporary mental disorder.

Therefore, it was the ‘temporary mental disorder’ that you were suffering from at the time of your entry that may have made you to do what you did or behave the way you did. Your ‘temporary mental disorder’ should therefore be considered in mitigation and the court should impose a light penalty on you.

Temporary mental disorder or diminished responsibility of the mind may be considered as a factor in mitigation. 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 were as follows. The accused pleaded guilty to a charge to of 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 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". Frost CJ held that the diminished responsibility not amounting to a defence of insanity under the Criminal 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, the accused was also charged with wilful murder of one Johnson Ojari on 26th May, 1986. He pleaded not guilty and a trial was conducted. The facts of the case are as follows. 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 deceased tried to run away but the prisoner chased after him and chopped him once again on the back of the head and the deceased fell down. While he was on the ground the accused once again chopped him on the head. At that time the brother of the deceased ran over to them and grabbed hold of the accused and pulled the knife off him. The victim died shortly after that from injuries he had received. Those facts were not disputed by the defence except that at the relevant time the accused was insane when he committed the offence.

Evidence relating to his behaviour on the day before the incident was tendered. 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. His history however showed that he had never suffered any mental illness before.

There was however evidence that there had been some argument between the deceased who was his cousin and the accused over land. Dr Brother Andrew conducted an examination on the accused. The doctor said that the accused 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 and sentenced him to 5 years imprisonment with hard labour. It is obvious that the court 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 prisoner's reduced mental capacity.

The above mentioned cases establish that the court can and ought to take into consideration, as a mitigating factor, in appropriate cases, on the basis of the facts and relevant medical evidence, an accused mental condition which may not amount to a defence of insanity.

On the basis of the above cases I am satisfied that though you have pleaded guilty to the charge against you, the court should consider your mental capacity at the time of the offence as ‘temporary mental disorder’ or ‘diminished responsibility of the mind’ and consider it in mitigation.

But, before I could consider the above, I must address issue of admissibility of your medical report. Because in order for me to consider anything stated in your report it must first be properly admitted and accepted in court.

On this issue, your counsel has urged the court to take judicial recognition of your report when he submitted that "a medical report from a foreign country is a report of that person’s health condition that must be given judicial recognition". Judicial recognition means the same thing as judicial notice. Where judicial notice is taken of a certain fact or document that is being proposed to be tendered in court, the result is that such fact or document is accepted or admitted on the face of it without further evidence to support its admissibility.

In the same way your counsel has urged the court to accept your medical report as it is when he submitted for it to be given judicial recognition. If I give judicial notice of your medical report, then it would be accepted as it is and you don’t have to call other evidence to have it admitted. I shall then proceed to consider the evidence of the status of your mind as a factor in mitigation.

However, on my perusal of Part II of the Evidence Act 1975 that deals with certain situations or documents where judicial notice should be taken by the courts, especially sections 3, 4, 5, 6, 7 and 8, I find that there is no mention of medical report per se, nor any document from Indonesia or an Indonesian hospital.

In the absence of the above, I decline to give judicial notice or recognition to your medical report. Your medical report is not one of the documents identified under Part II of the Evidence Act for judicial notice. My refusal means that you will have to apply through the normal process to have your report admitted and accepted before the court can consider it as factor in mitigation.

Perhaps your counsel was also implying that the court accept it on the basis of S. 37 of the Evidence Act. S. 37 states;

37. Evidence of scientific examination.

(1) An affidavit made by a medical practitioner who has made a medical, pathological or other scientific examination of a thing setting out –

(a) his qualifications; and

(b) that he has made the examination; and

(c) the facts that he has ascertained and the conclusions at which he has arrived as a result of the examination, is admissible in evidence in any legal proceedings in court.

(2) Without affecting the ................etc

It is clear from S. 37 that it deals with an affidavit of a medical practitioner who had made a ‘medical report’ stating inter alia, that he was the author of the report and therefore the findings contained therein. S. 37 is therefore clear that a medical report that is to be tendered must be admitted by the affidavit of the doctor who made it. This position has been confirmed by several higher court decisions. See Levakia Koli v Motor Vehicles Insurance (PNG) Trust (1997) N1556 and Petrus Kumbio v Kukukova Famundi & Another (1998) N1717

Your counsel’s submission for me to admit and accept your medical report as it is without the supporting affidavit from the author, Doctor Samo Adi does not come within this situation.

