Public Prosecutor v Aniza bte Essa

• Court: Court of Appeal (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 20 April 2009
• Neutral Citation: [2009] SGCA 16
• Citation: [2009] SGCA 16
• Defendant Counsel: Noor Mohamed Marican (Marican & Associates)
• Plaintiff Counsel: Walter Woon, Tan Kiat Pheng, Gillian Koh-Tan and Samuel Chua (Attorney-General's Chambers)
• Published date: 05 May 2009
• Docket Number: Criminal Appeal No 2 of 2008
• Date: 20 April 2009
• Subject Matter: Criminal Procedure and Sentencing,Whether Hodgson criteria cumulative,Whether defence bearing burden of proving any facts relied upon in mitigation on balance of probabilities,Wife suffering from depression caused by husband's abuse,Mitigation,Whether Hodgson criteria appropriate in Singapore to determine when life imprisonment justified,Whether judge entitled to treat such statements as fact,Wife abetting young lover to kill her husband,Sentencing,Whether nine years' imprisonment appropriate sentence,Statement of facts referring to psychiatric reports containing statements made by accused to psychiatrists,Mentally disordered offenders

20 April 2009 Judgment reserved.

Chan Sek Keong CJ (delivering the judgment of the court):

Introduction

1 This is an appeal against sentence by the Public Prosecutor (“the PP”). He has asked this court to set aside the sentence of nine years’ imprisonment imposed on Aniza binte Essa (“Aniza”) by the trial judge (“the Judge”) and to sentence her to life imprisonment.

2 This appeal raises an important issue of sentencing practice relating to the principles the court should apply in punishing a young female offender with two young children who has committed a grave offence (which requires a substantial term of imprisonment) but who was found to have diminished responsibility when she committed the offence. The Judge applied what are known as the Hodgson criteria (see [9] and [11] below) in determining the appropriate sentence for Aniza. The rationale of the Hodgson criteria is that mentally unstable offenders who have committed serious offences should only be kept in prison for as long as is necessary for the protection of society (from the likelihood of recidivism), but no longer. In this appeal, the PP has urged this court to sentence Aniza to life imprisonment on the principle of retribution and/or deterrence, the rationale of each, respectively, being that the punishment should fit the crime and that the punishment should have the effect of deterring others and the offender herself from committing similar offences in future.

3 The sentence of nine years’ imprisonment (which was backdated to the date of remand on 3 July 2007) was imposed on Aniza for the offence of abetment of culpable homicide not amounting to murder under s 304(a) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) (“the abetment offence”). As the maximum sentence for the abetment offence is life imprisonment (which is the same for an offence under s 304(a) of the Penal Code (“s 304(a) offence”)), the PP argues that the sentence of nine years’ imprisonment is too lenient, particularly having regard to: (a) the apparently callous manner in which Aniza committed the abetment offence; and (b) the fact that the offender in the principal offence has to serve, effectively (as submitted by the PP), a sentence of life imprisonment.

4 Aniza had pleaded guilty to, and was convicted on, the charge of abetting Muhammed Nasir bin Abdul Aziz (“Nasir”), her 16-year-old lover, to kill her husband (“the deceased”). As the facts of the case are set out fully in PP v Aniza bte Essa [2008] 3 SLR 832 (“the Judgment”), we will, in this judgment, refer only to the material facts that are relevant to the issues of sentencing.

Material facts

5 Aniza had married the deceased (in September 2001) when she was 19 years old and he was 24. They had two sons, aged two and five as at August 2007. Aniza was 24 years old when she committed the abetment offence. She was diagnosed by two psychiatrists from the Institute of Mental Health (“IMH”) as suffering from an abnormality of the mind at the time of the offence, which substantially impaired her responsibility for her acts and qualified her for the defence of diminished responsibility to a charge of murder. The impairment of her mental faculties arose as a result of frequent quarrels with the deceased who had also physically and verbally abused her during a substantial part of their marriage. The quarrels and abuse arose because Aniza alone had to support the family as the deceased could not find a steady job. He was sent to prison on 15 June 2005 after being convicted of the offence of being absent without leave as a national serviceman and was released on 15 August 2006.

6 While the deceased was in prison, Aniza found work as a waitress in a pub in order to support the family. There she met Nasir, a patron of the pub, in November or December 2006. They struck up a friendship and she began confiding in Nasir about her marital problems. He advised her to divorce the deceased but she told him the deceased would not divorce her. Soon after, in February 2007, they became lovers. In June 2007, they agreed on a plan to kill the deceased. There is no evidence on record as to who suggested that the deceased be killed. However, the agreed statement of facts (“the SOF”) tendered by the Prosecution to the court for the purpose of sentencing shows that Aniza had obsessively urged Nasir to kill her husband. He made three attempts to kill him, and only succeeded at the third attempt, the first two attempts having been carried out in a rather half-hearted fashion. He finally killed the deceased by repeatedly stabbing him with a knife. The autopsy showed that nine stab wounds were inflicted on the deceased, the fatal wound being the stab to his chest.

Psychiatric assessments of Aniza

7 After her arrest, Aniza was examined by two psychiatrists from IMH. It is necessary to note at the outset that their reports on Aniza’s psychiatric condition were annexed to the SOF without any qualification by the Prosecution. The first report dated 6 August 2007 was by Dr Tommy Tan, then a senior consultant. He stated that Aniza had “moderate depressive episode … characterised by a depressed mood, disturbed sleep and suicidal thoughts”, and that she had “a depressed affect, depressed mood and psychomotor retardation”.^{[note: 1]} He stated that Aniza was not of unsound mind at the time of the offence and would have known what she was doing and that what she had done was wrong, but because of her episodic depressive mood, she had “an abnormality of the mind, which would have substantially impaired her mental responsibility for her acts or omissions in causing the death or being a party to causing the death”^{[note: 2]} of the deceased.

8 The second report dated 22 August 2007 was by Dr Kenneth Koh, a consultant forensic psychiatrist. He gave a detailed report of Aniza’s marital history, her account of spousal abuse, the development and worsening of her depression, her relationship with Nasir and her description of her role in the offence. Dr Koh stated that she “gave a convincing account of being the victim of protracted spousal abuse” and that she suffered from chronic depression as a result of it.^{[note: 3]} He found that “[s]he suffered from the vegetative symptoms of depression, including disturbed sleep and appetite, impaired concentration and decreased libido. She had also made a serious suicide attempt in April 2007.”^{[note: 4]} Concurrent with an increase in the frequency and severity of her beatings from about March 2007, her depression worsened to be of moderate severity until the date of the offence. Dr Koh stated that she showed some features of post-traumatic stress disorder, although these were insufficient to warrant a clinical diagnosis of the disorder. He also held the view that she demonstrated “learned helplessness” as a result of the repeated abuse by the deceased.^{[note: 5]} He added, “There is a complex interplay between her chronic depression, and her constantly being abused.”^{[note: 6]} This resulted in her failure to act positively to prevent Nasir from following through with the plan to kill the deceased. Like Dr Tan, Dr Koh concluded that, at the time of the offence, she was not of unsound mind but suffered from an abnormality of the mind that impaired her judgment and responsibility.

9 In submitting on sentence, the Deputy Public Prosecutor (“DPP”) referred the Judge to the Hodgson criteria (see [11] below) and argued that Aniza should be sentenced to life imprisonment for three reasons: (a) the gravity of the offence; (b) the circumstances in which Aniza had committed the offence; and (c) the need for a deterrent sentence to protect life and the sanctity of marriage, and because homicide involving spouses was becoming common (see the Judgment at [36]). The Hodgson criteria consist of three conditions which have to be satisfied before a court is justified in sentencing a mentally unstable offender to life imprisonment. The Judge rejected the DPP’s submission on the ground that the Prosecution’s case did not satisfy the second Hodgson criterion, and therefore he could not justify sentencing Aniza to life imprisonment.

10 In this appeal, the PP went beyond the Prosecution’s position before the Judge. His principal argument is that the Judge should not have applied the Hodgson criteria at all (to determine whether Aniza should be sentenced to life imprisonment) as they are not appropriate in our penal regime. Instead, the Judge should have sentenced Aniza to life imprisonment on the principle of deterrence, having regard to the way she committed the offence. Before we examine the PP’s arguments, it is necessary that we examine first what the Hodgson criteria are and why the courts in England, Australia, Hong Kong and Singapore have used them as a guide in determining the proper punishment for mentally unstable offenders who have committed serious offences.

The Hodgson criteria

The purpose and rationale of the Hodgson criteria

11 The Hodgson criteria were first enunciated in 1968 by the English Court of Appeal in R v Rowland Jack Forster Hodgson (1968) 52 Cr App R 113 (“Hodgson”). In that case, the appellant was 23 years of age. He was convicted of a series of violent offences. He had previously been convicted twice of various assaults on women, one for wounding with intent to cause grievous bodily harm and the other for assault occasioning actual bodily harm. The trial judge sentenced him to: (a) three terms of life imprisonment for two acts of rape and one of buggery committed against two women; (b) two years’ imprisonment for assault on one of the two women occasioning bodily harm; and (c) four years’ imprisonment for an assault on a third woman with intent to rob. The trial judge held that the public, in particular, women and girls, had to be protected against him. The appellant appealed against his sentence. The Court of Appeal dismissed the appeal. At 114 of Hodgson, the court (per MacKenna J) said:

When the...