State v Mohavila [2006] PGNC 106; N3385 (25 October 2006)

N3385

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 915 OF 2004

THE STATE

-V-

ALPHONSE AIA MOHAVILA

Kerema: Kandakasi, J.
2006: 19, 20, 23 and 25 October

DECISION ON VERDICT

CRIMINAL LAW – PRACTICE & PROCEDURE – Failure by accused to go into evidence –Effect of - Does not mean accused guilty – Court entitled to draw inferences that are reasonably open to it on the evidence before it.

CRIMINAL LAW- Verdict –Murder – State calling one witness – Death not in issue – Identification and accused not causing death of deceased main issues at trial – Identification of known person from 10 meters in the late afternoon – No obstruction and sight deficiencies – No reason for witness to falsely testify against accused – Accused acting with another to cut deceased with bush knife – Accused failing to go into evidence – No rebuttal of case established against accused – Guilty verdict return.

CRIMINAL LAW – Sentence – Murder – Group attack and murder of one man – Brutal murder of deceased with bush knives – Facts disclosing intention to kill – Prisoner should have been indicted for wilful murder but not - Deceased allegedly causing death of prisoner’s relative with sorcery – Basis for believe not established – No basis for prisoner to hold any such believe – Conviction after trial – Worse case of murder – First time offender only factor in mitigation – Sentence of life imprisonment imposed – Sections 300 and 19 of Criminal Code.

Cases cited:
Jimmy Ono v. The State (04/10/02) SC698.
Masolyau Piakali v. The State (13/12/04) SC771.
The State v. Marety Ame Gaidi (01/08/02) N2256.
Joseph Enn v The State (01/04/04) SC738.
Manu Kovi v. The State (31/05/05) SC789.
The State v. Maraka Jackson (CR No. 1433 of 2004) decision delivered 23rd October 2006.
The State v. Jude Gena and Four Others (24/09/04) N2649.
Kwayawaka v. The State [1990] PNGLR 6.
Roger Jumbo and Aidan Awatan (26/03/97) SC516.
Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR 78.
Agoara Kelo & Anor. v The State (1981) SC198
The State v. Boat Yokum and 10 Ors(04/12/02) N2337
The State v. Laura (No. 2) [1988-89] PNGLR 98.
Lawrance Simbe v. The State [1994] PNGLR 38.
Simon Kama v. The State (01/04/04) SC740.
The State v. Vincent Simbago (26/09/05) N2954.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.
Kepa Wanege v. The State (01/04/04) SC742.
Rudy Yekat v. The State (22/11/01) SC665.
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v. Lucas Yovura (29/04/03) N2366.

Counsels:
Mr. D. Mark, for the State.
Mr. P. Kapi, for the Prisoner.

20 October, 2006

1. KANDAKASI J: Yesterday, the State presented an indictment against you charging you with one count of murder contrary to s. 300 (1) (a) of the Criminal Code. You pleaded not guilty to the charge and a short trial immediately followed. At the end of the evidence, the Court received submissions from your lawyer as well as that of the State and reserved its decision to today. This is now the decision of the Court.

Facts Alleged in Arraignment.

2. In the late afternoon of 12 January 2004, the deceased, one Lei Lakea was with one Laea Ariamo at Pekoe village, Ihu District, Gulf Province. You, your father and others approached the deceased and questioned him about the death of one of your relatives through sorcery. That led to an argument. In the course of argument you got a bush knife and cut the deceased on his left hand. The deceased retaliated by cutting you on the left side of your head. Thereafter the deceased sought cover by going behind the back of a John Maia, dropping the bush knife has he did. You then picked up the bush knife and cut the deceased on the back of his head causing the deceased to fall to the ground. Whilst the deceased was on the ground, you cut the deceased again twice on the deceased forehead. The deceased eventually died from the wounds you inflicted upon him. The State alleged that, when you did what you did, you intended to cause the deceased grievous bodily harm.

The Evidence

3. The State called only one witness, namely Lea Ariamo, who gave a sworn oral testimony. His evidence is that, on the relevant date, he and the deceased went to the village councillor for the councillor to help resolve a problem the deceased had with your family. That concerned the death of one of your relatives which you believed was caused by the deceased through sorcery. The councillor told the deceased and the witness that he would attend to that problem the next day. The witness and the deceased were heading out from the councillor’s house when you, your father, your brothers and others confronted them and attacked the deceased. You got a bush knife and were trying to cut the deceased and the deceased on seeing that, lifted up his hands and the bush knife landed on the deceased’s hand.

4. The deceased got a bush knife also and retaliated by cutting you and then tried to escape dropping the bush knife as he did but a John Maia held him. You picked up the bush knife and cut the deceased again on the back of his head and he fell to the ground. You continued to cut the deceased twice on his forehead as he was on the ground and the deceased died. Later the deceased was buried.

5. The witness said, you and the others that went with you fought with the deceased. That included some of your brothers who look alike with you. However, he said he saw only two people cut the deceased with a bush knife. One of them was you and the other was your father. Under cross-examination, this witness changed his story to say that your father cut the deceased on the head and he fell to the ground. Also under cross-examination this witness said there was no prove that the deceased was a sorcerer, although he was aware that there were talks about it. Further, under cross-examination, the witness said he could not identify the colour of the clothes. He also said the incident took place very late in the afternoon, getting toward dark. Furthermore, the witness stated that he knows you and your family very well and that he was not mistaken on his identification of you.

6. You decided not to go into evidence. Accordingly, the State’s evidence stands, unchallenged. In your submissions, you say that although you do not dispute that the deceased died, you dispute the allegation that you caused his death.

Assessment and findings of facts

7. I now need to decide whether the State’s evidence is credible and is sufficient to find you guilty on the charge presented against you. Your submission is for this Court to reject the State’s only witness’ testimony unreliable due to the inconsistencies in his testimony and that he may be mistaken in his identification of you as one of the persons that cut the deceased and therefore causing his death.

8. The inconsistency argument comes from where the State witness changes from initially saying you did all of the cutting of the deceased to later say that your father cut the deceased on the back of his head which caused the deceased to fall down. Whilst I accept that there is this inconsistency, I do not consider it is of any significant consequence. The witness’ testimony is otherwise clear that, out of all of the people who were fighting with the deceased, you and your father are the only persons that attacked the deceased with bush knives.

9. As to the witness’ identification of you as one of the persons responsible for the death of the deceased, you submit that, because the witness was not able to identify you with the colour of the clothes you wore at the time, there were many people including some of your look alike brothers, and that it was very late in the afternoon getting toward dark, the witness was mistaken. The law requires me to exercise care when dealing with identification. With the subsequent endorsements of the Supreme Court in its decisions in Jimmy Ono v. The State[1] and Masolyau Piakali v. The State,[2] I summarized the relevant principles in The State v. Marety Ame Gaidi[3] as follows:

"1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a). a convincing witness may be mistaken; or

(b). a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;

4. There should be a specific direction to closely examine the circumstances in which the identification was made;

5. Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;

6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;

7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and

8. There should be an acquittal if the quality of the evidence is bad."

10. In line with these principles, I warn myself that the only State witness may be mistaken in his identification of you as one of those who attacked the deceased with bush knives. I can only be satisfied of his identification of you as one of those responsible for the death of the deceased, if I find that the factors contributing to his identification of you are good.

11. I therefore turn to a consideration of circumstances in which the witness identified you. First, I note that you are not a complete stranger to the witness. He knows you and your family well enough to make no mistakes in identifying you. The witness admitted to there being a lot of people attacking the deceased but he singled out you and your father as the only ones that attacked the deceased with bush knives. Secondly, it was still day time and was getting toward dark when the incident happened. Thirdly, the witness stood about 10 meters away from where the attacking of the deceased took place. Fourthly, he was there for the whole time of the attack until the last two more cuts whilst the deceased was on the ground. Hence, it was not a fleeting glance. Further, there is no evidence of any obstruction or the witness having any eye problem. Finally, there is also no evidence of the witness having something against you to come and falsely testify against you. In the circumstances, I find that the witness made no mistake in identifying you as one of the persons that cut the deceased. The fact that the witness was not able to identify the colour of the clothes you wore at the relevant time is of no consequence particularly, when there is no evidence of the colour of the clothes the others wore at the time and the fact that the trial took place more than 2 years after the date of the alleged offence, by reason of which there is bound to be some inaccuracies.

12. Overall, I find that the State’s witness was credible and so is his testimony. It is thus safe in my view to proceed on that basis. The question then is, is it safe for the Court to proceed to conviction purely on the evidence of the only State witness?

13. In order to sustain the charge against you, the State was under an obligation to establish beyond any reasonable doubt the following elements of the offence you are charged with:

(a) You (person);

(b) Killed another person (deceased);

(c) with intend to do grievous bodily harm to the deceased.

