State v N'Danabet [2004] PGNC 56; N2728 (9 November 2004)

N2728
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 463 of 2004

THE STATE

V.

WILFRED OPU YAMANDE N’DANABET
of
M’BAWYA, KOTIDANGA, GULF PROVINCE
(‘Prisoner’)

Waigani: Davani, .J
2004: 4, 9 November

SENTENCE – wilful murder – guilty plea – belief in sorcery a mitigating factor – s. 299 of Criminal Code Act.

PRACTICE AND PROCEDURE – wilful murder – guilty plea – sorcery related killing – there must be evidence on belief in sorcery.

Cases cited:
• State v. Siune Arnold N1658 [1997]
• The Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
• Goli Golu v. the State [1979] PNGLR 653
• Avia Aihi v the State [1982] PNGLR 92
• Ure Hane v. the State [1984] PNGLR 105.
• State v. Osborn Kwayawako and 5 others [1988] PNGLR 174
• State v. Nickson Sambura and Trophimus Sambura N2219 dated 18th April 2002
• State v. Jude Gena and 4 Others, N2649 dated 24th September 2004

Counsel:

P. Luman for the State
M. Norum for the Accused

SENTENCE

(Plea)

9th November 2004

Davani .J: Wilfred Opu Yamande N’Danabet (the prisoner’) pleaded guilty to one count of wilful murder, that he did on 9th November, 2002, at Wingi village in the Gulf province, kill one Sonny Notiaio (‘deceased’).

In the record of interview with the police conducted on 12th December, 2002, the prisoner told the police that on 9th November, 2002, he killed his brother-in-law, the deceased. He said he did this because the deceased had told his cousins to kill him because they claimed the prisoner’s grandfather killed their daughter. They said that they wanted to take revenge on any of the prisoner’s family members. The prisoner said he used a knife to stab the deceased once on the back and once on the neck, which was the reason why he wanted to kill somebody called Vincent Pomero but because Vincent Pomero was not around, he killed his brother-in-law.

On allocatus, the prisoner apologized to the court and to his family and the deceased and his family. He said the deceased, a sorcerer, was out to kill him and was talking about it. He said he went out to kill the sorcerer before the sorcerer killed him because his brother was also killed by the same sorcerer. He said that if he did not kill the sorcerer, that he would, like his dead brother, be killed by this sorcerer.

Apart from his guilty plea and remorse, the prisoner is 18 years old. He was aged 16 when he was arrested. He is a first time offender and cooperated with the police by immediately admitting the offence.

Counsel for the prisoner cited to the court the cases Goli Golu v. the State [1979] PNGLR 653; Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v. the State [1984] PNGLR 105. He submitted that relying on those case, the court should reserve the death penalty, for the worst cases. Is this a worst case?

This is a sorcery related killing. The evidence on sorcery is the prisoner’s statement in his record of interview with the Police conducted on 12th December 2002, question and answer no. 18. The police asked "Why did you kill him." He answered "He is my brother-in-law. He supported my cousin brothers to kill me. They alleged that my grandfather killed their daughter. On (for) these reasons, they wanted to retaliate by taking revenge on any family member of mine. I was then so wild, that I killed him". The other statements before me on the court file are that of Balewane Donihi, statement dated 3.12.02. But it does not speak of a belief in sorcery. In the State v. Jude Gena and 4 Others, N2649 decided on 24th September 2004, Kapi CJ sentenced the prisoners to 20 years where, after a trial, he found them guilty of the wilful murder of a reputed sorcerer. Evidence was called from people residing in villages from the area where the sorcerer comes from to find out what their belief in sorcery was. Their evidence confirmed that the practice of sorcery was widespread in their area.

The Sorcery Act does not recognize the power of sorcery but it recognizes the belief which determines behaviour of people. In this case, the accused, a witness, believed strongly that the person who died would kill him by sorcery if he did not kill them. In the Jude Gena (supra) case, the court held that the ‘the Sorcery Act does not recognize the power of sorcery. However the courts have held that belief in sorcery may be taken into account as a relevant factor in sentence as it controls the thinking and actions of those who believe.’ (pg. 5).

Mr Luman for the State cited several cases, that of State v. Osborn Kwayawako and 5 others [1988] PNGLR 174; State v. Siune Arnold N1658 [1997] by Acting Justice Batari, in submitting that although belief in sorcery led to the killings of those suspected, people should not take the law into their own hands by terminating the lives of others.

Did the prisoner take the law into his own hands? The prisoner’s lawyer submitted in mitigation that the prisoner killed because he believed the deceased was a sorcerer. He proposed a term of 15 to 20 years as being appropriate sentence.

Apart from State v. Jude Gena (supra), there are other cases decided by the National Court which courts have found sorcery to be a mitigating factor in similar circumstances. I refer to the State v. Nickson Sambura and Trophimus Sambura N2219 dated 18th April 2002, judgment by Jalina .J. In that case, the prisoner and others planned to kill the deceased because they believed he was the cause of the unexplained deaths in their area. He was shot whilst on his way to church. On a guilty plea to a charge of murder, the court sentenced the man who fired the shot to 20 years, and the other who helped plan the attack, to 18 years. That court found the prisoner’s belief in sorcery to be a mitigating factor.

I accept that this prisoner killed because of his belief in sorcery. The evidence on the belief in sorcery is from the prisoner’s own record of interview with the police. The court was unable to hear from other witnesses from the prisoner’s village on this belief in sorcery because of the logistical and transport difficulties in locating these witnesses, who are from the M’Bawya village in the Kotidanga Sub-province, a remote area in the Gulf Province. Additionally, the prisoner is semi-illiterate and semi-educated, having completed only grade 3 in his village’s community school, so he would fall within the category of prisoners in the case The Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, where the educational background and influence of government upon the lives of the prisoners was a relevant consideration, in assessing sentence.

I find sorcery is a dominant influence in the prisoner’s life, considering his background and his explanation for the killing which is consistent with this belief. As Kapi CJ said in Jude Gena (supra), "The belief in sorcery simply identifies and explains who is responsible for the death and offers an explanation for the killing of a sorcerer."

I do not believe that the prisoner is using sorcery as an excuse to explain away his crime. He has told the court that he killed to avoid being killed albeit by sorcery.

Because of the above reasons and all other mitigating factors and relying on the decided cases, I find appropriate sentence should be 20 years in hard labour. This will be reduced by the time spent in custody of 2 years, 10 months and 9 days. He shall now serve the reduced term of 17 years, 1 month and 21 days in hard labour.

___________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor