State v Lota [2007] PGNC 167; N3183 (1 October 2007)

N3183

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1236 OF 2006

THE STATE

v.

SEDOKI LOTA

AND

FRED ABENKO

Alotau: Sevua, J.
2006: 15 & 19 September
2007: 1 October

CRIMINAL LAW – Sentence – Wilful murder – Relevant considerations – Killing related to belief in sorcery – Whether belief in sorcery is a mitigating factor – And if so, should Court continue to use it as a bar to impose death penalty in serious wilful murder cases - Aggravated circumstances – Premeditated killing – Accused’s unlawfully entered deceased’s house - Deceased blindfolded – Hands tied – Neck decapitated– Execution type merciless killing – Facts warrant consideration of maximum penalty – Death penalty considered appropriate in the circumstances – Sentence of death imposed

Cases Cited;

Kwayawako & 5 Ors v. The State [1990] PNGLR 6
The State v. Jude Gena & 4 Ors (2004), unreported, N.2649, 24th September 2004
The Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510
The State v. Rex Lialu [1988-89] PNGLR 449

Legislation Cited:

Constitution, s.35, s.49
Criminal Code, s.19, s.299, s.597
Sorcery Act, s.3, s.7

Counsel:

P. Kaluwin, for the State
D. Kari, for the Prisoner

1 October, 2007

SEVUA, J: The two accuseds pleaded guilty to a charge that on 9 July 2005 at Sigaroi in Milne Bay Province, Papua New Guinea, they wilfully murdered once Marcia Kedarossi.

There were five other accuseds who were committed for the same crime however, at the time of the plea by these two accuseds, the Court was advised by Mr. Kari that the other accuseds would plead not guilty. They were not arraigned and their case was adjourned to the next sittings of the Court in Alotau for trial.

The brief facts were that on 9 July, 2005, the accuseds went from Nade village near Esa’ala Station in Ferguson Island, Milne Bay Province to Sigaroi hamlet. They then entered the house of Marcia Kedarossi where they tied both her hands and blindfolded her, then chopped her head off with a knife with the intention to kill her. The killing was in relation to allegations that the deceased was practising witchcraft or sorcery. Incidentally after the hearing, I became aware that Esa’ala Station is in Normanby Island and not Ferguson Island as stated by the State Prosecutor, Mr. Kaluwin

In allocutus the accuseds made brief statements as follows.

Sedoki Lota said, "I did not kill the woman without justification. There is a reason for it. She killed my father and mother that’s why I killed her. If she had not done that, I would not have killed her."

Fred Abenko said, "I killed that woman because it was justified. She killed my father so I killed her." When the Court asked how she killed the accused’s father, the accused said, "I know she was a witchcraft lady and she killed him. She killed my father through witchcraft."

The prisoners’ counsel, Mr. Kari then briefly referred to the prisoners’ antecedents. Sedoki Lota is 22 years and married with children. His father is deceased. He resided at Salakahadi village in Esa’ala District. He reached Grade 2 only in school and since then has never been employed. He is a first offender. Fred Abenko is 20 years old and single. His parents are deceased and he resided in his village with his six siblings of which he is the eldest. He received no education and had never been employed.

Both prisoners were arrested on 20 October, 2005 and at the time of hearing; they had been in custody for 10 months, 3 weeks and 3 days.

Counsel submitted that the circumstances of this case were that both prisoners believed that the deceased was responsible for the death of their parents therefore they set out to kill her in revenge.

Mr. Kari submitted that the prisoners have pleaded guilty to a very serious crime with full admissions in their records of interviews; they co-operated with police and maintained that co-operation by their pleas of guilty in Court; they are first offenders, and the maximum penalty for this crime is death.

Counsel referred to Kwayawako & 5 Ors v. The State [1990] PNGLR 6; a case relating to killing over belief in sorcery where the prisoners were sentenced to terms of imprisonment between 12 to 15 years. On appeal, the Supreme Court reduced the sentences to 10 years. Counsel said that case was decided 16 years ago. He also referred to The State v. Jude Gena & 4 Ors. (2004), unreported, N.2649, 24th September 2004; which was a case where the prisoner pleaded not guilty to a charge of wilful murder of a reputed sorcerer and concealed the body of the deceased in a rubbish dump. He was convicted after a trial and sentenced to 20 years imprisonment.

Mr. Kari submitted that the Court should consider the prisoners’ plea of guilty in the present case; their belief in sorcery, and should not impose the maximum penalty, but a determinate term as in Jude Gena (supra).

The Court has duly considered these submissions in the light of the admissions made by the prisoners and I consider that it will be necessary to refer to the admissions of the prisoners in their records of interview to highlight the undisputed pertinent facts of this case which, in my opinion, are very serious.

The prisoners said that on 9 July 2005, one Martin Mega sent a message to them and the other co-accuseds at Salakahadi village to go down to Nade village and kill a sorceress who was suspected of killing nineteen people through sorcery. The consideration for that killing was K1,500.00 cash, 5 bagis (traditional arm band) and 2 mwalis (traditional shell money). The payments were offered by the said Martin Mega. The message was relayed by Mwasea Lopi, one of the co-accuseds who will plead not guilty to this charge. These two prisoners were the first persons Mwasea Lopi passed the message to, then later to the other co-accuseds. After everyone had been given the message, they left on a Friday for Nade village where on their way, they spent the night in the bushes. Then on the next day, they walked to the deceased’s village. They were all armed with bush knives and were led by Mwasea Lopi.

The two prisoners went to the deceased’s village while the others hid in the bushes. They then entered the deceased’s house while she slept. They woke her up and Fred Abenko tied both her hands behind her back and blindfolded her with a piece of laplap. Sedoki Lota then struck the deceased on the back of her head with his bush knife. He said he used the blunt edge of the bush knife. The reason they tied her hands and blindfolded her was that Martin Mega had told them to do that because if they did not and the deceased saw their faces, she would turn into a witch and kill them.

A Post Mortem of the deceased’s body was conducted by Dr. Greg Tokwabilula on the 10 July, 2005 at Udek village, Nade, and the findings were as follows:-

- Laceration to the scalp.

- Lower jaw (mandible) chopped of.

- A massive laceration on neck resulting in decapitation.

- Multiple lacerations and scratches on arms and trunk.

- The cause of death was massive loss of blood.

From these facts, I am of the opinion that the blow with the bush knife by Sedoki Lota was of vicious force that it chopped off the lower jaw and severed the neck of the deceased. Even if I accept that the prisoner had used the blunt edge of the bush knife, I can infer that the blow was so vicious and of such deadly force that resulted in the decapitation of the neck. I do not consider that a softer blow or a non-vicious blow could result in decapitation. In any event, it does not matter whether the prisoner used the sharp edge or blunt edge of the knife. The major injury sustained by the use of the weapon had caused massive loss of blood consequently resulting in death.

I consider that the aggravated features of this case are the unlawful entry into the deceased’s residence; the tying of the deceased’s hands behind her back; blind folding her; and, the vicious blow with the bush knife resulting in decapitation. To my mind, this killing takes the case out from the ordinary killing in revenge for sorcery that a severe penalty should be considered. It is my view that these aggravating factors far outweigh the plea of guilty and other mitigating factors that a serious penalty must be considered.

This was a pre-planned attack on the deceased. The two accuseds and others had been commissioned to kill the deceased and such order came from Village Magistrate, one Martin Mega. There were cash and traditional wealth considerations involved in this killing as well. Martin Mega had promised to pay the murderers the sum of K1, 500.00 in cash; 5 bagis, and 2 mwalis. This amount to a contract killing, which one often reads about from the secret society of the Mafia.

This is not a killing which occurred on the spur of the moment, so to speak. It is not a case where the murderers met the deceased on the road or in the village and killed her. The killing was premeditated. The two murderers and others walked from their village to the deceased’s village and, on the way, they slept in the bush. They had time to call off their plan. They were armed with bush knives. The prisoners entered the deceased’s house while she was asleep. These are undisputed facts. In fact they came from the records of interviews by the prisoners. Their entry to the deceased’s house was unconstitutional and unlawful.

Therefore for purpose of sentence, this was a pre-planned and premeditated killing spurred on by cash and traditional wealth considerations.

This case can be distinguished from The State v. Jude Gena & 4 Ors. (2004), unreported, N.2649, 24 September 2004; where the Chief Justice said there was no plan to kill the deceased sorcerer, but the killing occurred spontaneously when the deceased sorcerer had visited the haus krai or mourning place and set upon by the deceased’s relatives.

In that case, the Chief Justice said that the maximum penalty of death is subject to the discretion of the Court under s.19 Criminal Code. The Court would need to ask whether a crime is suitable for the imposition of the death penalty. At the end of the day, the Court has the ultimate responsibility to determine whether a case warrants the imposition of the death penalty. I agree with these views and adopt them in this case.

In the present case, Mr. Kari, counsel for the prisoners referred to the above case and submitted that it was a trial in which the accuseds were found guilty and then sentenced to 20 years imprisonment. He submitted that the Court should consider the plea of guilty by the prisoners and their belief in sorcery. Counsel finally submitted that the maximum penalty should not be imposed but a determinate term be imposed. However, I am of the view that the facts of this case are far more serious than the facts in that case.

The State has not asked for the imposition of the death penalty. However, that does not imply that the Court has no power to consider the death penalty. As the Chief Justice had said in the above case, and I agree with his opinion that it is the responsibility of the Court to consider whether a case is suitable for the death penalty. I also agree that the imposition of the maximum death penalty is at the discretion of the Court.

It is my view that the imposition of the death penalty in any case depends on the factual circumstances of a case. Each case is different and therefore the penalty should be determined on the basis of the facts in a case. In the present case, I am of the view that the facts showed a pre-planned and premeditated murder. Furthermore, the aggravating circumstances of the case – unlawful entry to a dwelling house; blindfolding of the deceased, tying of her hands on her back, and the decapitation of her head are very serious matters which warrant the consideration of the maximum death penalty.

As I alluded to, the issue of belief in sorcery is not a problem in this case. I accept that belief in the power of sorcery is common in many communities in Papua New Guinea today. However, it is my view that with the introduction of Christianity, Western civilization and establishment of Government administration and authorities, the Court should not continue to treat belief in sorcery as a bar to imposing the maximum penalty in a serious wilful murder case, such as the present case.

The purpose of the Sorcery Act is to prevent and punish evil practices of sorcery and other similar evil practices. Whilst the preamble to the Sorcery Act speaks of a widespread belief in sorcery countrywide and s. 3 of the Act refers to the preamble as the statement and objects to be taken into account, the same law outlaws sorcery and provides criminal punishments for sorcery. Section 7 provides that:-

A person who –

(a) does any act of forbidden sorcery; or

(b) aids, abets, counsels or procures, or by act or omission is in any way knowingly concerned in or party to, the doing of such act,

is guilty of an offence.

Penalty: On conviction on indictment – imprisonment for a term not exceeding five years.

On summary conviction – imprisonment for a term not exceeding one year.

The prisoners and any villager for that matter who believed or thought that the deceased was a sorceress and was responsible for the killing of nineteen people should have complained to the relevant authorities. Instead, they decided to impose their own system of justice on the deceased and they had no right whatsoever to do that. Their claim that they were justified to kill the deceased not only amounts to arrogance, but a complete disregard for the Constitution, the law, and the sanctity of life that God gave and no one has the right to take away prematurely.

Even though, the prisoners are not well educated and are simple villagers, their antecedent reports show that they are Christians. Sedoki Lota is a baptised Christian, although it is not known what religion he practiced prior to the commission of this crime. Fred Abenko is a baptised member of the Four Square Church. Their counsel has not assisted much on their religious background. However, I believe that as members of Christian Churches, they would understand that killing is wrong, and a sin which violates one of the Ten Commandments in the Holy Bible.

Furthermore, the prisoners come from villages near Esa’ala Station, which I understand, is the nearest Government Station to their villages. Whilst they may be illiterate villagers; I consider that they are not primitives and not from remote areas of the country where Government and Christian influences are lacking. I do not think that they are unsophisticated and illiterate to the extent that they did not know that what they did was wrong or a crime.

The killing itself, in my view, is an execution where the prisoners blindfolded the deceased and tied her hands behind her back before they decapitated her neck/head. In my view, that is a very serious crime indeed. It is definitely a pay back killing and that is obvious from their statements in allocutus. But they cannot be justified in doing what they did. From their statements, I am of the view that the prisoners killed the deceased in revenge of what they believed the deceased had done to their parents.

This case can also be distinguished from The Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510, where the Court considered that lack of Western civilization and lack of influence by Government administration were relevant matters in considering the appropriate punishment. The Court in Jude Gena & 4 Ors (supra) had considered that educational background and government influence are relevant considerations on penalty.

In Uname Aumane (supra), the Court said at 546:

"The killing of a sorcerer is nothing less than taking the law into one’s own hands. It is a form of "payback killing" although I appreciate that "payback killing" as understood in this country is pure vengeance."