14. I appreciate that there is no medical evidence establishing the cause of the death of the deceased. There is however no dispute and correctly so that the deceased died from the injuries you and your father caused him. If the deceased died from a cause other than the injuries you inflicted upon him on that day, it was incumbent upon you to raise that issue and produce the appropriate evidence to establish it. You failed to do that. In fact, you decided not to go into evidence. Whilst that was within your right to do so and that guilt cannot be inferred from that, it simply means the evidence produced against you by the State remains without any rebuttal from you and that the Court can infer whatever reasonable inference that may be open to it.

15. The testimony of the only State witness establishes beyond any reasonable doubt that you in association with your father killed the deceased with intend to cause grievous bodily harm if not to kill the deceased evidenced by the use of bush knives to cut him in several times. Accordingly, I return a verdict of guilty against you. You shall continue to be remanded in custody pending a decision on your sentence.

DECISION ON SENTENCE

25 October, 2006

16. After a short trial on Thursday the 19th, this Court on the following day, Friday 20th found you guilty on one charge of murder contrary to s. 300 (1) (a) of the Criminal Code. The relevant facts are as set out above in the decision on verdict, which I need not restate in full.

17. But in summary for the purposes of sentencing, I note that you and your relatives had a dispute with the deceased. That had to do with your side’s claims of the deceased allegedly killing one of your brothers’ sons through sorcery. In the late afternoon of 12 January 2004, the deceased and the State witness Lei Lakea went and asked the village councillor to help resolve the dispute. The councillor said he would attend to the matter the following day. So the deceased and the witness left the councillor’s place. As the deceased and the State witness were returning from the councillor’s place, you, your father, your brothers and others in a group approached the deceased and started to attack him. You got a bush knife and cut the deceased on his left hand. The deceased retaliated by cutting you on the left side of your head. Thereafter the deceased sought cover by going behind the back of a John Maia, dropping his bush knife has he did. Your father got the bush knife and cut the deceased on the back of the deceased head causing him to fall to the ground. Whilst the deceased was on the ground, you further cut him twice on his forehead. The deceased eventually died from the wounds you inflicted upon him.

Allocutus and Submissions

18. After finding you guilty, the Court allowed you and your lawyer to address it on your sentence. You said sorry to the relatives for bringing about the death of the deceased. You also said sorry for taking the Court’s time. You further told the Court that you have a family, your father who was also arrested and remanded in custody died whilst in custody, you have been in custody for about 3 years now, the deceased’s relatives destroyed your properties including 3 houses and other properties and that one of your child died whilst you were in custody.

19. Your lawyer added by informing the Court that you are 30 years old and come from the Pekoe village, Ihu District, Gulf Province. You are married with 3 children. You are the fourth borne in your family of 4 brothers and 5 sisters. Education and employment wise, you have no formal education and employment.

20. Your lawyer then proceeded to make submissions on your behalf. In your mitigation, he urged the Court to note that you have no prior convictions. This means you have not been in trouble with the law before. Hence, this is your first ever offence. Your lawyer also urged the Court to note that, this was a sorcery related killing and that you have expressed remorse. Finally, your lawyer drew the Court’s attention to the Supreme Court decisions in Joseph Enn v The State,[4] and Manu Kovi v. The State,[5] and submitted that your case falls in the third category under the Manu Kovi case. That category attracts a sentence between 20 and 30 years. Your lawyer submitted that a sentence of 23 years would be appropriate. The State does not take any serious issue with any of your submissions.

Issues

21. These submissions give rise to two main issues for me to determine. They are: (1) whether you acted on a reasonable believe in sorcery? and (2) depending on how the Court determines the first issue, what is the appropriate sentence for you? These issues were presented to me in the case of The State v. Maraka Jackson,[6] a decision I handed down yesterday.

Sorcery

22. In the decision yesterday, I gave consideration to the first issue of belief in sorcery by taking a look at the Sorcery Act (Chp. 274). I noted that the preamble to that Act provides in clear terms that believes in sorcery is wide spread throughout the country and states amongst others that:

"Sometimes some people may act, or may believe that they are acting, under the influence of sorcery to such an extent that—

(a) their conduct may not be morally (and should not be legally) blameworthy; or

(b) actions that would ordinarily be regarded as customary offences may, in traditional social groups, be regarded as excusable or capable of being compensated for.

There is a danger that any law that deals fully with sorcery may encourage some evil-intentioned people to make baseless or merely spiteful or malicious accusations that their enemies are sorcerers solely to get them into trouble with other people, and this is a thing that the law should prevent."(Emphasis supplied)

23. Then in s. 5 of the Act it provides that:

"Even though this Act may speak as if powers of sorcery really exist (which is necessary if the law is to deal adequately with all the legal problems of sorcery and the traditional belief in the powers of sorcerers), nevertheless nothing in this Act recognizes the existence or effectiveness of powers of sorcery in any factual sense except only for the purpose of, and of proceedings under or by virtue of, this Act, or denies the existence or effectiveness of such powers."

24. I then expressed the view that, it is clear that the existence and influence of sorcery is recognized without acknowledging and accepting that sorcery and its powers exist a fact. This has been judicially recognized and accepted.[7] The courts have held that, believe in sorcery may be taken into account as a relevant factor in sentencing because it controls the thinking and actions of those who believe and act on it.[8] The authorities also make it clear that, before taking the prisoners believe in sorcery into account, the Court must be first satisfied that there is some reasonable basis for holding that believe.[9] This is necessary because there is the danger that people may use a claim of believe in sorcery as an excuse to explain away their crime. This is a question of fact which the Court can determine on the evidence presented before it.[10]

25. Hence, the issue in this case, as it was in the Maraka Jackson case is, did you have a reasonable basis to hold the belief that the deceased was responsible for the death of one of your brothers’ child? You did not raise the issue in your own address on sentence and certainly did not call any evidence to demonstrate that you had a reasonable basis to hold that believe. There is no evidence that the deceased killed your brother’s child through sorcery or otherwise. All there is is the mention and reference to it in the testimony of the only State witness. He was asked questions about it and his answers were that, he was aware that there was some talk of it but there was no prove that the deceased is a sorcerer. Therefore, he did not believe that the deceased was a sorcerer and hence the cause of your brother’s child’s death.

26. From the evidence of the State witness, it can be inferred that the deceased was accused of killing one of your brothers’ child through sorcery. The deceased took the allegation to the village councillor for resolution. The councillor appointed the next day to attend to the problem. Whilst he was on his way back, you and your group confronted him and killed him. Hence the claim of sorcery killing by the deceased was not properly addressed and established against him at the village level. You killed the opportunity to establish the basis for your belief in sorcery when you killed the deceased. By killing the deceased, you also killed the opportunity to raise it and resolved it against him at the village level. Even if you did establish the allegation against the deceased at the village level, the onus was still on you to produce before this Court the evidence of having done that. Failing that, you still had the opportunity to adduced appropriate evidence before this Court and establish the basis for your believe that the deceased killed your brother’s child through sorcery. You failed to do that. Your claim therefore remains only a claim without any evidence to sustain it.

27. In the circumstances, I find that, there is no basis for this Court to find that you held a reasonable belief that the deceased killed your brother’s child through sorcery. If you did have a basis to belief that the deceased killed your brother’s child through sorcery, I would have allowed myself to be guided by the Supreme Court decision in Agoara Kelo & Anor. v The State.[11] In that case, the Supreme Court said:

"The belief in sorcery taken together with other factors in their favour only operates to reduce a life sentence to a term of years. It does not and should not operate to render a sentence equivalent to that usually imposed by judges here for murder, manslaughter, dangerous driving causing death, infanticide."

28. Injia J., (as he then was) in The State v. Boat Yokum and 10 Ors[12] re-echoed these words in effect in these terms:

"In considering the appropriate sentence, I have had regard to and emphasize the deterrent and retribution theory of sentence as is usually done in sorcery killing cases: see Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510. A strong punitive and deterrent sentence is required to punish the offenders and to send a clear message to their own community; who apparently seem to think that it is alright to kill a sorcerer or a reputed sorcerer for that matter; that it is wrong to kill another person including a sorcerer, reputed or not, and that they will be punished by the Courts, if they do."

29. This effectively means that if there was reasonable basis for your believe in sorcery which you failed to produce, I would not treat your case as a special murder case, as some have done with a view to imposing a much reduced sentence compared to other murder cases. What this means instead is that, I would only take any believe in sorcery into account if the basis for your believe is established, as a mitigating factor, just like any other mitigating factor. That would be the correct approach in my view in the light of what I said yesterday in the Makara Jackson case.

30. Since you have failed to specifically raise and more importantly, establish by appropriate evidence before this Court that you had a reasonable basis to hold the belief that the deceased killed your brother’s child, I will not take your supposed belief in sorcery into account when considering an appropriate sentence for you. This then leads me to the next issue of what is an appropriate sentence for you? That question can be answered by reference to the penalty prescribed by Parliament, the sentencing guidelines set and applied by the courts and the sentencing trends and tariffs.

The Offence, Sentencing Guidelines, Trends and Tariffs

31. Section 300 (1) of the Criminal Code prescribes the offence of murder and its penalty of life imprisonment, subject to s. 19 of the Code. In the exercise of the discretion vested in the courts by s. 19, the courts have been imposing sentences lower than life imprisonment in most cases. As I noted elsewhere,[13] the decision in The State v. Laura (No. 2),[14] initially outline some guidelines for sentencing in murder cases. Subsequently, the Supreme Court in Lawrance Simbe v. The State,[15] endorsed and improved on those guidelines.

32. Recently, the Supreme Court in its judgment in Simon Kama v. The State,[16] reviewed those guidelines and sentencing trends in murder cases. It then made the point that, Parliament having considered all things provided for three categories of homicide cases under the Code. Wilful murder under s.299 for a person killing with an intention to kill the deceased or another person, murder under s. 300 for a person killing another person out of an intention to do grievous bodily harm and killings without either an intention to kill or an intention to do grievous bodily harm as manslaughter under s. 302. As such, it was not right for the courts to further categorize homicide cases. It then proceeded to review the approach to sentencing and the suggested tariffs and said:

"... we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the ranges of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons."

33. The Supreme Court endorsed these guidelines and views in its other decisions in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State[17] and Kepa Wanege v. The State.[18]

34. Last year, the Supreme Court yet again reviewed the sentencing guidelines in its decision in Manu Kovi case. That decision agreed with the decision in the Simon Kama case that the time has come for an increase in the penalties and recommended that sentences in murder cases be increased as follows:

1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment.

3. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years.

4. In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc. These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime."

35. As I observed yesterday in the Kiri Kirihau Harisu case, it is obvious to me that, unlike the last category, the decision in the Manu Kovi case does not provide a clear guide as to the kind of ordinary or special aggravating and mitigation factors it is talking about in each of the other categories. The position was clear under the Laura (No. 2) and the Lawrance Simbe v The State[19] cases as modified by the Simon Kama decision. In the circumstances, I find that the Manu Kovi decision with respect fails to provide a clear guideline. Consistent with what I did in the Kiri Kirihau Harisu case, I will use both the Manu Kovi and the Simon Kama decisions to try and identify the category under which your case falls and approach your sentence accordingly.

Your Sentence

36. Your learned counsel submitted that your case falls under the second category under Manu Kovi case which attracts a sentence between, 20 – 30 years. Counsel then submitted that a sentence of 23 years would be appropriate in the particular circumstances of your case.

37. Into which category your case falls under is dependant on the particular factors in aggravation and mitigation in your case. In order to determine, under which category your case falls, it is necessary to take into account your family background as outlined by your lawyer in his submission, which I do. I then need to take into account the factors both for and against you. I do so starting with the factors in your aggravation first.

38. You say that you are a Christian and belong to the United Church. The Christian Bible teaches "you shall not kill."[20] The Bible also teaches that if someone slaps you on one side of your cheek, you should allow him to slap you on the other side.[21] This simply means that, as a Christian, you should not have attacked the deceased in the way you did even if there was basis for you to belief that the deceased was responsible for the death of your brother’ s child. Your case in this regard is worsened with the fact that the deceased had already taken the proper steps to address your allegations. You should have therefore, allowed the village councillor to deal with your allegations the next day. Instead, you decided to attack the deceased and killed him. This leads to the next factor against you.

39. You were a part of an armed group attacking only one man. The deceased was attacked right in the village in the witness of others. As I said, you did not wait for the village councillor to help resolve the dispute peacefully the next day. You chose to become, judge, jury and executioner all at the same time and killed the deceased in full public execution style, with the use of a bush knife.

40. Another factor against you is the fact that, you used a dangerous object which has fast become a dangerous murder weapon a bush knife. You attacked the deceased first with a bush knife. You aimed to cut him on his head but he lifted is hand up in protection and you cut him on his hand. The deceased retaliated with a bush knife also and cut you. Thereafter, he tried to take cover behind another person. Unfortunately, your father cut him on his head and he fell to the group. That should have made it clear to you that the deceased was already badly injured and was in no position to further fight back. Despite that, you proceed to cut the deceased twice on his forehead. This clearly demonstrates to me an intention to kill the deceased rather than cause him grievous bodily harm. The motive for this was your baseless belief that the deceased was responsible for the death of your brother’s child.

