State v Visari [2006] PGNC 61; CR 1455 of 2005 (15 June 2006)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1455 OF 2005

THE STATE

-V-

SAWENO VISARE & RAGU MAIOI

Daru: Lenalia, J.
2006: 8 & 15 June

CRIMINAL LAW – Wilful Murder – Plea – Matters for Consideration – Sentence – Criminal Code s.299

CRIMINAL LAW– Wilful Murder –Sorcery killing – Killing of reputed sorcerer – Mode of involvement - Nature and extent of participation – Sentence – Sentence appropriate 13 years.

Cases cited:
Manu Kovi v The State (31.5.05) SC789
Goli Golu v The State [1979] PNGLR 653
Hure Hane v The State [1984] PNGLR 105
The State v Kwayawako [1988] PNGLR 478
Kwayawako v The State [1990] PNGLR 6
Acting Public Prosecutor v Uname Aumane & Others [1980] PNGLR 510
Public Prosecutor v Apava Keru & Anor. [1985] PNGLR 78
Lawrence Simbe v The State [1990] PNGLR 38
The State v Aiaka Karavea & Anor. (1983) N452 (M)
Agoara Kelo & Karunai Uraki v The State (1981) SC198
The State v Boat Yokum & 6 Others (2002) N2337
The State v Urari Siviri (2004) N2747

Counsels:
Mr. A. Kupmain, for State.
Mr. P. Kapi, for Accused.

15 June 2006

1. LENALIA, J: The two prisoners pleaded guilty to one count of wilful murder by complicity pursuant to Sections 7 and 8 of the Code for the parts they played in the killing of the deceased Pairoi Anega. The said Pairoi Anega was suspected to be a "reputed sorcerer". The offence of wilful murder is contrary to s.299 (1) of the Criminal Code.

FACTS.

2. In the month of July 2004, a complaint was relayed from person to person at Pirupiru N0.1 and N0.2 villages until the whole community knew that, the deceased and another old person Megai Bani were responsible for the deaths of a certain number of people in the two villages. Village elders met and had discussions as to what should be done to stop the sorcerers from killing more people by sorcery.

3. One or two days prior to 18 September 2004, the date on which the offence was committed, village elders decided that, instead of them dealing with the two sorcerers, the village elders and their people should escort the two suspected sorcerers to Emeti Patrol Post where a police detachment unit is also based. So the village elders ordered the two old men to go up to see the policemen on the station and many people including the two accused escorted the two men to the station.

4. The reason for escorting the deceased and Megai Bani to the station was, so that, the two men could be further investigated by police.

5. On arrival at the station, the suspected sorcerers were surrendered to a policeman by the name of Area Nanai. This policeman interrogated the deceased and Mega Bani in relation to a certain death. The policeman named above then hand - cuffed the two old men and started to whip them with a cane. On the instruction of the same policeman, the two men were taken down to the river and were ordered to swim across a crocodile infested river. The two men refused to swim across. They were pushed down to the river several times but they swam ashore and came up to the bank of the river.

6. The men were brought back to the station where they were marched to the field and ordered to stand on the sun for a long time. After that they were ordered to run around the field twice after which they were made to do a specified number of push-ups. While the two men were standing on the sun, Constable Area Nanai invited the two accused and three others to have a discussion as to how the two suspected sorcerers should be dealt with. After their discussion, the two accused and two others reported back to Area Nanai about the conclusion they had reached. The conclusion reached was that, the two suspected sorcerers should be killed.

7. After Area Nanai was told of this plan, he told the group that they should select four strong and able men to carry out the execution of the two sorcerers. Those four men selected were these two accused and another two, Owen Komei and Ganoi Arama. After these men were selected, they pretended to go home and went to the place where accused Ragu Maioi and others had camped the night before.

8. They waited between the camp site and the station for the high tide to come until between 8 and 10 pm they returned to Emeti Patrol Post.

9. When they arrived at Area Nanai’s house, they woke him up and he led them to the house where the deceased and Bani were kept. The accused Saweno Visare was left behind in the river to look after their canoe while the other three went to alert Area Nanai that, they were now on the ground and if he could lead the two suspects to where they had set up the ambush.
To this Area Nanai willingly obeyed and did as the four men suggested. When Nanai came back with the two suspected sorcerers, Ragu Maioi and the two others jumped out from their hiding places and attacked the two sorcerers. The accused Ragu Maioi went for Mega Bani while the other two caught the deceased and captured him. Mega Bani escaped from the accused Ragu Maioi into the water hole and he could not be found.

10. It is the State’s case that, after they caught the deceased, they took him from there to the canoe and was later killed and his body dumped into the river.

ADDRESSES.

11. When allocutus was administered to the two accused, accused Saweno Visare said, he committed the offence on the general will of his community. That he did not actually administered a blow, but that, he assisted in the planning and as revealed by the facts, he assisted by looking after the canoe which was used to take the deceased from the Patrol Post to where he was killed and the body thrown into the river. He further submitted he wants to be given time to pay compensation to the deceased’s relatives. In case of accused Ragu Maioi, he said, he merely assisted but that what he did was the will of his community.

12. I did not trace any medical report on the file and the Court will take it that no medical report was conducted on the deceased as his body was dumped into the river immediately after he was killed. The manner and viciousness of the killing may not be really determined except to accept on behalf of the State that, the two accused played their part in killing the deceased.

13. On mitigation, Mr. Kapi submitted that the Court should take into account the fact that, the two accused pleaded guilty to a very serious charge and that this case was one related to sorcery killing. He further submitted that the two accused are sacrificial lambs and I suppose escape-goats for what the community had agreed to do. He asked the Court to consider the fact that, this was a sorcery killing involving an element of "provocation in the non legal sense".

14. He referred to two cases, that of Manu Kovi v The State (2005) SC789 and the one of The State v Boat Yokum & 6 Others (2002) N2337. I will refer to these two cases later.

15. By way of reply, Mr. Kupmain of counsel for the State submitted that the offence committed by the two accused is very serious as reflected by the death penalty prescribed as the maximum. He submitted that the aggravations include the intention to kill, and the common purpose under which the two accused and others set out to execute such common purpose. Mr. Kupmain further submitted for the Court to consider factors such as, this offence was well planned, that there was an attempt to conceal evidence, that sorcery is hard to prove, and that claims of sorcery are easy to make.

LAW.

16. The crime of wilful murder under s.299 of the Criminal Code is punishable by death. This is demonstrated by the wording of the section charged which states:

"299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other persons, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death".

17. As submitted rightly by counsels, this Court has discretion to either impose the death penalty, a life sentence on the two accused or instead a term of years. The principles of sentencing for wilful murder cases laid down by the Supreme Court in Goli Golu v The State [1979] PNGLR 653, Avia Aihi (N0.3) v The State [1982] PNGLR 92, Ure Hane v The State [1984] PNGLR 105, and Agiru Aieni and 12 Others v Paul T. Tohian [1978] PNGLR 37 are that the maximum penalty should be reserved for the most serious offences under consideration and for offences categorized as "worst type" or "worst type cases".

18. In Agiru Aieni and 12 Others v Paul Tohian (supra), Wilson, J; after stating the principle said, to apply the principle of sentencing properly, the court ought to inquire into how seriously the particular accused was involved in the offence, then the extent to which the accused was culpable. This principle is significant in this case to decide what part the two accused played in the killing of the sorcerer. It seems from the facts that, accused Saweno was a watchman on the canoe while his co-accused may have taken part in attacking the deceased.

19. The killing in the instant case was done on the belief that Pairoi Anega was a sorcerer. It was carried out following the community consensus to eliminate the deceased and Megai Bani who luckily escaped death. When the deceased and Megai Bani were asked while being interrogated whether they were responsible for the deaths of many men, women and children in the two villages, the sorcerers answered in the positive. It was after their admissions that the whole community informed the policemen that, they did not want the two sorcerers to go back to the village.

20. It appears to this court from the facts of this case that the people around the area where the offence took place have a very strong belief in sorcery and sorcery killing. It is a widespread belief common throughout the country that sorcerers can actually cause the death of other people. The extent of that belief was well summarized in The State v Aiaka Karavea & Anor. (1983) N452 (M) where former late Kidu, CJ; said:

"There is no doubt that in this country the belief in sorcery is widespread and nobody really has to prove to the court that it exists. Belief in sorcery exists amongst some of the most backward of our people up in the mountains of every province and also in the urban areas, including Port Moresby. Very well-educated people believe that sorcery exists and that there is power in people who practice evil sorcery to cause the death of other persons."

21. Sorcery related killings are in general committed under different circumstances. The killing of a reputed sorcerer whom people generally believe that he was a sorcerer and that he was responsible for causing an unspecified number of deaths in the village and where people believe that he was responsible for the last death as was in the case of The State v Kwayawako [1988] PNGLR 174 may be treated differently from a case where there is mere suspicion by villagers that such person was a sorcerer.

22. Whether Pairoi Anega was in fact a sorcerer and whether he had killed many people in the village cannot be established as he was never given the opportunity to prove his case in any court of law as required by s.37 (3) of the Constitution. He is not here today to do that. He is now dead. However one thing is clear about the allegations against the deceased and that is that, the two accused believed as was the whole community that the deceased had caused an unspecified number of deaths so therefore he should be eliminated.

23. The Supreme Court cases of Acting Public Prosecutor v Uname Auname [1980] PNGLR 510 and Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78 establish that sorcery related killings fall into a special category deserving special considerations on sentence. In the latter case, the Supreme Court said at 80-81:

"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 Auname {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 years or more up to the maximum of life imprisonment."

24. Mr. Kupmain strongly submitted that the allegations about sorcery should not overshadow the seriousness of the killing in the instant case and if the court was too lenient on sentence would send a wrong signal to the public that, the killing of sorcerers is alright. I agree with the view taken by Injia, J (as he then was) in The State v Boat Yokum and 6 Others (2002) N2337 at 5. 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."

(See also The State v Urari Siviri (2004) N2747)

25. In consideration of an appropriate sentence for the two accused, I have considered all that were said in favour of the two prisoners and more particularly their guilty pleas to this very serious crime. They have each shown remorse by saying that they are sorry for committing this offence and that, they were in fact forced to commit this offence by their communities. In sorcery related killings, the balance must be struck somewhere between sentences imposed for manslaughter, murder and wilful murder on ordinary cases. In Agoara Kelo & Karunai Uraki v The State (1981) SC198, 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 and infanticide."

26. The court must also consider all extenuating circumstances as they appear from the facts of this case. The killing in the instant case was well planned. It was done at night may be to avoid retaliation by the relatives of the deceased and Megai Bani. There is no evidence to show if the complaint in the village had been brought to police then to the District Court for prosecution under the Sorcery Act.

27. The court also finds from the facts that, when the two accused and others planned to terminate the life of the deceased, they did such planning on the belief that, the deceased was a "reputed sorcerer" and their action was to kind of payback for the deaths of various people who had earlier died as a result of the deceased and Megai Bani’s bad sorcery, so that it would prevent further deaths in the village in the future: see Kwayawako v The State [1990] PNGLR 6.

28. I have considered the sentencing tariffs recently laid down by the Supreme Court in Manu Kuvi v The State (2005) SC789 for the various categories of homicide cases. For cases of wilful murder the Court said in that case that in an uncontested case with mitigating factors a sentence of 15-20 years should be considered. A sentence below 15 years should be rarely imposed unless exceptional and special extenuating circumstances are shown. The next range between 20-30 years would be considered for cases which are contested or uncontested with mitigations and aggravations with the motive of killing, multiple wounds and deliberate use of guns to kill a victim.

29. Life imprisonment should be reserved for the cases under definition of Hure Hane v The State [1984] PNGLR 105 and the fourth range suggested in Manu Kovi’s case is the maximum penalty of death for the worst cases of wilful murder.

30. Having gone through the facts of this case, I come to the conclusion that in the instant case, the two prisoners cannot be sentenced in terms of Manu Kovi’s case as this case was one of sorcery related killing which require special considerations as enunciated by the Supreme Court in the cases that I have referred to above.

31. On the sentencing trend for sorcery related killings, starting with the case of Acting Public Prosecutor v Uname Auname & Others (supra), they were sentenced to 3 years of imprisonment which on appeal was held to be inordinately low. The sentence there was raised to 5 years. In The State v Aiaka Karavea & Anor. (supra) the two brothers killed a reputed sorcerer on the belief that, their sister’s death was caused by such sorcerer. They went in search of the alleged sorcerer and found him at the Ihu Police Station in neighbouring Gulf Province. Aiaka axed the sorcerer to death. He was sentenced by the National Court to 12 years.

32. In Agoara Kelo & Karunai Uraki (supra), the two accused killed a reputed sorcerer who was suspected of killing 18 people by sorcery. He was sentenced to 8 years. He appealed to the Supreme Court on the basis that the sentence was too severe. His appeal was dismissed. In Kwayawako v the State [1990] PNGLR 6 the appellants appealed against the severity of their sentences. They were convicted on their pleas and sentences to terms ranging between 12-15 years. The Supreme Court up-held their appeals and reduced the sentences to 10 years on the basis that the Sorcery Act does not deny the existence of the belief and power of sorcery, hence it is permissible to take into account as a mitigating factor on sentence, the customary belief in the power of sorcery.

33. In The State v Boat Yokum & Others (supra), the National Court imposed sentences ranging from 6 to 10 years on prisoners who killed a reputed sorcerer who was believed to have caused the death of the deceased and 53 other people previously. In that case, the whole community decided to end their misery by taking the life of the sorcerer which they did. In The State v Urari Siviri (2004) N2747 a case in Goroka before Batari, J, where the prisoner was found guilty of wilful murder for the killing of a suspected sorcerer who was to have killed the prisoner’s wife by sorcery. The prisoner was sentenced to 18 years.

34. To act on behalf of the community to commit a serious crime as the one under consideration takes or requires so much courage on the part of an actors as was the case of the two accused and those who have not been brought to justice. My only hope is that those who were involved in the planning and eventual execution of the death penalty will also be brought to court sooner or later.

35. Taking into account the sentencing trend in the above cases, the law also requires that, whatever the circumstances are, each case must be considered on its own merits: Lawrence Simbe v The State [1994] PNGLR 38. In the circumstances of the instant case, the court considers that, a sentence of 13 years shall be appropriate. They are each sentenced to terms of 13 years imprisonment. The time they have spent in custody shall be deducted and they will serve the balance.
_____________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for Accused