In that case, Kapi, J (as he then was) went on to make a distinction between payback killing and the killing of a sorcerer out of fear. Nevertheless, I am of the view that the killing in the present case, whilst related to the belief in sorcery, boils down to the fact that the two prisoners had taken the law into their own hands. It is a blatant disregard of the constitutional protection of preservation of life, under the Constitution.

In my view, the severity of this crime cannot be limited to the aggravating factors I have alluded to. The prisoners’ actions in this case also constituted a blatant violation of the deceased’s constitutional rights to the privacy of her home and her right to life. They deprived her of her right to life contrary to s.35 (1) Constitution. Her right to life had been intentionally deprived without an order of the Court.

And not only that, they also contravened s.49 Constitution when they unlawfully entered the deceased’s home and committed this heinous crime. In my view, these Constitutional violations are also circumstances of aggravation.

Whilst I have considered all the mitigating factors available in this case, I have also considered the sanctity of life given by God. The prisoners have ended a life prematurely. As I said they deprived the deceased’s right to life. The life they ended prematurely and intentionally cannot be restored. I have always maintained that a life is not a commodity that can be sold or bought at the market or in shops. You cannot replace a life after it has been taken. The punishment must reflect the sanctity of the life given by God. No one has the right to deprive a life prematurely, howsoever or whatever form the deprivation may take. See The State v. Rex Lialu [1988-89] PNGLR 449 at 452.

I have given due consideration to the mitigating circumstances favourable to the prisoners. They have pleaded guilty to the most serious violent crime in the Criminal Code which carries the death penalty. They are first offenders. They have co-operated with police. They are uneducated and unsophisticated villagers. They have spent some time in custody awaiting their trial and sentence. However, I have also given consideration to the principles of deterrence and retribution. The prisoner’s statements in allocutus that they were justified in killing the deceased clearly reflects their merciless intentions to kill, but more so, demonstrates their callous disregard for human life. The fact that they have offered no remorse at all, even when given the opportunity to do so, clearly reflected their arrogance and view that they were justified in killing the deceased.

But killing someone is against the law and the Courts have a responsibility in demonstrating through the penalties they impose that the prevalence of a crime like this must be a public deterrence and retribution. The punishment must also show that the law does not approve of killing of sorcerers, no matter how much people believe in sorcery. In my view the Courts cannot continue to be indifferent in considering punishments for killing in belief in sorcery as opposed to the serious nature of such killings. I believe it is time that the Courts stopped saying that because a killing is related to the belief in sorcery, it should not attract the maximum penalty. I do not say that the belief in sorcery is not a mitigating factor, because it is. However I do not think that it should be accepted as a bar to serious punishment for the crime of wilful murder such as this case, so callous and unimaginable as it were.

I must reiterate that this is a premeditated execution type killing. Whilst the prisoners believed that the deceased had killed their parents by sorcery, there is no evidence, not an iota of evidence, that the deceased did kill their parents. The purpose of the Sorcery Act is to prevent and punish evil practices of sorcery and s.7 deals with criminal acts of sorcery which provides imprisonment terms on both conviction on indictment, and summary conviction. The prisoners and their relatives should have reported the deceased to the relevant authorities including Police at Esa’ala Station.

Nevertheless, the crime of wilful murder is very prevalent. Many lives have been taken prematurely thereby causing unnecessary losses and sufferings to the families and relatives of deceased persons. These unwanton killings must stop, and in my view, the Courts must be stern and decisive in imposing penalties that will deter the commission of this crime.

I consider that the culpability of the prisoners in this case is so grave that they deserve the maximum penalty. The death penalty is not mandatory, however, as I have alluded to, it is discretionary and it is dependent on the particular facts of a given case. In the present case, it is my view that the degree of criminal culpability and cruelty exhibited by the prisoners is so enormous that imposing a determinate term is inadequate and will not fit the crime.

Having considered all the circumstances of this case, it is my opinion that Sedoki Lota and Fred Abenko be sentenced to death.

Pursuant to s.597 Criminal Code, this Court orders that the prisoners, Sedoki Lota and Fred Abenko be returned to Giligili Correctional Service, and at a time and place to be appointed by the Head of State, acting on advice, each of them be hanged by the neck until he is dead.

Orders accordingly.

___________________________________________

Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoners