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State v Gaundi [2002] PGNC 101; N2238 (24 May 2002)

N2238

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 459 of 2000

THE STATE

-V-

DAMIEN TOM GAUNDI

WEWAK: KANDAKASI, J.
2002: 11th, 12th, 13th, February
22nd and 24th May

CRIMINAL LAW - Sentence – Murder – Worse type of murder case - Murder of four month old child after raping mother and pulling the child forcefully away from the mother – Death caused by extensive laceration of the vagina and rectum extending to the pelvic floor by blunt object and extensive brain damage due to heavy blows to the head – Plea of evil spirit causing prisoner to commit the offence rejected - Psychiatric report confirming prisoners claim based purely on interview with prisoner without independent tests and evidence rejected has unreliable – Psychiatrist not in any better position to assess prisoner’s claims than the Court – Court still best judge on facts and not speculation and unsubstantiated opinions - Sentence of life imprisonment imposed - Criminal Code ss.300 and 19.

Cases cited:

Charles Bougapa Ombusu v. The State [1996] PNGLR 335.
John Kalabus v. The State [1988] PNGLR 193.
The State v. Sabrina Yakal [1988-89] PNGLR 129.
The State v. James Gurave Guba (19/12/00) N2020.
The State v. Jack Oroko Tepol (08/10/99) N1941.
The State v. Sam Nimino [1977] PNGLR 226
The Sate v. Kenny Reuben Irowen CR 482 of 2002 (unreported and unnumbered judgement delivered on 23/05/02).
The State v. Kenneth Penias [1994] PNGLR 48.
Seo Ross v. The State (30/04/99) SC605.

Counsel

Mr. M. Ruarri for the State
Mr. D. Kari for the Accused

DECISION ON SENTENCE

24th May, 2002

KANDAKASI J: You pleaded guilty to one charge of murder of a four month old baby, namely Jacobeth Stanley at Naramgo, Maprik East Sepik Province on the 29th of January 2000. The facts reveal a case of willful murder but the State decided to have you charged for murder and upon reading your file, I accepted you guilty plea, as there was enough evidence to sustain the plea. I then had you convicted as charged.

History of the case

Your case has quite a history and I consider it necessary to have them set out in full as best as I could for an appreciation of the timing of this judgement. First you were indicted for wilful murder on the 17th of July 2000, before my brother Justice Sawong. You pleaded guilty and were convicted of wilful murder. You were sentenced to life imprisonment. You appealed against that decision to the Supreme Court on he basis that the learned trial judge did not call for and consider a medical report in relation to your claim that you acted whilst under the influence of an evil spirit. The Supreme Court of which I was a member upheld that appeal on 23rd November 2000, quashing the conviction and sentence. It remitted the matter back to the National Court for re-trail before a different trial judge.

I then came to run the February 2002 circuit here in Wewak. At that time it came to my notice that your matter was one of the matters to be dealt with in that circuit. I then raised with Counsel the appropriateness of my presiding over the matter given my involvement in your case at the Supreme Court appeal level. Counsel informed me that it was going to be a plea matter and they did not see any problem with that. On my part, I was not going to deal with the matter if it was going to be a trial matter. I took that position because of my involvement at the Supreme Court level, by reason of which I had already read the file. I took that position not because I would allow myself to be influence by the material in the depositions in the file but to avoid any appearance of biased.

When your case eventually came before me in Court on 11th February 2002, your lawyer indicated to me that you were opposed to my presiding over the matter because of my Supreme Court involvement. I responded with the question "how was my involvement at the Supreme Court level going to affect my judgement in your case?" I responded in those terms, especially when this was going to be a plea matter and that in any case I raised the matter with both Counsels earlier on and their was no difficulty with my presiding over the matter. Your counsel withdrew the objection to my presiding as you conceded there was no basis for that.

On the State’s indication that they might present more than one indictment, I discussed with both your lawyer and that of the State as to the manner or the mode in which it was proceeding. Following on from that discussion, the State decided to proceed with the charges separately following the principles in Charles Bougapa Ombusu v. The State [1996] PNGLR 335. The indictment to which you pleaded guilty was presented on 12th of February 2002.

By the time the indictment was presented, the medical report, which the Supreme Court directed to be obtained was obtained. Hence, the matter proceeded in the way it did. At the end of the submissions, it was not clear as to the real meaning and effect of the medical report. On the one hand, it said that you did not suffer from any mental illness at the time of committing the offence and as such you knew and appreciated what you were doing at the time of the offence. Then on the other it concluded that, you did suffer from some abnormality of the mind. I therefore, requested the medical doctor to clarify that issue. He has now done that by way of a further medical report. In view of that, I heard further submissions from your lawyer as well as the State’s on the 21st of this month and reserved a decision on your sentence to today. This is now the decision on your sentence.

In your address on sentence you said sorry for the wrong you have done. You did not mean to do what you did but was forced on you by evil spirits. Therefore you asked the Court to be lenient with you. Your lawyer added to that by asking this Court to note in your favour that you pleaded guilty to a very serous charge, co-operated with police and have shown remorse. Your family has paid compensation to the deceased relatives of K1, 700.00 and other items of value. You contributed nothing to that.

Your lawyer also asked the Court to note that you have been a villager all your life after grade 2 education with no formal employment. You come from Naramgo, Maprik East Sepik, the same as that of the deceased and you have always been at that village at all relevant time. You are the second born of a family of four brothers and one sister. Both you parents are alive and you are married with one child.

There is no dispute that at the time of committing the offence you knew and appreciated what you were doing and that it was wrong. However, based on Dr. Brother Andrew’s report of the 18th August 2001, you submitted that you suffered from a disturbed personality. You lawyer referred me to a number of cases including John Kalabus v. The State [1988] PNGLR 193 and submitted that you should be given a determinate term of years imprisonment and not the prescribed maximum of life imprisonment because of your disturbed personality. He is otherwise agreed that your case falls in the worse category of murder case similar to that of John Kalabus’ case (supra).

The State on the other hand argues that, based on the medical report you suffered from no mental disorder or illness or deficiency at the time of the commission of the offence. You therefore knew what you were doing and that it was wrong. You were thus not deprived of self-control. He also argues that any benefit your guilty plea may bring is out weighed by the gravity of the offence and the serious aggravating factors against you. In the circumstances he submits that the maximum sentence of life imprisonment is called for and that this Court should impose it following the precedent in the John Kalabus case (supra).

Issues for determination

The issue for me to determine therefore is this. Whether or not you suffered a disturbed personality at the time of committing the offence? If the answer to that question is Yes, then the next question is, whether that deprived you of the power of self-control and therefore you had diminished responsibility? If either of these questions get answered with a No, then there is no dispute that you deserve the maximum prescribed penalty of life imprisonment.

Facts

To appreciate the arguments and to determine an appropriate sentence it is necessary to consider facts as they appear from the depositions, which were admitted into evidence with your consent. I note there is not dispute that this should be and is rightly so because of numerous authorities on point such as The State v. Sabrina Yakal [1988-89] PNGLR 129, The State v. James Gurave Guba (19/12/00) N2020, The State v. Jack Oroko Tepol (08/10/99) N1941 and The State v. Sam Nimino [1977] PNGLR 226 to name a few. So what are the facts in this case.

On the 29th of January 2000, the deceased then a four months old baby girl accompanied her parents with a 4 years old brother and a 9 year old cousin sister (her baby sitter that day) to the family garden. The father Stanley after arriving at the garden left the deceased and the rest of them at their coffee garden and went and attended to their yam garden about a kilometre away. The mother, Helen left the deceased in the care of her baby sitter with her 4 years son and proceeded to pick coffee cherries. As she was picking coffee, she notice that someone was starring at her and turned and saw you. You only wore a black trouser. She got frightened and called out for her husband and you order her to shut her mouth. So she stopped shouting and started to run away from you to the edge of the garden leaving the children behind. Kaukau veins trapped her by her legs and she fell. You jumped on her and grabbed hold of her. She struggled with you shouting for held and you punched her on both of her eyes and squeezed her neck and this struggle. This exchange continued until she fell weak and tired and was not able to do anything. You then removed her skirt and raped her while she lay almost unconscious. After raping her you pushed the whole of you fingers in and out of her vagina for a long time until she felt severe pain and realized that you were hurting her. At that point, she politely asked you to run away as her husband was coming. You then got up, took her skirt and ran away in direction where the deceased and the other children were.

Meanwhile, the two older children seeing what you were doing to their mother and aunt, they too ran away leaving the deceased alone. According to the facts on which you were arraigned, you picked up the deceased from where she was. The mother then naked covered herself with her child’s cloth and tried to recover the deceased from you. There was then a struggle between you and her with the baby being pulled in opposite directions. Upon realizing that the deceased’s arm was going to be torn apart, her mother let go and you ran away with the deceased.

You carried the deceased into a cocoa garden. There according to your record of interview, you say you twisted her throat and stepped on her stomach and blood flowed out. You then got the branches of a "mosong" tree and pushed them through the deceased vagina. You then threw her against the trunk of the trees and ran away.

When the father of the deceased and the husband of Helen got to the scene of the crime it was too late, you had already raped his wife and killed the deceased. He tried to chase you but on realising what you had done to the child he turned to his child and took both his wife and child to the village and then to the hospital.

Medical evidence describes the injuries you inflicted up the deceased as extensive laceration of the vagina and rectum extending into the floor of the pelvic floor. There were marks of heavy blows to the head of the deceased. There was crepitus felt in the skull bones as the head was examined. The brain suffered extensive contusion and damage. The cause of her death was put as "external hemorrheye and brain contusion."

Whether or not you suffered a disturbed personality at the
time of committing the offence?

In your record of interview you were able to describe in detail what you did to the deceased mother and how you killed the deceased without any difficulty. But you put the blame on an evil spirit causing you to do what you did. You maintained that in Court when you were first charged with wilful murder and sentenced to life imprisonment. On appeal the Supreme Court was of the view that a medical report should have been called for and considered before sentencing you. Your appeal was therefore upheld and the Supreme Court directed a medical report be obtained. In line with that direction, Dr. Brother Andrew’s report of 18th August 2000 was obtained. This reported as already noted, reported that you were mentally all right but had a disturbed personality.

The Court was not certain as to what "disturbed personality" meant in relation to your criminal responsibility when contrasted with the assessment that you did not suffer from any mental illness. A further medical report was therefore requested seeking an answer or clarification to that problem. That report has now been received and is the one that is undated and consists of 5 pages.

These two medical reports from the same doctor clearly indicate and both parties agree that at the time of the offence you did not suffer from any mental disorder. However the doctor states in his two reports that you were suffering a period of mental distress or high levels of anxiety or fear. The basis for that view is first a letter from a councillor from your village dated 12th November 1999 (two months before the offence) that you had shown "disturbed speech and behaviour" and that you were taken to the hospital (date not given) and that you spent about two days in the bush, and opined that you were affected by sanguma. The second is that you were noted in a report from, the Maprik Hospital that on the 25th of December 1999, you attended the causality section for treatment for malaria and were then noted that you were mentally disorientated and were treated. There was no record of a recurrence and treat for it.

The third was the doctor’s own interview with you at Boram CIS. In respect of that, what the doctor says in his own report at page 2 is note worthy. He says:

"I explored with him [you] his family background and his early experiences in upbringing. He lived the usual socio-cultural life pattern of a boy and young man of his environment. Outside influences had been limited to some exposure to the educational system, to Christian influences and hearing of the social and political discussion which came to the area from Wewak and beyond. I did not detect any influences which could have affected his thought or behaviour which resulted in the offence or was in any way especially detrimental to his developing character, nothing, in fact which would explain, and certainly not have motivated the violent and bizarrely sexual nature of the offence.

Because time was limited it was not possible to approach what I felt lay at the root of his anxieties in a step by step approach enabling him to bring it out without prompting; I asked him directly whether the evil spirit which troubled him was one that gave him sexual thoughts and pictures in his mind. He appeared greatly relieved at the challenge and gave a fairly detailed account of his exposure to pornographic videos of violent sexual nature and the traumatic effect they had on him as given in my report from half-way down page six."

The doctor describes these experiences as traumatic. In his second report at pages 2 – 3 he explains what he means by that in these terms:

"The word is use in Medicine for a physical injury, especially a serious one. By extension it is now used of mental or emotional shock following a stressful event or deeply distressing experience. By so describing it I would say that this was my clinical examination (interview) and my knowledge of likely effects of such experiences. One of the outcomes of the traumatic experience, in addition to promoting abnormal sexually violent fantasies was increasing fear and anxiety of being influence by an evil spirit at a level much greater than the common fears spirits and ‘sanguma’ of his cultural background."

The doctor goes on to say in the 3rd page of his second report that, as to what should be made out of this is a matter of moral judgement, which the clinician must leave to the Court. He then goes on to state how a court should interpret a clinical judgement. He does so by discussing the defences available under our criminal law and asks the question, did the condition described above deprive him of the power of self-control and he answers that question with a no. But he says a Court might decide otherwise and goes on to discuss the concept of diminished responsibility as it applies in the United Kingdom, where it is accepted as a defence which has the effect for instances, on a charge of murder it might get reduced to manslaughter. Then in the end he concludes in these terms at page 4 of his second report:

"The prisoner at the material time had an abnormality of mind which serially impaired his capacity for self-control. The abnormality arose from traumatic exposure to sexually violent visual material and in combination with traditional beliefs is malign spirit developed a level of fear and anxiety grossly excess of the general level of fear experienced by others of the same educational and cultural society. This was further worsened by a malarial infection"

Most authorities in the field of psychology and psychiatric assessments agree that psychiatric reports or assessments can be misleading. In a report my brother Justice Gavara-Nanu and I did to our sponsors to the Australian National Judicial Orientation Program conducted from 21st to 25th October 2001, we reported this based on material and a talk presented in this area by a leading professor in the field:

"Professor Shea went on to say that psychologist do not necessarily have a good track record of detecting lies by their patients so they are in no better position than judges and courts in trying to arrive at the truth. Psychiatrists can easily be misled to believing what a patient tells him or her because psychiatrists often base their assessment on what the patients tells them about their problems. Consequently, it is hard to find a psychiatrist who is impartial even those so-called experts in the field and get hired to testify in court."

I drew both Counsels attention to this position and the State made submissions maintaining its argument for you to be given the prescribed maximum sentence of life imprisonment because the medical opinion in relation disturbed personality was unreliable. Your Counsel however, made no submissions.

I consider a number of points about the medical evidence important to determine the issue at hand. First as the doctor himself notes at page 2 of his report, his interview with you or what he calls clinical examination, was conduct in an environment that "fell short of an ideal counselling room in a clinical setting and extraneous noises were distracting to the you." Secondly, again as the doctor notes in the second page of his second report, "it was not possible to approach what [he] felt lay at the root of [your] anxieties in a step by step approaching enabling [you] to bring it out without prompting." So he asked you directly whether the evil spirit which troubled you was one that gave you thoughts and pictures in your mind and you gave a fairly detailed account of your exposure to pornographic videos of a violent sexual nature and the traumatic effect they had on you. Put another way, you were asked a leading question and you gave the answer the doctor wanted.

Thirdly, as the doctor noted, what could be made out of what you said was the reason for you vicious and most violent attack on the deceased and before that her mother, is a matter for this Court to decide. That has to be done after first finding that you were mentally sound at the time of the offence and knew fully well what you were doing and that you also knew that what your were doing were wrong. This is in line with the authorities on point as noted in Justice Gavara-Nanau and my report cited above. In view of the lack of any submissions to the contrary, I note you take no issue on that.

Fourthly, the conclusion of the doctor is inconsistent with the body of his report. He specifically asks the question in the third page of his report, as to whether your condition was such that it deprived you of self-control. His answer to that question was a straight no although he though a court might decide otherwise.

Fifthly, the doctor did not independently verify your claims of being possessed or controlled by an evil spirit so to speak. He did not interview the councillor who as a lay man concluded that you had something wrong with your speech and behaviour and was taken to a hospital. There was nothing to show that at the time of the offence, you still had the evil spirit with you and or that you were still under medication. Further, given that you have been a villager all your live, the doctor failed to explore you claims of being exposed to sexually violent pornographic videos and other material. For in stance, he does not say or tried to discover where you had seen such material and when and how you were able to afford them particularly when it is illegal for such material to be in the country and to be in the possession of a person. Further a videotape can in most case been seen through a video player and TV screen. These required electricity to run them. You were a villager most of your life and the doctor made no positive findings as to where and how you could have seen such video tapes. Furthermore, the doctor failed to explore and then state whether you were still under the evil spirit at the time of his interview with you. If you were not under your evil spirit, he should have stated when did the evil spirit leave you and go away and how?

In these circumstances, I find the medical report unreliable. I therefore find that your were under no mental disability or your power of self-control was not seriously impaired. Instead, on the evidence before me I find that you were fully aware of what you were doing. I also find that your self-control was not deprived. My finding is based on a number of factors. First is the lack of any evidence of you being treat during or at the time of the offence for what you describe as an evil spirit controlling you or as the doctor calls it a state of anxiety and fear. There is no evidence on file from anyone in your village confirming your claims to being possessed and controlled by an evil spirit. If indeed you suffered for such a condition, some one in the village could have notice it, but there is no evidence of somebody doing that. The letter from the councillor and the reports from the Maprik Hospital referred to in the doctor’s report are not before this Court. In any case, they show that you turned up for treatment in a mentally disorientated state long before the offence and were treat. You did not return for further treatment. Therefore you no longer had the problem you went to the hospital for.

Secondly, you were able to recall and describe in detail what you did to the mother and the deceased during your record of interview. Thirdly, there is no evidence of you being hounded by the evil spirit now and are being treated. If indeed you were out of self-control, you could not have been able to remember anything as you would have been deprived from telling right from wrong and would not have been in a position to realize what you were doing.

In view of my answer to the first issue, it is not necessary to answer the second question. However, I find that even if you suffered from the condition the doctor describes, you were not deprived of the power of self-control as the doctor says in the third page of his report.

In the end therefore I find that your claim of acting under the force of an evil spirit in your record of interview, which I note as not being adopted in your allocutus can not be sustained. That being the case, you are left with no other mitigating factor other than your guilty plea. Given the gravity of the offence and the agreement that this is a worse case of murder, your guilty plea is thus out-weighed.

I have in a number of cases dealt with in this circuit imposed the maximum prescribed sentences for the same reason: see The Sate v. Kenny Reuben Irowen CR 482 of 2002 (judgement delivered yesterday) for an example. This principle or practice is well established in our jurisdiction. Examples of authorities on this are The State v. Kenneth Penias [1994] PNGLR 48 and Seo Ross v. The State (30/04/99) SC605. In your case therefore, this Court imposes on you the statutory prescribed maximum of life imprisonment. This is to reflect the fact that you committed an offence, which is the worse kind of murder and was the murder of an innocent and helpless child, in very serious aggravating circumstances. You most violently attacked and raped deceased mother and then turn on the child, who was neither in your way nor was she in any position to do anything against you. You pulled the child away from her badly raped mother and proceeded to deal with her in a most inhuman way. You brought her very young life to a very terrible ending without good cause or reason. It was committed not against a stranger but someone from within your own village. Your terrified the other children who were there at the scene of the crime. No doubt they will live life with terrible memories which might cause them endless nightmares.

The Court orders that you serve your term of life imprisonment in hard labour at the Boram CIS.
_____________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the State: The Public Solicitor