State v Parara [2008] PGNC 259; N3957 (22 February 2008)

N3957

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 48 OF 2006

THE STATE

V

WARU PARARA

Madang: Cannings J
2008: 21, 22 February

SENTENCE

CRIMINAL LAW – sentencing – threatened use of powers of a sorcerer – Sorcery Act, Section 6(3) – sentence after trial – sentence of 1 year.

The offender was convicted after trial of an offence under Section 6(3) of the Sorcery Act: influencing the acts of another person by threatened use of the powers of a sorcerer.

Held:

(1) The maximum sentence is two years and the starting point for sentencing is the middle of the available range: one year imprisonment.

(2) Mitigating factors are: no physical harm done to the victim and the threat was not carried out.

(3) Aggravating factors are: the fear it inevitably caused to the victim.

(4) A sentence of one year was imposed, six months of which was suspended.

Case cited

The following case is cited in the judgment:

The State v Noah Magou [1981] PNGLR
The State v Waru Parara, CR No 48 of 2006, 19.02.08

SENTENCE

This is a judgment on sentence for threatened use of the powers of a sorcerer.

Counsel

M Ruarri, for the State
B Meten, for the offender

22 February, 2008

1. CANNINGS J: This is a decision on sentence for a man convicted after trial of the offence under Section 6(3) of the Sorcery Act: influencing the acts of another person by threatened use of the powers of a sorcerer.

2. He told the victim, in whose family there had been a number of deaths, including the recent death of his son, that if the victim gave him a chicken, he could put a stop to the deaths in his family; thereby issuing a threat that if the complainant did not comply, there would be further deaths. The victim attempted to comply with the accused's demands by providing the accused with a pig; and because his actions were influenced in that way by the offender's threat, the offender was convicted. Further details of the offence are in the judgment on verdict, The State v Waru Parara, CR No 48 of 2006, 19.02.08.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise to the court and the lawyers and to the complainant. I was assaulted by the police, shot in the leg and thrown three times into the cell and locked in the office in the police station. Education is very important and I have to look after my kids. I ask for mercy. Please fine me and discharge me.

PERSONAL PARTICULARS

5. Waru Parara is a 56 year old villager from Diduwala.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Meten highlighted the offender's prior good character and the fact that he is a first offender. The offence of which he has been convicted carries a maximum penalty of two years imprisonment. This is the first case of its kind and there is no evidence that it is a prevalent offence, warranting a strong, deterrent penalty. The only other reported sorcery case that has led to a sentence is The State v Noah Magou [1981] PNGLR. A man was convicted of doing a forbidden act of sorcery, which is a more serious offence than in the present case which involves only threatened sorcery, which carries a maximum penalty of five years and he was sentenced to 18 months imprisonment. Therefore, the present case should attract a shorter sentence, of no more than 12 months, all of which should be suspended, Mr Meten submitted.

SUBMISSIONS BY THE STATE

7. Mr Ruarri, for the State, submitted that some time in custody is warranted. The belief in sorcery is real and the offender's actions created fear in the victim. The court should impose a sentence that will deter him from re-offending.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 6(3) of the Sorcery Act states:

A person who influences or attempts to influence the acts of another person by the use or threatened use of the powers or services of a sorcerer as such is guilty of an offence.

Penalty: On conviction on indictment—imprisonment for a term not exceeding two years.

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

10. The offender has been convicted on an indictment so the maximum sentence is two years imprisonment. However, the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. I have been unable to locate a suitable precedent, so I will use the mid-point of one year as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. There is no reported case of conviction or sentence for an offence under Section 6(3) of the Sorcery Act.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• the threat was apparently not carried out in that there were no more deaths in the complainant's family;
• the offender has suffered extra-juridical punishment at the hands of the police;
• remorse shown;
• the offender is of an advanced age.
  

14. Aggravating factors are:

• the offender's actions engendered genuine fear in the complainant;
• there is widespread community concern about the use of forbidden sorcery, so a deterrent penalty is warranted.
  

The sentence I impose is one year imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. The court has not been informed of any time in remand so there is nothing to deduct.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

16. This is an appropriate case in which to suspend part of the sentence. That way, when the offender is released, he will be kept under scrutiny by the justice system for a set time. I will suspend six months of the sentence on the following conditions:

(a) must prior to release from custody arrange payment of K500.00 compensation to the victim, Gabula Marea;

(b) must reside at his village and nowhere else except with the written approval of the National Court;

(c) must not leave Madang Province without the written approval of the National Court;

(d) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(e) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(f) must report to the senior Probation Officer at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim or his family;

(i) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;

(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

17. Waru Parara, having been convicted of the crime of influencing the acts of another person by threatened use of the powers of a sorcerer, is sentenced as follows:

Length of sentence imposed	1 year
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	1 year
Amount of sentence suspended	6 months
Time to be served in custody	6 months
Place of custody	Beon Correctional Institution

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Narokobi Lawyers: Lawyers for the offender