State v Jackson [2006] PGNC 154; N3237 (24 October 2006)

N3237

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1433 of 2004

THE STATE

-V-

MARAKA JACKSON

Kerema: Kandakasi, J.
2006: 5th and 24th October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Murder – Brutal and merciless killing during day light in witness of others – Deceased a village court magistrate – Attack without warning - Prisoner planning and executing murder of deceased believed to be practicing sorcery to kill brother and soon himself – The Custom of believe in sorcery – Killings on believe in sorcery repugnant to general principles of humanity and not a good custom to retain – Sorcery Act and believe in sorcery as a factor in mitigation ought to be revisited – Guilty plea by first time offender – Sentence of 24 years less time spent in custody imposed - Criminal Code Sections 300 (1)(a) and 19 – Sorcery Act Section 5.

Cases cited:

Manu Kovi v. The State (31/05/05) SC789.
Ure Hane v. The State [1984] PNGLR 105.
Goli Golu v. The State [1979] PNGLR 653.
The State v. Laura (No. 2) [1988-89] PNGLR 98.
Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510.
Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR 78.
Kwayawako v. The State [1990] PNGLR 6.
The State v Jude Gena and Four Others (24/09/04) N2649.
The State v. Aiaka Karavea & Anor. (1983) N452(M).
Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR 78 at 80
Roger Jumbo and Aidan Awatan (26/03/97) SC516.
Agoara Kelo & Anor. v The State (1981) SC198.
The State v. Boat Yokum & Ors. (04/12/02) N2337.
The State v. Urari Siviri (30/08/04) N2747.
The State v. Joseph Tunde (12/11/04) N2727.
The State v. Saweno Visare & Ragu Maioi CR 1455 of 2005 delivered on 15th June 2006. The State v. Jerry Gebai & Bagari Duge CR 1065 of 2005, delivered on 16th June 2006.
Peter Naibiri and Kutoi Soti Apia v. The State (25/10/78) SC137.
Joe Foe Leslie Leslie v. The State (07/08/98) SC560.
The State v. Ian Bob Wali (11/06/04) N2580.
The State v Makis Lunge Kraningi (26/09/05) N2934.
Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (01/04/04) SC741.
The State v. Thomas Waim [1995] PNGLR 187.
Bokum Umba v. The State, (02/04/76) SC92.
The State v. Richard Amuna Koupa [1987] PNGLR 208.
The State v. Kevin Anis & Martin Ningigan (07/04/03) N2360.
The State v. Wesley Nobudi & Ors (19/12/02) N2310.
Paulus Manadatititip & Anor. v. The State [1978] PNGLR 128.
State v. Peter Yawoma (19/01/01) N2032.

Counsels:

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

24 October, 2006

1. KANDAKASI J: On the 5th of this instant, the State presented an indictment against you, charging you with one count of murder contrary to Section 300 (1) (a) of the Criminal Code. You pleaded guilty to the charge, following which I administered your allocutus and received submissions from both your lawyer and that of the State as to an appropriate punishment for you. I then reserved a decision on your punishment. This is now the decision of the Court.

The Facts

2. The facts giving rise to the charge and your guilty plea are these. During the early morning between 6:00 to 6:30 am on Saturday 12 June 2004, you and Iaia Ea walked from Uaripi Village to another village, Petoe, both here in the Gulf Province. Petoe is about 5 to 6 kilometres away from Uaripi. You went to Petoe with the intention of killing Maura Purari, now deceased, then a village court magistrate allegedly for killing your brothers by sorcery and to stop him from killing you also. You and your friend were both armed with a long bush knife each. When you got to the deceased’s house, you found that he had not woken up yet so you waited for him to do so.

3. Eventually, the deceased came out of his house. He was then talking to his daughter in-law who was just handing over her son, a Morris to his grandfather, the deceased. At that point, you got out from your hiding and started to cut the deceased on his neck area twice. You neither gave any warning nor said anything to alert the deceased and those with him at the time. You took everyone by shock and surprise. The deceased’s daughter in-law was shocked and surprised with what you did, she managed to get to her son and took him out of the deceased and ran for help. Meanwhile, the deceased fell to the ground and you and Iaia Ea fled from the scene in different directions.

4. When the deceased daughter in-law returned to the scene with help, you had already fled and that the deceased had already passed away. He was lying on the ground motionless bleeding heavily from the cuts you inflicted upon him. The deceased’s relatives took him to the hospital at Kerema only to be told that he was already dead. The hospital carried out a post mortem and established the cause of his death as "[a]cute [b]lood loss from severed major blood vessels by incissional wounds." Medical examination revealed that the deceased sustained "[t]wo large lacerations exposing severed left jugular vein and carotid artery below the left ear and left neck." The wounds measured 7cm x 1cm x 1cm and 6cm x 1cm x 1cm respectively.

5. Meanwhile, the relatives of the deceased reported the murder to the police here in Kerema and informed them that you were at a house in Kerema Bay Village and that they should catch you before anything could happen to you. Police acted on that information and a Senior Detective Constable, Gideon Edward and another policeman arrested you at the Kerema Bay Village. You were then locked up in the Kerema Police Station. The police then conducted a record of interview with you in relation to the killing and you admitted to killing the deceased for his acts of sorcery and to avoid him killing you with sorcery as well.

Allocutus and Submissions

6. In your address on sentence, you apologized to the Court and the people. You said you are the eldest in your family. Your family has now been made refugees because of your actions. The deceased’s side have destroyed your family’s home and gardens and now have nowhere to go. Then you went into a detailed recital per a written document tendered into evidence of various acts of sorcery by the deceased against your family. You went on to say you had no intention to kill the deceased. That seemed to contradict what you said in your record of interview and the facts put to you in your arraignment and I raised this issue with your counsel. Your lawyer said by saying you had no intention to kill, you were not raising any legal defence and urged me to ignore that statement and proceed on the basis of your guilty plea to the charge and the suggestion that you had intended to kill the deceased based on your believe that the deceased killed your brothers and was going to kill you too by sorcery.

7. Then in his submissions, your lawyer urged the Court to note that you are 25 years old and come from the Uaripi Village of this Province. You are single and that both of your parents are alive. You have two brothers and 2 sisters. You have reached grade 7 formal educational level and stopped there due to no school fees. You have no formal employment. By way of religion, you are a member of the United Church. You cooperated with the police since your arrest and have been in custody since your apprehension.

8. Your lawyer also submitted that before the Court proceeds to consider an appropriate sentence for you, he urged the Court to note and take into account your family background as outlined above. He also urged the Court to take into account the fact that you pleaded guilty to a serious charge. That saved the State the time and money it could have outlaid to secure your conviction through a trial. He further urged the Court to take into account the fact that you are a first time offender, meaning that you have not been in trouble with the law before and that this is your first ever offence. Furthermore, your lawyer urged the Court to take into account the fact that you killed the deceased because of your belief that the deceased killed your brothers with sorcery and that he was also going to kill you with sorcery too. Finally, your lawyer urged the Court to note that the deceased’s relatives destroyed your family’s property.

9. At the same time, your lawyer correctly acknowledged that you committed a very serious offence, prescribed by s. 300 of the Code, which carries a maximum penalty of life imprisonment. However, he urged the Court to note that, the Supreme and the National Courts have imposed sentences below that. He then referred the Court to the Supreme Court decision in Manu Kovi v. The State,[1] which had followed on from the previous decisions of the Supreme Court as in Ure Hane v. The State[2] and Goli Golu v. The State[3] and more specifically The State v. Laura (No. 2).[4]

10. The Manu Kovi decision seeks to further categorize homicide cases from what parliament has already provided for. Going by that decision, your lawyer submits that your case falls in the second category of murder cases which attracts a sentence between 16 to 20 years and asked for a sentence of 20 years having regard to the particular circumstances of your case. He then emphasized that you acted on your believe in sorcery and referred the Court’s attention to the decisions in Acting Public Prosecutor v. Uname Aumane & Others;[5] Public Prosecutor v. Apava Keru and Aia Moroi;[6] Kwayawako v. The State[7] and The State v Jude Gena and Four Others.[8]

11. Counsel for the State, Mr. Mark, did not contest your claim of acting on a belief of sorcery and agreed with the identification of the relevant cases by your lawyer. Then whilst noting your personal backgrounds, your guilty plea and being a first time offender, he submitted that this is a prevalent offence now. He submitted that, many wilful murderers and other murderers are readily claiming sorcery after having killed a person in broad day light and other cases in what appear to be public summary executions. There is a risk of believe in sorcery being abused and being claimed as a way of explaining away the offenders’ criminal responsibility. Thus, the courts need to exercise care when the claim is raised in two respects. The first relates to accepting the claim and the second aspect relates to the kind of sentence imposed because of that believe. The more lenient the sentence is, the greater the risk is of encouraging the offenders and others to kill innocent people and than raise sorcery as the reason or cause for killing and get away with a lighter sentence.

12. In the present case, counsel for the State left it to the Court to either accept or reject your claim of having killed the deceased because of sorcery and impose a sentence beyond what your lawyer argued for. In so submitting, counsel was asking the Court to devise a sentence that will send a message that killing on the basis of a believe in sorcery will not substantially reduce the sentence but will constitute only a small deduction on account of any such believe if the Court accepts it.

Issues

13. These submissions give rise to two main issues for me to determine. They are: (1) whether your claim of believing in sorcery and acting on the basis of that belief, is reasonable? and (2) depending on how the Court determines the first issue, what is the appropriate sentence for you? The first issue can be appropriately decided by having regard to the law on point and relevant facts giving rise to that believe. The second issue can be determined by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the Supreme and National Court judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation.

Law on Sorcery

14. I turn to a consideration of the first issue first. This starts with the Sorcery Act (Chp. 274). The preamble to that Act provides clearly that believes in sorcery is widespread 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)

15. 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."

16. As would be apparent from these provisions, it is clear that the existence and influence of sorcery is recognized without acknowledging and accepting that sorcery and its powers exists as a fact. This has been judicially recognized and accepted.[9] The courts have held that belief 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.[10] The authorities also make it clear that, before taking the prisoner’s believe in sorcery into account, the Court must be first satisfied that there is some reasonable basis for holding that believe.[11] This is necessary because there is the danger that people may use the belief 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.[12]

In Your Case

17. Hence, the issue in this case, did you have a reasonable basis to hold the belief that the deceased caused the death of your brothers and that he was eventually going to kill you too through sorcery? You raised your believe and the basis of that belief to the police in your record of interview. It was incumbent upon the police to check the basis for that believe so as to ensure that you were not raising the believe in sorcery merely to avoid the consequences of your actions. It seems the police did not carry out any investigation to either verify or refute that claim. It seems they accepted your claims. Consistent with that approach, the Public Prosecutor did not take any issue on your claim that you killed the deceased because you believed that the deceased killed your brothers and was going to kill you also through sorcery.

18. It is clear law that where the prosecution does not take any issue with any factor in mitigation of an offender in a guilty case as in your case, the Court must take such factors into account when considering an appropriate sentence. This was made abundantly clear by the Supreme Court in a number of its decisions and in particular its decision in Roger Jumbo and Aidan Awatan v. The State.[13] Accordingly, I accept that you had a reasonable basis to believe that the deceased was a sorcerer and was responsible for the deaths of your brother and that he was out to get you soon.

