State v Sambura [2002] PGNC 114; N2219 (18 April 2002)

N2219

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 564 OF 2001

THE STATE

-V-

NICKSON SAMBURA

And

TROPHIMUS SAMBURA

POPONDETTA : JALINA, J.
8TH & 18TH APRIL 2002

CRIMINAL LAW – Sentence – Murder – Belief in sorcery – Deceased shot with a gun – Plea of guilty - Belief in sorcery as a mitigating factor – Criminal Code s.300.

Counsel:

Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoners

18th April 2002

JALINA, J. – These prisoners have pleaded guilty to one count of murder of one Spencer Opusa at Garuro Village, Oro Bay on the morning of Sunday 13th August 2000. Their co-accused Johnson Taimbari pleaded not guilty.

The acceptance of their plea of guilty was then deferred pending the trial of the accused Johnson Taimbari. The trial took the form of Counsel for the State tendering depositions by consent of Defence Counsel (except for the record of interview of the Sambura brothers) and both counsels making submissions. Following acquittal of Johnson Taimbari, I then proceed to read the record of interview after they were tendered by the State Prosecutor and convicted both accuseds for murder as charged.

Evidence shows that people in and around Garuro Village have become extremely concerned at the loss of life of many of their villagers as well as many others suffering from illness which hospital authorities could not diagnose. Consequently, they believed that those deaths and illnesses were through sorcery that someone was working against them but could not determine the actual person. Even police were called in to deal with the problem.

Even the prisoner Trophimus Sambura has become a victim and is almost crippled on both legs. He now has to walk with the aid of walking sticks. According to the statement of community-based policeman, Paulasking Taimbari, one Mathew Ware was suspected as the sorcerer but during a meeting at the village a couple of days prior to the commitment of the offence, Mathew Ware shifted the blame for sorcery to the deceased Spencer Opusa. These prisoners then became angry and planned the killing of the deceased. They executed their plan on Sunday 13th August 2000, while the deceased was walking alone to church. According to his record of interview, the prisoner Nickson Sambura was the one who shot the deceased with a gun and he died at the scene.

The post mortem report shows the deceased to be middle aged. When his chest was opened, his left lung was found to have collapsed and his left chest cavity was filled with 3 – 4 litres of blood. Two bullet (lead pieces) were found, one of which was in the lower lobe and other on the right diaphragm of his right lung. It was further found that the heart was penetrated by both lead pellets through the left ventricle and left atrium transversely across and out through the right side then out through the right lung down to the lower lobes also transecting blood vessels and alveoli. Death was found to have occurred suddenly through immediate loss of blood from the heart ventricles/atrium and the collapse of the left lung. So it is clear that the deceased was shot twice in the area close to the left chest.

The maximum penalty for murder under s.300 (1) of the Criminal Code is life imprisonment. A sentence of life imprisonment has been imposed in appropriate cases in the past for murder but generally the court has utilised its sentencing discretion s.19 of the Code and imposed a term of years. For instance, in Simbe –v- The State [1994] PNGLR 38, my sentence of 14 years imprisonment was upheld by the Supreme Court where the appellant found the deceased trying to entice his wife to have sex with him and he attacked the deceased with a bush knife and virtually cut open the rib cage from which injury the deceased died instantly.

In seeking good behaviour bonds through their respective statements on the allocutus, both prisoners have expressed remorse to God, to the Court, to the deceased’s relatives, to their community and to their country. The prisoner Trophimus Sambura has relied on his crippling physical condition in seeking leniency. Their lawyer has also relied on the above mitigating factors including their lack of prior convictions, their plea of guilty and their belief in sorcery in seeking a lenient sentence for them.

In deciding the sentence I should impose, let me state at the outset that murder being one of the most serious of the homicide cases, releasing someone on good behaviour bond is out of the question. It is simply inappropriate in the circumstances particularly in this particular case.

Taking into account the mitigating factors raised in their allocutus and also in his address in mitigation of sentence by their lawyer, we have a death of a middle aged man which was brought about by the use of a gun which is one of the most dangerous weapons known to men. He was shot and killed as the sorcerer merely because Mathew Ware said he was. There was no proof that the deceased was the sorcerer or the community believed him to be the sorcerer. Only Mathew Ware said he was one. There was no proper investigation by the prisoners and the village leaders to see if Mathew Ware was just shifting the blame when he himself could have been the sorcerer.

Also the prisoners took the law into their own hands when they could have taken him to court under the Sorcery Act for practicing harmful sorcery. Instead they killed him, a defenceless man in cold blood.

On this fateful morning when he was shot going to church one should begin to wonder whether someone going to worship and pray to God was a sorcerer at all.

Also on this fateful morning he had no idea that he was going to be shot twice and killed as if he was an animal.

In all the circumstances of this case, if not for their plea of guilty, their expression of remorse and their belief in sorcery and other mitigating factors that I have alluded to above, I would have sentenced them to life imprisonment.

The sentence I consider appropriate is as follows:

Dickson Sambura being the one who actually shot the deceased, is sentenced to 20 years imprisonment in hard labour. I deduct from that sentence the 1 year and 8 months he has spent in custody which leaves 18 years and 4 months in hard labour.

Trophimus Sambura for being involved in the planning with Nickson and then actually being present at the scene and encouraging Nickson when he shot the deceased, he is sentenced to 18 years imprisonment in hard labour.

I deduct from that sentence the 1 year and 8 months he has spent in custody which leaves 16 years and 4 months. Whether or not he is actually ordered to perform hard labour is a matter for the Corrective Institution depending on his prevailing physical condition from time to time.
_____________________________________________________________________

Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor