SENTENCING MENTALLY-DISORDERED OFFENDERS FOR CULPABLE HOMICIDE

• Date: 01 December 2002
• Published date: 01 December 2002
• Author: TEO HSIAO-HUEY
• Citation: (2002) 14 SAcLJ 153

1 Section 299 of the Penal Code (Cap 224) defines “culpable homicide” as an act done by one:

“… with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death …”

Section 300 further defines the sub-set of cases which would amount to “murder”:

“Except in the cases hereinafter excepted culpable homicide is murder —

1. (a) if the act by which the death is caused is done with the intention of causing death;

2. (b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

3. (c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

4. (d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”

The relationship between s 299 and s 300 is highly complex, and many cases and academic pieces have been devoted to its consideration. This discussion focuses instead on the sentencing of mentally-disordered offenders who seek to rely on certain defences to murder.

Defences open to mentally-disordered offenders

2 Two defences are potentially relevant to mentally-disordered accused persons. The first, a general exception which absolves the accused of all liability, is found in s 84 of the Penal Code (“the unsoundness of mind defence”):

“84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” [emphasis added]

The second is a special exception to murder (“the diminished responsibility defence”), which absolves the accused of liability for murder but not for culpable homicide:

“Exception 7 (to s 300 of the Penal Code).

Culpable homicide is not murder if the offender was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in causing the death or being a party to causing the death.” [emphasis added]

3 Much criticism has been levelled at these defences. As the focus of this article is on sentencing, not on the substantive law, it will suffice to merely list a few. Firstly, these provisions are based on the Indian Penal Code, which was originally drafted in the 1800s, and they have not kept up with developments in the medical and psychiatric fields. Secondly, the distinction between “unsoundness of mind” and “abnormality of mind” is a rather artificial one, which ignores the fact that different degrees of affliction often shade into one another. It is not easy to categorise the many cases which come before the courts. They include delusionary disorders, mania,1 insane automatism, schizophrenia,2 depression,3 encephalitis4 and brain damage from alcoholism.5

4 Thirdly, the drafting of these provisions leaves much to be desired, and there are several cases which have attempted to grapple with their interpretation. With regards to the unsoundness of mind defence, the court has to inquire into whether the condition is due to internal or external factors. This leads to rather capricious consequences; for example, a hyperglycaemic can be deemed to be of unsound mind, but not a hypoglycaemic. Section 84 also requires that the offender know that the act was “wrong or contrary to law”. It has been settled that “wrong” refers to “morally wrong”, but it is unclear whether the standard is a subjective or an objective one. Authorities also seem divided about whether the phrase should be read conjunctively or disjunctively.6 But perhaps one of the

most serious flaws is the extreme narrowness of the unsoundness of mind defence, with the result that very few accused persons choose to plead this defence. As regards the diminished responsibility defence, uncertainty is added by the need to take a “broad brush approach”7 for want of a reliable scientific method. Courts and law reform committees8 have voiced the need for an overhaul of these defences; indeed, of the way in which the law deals with mentally-disordered offenders.

The sentencing regimes

5 Short of a complete revamp of the substantive law, however, a small step can be taken in the form of a re-examination of the sentencing regimes and attitudes in sentencing. The present position is as follows. Flowing from the dichotomy between “unsoundness of mind” and “abnormality of mind” are two separate sentencing regimes. If the accused person successfully establishes the unsoundness of mind defence, s 315 of the Criminal Procedure Code (Cap 68) states that the court has no choice but to order that he be kept in “safe custody”, either in a hospital, prison or other suitable place:

“315. — (1) Whenever the finding states that the accused person committed the act alleged, the court before which the trial has been held shall, if that act would but for incapacity found have constituted an offence, order that person to be kept in safe custody in such place and manner as the court thinks fit and shall report the case for the orders of the Minister.

(2) The Minister may order that person to be confined in a mental hospital, prison or other suitable place of safe custody during the President’s pleasure.” [emphasis added]

6 If the accused person successfully relies on the diminished responsibility defence, the sentencing provision is s 304 of the Penal Code:

“304. Whoever commits culpable homicide not amounting to murder shall be punished —

(a) with imprisonment for life, or imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning,

if the act by which death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or

(b) with imprisonment for a term which may extend to 10 years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

The main issue in cases under s 304(a) is whether they merit the imposition of a life sentence, rather than a fixed-term sentence of up to ten years.

7 The implications of a life sentence should be noted. The starting point is Abdul Nasir bin Amer Hasah v PP[1997] 3 SLR 643, in which it was...