Police v Chong Nee [2018] WSSC 43 (3 April 2018)

SUPREME COURT OF SAMOA
Police v Chong Nee [2018] WSSC 43

Case name:	Police v Chong Nee
Citation:	[2018] WSSC 43
Decision date:	3 April 2018
Parties:	POLICE v OLIVER SAMMY CHONG NEE male of Aleisa.
Hearing date(s):
File number(s):	S1828/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted of all the charges against him and fined $3,000. This fine must be paid before the accused may leave Samoa to return home. The accused is also ordered whilst here in Samoa to make a follow-up visit to Dr Tuitama for his medications review, blood tests, and mental clearance before he leaves Samoa. Whether there should be a mental health escort for the accused when he flies out of Samoa, as advised by Dr Tuitama, is a matter for the Ministry of Health to decide
Representation:
Catchwords:	bipolar disorder – diminished intellectual capacity or understanding – diminished responsibility – disproportionately severe – mental illness – mitigating factors – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.161, s.165 (b) s.184 (1), s.184(2), s.185 (1) Sentencing Act 2016, ss.6 (g) and 7 (2) (d)
	New Zealand Sentencing Act 2002
Cases cited:	De La Hunt v R [2014] NZHC 1144 E v R [2010 NZCA 13, (2011) 25 CRNZ 411 S v Police [2013] NZHC 102 6 Keshwan v R [2012] NZCA 171 R v Turner [2015] NZHC 189
	R v L [1998] 2 NZLR 141
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

OLIVER SAMMY CHONG NEE male of Aleisa.
Prosecution

Counsel:
A Matalasi for prosecution
L Vaa-Tamati for accused

Submissions: 12, 26 February 2018

Sentence: 3 April 2018

S E N T E N C E

The charges

1. The accused Oliver Sammy Chong Nee Junior appears for sentence on four charges, namely, :
   • (a) theft, contrary to s.161 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b) because the value of the stolen vehicle which is the subject of this charge exceeds $1,000;
   • (b) intentional damage to property when the accused knows or ought to have known that danger to life was likely to result, contrary to s.184 (1) of the Act, which carries a maximum penalty of 14 years imprisonment;
   • (c) intentional damage to property, contrary to s.184 (2) of the Act, which carries a maximum penalty of 7 years imprisonment; and
   • (d) endangering transport by intentionally driving a motor vehicle in a manner that is likely to cause danger to a person or property, contrary to s.185 (1) of the Act, which carries a maximum penalty of 14 years imprisonment.
2. To all charges, the accused pleaded not guilty. At trial, the accused was found guilty. The reason for the accused’s plea of not guilty to the charges, as advised by his counsel, was because he relied on his mental illness to exonerate him from criminal responsibility.