41. Further, I note that you committed an offence that is prevalent. The senseless taking away of human life under a claimed belief of sorcery is on the increase throughout the country and there is a need for a strong and deterrent sentence to stop you as the offender and other like minded persons from committing these kinds of offences. I sincerely hope that the kind of sentences the Supreme Court has suggested and are being imposed by the courts now will go toward a deterrence of you and other like minded persons from taking away the lives of other people regardless of whatever the reason. Calling ourselves a Christian nation seem to be only a claim in name when there is far to many unnecessary and uncalled for killings all around us.

42. Finally, I note that you denied the charge brought against you. That necessitated a trial. Thereafter, you were found guilty. That of course meant that the State was put to more expenses to arrange for the attendance of its witness. It also meant the Court had to take more time than necessary to hear the evidence, assess it and come to a decision on your guilt or innocence. Since you chose not to go into evidence and remain silent, it seems to me you were only prepared to test the State’s case and therefore force the Court to hear the State’s case only regardless of the cost to the State and scarcity of judicial time.

43. Against the above aggravating factors, you have only one factor in your favour. That is the fact that you have never been in trouble with the law before. This means this is your first ever offence. Usually the law allows for leniency in sentencing first time offenders like you.

44. The only other factor that might operate in your favour is your expression of remorse. You said sorry for what you have done and for taking the Court’s time. However, it is clear that you have not paid any compensation. There is also no evidence of you trying to appease the wrong and loss you have brought upon the deceased’s relatives. As I said in a large number of cases already, a mere expression of remorse means nothing unless it is accompanied by something tangible like the payment of compensation.[22]

45. Weighing the factors for and against you, I note that the factors in aggravation far outweigh those in your mitigation. Your lawyer submitted that your case falls in the third category under the Manu Kovi case. Again, as I note in the Kiri KiriHau Harisu case, the Supreme Court has not provided any specific guideline as it did under the 4th category to determine what kinds of cases falls under the third category. I think the Supreme Court needs to specify what kind of cases fall under each of the categories particularly the first to the third categories. Meanwhile, I find that the particular factors in your case clearly put your case in the fourth category under the Manu Kovi guidelines. The Supreme Court said a case falling under that category may attract an imposition of the maximum prescribed sentence of life imprisonment. In the particular circumstances of your case, I note that is the sentence warranted and I impose it against you. In so doing, I note that, you should have been indicted for wilful murder but perhaps due to your claim of sorcery, the Public Prosecutor presented an indictment for murder.

46. You shall serve your sentence of life imprisonment in hard labour at the Bomana Correction Services. A warrant of commitment in those terms shall issue forthwith.

__________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

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^[1] (04/10/02) SC698.
^[2] (13/12/04) SC771.
^[3] (01/08/02) N2256.
^[4] (01/04/04) SC738.
^[5] (31/05/05) SC789.
^[6] (CR No. 1433 of 2004).
^[7] See State v. Aiaka Karavea & Anor. (1983) N452(M), per Kidu CJ and The State v Jude Gena and Four Others (24/09/04) N2649, per Kapi CJ.
^[8] Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510;Kwayawaka v. The State [1990] PNGLR 6, Roger Jumbo and Aidan Awatan (26/03/97) SC516.
^[9] Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR78 at 80.
^[10] Roger Jumbo and Aidan Awatan (26/03/97) SC516, per Amet CJ., and Salika.
^[11] (1981) SC198.
^[12] (04/12/02) N2337.
^[13] As in The State v. Vincent Simbago (26/09/05) N2954, per Kandakasi J.
^[14] [1988-89] PNGLR 98.
^[15] [1994] PNGLR 38.
^[16] (01/04/04) SC740.
^[17] (01/04/04) SC741, per Sevua, Kandakasi and Lenalia JJ.
^[18] (01/04/04) SC742, per Sevua, Kandakasi and Lenalia JJ.
^[19] [1994] PNGLR 38.
^[20] Exodus 20:13 and Mathew 5: 21 and 22
^[21] Mathew 5: 39
^[22] See Rudy Yekat v. The State (22/11/01) SC665; Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, in The State v. Lucas Yovura (29/04/03) N2366.