Your Sentence

19. Now turning to a consideration of the next issue of what is an appropriate sentence for you in the particular circumstances of your case. I note that the courts have treated sorcery related killing as special categories of killing and have imposed sentences much lower than ordinary cases of homicide. This is apparent from the case of Public Prosecutor v. Apava Keru and Aia Moroi,[14] where the Court said:

"If the killing had been of a reputed sorcerer then a sentence of six years would have been appropriate on the leading sentencing authority of Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. That case puts the wilful murder of a reputed sorcerer in a special category of its own - meriting a sentence of around six years. All other kinds of wilful murder normally attract a sentence of years or more up to a maximum of life imprisonment."

20. However, the above decision appears to have overlooked the decision in Agoara Kelo & Anor. v The State,[15] which 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."

21. In his judgment in The State v. Boat Yokum & Ors.,[16] Injia J. (as he then was) effectively re-echoed the same view in Agoara Kelo & Anor. v The State[17] when his Honour said:

"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."

22. Yet His Honour imposed a sentence of 6 to 10 years against a group of murderers for wilfully killing a reputed sorcerer. Batari J., endorsed the foregoing views of Injia J., in his judgment in The State v. Urari Siviri[18] and imposed a sentence of 18 years. In so doing, his Honour noted that there has been an increase in sorcery related killings even by people who were subjected to much Christian and modern influences.

23. I agree with the views of Injia and Batari JJ., and in particular, I reiterate what the Supreme Court said in Agoara Kelo & Anor. v The State.[19] The only thing that makes sorcery related killings special is the believe in sorcery. However, sorcery is neither a fact that can easily and readily be proven or refuted. It is a matter of what one wants to believe and not. The Sorcery Act provides for the way in which people suspected of sorcery should be dealt with. It does not say that those who kill on believe of sorcery should be given special treatment. To do so would be to give sanction and to license some of the most vicious, brutal, merciless and public execution type killings that have thus far occurred. Sorcery is a belief based on custom. The Constitution in Sch. 2.1 (2) dictates that we should retain only those customs that are not inconsistent with a written law and are not repugnant to the general principles of humanity. Murder, intentional or otherwise is an offence prescribed by our Criminal Code in particular ss. 299 (wilful murder), 300 (murder) and 302 (manslaughter), which is a written law. This follows on from the preservation of the right to life under s. 37 of the Constitution. Killings in whatever form or manner, except as may be provided for by law, is a prohibited act worldwide because it is against the general principles of humanity. Some countries, as in our case, do have provisions in their criminal codes for the death penalty in the worse case of wilful murders. Even these kinds of legislation are now the subject of public and international criticism and debate as to justification for their retention.

24. No positive law be it the Constitution or the Criminal Code, says that people who kill others because they believe that the deceased killed one of their relatives through sorcery should be given special treatment or that their sentence should be far less than those received by other murderers. Indeed, the Sorcery Act expressly provides that only the moral blameworthiness of an offender acting on his or her belief in sorcery, may be diminished and warns against using sorcery as an excuse to do harm against others. Thus, I am of the view that, the courts need to approach sentence in sorcery related cases as any other case of killing and consider the believe only as a factor in mitigation and get the same treatment as the other factors in mitigation such as a guilty plea and that the courts should be careful not to drastically reduce sentences, given the dangers of encouraging people to kill others and get away by claim and believe in sorcery.

25. I thus support the recent increase in sentences for sorcery related murder cases. The current Chief Justice imposed a sentence of 20 years for sorcery related killing without any prior planning and implementation. That was in the case of The State v. Jude Gena and Four Others.[20] Davani J., imposed a similar sentence following the decision in The State v. Jude and Four Others[21] in her decision in The State v. Joseph Tunde.[22] In both cases, the respective deceased were believed to be sorcerers who killed the respective prisoner’s respective relatives whose death they were mourning over and the alleged sorcerers responsible for the respective deaths turned up at the respective mourning places and the prisoners killed them.

26. I also endorsed the Supreme Courts recent guidelines for murder cases in Manu Kovi, where it does not give any special treatment, either intentionally on inadvertently to sorcery related killings. In so far as the Criminal Code is concerned and Parliament’s prerogative in legislating is concerned, as well as the duty and the role of the courts are concerned, sorcery related killings have no special place and the courts have no power to give it a special place in the guise of interpreting and applying the law. To do so would be entering into Parliament’s reserve and not that of the Courts. In this regard, I can now appreciate the learned counsel for the prisoner’s reluctance to rely upon two of my brother Lenalia J.’s decision in The State v. Saweno Visare & Ragu Maioi[23] and The State v. Jerry Gebai & Bagari Duge.[24] In these decisions, his Honour took the view that the Supreme Court should have made special provision for sorcery related killings.

Your Sentence

27. What all these mean is that I will take into account your claim of acting on your believe in sorcery when determining what sentences is appropriate for you. However, it does not mean that I must drastically reduce the punishment you must receive. I will take your believe in sorcery only as a mitigating factor just like any other mitigating factor.

28. Your learned counsel submitted that your case falls under the second category under the Manu Kovi case. That category speaks of "a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificantly by the gravity of the offence" and recommends a sentence between, 20 – 30 years. The Supreme Court did not elaborate as it did in respect of the third category.

29. Into which category your case falls under is dependant on the particular factors in aggravation and mitigation in your case. In order to do that, it is necessary to take into account -your family background as outlined by your lawyer in his submission. In particular, I note that you are a Christian and belong to the United Church. Your village is with the Kerema District, only a very shot boat ride from the Kerema town. You have been to grade 7. This has to be contrasted with a person who is not a Christian and has not been to any form of formal education and leaving far away from a city or town. These are important and necessary elements in the context of a sorcery related killing. By reason of these factors, I note that you had no reason to hold onto your belief that the deceased killed your brothers and that he would kill you. Even if you were entitled to hold onto that believe, it was wrong for you as Christian to kill the deceased because the Bible teaches "you shall not kill."[25] 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.[26] This simply means as a Christian, you should not have retaliated but you did. Also as a person who has been to grade 7 and one coming from within Kerema area, you have been exposed to the system of law and order for the peaceful resolution of disputes and all problems that arises in the community. You should have therefore turned to that system but you did not. I do appreciate that you tried to have your concerns over what you believed were practices of sorcery resolved at the village level and the deceased did not cooperate. You did not go further to get the law to force him to have the problem resolved with you. You chose instead to deal with him yourself. This gives rise to the next factor against you.

29. You planned to kill the deceased and left your village in the early morning of the day of the offence. When you got to the deceased’s house, he was still asleep. You therefore hid and waited for him to get out of the house. Eventually, when the deceased came out of his house, you proceeded to execute your intention to kill him. You executed two fatal cuts to the deceased ear and neck area seriously severing two of his major blood vessels causing him to immediately lose a lot of blood. You did not act in the spare of the moment but carefully planned out and executed the wilful killing of the deceased.

30. Another more serious aggravating factor is the fact that the deceased was not an ordinary person in the village; he was a Village Court Magistrate. He represented the law in your village. It is well accepted law now that a person who attacks any of the law enforcement agencies such as a policeman or a policewoman, judges, magistrates and village court officials should be dealt with severely because the offence is against the law itself. This was made clear by the Supreme Court in Peter Naibiri and Kutoi Soti Apia v. The State;[27] Ure Hane v. The State[28] and Joe Foe Leslie Leslie v. The State.[29] I followed this line of case in a number of my own decisions as in The State v. Ian Bob Wali[30] and The State v Makis Lunge Kraningi.[31]

31. Further, I noted that you committed an offence that is prevalent. The senseless and ready 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. The foregoing discussion of the relevant sentencing trend and tariffs testify of this. My sincere hope is 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 seems to be only a claim in name when there is far too many unnecessary and uncalled for killings all around us.