The offending

3. The full facts of this offending are set out in my judgment delivered on 17 January 2018. Essentially, what happened in this case was that on Sunday 22 October 2017, the complainant went in his brand new pick up vehicle to buy a cake and ice cream for his wife’s birthday. After buying a cake from a cake shop at Lotopa, he drove up to a supermarket at Ululoloa to buy a box of ice cream. When he stopped at the supermarket, he went inside without turning off his pick up vehicle. This was in order to keep the air condition of his vehicle on to prevent the cream of the birthday cake from melting. The doors of the vehicle were also left unlocked. The accused who was standing around in front of the supermarket then got inside the complainant’s vehicle and drove away to Aleisa. The complainant who was inside the supermarket was alerted by someone that a man has driven away in his vehicle. That man was the accused. When the complainant came out of the supermarket, his vehicle was gone. He then called his older brother and the police on his mobile phone for help.
4. When the police arrived, they went with the complainant to Aleisa to look for the complainant’s vehicle but the complainant’s vehicle was nowhere to be seen. The complainant’s brother who later joined the search in his own pick up vehicle, when he come to a tarsealed road that goes inland at Aleisa, drove up that road. At the end of the road, he saw the complainant’s vehicle in front of a house. He then called the complainant and the police on his mobile phone and told them he has found where the complainant’s vehicle was. When the police vehicle arrived, the accused turned the complainant’s vehicle around from where it was parked and drove towards the road. He tried to head seaward to the main road but his vehicle was blocked by the police vehicle. The accused then drove further inland on a rough and bumpy vehicle track while pursued by the police and the complainant’s brother in their vehicles.
5. The vehicle track ended at a fenced cattle farm and the accused drove into the cattle farm through the gate still being pursued by the police vehicle inside the cattle farm. The vehicle of the complainant’s brother which was following the police vehicle got stuck in the soft and slippery mud at the gate to the farm. The accused then turned the complainant’s vehicle around inside the cattle farm whilst still being pursued by the police and headed back to the gate of the farm apparently to get out of the cattle farm and away from the police. Unfortunately for the accused, the gate was blocked by the complainant’s brother’s vehicle that had got stuck there in the soft and slippery mud. So the accused rammed the complainant’s vehicle into the vehicle of the complainant’s brother and that was where the complainant’s vehicle stopped. The police came out of their vehicle and arrested the accused. It would appear that the accused had only been in Samoa for a few days when this incident occurred on 22 October 2017 because he had arrived in Samoa the same month.
6. According to the complainant’s brother, when he saw that the accused was driving straight to his vehicle stuck in the mud, he jumped out of his vehicle for fear for his life. Both vehicles were badly damaged.

The accused

7. The pre-sentence report shows that the accused is 39 years old, currently unemployed, and separated from his female partner. He was born in Wellington, New Zealand, where he grew up under the care of his parents. He started his formal education up to intermediate level in Wellington before he went up to the Mormon Church College in Hamilton. Subsequently, he studied at the Waikato Polytechnic for a year before going to Japan for his Mormon Church mission from 1997 to 1999. On his return to New Zealand, he found employment as a Japanese translator in a museum in Wellington for five years and then as a customer service representative for a museum in the Waikato for another five years. He then worked at Rotorua for another two years. In 2017, he visited his younger siblings in Australia before coming to Samoa in October 2017 for a holiday.
8. The accused’s relative with whom he is staying in Samoa spoke of the accused as someone of good character and not of a troublesome nature. There is also no record to show that the accused has any previous conviction.
9. The accused told the probation service that he has a mental illness, namely, a bipolar disorder. He also told the probation service that it was due to his bipolar disorder that he committed the present offences.
10. The accused further told the probation service that his brothers from Australia have already paid $12,000 to the complainant to fix his vehicle. Defence counsel in her submissions says that the accused, through his family, has given funds to the complainant to repair his vehicle. As for the damage to the vehicle of the complainant’s brother, the defence claims that that is covered by insurance. The prosecution sentencing memorandum shows that the value of the damage to the complainant’s vehicle is $12,330 and the value of the damage to the vehicle of the complainant’s brother is $12,214.30.

