Berry, The State v [1977] PGNC 9; [1977] PNGLR 128 (5 May 1977)

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CRIMINAL LAW - Sentencing - Factors to be taken into account - Diminished responsibility not amounting to insanity - Obsessional personality disorder - Charge of wilful murder - Plea of guilty - Whether diminished responsibility to be taken into account and to what extent.

The accused pleaded guilty to a charge of wilful murder, in circumstances where with a long formed intention going back at least six months to his dismissal (by the deceased victim) as Registrar at the Administrative College, he shot the deceased with a pistol at least four times at point blank range then backed a motor car over his 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 termed “obsessional”.

N1>(1) Where diminished responsibility not amounting to exculpatory insanity under the Criminal Code, is established it ought to be taken into account in mitigation of sentence.

The Queen v. Kiltie (1974) 9 S.A.S.R. 452 per Bray C.J. at 453, R. v. Don Marty Warite (unreported) Raine J., 27th May, 1975 and The State v. Danny Sakin Upaki (unreported) Saldanha J., 11th Nov., 1976 referred to.

N1>(2) The extent to which such diminished responsibility can be taken into account is, however, limited; the court has to consider the deterrent effect generally of its sentences on those minded to commit the particular crime, no matter what their motives or their physical or mental state.

N1>(3) In the circumstances, accordingly, the accused should be sentenced to twelve (12) years imprisonment in hard labour.

The accused was charged with wilful murder and entered a plea of guilty. The facts and circumstances of the charge and of the accused’s mental condition which was submitted should be taken into account in mitigation of sentence, appear in the remarks on sentence hereunder.

FROST CJ: Eric Gordon Berry, you have pleaded guilty to the charge that on 7th December, 1976 in Papua New Guinea, you wilfully murdered one Peter John Power. It is the gravest kind of homicide because it involves an intention to kill.

With this long-formed intention you confronted the deceased without warning, and shot him with a pistol at least four times at point blank range. Then, to make sure he was dead, you backed your motorcar over his body.

If these were the only relevant facts the case would fully justify the sentence of life imprisonment which is the maximum punishment fixed under the Code.

It is clear that you were under no physical disability and on the medical evidence you suffered no mental illness. It is not suggested that you did not know what you were doing or that what you were doing was wrong, so as to raise the defence of insanity. But a case has been put forward on your behalf that at the time of the offence you were by reason of a personality disorder in such state of abnormality of mind as substantially to impair your capacity to know what you were doing or to control your actions. Your counsel then went on the submit that although such diminished responsibility is no defence under the Code, if established it ought to be taken into account in mitigation of sentence.

This view of the law has been laid down in at least one State of Australia. I refer to R. v. Masolatti[cxxxiv]¹, a decision of the Full Court of the Supreme Court of South Australia. That was a case of a prisoner of diminished responsibility, retarded mentality, low intelligence and physical incapacity. The same view has been taken in this country in R. v. Don Marty Warite[cxxxv]² by Raine J. and in The State v. Danny Sakin Upaki[cxxxvi]³ by Saldanha J. I would also adopt it as being applicable in Papua New Guinea. The reason is well stated by Bray C.J. in his dissenting judgment in The Queen v. Kiltie[cxxxvii]⁴, as follows:

“There are several purposes of punishment and several principles to be observed in sentencing, but it would be a bad day for the criminal law if the degree of moral guilt of the particular defendant in the dock were to be treated as irrelevant. The law, and above all the criminal law, should not get too far out of touch with the general feelings of the community and punishment should bear some relation to desert. The purpose of the law is to give to every man his due, says the celebrated maxim of Roman law, and Salmond adds that the civil law gives to the plaintiff, the criminal law to the defendant, what he deserves (Salmond on Jurisprudence, 8th ed. (1930), p. 117).”

That view of the law was adopted in the later case of R. v. Masolatti[cxxxviii]⁵.

But there is a limit to the weight that can be given to diminished responsibility as an extenuating circumstance.

I cannot do better than to adopt the words also of Bray C.J. in R. v. Masolatti[cxxxix]⁶:

“The deterrent effect of punishment, or what we must assume, ... to be its deterrent effect, is not limited to its effect on persons of intelligence, responsibility and psychological and physical condition similar to those of the defendant under sentence. The court has to look at the effect generally of its sentences on those minded to commit the crime under consideration, no matter what their motives or their physical or mental state.”

The case is indeed a bizarre one, as appears from the evidence which I shall now mention. At the time in question you were 34 years old, married to a Papua New Guinean girl and with a young son, 8 years old. Your marriage was described as stormy, and you blamed the resultant stress on your wife’s conduct towards you in public and at home. This led you to make your work very much your entire existence; outside work you lived a quite restricted life. You were employed as Registrar at the Administrative College. The deceased was the Deputy Principal. You had fallen out with him in past events. Then in January last year came the shock of your dismissal, which was in effect the decision of the deceased.

Upon the evidence called in this Court of your reliability, competence, devotion to duty, and long hours of work outside office hours, you were the victim of an injustice. Certainly this was a view taken up by the Staff Association. Your dismissal left you quite shattered and bewildered. Your state of mind was made worse when you discovered that the appropriate Public Service procedures had not been accorded you and, subsequently, by your transfer to a position of little responsibility. So you resigned and spent your time at home in Port Moresby brooding upon the wrongs done to you, whilst awaiting your final pay.

You left Papua New Guinea in June 1976 after making a substantial financial provision for your wife and son. Although you did not tell them, in fact you had decided to disappear from their lives.

Expert evidence was given on your behalf by two psychiatrists, Dr. Neville Parker, a specialist in this type of medico-legal work who has in the course of his practice examined at least 150 people charged with murder in Queensland and a few in Papua New Guinea, and Dr. B. Burton-Bradley, who has had long experience in this country.

According to their evidence, which in the main I accept, your mental condition throughout was one that did not amount to mental illness but was subject to a personality disorder termed “obsessional”. This disorder, it was said, appears from various characteristics; your passion for cleanliness and tidiness, your detachment from your circumstances, your inability to feel remorse for your crime, your singleminded and conscientious devotion to work. There is also your perfectionism, your choice of hobby as a collector, and some aspects of your sexual life. Your upbringing in a divided home and the unusual relations with your parents leading to family tension, it was said, contributed to the growth of your personality in this way.

The characteristic of persons subject to this personality disorder, both doctors said, is a tendency to explode with violence when they can no longer hold themselves in check. Certainly there have been instances in your life in which you have reacted in this way. So the Court has been told of the fights with your wife, the breaking of the windows of the A.S.A.G. office, shattering the car windscreen with your fist, the smashing of transistor radios (six of them), and deliberately chopping off the tip of your small finger in the presence of your wife to show her your guilt after committing adultery.

It has been submitted that I should take into account these abnormal personality features when considering the situation which you found yourself in after your dismissal. Shattered and bewildered as you were, refusing to accept that you were inefficient in your work which was your life, you resolved to get even with the deceased who you felt had ruined your life.

You left Papua New Guinea but with the intention of returning, in circumstances designed to avoid detection, for the purpose of killing Peter Power. That you were outside the normal mental range is shown by the extreme methods you pondered on to bring about Power’s death, and, even more, the final plan which preoccupied you in Brisbane when for some weeks you stayed with your mother living the life of a recluse. This fantasy involved returning to Papua New Guinea, interrupting the entire electricity supply to Port Moresby, attacking the deceased as he left the gymnasium which he regularly visited, disabling him with a pressure pack and then proceeding to dispatch him as, handcuffed, he knelt beside the grave you were to dig for him in the bush. It was the morbid reading of crime magazines which, Dr. Parker considers, led you to model yourself on a character known as “Willie the Actor” whom you much admired.

Fantastic, also, is the only word to describe the way in which you carried out your preparations — the special trip to Arizona, the purchase of weapons from a black person, their despatch to Papua New Guinea in tins, and your eventual return to Papua New Guinea equipped with pressure packs for disablement, and handcuffs. In Port Moresby you went about disguised by your long hair, beard and glasses, using a false name, as you set up a camp in the bush.

In the end, when realization came to you of the ineffectual waste of your days, you forgot all your elaborate plans and attacked the deceased as he sat unaware in his car and with a companion as an obvious witness.

The difficulty in the medical evidence is that if the analysis of your bundle of personal characteristics as an obsessional personality disorder is correct, a sudden explosion of violence as in the past would have been expected. Instead the crime was planned over a period of months. The premeditation with which it was committed was displayed to the end when you shaved your beard, changed your dress style and took other measures to avoid detection.

On the evidence of Dr. Parker, which I accept, your removal from the office of Registrar of the Administrative College turned the balance of your mind and, to some extent, you were mentally disturbed for the five or six months prior to the shooting whilst you lived in the fantasy world I have described.

Accordingly I consider that justice requires that I should take your diminished responsibility into account in mitigation of sentence.

But this is not the only consideration. Both doctors agree that there is a possibility that you might in the future under great stress be led to resort again to violence. It is true that both took the view that the combination of events in the present case would be unlikely to occur again, and Dr. Burton-Bradley found support in his experience that personalities do change over the decades, and this applies to everybody whether normal or abnormal.

But I cannot entirely overlook the possibility that you might again commit a crime of personal violence. Further, considering the evidence and observing you from time to time during the hearing, it seems to me that your detachment from events displayed a certain irresponsibility for your actions.

The dominant consideration is that the sentence should reflect the enormity of your crime, premeditated as it was, and amount to a sufficient deterrent to those of whatever makeup also minded to commit such a crime.

Your counsel has referred me to sentences imposed in the cases in this Court which I have referred to. But each case has to be decided on its own facts. The circumstances in your case I consider would render inadequate a sentence of the range adopted in those cases.

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[cxxxiv](1976) 14 S.A.S.R. 124.

[cxxxv](unreported) Raine J. 27th May 1975.

[cxxxvi](unreported) Saldanha J. 11th Nov. 1976.

[cxxxvii] (1974) 9 S.A.S.R. 452 at p. 453.

[cxxxviii](1976) 14 S.A.S.R. 124.

[cxxxix] (1976) 14 S.A.S.R. 124.

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National Court of Papua New Guinea

Berry, The State v [1977] PGNC 9; [1977] PNGLR 128 (5 May 1977)

Papua New Guinea Law Reports - 1977