32. Furthermore, I note that there are other factors in aggravation. This includes the use of a dangerous weapon being a bush knife. As part of your plan to kill the deceased, you armed yourself with a bush knife. Mr. Iaia Ea who accompanied you was also armed with a bush knife although he did not participate in the actual killing of the deceased. Nevertheless, he provided you the strength and encouragement you needed to execute your planned killing. Additionally, when you attacked the deceased, he was with his small grandchild. You did not demonstrate any care or concern for the innocent child. I am sure that when you went about cutting the deceased, you caused the child to witness the killing and possibly go into shock and surprise as did his mother who was nearby. You gave no warning to alert the deceased and those with him to minimize any surprise and shock with your attack. From your conduct however, it seems you wanted to take the deceased and those with him, with complete shock and surprise to achieve your ultimate aim of killing the deceased all of which intentions you did achieve successfully.

33. Finally, in your aggravation, I note that you have not taken any step to demonstrate your remorse for the offence you committed. This, I believe proceeds on the basis of your belief that the deceased killed your brother with sorcery and that he was out to get you. He therefore deserved to die. Such an attitude is against the clear Christian teachings and is the kind of attitude we should never encourage in our society because that has the potential to promote more offenders than law abiding citizens.

34. Against the above aggravating factors, you have a number of factors in your mitigation. First, you pleaded guilty to a serious offence which carries a maximum penalty of life imprisonment. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relatives of the deceased to come into Court and relive the grief and pain your actions have caused them.

35. Secondly, I take into account your claim that you acted under the belief that the deceased killed your brother, the deceased on his way to becoming an experienced sorcerer and that he was on his way to also kill you with sorcery too. As I intimated in the earlier discussion of the law and practice in relation to sentencing in this kind of cases, I cannot see how your belief in sorcery deprived you of any rational thinking and fail to give you an opportunity to think twice before acting. Your case is one of carefully thinking it through and executing your planned attack in the early morning of the day of the offence. To me, it is more of premeditated cold blooded murder than acting in the spare of the moment as in the case of acting under legal provocation or self defence. Clearly, there was no deprivation of normal thinking. Nevertheless, unless and until the Supreme Court comes to see and accept the sense in what I have already said about approach to sentencing in sorcery related killings, I must let you get the benefit a belief in sorcery brings upon a murderer like you.

36. Thirdly, I note that you are a first time offender. This means you have not been in trouble with the law before and this is your first ever offence. Usually the law allows for leniency in sentencing first time offenders like you.

37. I have given some thought to your claim that the deceased relatives have caused some damage to your family and that your family has now become refugees. I note that, in our society, retaliatory action is an inevitable consequence that follows the commission of an offence or a wrong against another person. At the same time, I note that one of the pillars of our criminal justice system is the principle that an offender should not be punished twice for the same offence. The commission of an offence by an offender does not give any license to any person to take the law into his or her own hands. Our criminal justice system is there to consider in each case the gravity of an offence and impose the appropriate punishment. In your case, there is no clear evidence of what exactly you suffered at the hands of the deceased’s relatives in order for me to ensure that the sentence I eventually come to impose against you will not have the effect and leave you with any sense of double punishment. The focus under our criminal justice system is about punishing an offender and not their parents or relatives. If indeed the deceased’s relatives retaliated as you claim, than that is a separate matter for the law to deal with and it cannot be a factor in your mitigation.

38. Finally, there appears to be a further factor that could operate in your favour. This has to do with your age. You appear younger, although you state in your record of interview with the police and in your lawyer’s submission that you were 25 years old at the time of the offence. Usually, the age of an offender is always a factor for consideration. The more tender the age of an offender, the lesser the penalty ought to be. However this has all changed now with more and more young men of your then and now age groups committing a lot of serious offences like murder, armed robbery rape and the like. A recent statement of the law is by the Supreme Court in its decision in Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State.[32] There, the Supreme Court endorsed the position taken by both the Supreme and National Courts judgments in The State v. Thomas Waim;[33] Bokum Umba v. The State;[34] The State v. Richard Amuna Koupa;[35] The State v. Kevin Anis & Martin Ningigan;[36] The State v. Wesley Nobudi & Ors,[37] and Paulus Manadatititip & Anor. v. The State.[38] Hence at the end, your age would fail to operate in your favour.