No reason was given why your medical report was tendered in this manner. Maybe the requirement for the doctor to do an affidavit was too cumbersome a task or the time frame didn’t allow for such to be obtained. Or maybe it was the process that was accepted and followed in the Indonesian legal system.

Whether it is due to one of the above reasons, I refuse to admit your medical report and accept it on face value. I rule that it has not been properly tendered through the affidavit of the doctor who authored it as required by S. 37 (1) of the Evidence Act 1978.

Because I have ruled not to admit your medical report, there is no need for me to consider it to ascertain the basis of your mental status at the time of your entry into Papua New Guinea for the purposes of mitigation. The end result is that you cannot rely on your medical report and therefore your medical condition of two years ago as a factor for the court to mitigate your sentence.

However, I have considered other factors in mitigation that are in your favour. They include;

1. Your status as a first offender.

2. Your cooperation with the police and Papua New Guinea authorities to date, and

3. Your general background and the level of your education and sophistication.

In deciding the appropriate penalty to be imposed upon you I have weighed the factors in your favour against the factors that aggravate your situation. I do not agree with the prosecution submission that the court should impose the maximum penalty provided because of your;

1. Position as a member of the Indonesian Military (TNI); or

2. Your previous movements in and out of Papua New Guinea; or

3. The distance of your travel between Sentani and Wutung; or

4. Failure by Indonesian authorities to stop you; or

5. The sudden interest shown by the Indonesian Consulate in your case when it had not acted the same in past illegal entry cases involving Indonesian citizens.

The above reasons are too shallow and a court should not decide sentence solely because of them.

However, when considering all the circumstances of your case I do agree that the offence you have been charged for is a serious one. As I have concluded already you were not insane when you entered Papua New Guinea. You understood what you were doing, were able to control your actions and you ought to have known that you were entering a foreign country without a valid entry permit.

You are no ordinary citizen of Indonesia from a remote tribe in the jungles of Borneo, Aceh or Papua to be treated differently. Your identification papers identify you as a colonel in the Indonesian military (TNI). Your level of understanding and sophistication should therefore be higher than that of a tribal bushman from Borneo, Aceh or Papua who may have had little or no contact with the outside world. With your papers and your level of sophistication you could have easily obtained valid entry documents if you wanted to visit Vanimo on leisure as you stated.

I consider your actions and the circumstances under which they were committed very serious. You cannot have a senior military officer from another country entering another country, let alone on a motorbike without proper entry documents like the way you did. You were not acting in another Hollywood ‘Mad Max’ movie. Your actions could have resulted in severe consequences and breach of peace and security along the border area or, you could have been shot dead, as has happened in other parts of the world.

Imagine if a senior military officer from Papua New Guinea was to do the same as you did? I am sure the immediate reaction and thoughts running through the minds of the Indonesian border officers and the military would be the same as the reaction and thoughts that the Papua New Guinea officials felt and did when you entered Papua New Guinea.

Due to the above considerations, I find that the aggravating factors far outweigh whatever mitigating factors that are in your favour. Consequentially, I think that custodial sentence is appropriate in the circumstances. Because I consider the circumstances of your case serious, coupled with the need to deter and warn others not to do what you have done, the maximum sentence provided under S.16 (1) of the Migration Act 1978 is warranted.

I therefore convict and sentence you to:

1. Six (6) months imprisonment with hard labour to be served at Vanimo Correctional Institution.

2. Twenty (20) days of the total sentence is hereby deducted for time spent in custody awaiting trial and sentence.

3. You are to serve only the remaining five (5) months and ten (10) days.

4. At the completion of your sentence you shall be escorted to the PNG/Indonesia border at Wutung and deported.

5. The motorbike that you used to enter Papua New Guinea illegally is hereby forfeited to the Independent State of Papua New Guinea.

Orders accordingly.

Police Prosecutions: Chief Sergeant Simon Maigu.
Defence Counsel: Mr. Conrad Karo.