The accused’s mental condition

11. The accused did not give evidence but the defence called Dr George Tuitama the general psychiatrist at the mental health unit of the National Hospital to give evidence. Dr Tuitama, apart from his oral testimony, produced a report of the psychiatric examinations that he had conducted on the accused. According to the report by Dr Tuitama, the accused made two visits to the mental health unit of the National Hospital. The first visit was on 24 October 2017 when the accused was escorted by prison and correctional services officers for a refill of the accused’s medications as he claims to suffer from a mental illness which is a bipolar disorder. The accused told Dr Tuitama that he had not been taking his medications for his illness for many weeks. Dr Tuitama says that if indeed the accused did not have his regular medications and the right dosage for a week prior to the offending, it would seem reasonable to believe that his mental illness was not controlled at the time of the offending. While the accused remembered one of his medications, he could not remember the correct dosage. On the second visit on 10 November 2017, the accused was accompanied by his brothers from Australia and his lawyer. They requested a report on the accused’s fitness to plead. On that visit, the accused provided documentation from his consultant psychiatrist in New Zealand confirming his bipolar disorder and a list of his medications.
12. When questioned by Dr Tuitama about any symptoms of his illness, the accused described those symptoms as being delusional beliefs with mood swings (manic at most times and sad at some times), and having false beliefs. The accused also told Dr Tuitama that he believed at the time of the offending that the vehicle he drove was a sign from his father that had passed away many years before as his reward. He became emotional as he was waiting for a lift to take him home and now this vehicle was presented to him as a gift so that he can get home. Because the vehicle was not turned off, he believed it was just sitting there with the engine on waiting for him to drive it. The accused also expressed significant remorse to Dr Tuitama as to his actions.
13. Dr Tuitama then expressed his opinion that it would seem that at the time of the offending, the accused who had not been taking his medications was significantly impaired by his mental illness and that it played a great part in his ability to determine right from wrong. His illness is quite significant and when unwell he is greatly impaired.
14. Dr Tuitama then states that the accused would also need a follow-up visit for his medications review, blood tests and mental clearance before flying back to New Zealand with the assistance of a mental health escort.

Relevant provisions of the Sentencing Act 2016

15. For present purposes, the relevant provisions of the Sentencing Act 2016 would appear to be ss.6 (g) and 7 (2) (d). Section 6 (g), which sets out the principles of sentencing, provides:
    • “In sentencing or otherwise dealing with a defendant, the Court must:
    • ...
      • (g) take into account any particular circumstances of the defendant that mean that a sentence or other means of dealing with the defendant that would otherwise be appropriate would, in the particular instance, he disproportionately severe”.
16. Section 7 (2) (d), which sets out the mitigating factors for sentencing purposes, provides:
    • “In sentencing or otherwise dealing with a defendant, the Court must take into account the following mitigating factors to the extent that they are applicable in the case:
      • “...

“(d) that the defendant has, or had at the time the offence was committed, diminished intellectual capacity or understanding”.

