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 youe wife have beee been married for a number of years. Out at renship ship you haou had a baby daughter who was approximately aged 2 years at the timehe incident. She was your first born child. Dur; 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 broaover tver this, your fatherw came and visited you and and your wife. He came and stayed with ydu and your family for about 2 weeks. Whilst he stayeh you he cimplained to you about your inability to make a fe a feast inrespect of your first born daughter. He complained becaue wif expecting your sour second child. A taken together with his his complaint and your your depression over your inability to proa traditional feast, this caused you much more anxiety and depression.

On the night ight before the incident there was a singsing which took place at your village. You and your late wife di 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. Ths no evidence to suggestggest that there had been any ents between you and your wour wife.

On the morning of 21st September you and your wife woke from your sleep. When you woke u got e and and chopped somd some firewood’s and gave the firewood to your wife to make a fire. While you were doing that mind was affected to the extent that you were influenced to chop your wife. You ther there upon use axhe axe and cut your wife0; You cut her once inside the house. You then pulled her outside of the house and thnd then proceeded to cut her again with yoe. Oh occasions you cut her oher on her neck. Y60; Your wife was kiinstainstantly.

After that you gave chased in aempt t some of your otur other villagers but you were overcome and the axe was removed from your your hands.

The post mortem reportribes the nature of the inje injuries that were inflicted on the deceased.

The evidence is clear that you were under no physical disability. On the medividence of Dr. Dr. Brother Andrew you suffered no mental illness at the material time. It is nggested that you diou did not know what you were doing or that what you were doing was wrong so as to raised the defence of insa However the case has been put forward by your counsel that at the time you committeditted 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 ofprovisions of Section 28(2) of the Code. He submit that the temily rily mental disordisorder that you suffered at the time of commission of the offence could xonerateerate you and that you would held criminally responsible for your actions.

Hbmission is supported by whby 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 ch with with two counts of wilful murder and one count of attempted murder. He pleaded uilty to ae chae charges. Mark of the facre no0; not in dispute at the trial inal in the National Court. On 3rd April 19 the Village at about 6.00pm in the evening, the appellant was set to have gone “bese;beserk” and was using an axe and chasingle invillage. On0; One of the victimelde elderly women could not escaped and run away.&#16. She wasped in her house.&#se. The appe hit her once with with the axe and she fell down unconscious. as admitted to the hospitaspital and died two months l

bsequently a day later (4th April 1989), the appe appellant confronted a group of men and sand struck another man on his shoulder.&#1hat man did not die. 160; Then e same day appelappellant went to another village. He approacheomen and as shas she came out he struck her with the axe and she died instantly. The appellant ot call any any evidence but handed a medical report by Drher Andrews MBBS, by consent. After rial the trie trial rial judge at the National Court convicted the appellant of the two wilurder charges only and sent sentence him to 25 years in hard labour on each count to be served concurrently. The appellant appeal ag thst the conviction and against the severity of the sentence.

The appellant raised the defence of insanity under Sectionf the Code. At the trial the Trudge rege rejected the defence of insanity on the basi basis that from the doctor’s report the defence of insanity had not been established. The ground o appeal againsgainst 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 the appellant suffered frod 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. Inr words the doctors stat stated that the appellant did not suffer any abnormality of the mind or diminished responsibility.&#160 Supreme Court held that diminished responsibility is not a defence under the existing prov provisions of the statute, namely the Code. In that case the appellr r 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 tore dide 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 ad person may be taken into into consideration as a mitigation factor on sentence. See State v Eordon Berry [rry [1977] PNGLR 128, R v Don Marty Warite (Unreported Judgement) dated 27 May 1975 Raine J, The State v Danny Sakin Upaki in (Unreported Judgementth November 1976 by Saldanha J, The State v Justus Taimbarimbari 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 pd guilty to a 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/m) as registrar at the Administrative College, he shot the the deceased with the pistol at least 4 times at close range, then back or reversed his motor vehicle over the deceased body. Experdence was given by twby 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 rost 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 tooknto account as one one of the mitigating factors in favour of the accused.

In Kauri he was also charged with wilful murder of one Johnson Ojari. He plenot guilty and a tria trialconducted. The facts acts of the cas are as follows. He was charget on the 26th 26th day of May 1986 he wilfully murdere Johnson Ojari. On that day deceased lefthhis house ause at Singi village at about 2 pm to go to his garden. He was carrying a knife tucked under his arms armpit. As hked past the accused hsed house, the accused jumped down from the verandah of his house whe was sitting with his brother and ran towards the deceased, pulled the bush knife from unde under the deceased armpit and chopped him once on the head. The decease/m tried to runo 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 onground the the accused once again chopped him on the head. At time the decease/victimictim’s brother ran over to them and grabbed hold of the prisoner and pulled the knife from hi60; Tctim died shortlyortly after that from injuries he that had inflicted on him. Those fose facts not dispudisputed by the defence except that at the relevant time the accused was insane when he committed the offence.

There was some evidence relating s behaviour on the day before the incident. On that dhat day heted actd acting strange by taking his clothes off shouting and abusing people. He assaulted his and triedtried to take her clothes off too. The man’s hi showed owed that he hver suffered any mental illl illness before.

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

The court found the accused guif wilful murder. The late Chiefice sentencetenced thed the prisoner to 5 years imprisonment in hard labour. It is obvious thatcourt thrt there took into consideration as a mitigating factor the mental state of the prisoner. In other words the courte accepted as a mitigating factor the prisoners reduced mental capacity.

What these hese cases established is that the court cd ought to take into consideration, as a mitigating factor, in an appropriate case, on the 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 Octo996.1996. The doctor concluded ave have his opinion on the mental status of the prisoner at the relevant time as:

“1. ; He it to plead.60 He was nft sung from arom arom a mental decease at the time of ffenchin taning. 2the Code Code. That is the priswas not inot insane.

3.&p>3. #160; & &#16 suffered fred from a tm a temporary mental der wcaused serious impairment of his capacity to know know what he was doing, ability to recognecognise the wrongness of the act and to ese thl conof his actioactions.&#ns.”8221;

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 pe for the crie crime of murder is, subject to S. 19 of the Code, life imprisonment. I do not con the in the cihe circumstances of this case the maximum sen is call for. I consider that a sentof h of higher ther than the highest tariff for or range of sentences for manslaughter but e lower range of sentences nces for murder ought to be imposed. Mr G has submitted that a at a sentence in the range of manslaughter cases ought to be imposed. I d think I can do that.&#at. I amhe view that the prisoprisoner has been convicted of time of murder. Whilsthilst I take note of the circumstances of the commission of the crime nevertheless, in my view that should not nt the imposition of a sent sentence within the sentences for manslaughter cases.

The prisoner was a married man at the time when the offence was committed. s married to the deceased/ased/victim. From his antecedent repono 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 ce I no I note that hea subsistence farmer and note that he had a female child agld aged about 2 years.

I take into the prisoners favour the followie mitng factors. #160; First that he leaded aded guilty to y to a serious crime which carries a sentence of life imprisonment. Secon note that he had co-d co-operated with the police when he was arrested and he readily made admissions to the police. In tcircuce I consider thar that his plea of guilty before the court is a genuine plea and I gi I give due weight and consideration to thp>

Thirdly he is a first offender. There are no prior recordc which the court shou should take into consideration. Finally e evidence of Dr B Dr Brother Andrew, which I accept, you were mentally disturbed temporally. Ier words I acceptdocto17;to17;s report that that you suffered a temporary “mental disorder” which caused ssed serious impairment of your capacity to what you were doing. Accordingconsider that just just 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 gerougerous weapon namely an axe to attack your wife. She died tly from the inju injuries which you had inflicted upon her0; Her death was caused by a weapon.

In all the circumstances I considered that a se a sentence of higher than the range suggeby Mr Gendua is appropriateriate.

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 senr sentence at Bihute Corrective Institution Service.

Lawyers for the State: Public Prosecutor

Lawyers for the Accused: Public Solicitor