Police v Nielsen [2014] WSSC 22 (10 June 2014)

SUPREME COURT OF SAMOA
Police v Nielsen [2014] WSSC 22

Case name: Police v Joe Nielsen

Citation: [2014] WSSC 22

Decision date: 10 June 2014

Parties:
POLICE (prosecution) AND JOE NIELSEN male of Malie (accused)

Hearing date(s):

File number(s): S694/14, S2075/12, S3074/11

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
T Leavai for accused

Catchwords:

Epileptic, Grand Mal Epilepsy, convulsive

Words and phrases:
generalised tonic-clonic type of epilepsy, manslaughter,

Legislation cited:

Cases cited:
E (CA 689/10) v R [2010] NZCA 13; (2011) 25 CRNZ 411)
Edri v R [2013] NZCA 264
Police v Fepuleai
Police v Samau [2010] WSSC 163
R v Bernard [1997] 1 Cor App R 135
R v Verdins, Buckley and Vo [2007] VSCA 102:
Smith v The Queen (1987) 44 SASR 587

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S694/14, S2075/12, S3074/11

BETWEEN

P O L I C E
Prosecution

A N D

JOE NIELSEN male of Malie.

Counsel:
L Su’a-Mailo for prosecution
T Leavai for accused

Sentence: 10 June 2014

S E N T E N C E

The charge

1. The accused Joe Nielsen was initially charged with murder to which he pleaded not guilty. When the charge of murder was reduced by the prosecution to manslaughter; he entered a plea of guilty to the charge of manslaughter. He is now appearing for sentence on manslaughter.

The offending

2. As it appears from the prosecution’s summary of facts, the accused was 32 years old and the deceased 36 years old at the time of the offending in 2011. The deceased was the accused’s brother in law being married to the accused’s sister. At the time of his death, he was living with his wife and children in the accused’s family at Malie sharing the same house.
3. The accused suffers from severe epilepsy. At the time of the offending, the accused was employed by the Methodist Church at Faleula to look after its tools and equipment. On Wednesday evening 21 December 2011 between 5pm and 6pm, the accused finished work and went home by taxi. When he arrived home, the deceased had also just arrived home from work.
4. The deceased was intoxicated having attended his office end of the year Christmas party. He walked into the house in a drunken manner, dancing and speaking English. This annoyed the accused who then walked away to the family’s faleo’o (Samoan hut) at the back and sat there.
5. While the accused was sitting at the faleo’o, he saw his family’s dirty dishes lying at the washing tap in the kitchen. So he went and washed the dishes. While the accused was washing the dishes, the deceased entered the kitchen and asked the accused whether he was angry with him. He also tried to hug the accused. The accused then told the deceased to go and sleep as he was drunk.
6. The accused then suddenly became angry with the deceased’s behaviour and he grabbed an axe used for chopping wood that was lying close by. He struck the deceased on the back of the neck with the axe causing the deceased to fall face down on the floor of the kitchen. When the deceased’s body moved, the accused delivered another strike with the axe which landed on the same side of the deceased’s neck. The deceased then became motionless while bleeding from the neck injuries. The accused then walked away while the deceased’s wife and other members of the family who saw what had happened attended to the deceased. They brought the deceased to the Tupua Tamasese Meaole Hospital the same evening at around 8:30pm.
7. The doctor who received the deceased at the hospital pronounced the deceased dead on arrival. The same doctor examined the deceased and noted the following: (a) the deceased’s neck was partially severed and (b) the neck injury extended from the left lateral neck to the right posterior neck area. The doctor formed the opinion that the deceased had died from his partially severed neck. This injury had severed the blood vessels (arteries) supplying blood to the deceased’s brain and also severed his windpipe.

The accused

8. As already mentioned, the accused was 32 years old at the time of the offending. He is still single. He had an average level of education. He contributes to the upkeep of his family with his weekly wages from his job.
9. The accused is also a first offender and the testimonials provided about him and are referred to in his pre-sentence report show that he had been a person of good character prior to the commission of this offence. His family, including his sister who was married to the deceased, are in full support of him.
10. The accused’s family has also rendered a ifoga to the family of the deceased. The ifoga was accepted by the deceased’s family and there has been a reconciliation between the two families.
11. As also mentioned already, the accused suffers from severe epilepsy which for him is a permanent health condition. This started in his early teens at the age of 16 years but it got worse as he grew older. The accused’s epileptic condition made it difficult for him to attend school on a regular basis.
12. The Director of Education of the Methodist Church which employed the accused says in his testimonial attached to the pre-sentence report that the accused has a difficult and unpredictable illness and is a person who lives on tablets. That is why there is always another person working with the accused so that when the accused has an attack of fits that person will treat the accused until the accused recovers consciousness. This happens almost every month at the accused’s place of employment.
13. The accused’s family, as shown from the pre-sentence report, also informed the probation report that the accused suffers from epilepsy and has to be supervised at all times.
14. The report dated 2 July 2012 from Dr Tuitama Talalelei Tuitama confirms that the accused has been suffering from the kind of epilepsy called “Grand Mal Epilepsy” for many years. According to Oxford Concise Medical Dictionary, with this kind of epilepsy, the patient at the initial stages falls to the ground unconscious with his muscles in a state of spasm (muscular contraction). The lack of any respiratory movement may result in bluish discoloration of the skin and lips. This is then followed by convulsive movements when the tongue may be bitten and involuntary passing of urine may occur. These convulsive movements will gradually cease and the patient may recover consciousness in a state of confusion, complaining of headache, or he may fall asleep.
15. Dr Tuitama Talalelei Tuitama also says in his report that the records of the Tupua Tamasese Meaole Hospital also show that the accused had been attending the psychiatric unit from 9 March 1999 until the clinic closed in early 2011. The accused’s last recorded visit to the clinic was on 27 January 2011. At that time, the accused was taking three kinds of tablets for his epilepsy. There is no clear information before the Court whether the accused was still taking his tablets from another source, different from the hospital, up to the time of this offending on 21 December 2011. I presume he was, otherwise the absence of any medication up to the time of the offending should have been mentioned in the written sentencing submissions of counsel for the accused.
16. Dr Viali Lameko who also examined the accused confirms in his report that the accused suffers from “generalised tonic-clonic type of epilepsy” which was formerly called “grand mal epilepsy” as referred to by Dr Tuitama in his report of the same date.
17. Two different psychiatrists also examined the accused. Their examinations were based on two somewhat different accounts given by the accused and his sister. As a result, the two psychiatrists come to different conclusions as shown from their respective reports. According to the opinion of Dr Ian Parkin, it is possible that the accused entered a dissociative state which severely diminished control of his actions at the time of the offending. On the other hand, Dr Erik Monasterio came to a different conclusion based on the facts as given in the prosecution’s summary of facts that the accused did not enter into a dissociative state at the time of the offending even though he might have done so after the offending. In these circumstances, I am not in a position to find as a matter of fact whether the accused was in a dissociative state at the time of the offending. This is because the psychiatrists were not called to be examined, cross-examined and re-examined.

Relevance of the accused’s impaired mental suffering for sentencing purposes

18. In the New Zealand case of Edri v R [2013] NZCA 264 where the accused was convicted and sentenced in the District Court to 4½ years imprisonment on the charge of rape, the Court of Appeal reduced the sentence to 4 years imprisonment. In delivering the judgment of the Court of Appeal, Dobson J said at para [14]:

“Counsel did not refer the sentencing Judge to the judgment of this Court in E (CA 689/10) v R [2010] NZCA 13; (2011) 25 CRNZ 411). That decision endorsed earlier acknowledgements that impaired mental functioning is relevant to sentencing. Reviewing an analysis by the Court of Appeal of Victoria, this Court commented at [70], citing R v Verdins, Buckley and Vo [2007] VSCA 102:

“The Court said that impaired mental functioning, whether temporary or permanent, is relevant to sentencing in at leant the following six ways:

“(a) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

“(b) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

“(c) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

“(d) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the natures and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

“(e) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person of normal health.

“(f) Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor to mitigate punishment”.

19. Further on at para [15], Dobson J says:

“In E (CA 689/10) v R [2010] NZCA 13; (2011) 25 CRNZ 411), the Court reviewed a range of discounts that have been treated as appropriate by this Court when mental illness has contributed to the offending, in a range of 12% to 30%. The review also included R v Gordon CA 276/04, 16 December 2004, in which combined discounts taking into account mental illness and other factors were set at 50% of the starting point. In that somewhat exceptional case, a mother was convicted of the manslaughter of her two month old baby when suffering from post-natal depression and after telling nurses and others of her thoughts of harming her baby”.

20. Then at para [17] Dobson J goes on to say:

“[The] relative severity of the mental illness suffered by an offender, and the closeness of the causal link between the illness and the offending are relevant considerations in identifying an appropriate discount for mental illness”.

21. In Edri v R the New Zealand Court of Appeal after taking into account the accused’s mental condition and other mitigating factors, reduced the sentence of 4½ imprisonment on the charge of rape imposed in the District Court to 4 years imprisonment.
22. Both counsel in this case took opposing views as to the relevance and weight to be given to the accused’s epileptic condition on the basis of the different conclusions reached by Dr Ian Parkin and Dr Erik Monasterio in their respective reports. In this situation, counsel should have called the two psychiatrists to be cross-examined. This is a matter that requires oral evidence and I am not prepared to rely on the opposing submissions of counsel who are, of course, not psychiatrists.
23. Counsel for the accused also states in her written submissions that leading up to the trial dates and sentencing, she has been informed that the accused has been having daily attacks of epileptic fits. Some of these attacks take longer than others. As this is relevant for sentencing purposes, I would like sworn affidavits from those people who gave this information to the accused’s counsel. I would also like a psychiatric report on this.

Effect of the accused’s ill-health on sentence

24. Even if I am not satisfied that there was any link between the accused’s epileptic condition and the offending, the authorities clearly show that the ill-health of an accused can mitigate a sentence. In the South Australian case of Smith v The Queen (1987) 44 SASR 587 which was cited in Police v Samau [2010] WSSC 163, para 71, per Slicer J; Police v Fepuleai (unreported judgment of Nelson J delivered on 8 July 2009); King CJ said at p.589:

“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have on the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health”.

25. In the English case of R v Bernard [1997] 1 Cor App R 135 which was also cited in Police v Samau [2010] WSSC 163 per Slicer J; Police v Fepuleai (unreported judgment of Nelson J delivered on 8 July 2009), the English Court of Criminal Appeal stated as the third and fourth principles the following:
    

“(iii) a serious medical condition, even when it is difficult to treat in prison will not automatically entitle an offender to a lessor sentence than would otherwise be appropriate...;

“(iv) an offender’s serious medical condition may however enable a Court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle to impose a lesser sentence than would otherwise be appropriate”.

26. Whether the specific approach to mental ill health stated in E (CA 689/10) v R [2010] NZCA 13; (2011) 25 CRNZ 411 or the approach to ill health generally stated in Smith v The Queen (1987) 44 SASR 587 and R v Bernard [2010] EWCA Crim 2327; [1997] 1 Cr App R 135 is applied where there is no link between the accused’s ill health and the offending would, in my opinion, make little or no practical difference. The only difference is that E (CA 689/10) v R and Smith v The Queen refers to an offender’s ill health as a mitigating factor for sentencing purposes whereas R v Bernard refers to an offender’s serious medical condition as a factor entitling the Court to show mercy on an offender when passing sentence. For present purposes, I will follow the New Zealand and Australian approach.

The aggravating and mitigating features

27. The aggravating features relating to the present offending are: (a) the use by the accused of an axe which is a lethal weapon to inflict injuries on the deceased’s neck; (b) the very serious nature of the deceased’s neck injuries; (c) the fact that after the deceased fell down and lying helpless on the floor the accused struck him again on the back of the neck with the axe, (d) the highly disproportionate response by the accused to the behaviour of the deceased, and (e) the vulnerability of the deceased as he was in a state of intoxication and unarmed.
28. The mitigating features which are personal to the accused are: (a) the fact that he had been a person of good character prior to the commission of this offence, (b) the ifoga rendered by the family of the accused to the family of the deceased which was accepted so that there has been a reconciliation between the two families, (c) the accused’s permanent and severe epileptic condition, and (d) the accused’s plea of guilty to the charge of manslaughter immediately after the initial charge of murder was reduced to manslaughter.

Discussion

29. As already pointed out, counsel for the accused says in her written sentencing submissions that she had been informed that leading up to the trial dates and sentencing, the accused has been having daily attacks of epileptic fits. This is relevant for sentencing purposes. I would therefore like to have sworn affidavits from those people who gave that information to the accused’s counsel. I would also like to have a psychiatric report to confirm the accused’s worsening epileptic condition since the offending occurred.
30. I regret, therefore, that this matter has to be further adjourned for those affidavits and report to be submitted to the Court.
31. This matter is, therefore, further adjourned for two weeks to Monday 30 July 2014 at 12: 30pm for re-mention and for those affidavits and report to be submitted to the Court.
    

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CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution
Leavai Law Firm for accused