17. Section 6 (g) of our Sentencing Act 2016 corresponds to s.8 (h) of the New Zealand Sentencing Act 2002 while s.7 (2) (d) of our Act corresponds to s.9 (2) (e) of the New Zealand Act. In New Zealand case of De La Hunt v R [2014] NZHC 1144, Gendall J said at [25] – [27]:
    • “[25] The Sentencing Act 2002 allows aspects of mental health to be considered in sentencing. Section 9 (2) (e) provides that an offender’s diminished intellectual capacity or understanding may be a mitigating factor under the subsection where there is a causative link between the lack of capacity or understanding of the offence. This subsection essentially provides for what may be referred to as diminished responsibility(italics mine).
    • “[26] But there must be a clear nexus between the limited intellectual capacity or understanding and the offending for a sentencing discount under s.9 (2) (e) to be made...
    • “[27] Where as here a mental impairment is not causally linked to the offending and therefore does not justify a discount under s.9 (2) (e), it could however be taken into account under s.8 (h) as a mitigating factor where a sentence will weigh more heavily on the defendant than on others because of his/her low intellectual function or mental impairment, or where the otherwise appropriate sentence will exacerbate the mental impairment. In R v P, where an intellectually handicapped offender had raped a mentally disabled woman, the Court considered that due to the offender’s disability, a sentence of imprisonment would be disproportionate and unsuitable. In that case, Williams J even considered that imprisonment could amount to a cruel or disproportionately severe punishment, in breach of s.9 of the New Zealand Bill of Rights Act 1990”
18. Further on at [31], in a passage which is of relevance to this case because it mentions “bipolar disorder” and shows the interconnection between s.8 (h) and s.9(2)(e) of the New Zealand Sentencing Act, Gendall J states:
    • “[31] It seems there was no evidence before the Court however that suggested the current offending was caused in any part by the appellant’s bipolar disorder. Nothing has been advanced to indicate the appellant’s condition was at all causative of the offending here. I am satisfied that there was no nexus or causative link established here between any lack of capacity caused by the appellant’s suggested bipolar disorder or her general understanding of the offences she was committing. Nor has any information been placed before the Court that would indicate that imprisonment would be less appropriate or more punitive for the appellant here as a person allegedly suffering from such a disorder”.
19. In E v R [2010 NZCA 13, (2011) 25 CRNZ 411, [68] – [70], the New Zealand Court of Appeal discussed the levels of the discounts to be given in cases involving mental disorder for sentencing purposes. Unfortunately, I have not been able to locate any of the reports of E v R. However, in S v Police [2013] NZHC 102 6 [19], which was a case of assault with intent to injure, Peters J said:
    • “[19] As to the level of discounts to be given, Crown counsel and counsel for the appellant made available several relevant authorities. E v R itself summarises the percentage reductions applied in other cases, ranging from 12 to 30 per cent. The Crown counsel referred me to Uncles v R [2012] NZCA 144 a case in which there was clear expert evidence of a causal link between the appellant’s mental illness (bipolar disorder) and the offending for which she was sentenced. On appeal the Court of Appeal gave a discount of 20 per cent for the appellant’s mental illness and remorse”.
20. In S v Police, itself, the Court gave the accused a discount of 25% given the nexus between the accused’s mental illness and his offending. In another case, Keshwan v R [2012] NZCA 171, the New Zealand Court of Appeal gave a discount of 15% due to the appellant’s ongoing depression. There are many other New Zealand cases which show that an accused’s mental illness which is causative of the offending is a mitigating factor when passing sentence and that the type of discount to be given depends upon the extent to which the mental impairment of the accused has caused the offending and whether there is a risk of further offending. But I need not refer to any more of those cases for present purposes.
21. In the commentary on the New Zealand Sentencing Act 2002 in Adams on Criminal Law – Sentencing, the learned authors, in relation to s.9 (2) (e), state at SA 9.21:
    • “The offender’s limited intellectual capacity or understanding may be a mitigating factor under this subsection where there is a causative link between the lack of capacity or understanding and the offending: E (CA 689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68] – [70]; R v Goodlet [2011] NZCA 357, [2011] 3NZLR 783, (2011) 25 CRNZ 432. Where there is no such link and the Court is unable to conclude that the accused’s culpability is thereby reduced, a sentencing discount under this heading should not be made: R v M [2008] NZCA 148; R v Bridger [2003] 1 NZLR 636, (2002) 19 CRNZ 676 (CA)...
    • “Although the subsection refers to intellectual disability (thus implying a congenital or at least a permanent mental state), pre-existing common law principle suggest that more general mental impairment is also a factor that serves to reduce culpability when it directly contributes to the offending: R v L [1998] 2 NZLR 141... In R v D [2012] NZHC 796, the offender’s long-standing mental health issues and her overwhelming suicidal emotions were held to have reduced her moral culpability in respect of the attempted murder of her children.
    • “The extent of the discount depends upon the extent to which the mental impairment has caused the offending and whether it poses a heightened risk of further offending. Subject to these considerations, the discount ordinarily considered as appropriate has been in the range of 20 to 30 per cent... In some exceptional circumstances, the discount may be even higher...”
22. It is clear from the psychiatric report by Dr Tuitama that the accused is suffering from a bipolar disorder. The accused told Dr Tuitama that he had not taken his medications for many weeks and he was feeling quite unwell at the time of the offending. In Dr Tuitama’s opinion, at the time of the offending the accused was significantly impaired by his mental illness and that it played a great part in his ability to determine right from wrong. The accused’s illness is quite significant and when unwell he is greatly impaired.
23. It appears from R v Turner [2015] NZHC 189, that in terms of s.24 of the New Zealand Sentencing Act 2002 any factor that the accused seeks to plead in mitigation must be proved to the balance of probabilities. Given the evidence of Dr Tuitama, I am satisfied on the balance of probabilities that there was a nexus or causative link between the accused’s bipolar disorder and his offending. This makes the accused’s bipolar disorder a mitigating factor.

Submission by the defence

24. Defence counsel has submitted that because of the accused’s impairment, he should be given a non-custodial sentence and be allowed to return to his family in New Zealand or Australia who can provide proper care for him. Australia or New Zealand also has developed facilities and treatments for people with mental illness. She therefore seeks a monetary fine so that the accused may be able to return to his family in Australia or New Zealand soon.
25. It would appear from this submission by counsel for the accused that she is relying on s.6 (g) of our Sentencing Act 2016 which provides that the Court must not impose a disproportionately severe sentence where that would not be appropriate given the particular circumstances of the accused. In other words, counsel for the accused is saying that a non-custodial sentence should be imposed in this instance because a custodial sentence would, in the particular circumstances of the accused in this case, be disproportionately severe in terms of s.6 (g). Counsel does not appear to be relying on s.7 (2) (d) which provides that diminished intellectual capacity or understanding may be a mitigating factor.
26. It is not clear at this stage of our new Sentencing Act 2016, whether s.6 (g) and s.7 (2) (d) can come into operation at the same time or whether s.6 (g) only comes into operation when s.7 (2) (d) does not apply. The point was not raised or argued. I have therefore decided to leave it for argument in another case in the future should that become necessary.

The aggravating features relating to the offending

27. The aggravating features relating to this offending are:
    • (a) the number of victims involved, namely, the complainant and his older brother;
    • (b) the value of the vehicle stolen, which was a brand new pick up vehicle;
    • (c) the value of the damage to the two vehicles;
    • (d) the accused had to be pursued by the police to recover the complainant’s vehicle;

(e) ramming the complainant’s vehicle driven by the accused into the vehicle of the complainant’s older brother;

• (e) risk to the safety of the complainant’s brother who had to jump out of his vehicle for his safety.

The mitigating features relating to the accused as offender are:

28. The mitigating features relating to the accused as offender are:
    • (a) remorse;
    • (b) partial restitution of $12,000;
    • (c) previous good character;
    • (d) in a sense the accused who was born and grew up in New Zealand where his parents resides, is a “foreigner” in this country;
    • (e) bipolar disorder of the accused which diminished his intellectual capacity and understanding at the time of the offending.

Discussion

29. This is a serious offending of its kind. That is not to be underestimated. On the other hand, the accused suffers from a mental illness, namely, bipolar disorder which impairs his ability to determine right from wrong. The accused’s family are in Australia and New Zealand where he was born and grew up. Since he came to Samoa in October 2017 for a holiday, he has been staying with relatives who have not been able to give him the same degree of care given to him by his own family in New Zealand. He ran out of his medications because on his first visit to Dr Tuitama, he wanted a refill of his medications. Furthermore, he could not remember what his medications were or the right dosages. The accused, as he told Dr Tuitama, had also not taken his medications for many weeks before the incident in question occurred. He now wants to return home soon.
30. I am also conscious that there may be a civil claim by the complainant’s brother against the accused for the damage caused to his vehicle. This is disputed by the defence as the accused’s brothers from Australia claim that the vehicle of the complainant’s older brother is covered by insurance.
31. I am also conscious that the accused’s consultant psychiatrist is in New Zealand and he may be more familiar with the accused’s condition. We also do not have an institution for mental patients as they have in New Zealand or Australia. As a result, such unfortunate people when they commit criminal offences are often kept in prison for security reasons.
32. Having weighed all the circumstances of this case, I have decided to impose a non-custodial sentence.

Result

33. The accused is convicted of all the charges against him and fined $3,000. This fine must be paid before the accused may leave Samoa to return home. The accused is also ordered whilst here in Samoa to make a follow-up visit to Dr Tuitama for his medications review, blood tests, and mental clearance before he leaves Samoa. Whether there should be a mental health escort for the accused when he flies out of Samoa, as advised by Dr Tuitama, is a matter for the Ministry of Health to decide.
34. Stand down.

CHIEF JUSTICE