39. Weighing the factors for and against you, I note that the factors in aggravation far outweigh those in your mitigation. Given the particular factors in your aggravation as I have outlined above, I find that your case falls in the third category under Manu Kovi guidelines. If it were not for the Supreme Court decisions on sorcery related killings as I noted in the earlier part of this judgment, I would have imposed the prescribed maximum sentence of life imprisonment under s. 300. I believe that your guilty plea and your belief in sorcery downgraded your charge to one of murder instead of the originally preferred charge of wilful murder. I reiterate what I said in State v. Peter Yawoma[39] and other cases[40] with the endorsement of some of my colleagues,[41] that where the facts disclose a more serious charge but because of a plea bargain, it is downgraded to a less serious offence the Court should impose the maximum prescribed under the lesser offence. Nevertheless to be consistent with the approach to sentence until the Supreme Court comes to appreciate and accept the rational in what I have said about approach to sentence in sorcery related killing cases, I consider a sentence beyond 20 years is appropriate in the particular circumstances of your case and I impose a sentence of 24 years as appropriate.

39. Of the head sentence of 24 years, I order a deduction of the period of 2 years, 4 months and 2 weeks you have already spent in custody whilst awaiting your trial. That will leave you with the balance of 21 years, 7 months and 2 weeks to serve. I order that you serve that sentence 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: Lawyer for the Prisoner

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^[1] (31/05/05) SC 789, per Injia, DCJ., Lenalia & Lay JJ
^[2] [1984] PNGLR 105.
^[3] [1979] PNGLR 653.
^[4] [1988-89] PNGLR 98.
^[5] [1980] PNGLR 510.
^[6] [1985] PNGLR 78.
^[7] [1990] PNGLR 6.
^[8] (24/09/04) N2649.
^[9] 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.
^[10] The Acting Public Prosecutor v Unmae Aumane (supra); Kwayawaka v. The State [1990] PNGLR 6, Roger Jumbo and Aidan Awatan (26/03/97) SC516.
^[11] Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR78 at 80.
^[12] Roger Jumbo and Aidan Awatan (26/03/97) SC516, per Amet CJ., and Salika.
^[13] Opt Cit n 12.
^[14] Opt cit n 6 at 80-81.
^[15] (1981) SC198.
^[16] (04/12/02) N2337.
^[17] Opt Cit n 15.
^[18] (30/08/04) N2747.
^[19] Opt Cit n 15.
^[20] Opt Cit n 8.
^[21] Ibid
^[22] (12/11/04) N2727.
^[23] CR 1455 of 2005 delivered on 15^th June 2006.
^[24] CR 1065 of 2005, delivered on 16^th June 2006.
^[25] Exodus 20:13 and Mathew 5: 21 and 22
^[26] Mathew 5: 39
^[27] (25/10/78) SC137.
^[28] Op cit n 2.
^[29] (07/08/98) SC560.
^[30] (11/06/04) N2580.
^[31] (26/09/05) N2934.
^[32] (01/04/04) SC741.
^[33] [1995] PNGLR 187.
^[34] (02/04/76) SC92.
^[35] [1987] PNGLR 208.
^[36] (07/04/03) N2360.
^[37] (19/12/02) N2310.
^[38] [1978] PNGLR 128.
^[39] (19/01/01) N2032.
^[40] The State v. Attiock Ishmel (12/10/01) N2294 and The State v Joseph Ping (17/12/01) N2169
^[41] The State v. Lohori Mau (22/07/03) N2430.