State v Martin [2008] PGNC 29; N3312 (12 March 2008)

N3312

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1045, 1052, 1053, 1054, 1055 and 1056 of 2007

THE STATE

-V-

BAIKA MARTIN, SWARE UMERE, GARUMA ENKWI,
PHILIP UMERE, NELLON TERO and MOSES UMERE

Tabubil: Kandakasi, J.
2007: 4 October
2008: 5 & 12 March

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Murder – Brutal and merciless killing of person believed to be sorcerer – Mob attack of an unarmed old man by a group of young and strong men – Deceased attacked with axe, sticks, and repeated punches and kicks causing instant death – Attack without warning – Belief in sorcery no longer special mitigating factor but to be treated like any other mitigating factor - Guilty plea by first time offenders – Some offenders younger than others - Varying sentences of 24, 22 and 16 years less pre-trial and pre-sentence custody period imposed - Criminal Code Sections 300 (1)(a) and 19 – Sorcery Act Section 5.

Cases cited:

Papua New Guinea Cases
John Baipu v. The State(2005) SC796
Thomas Irai v. The State SCR 08 of 2006 (Unreported and judgment delivered on 28/08/07)
Acting Public Prosecutor v Uaname Aumane [1980] PNGLR 510
Kwayawako & 5 ors v. The State [1990] PNGLR 6
Roger Jumbo v. The State [1998-89] PNGLR 197
The State v. Tobby Tani, N2063
The State v. Sambura(2002) N2219
The State v. Francis Kuta Amet & Ors CR1418 of 2002 & CR688 of 2003, unreported and unnumbered decision, (2004).
The State v. Maraka Jackson CR1433 of 2004, unreported and unnumbered, (2006).
Simon Kama v. The State (01/04/04) SC740
The State v. Laura (No. 2) [1988-89] PNGLR 98
Lawrence Simbe v. The State [1994] PNGLR 28
Rudy Yekat v. The State (2001) SC665

Overseas Cases Cited:
Law v. Deed [1970] SASR 377

Counsels:
J. Kesan, for the State.
P. Kapi, for the Prisoner.

12 March, 2008

1. KANDAKASI J: All of you pleaded guilty to a charge for murder of a person who you claim was a sorcerer and responsible for the death of Guruma Enkwi’s mother. You committed the offence contrary to s. 300 (1) (a) of the Criminal Code. After satisfying myself that there was basis for the charge and your guilty pleas, I received your address on sentence and adjourned for submissions on your sentence.

Main Issue

2. The Court has now received the submissions both in writing and orally on Wednesday last week. These submissions raised the main issue of what is an appropriate sentence for each of you in this case taking into account amongst others that, this is sorcery related killing.

Relevant Facts

3. The facts as put to you and emerging from the depositions that gave rise to the charge and your guilty pleas are these. Between 6:00 and 11:00 in the evening of 29 July 2006, you were at Garuma Enkwi’s residence at Tmingondok Village, Kiunga, Western Province. You were mourning the death of Garuma Enkwi’s mother. You believed that Sanibai Kwan, an old man killed her by sorcery as Garuma Enkwi’s mother said so before she died on 27 July 2006.
   
4. As you were mourning, the old man Sanibai Kwan walked in and you decided to attack him. Garuma Enkwi and Sware Umere started the attack on the old man. The evidence shows that, Garuma Enkwi, you used an axe against the deceased whilst Sware Umere, you used a sharp pointed knife. Sware Umere, you stabbed the old man on his left back shoulder area causing a large wound. You than kick and punched the old man and continuously pushed him into the kitchen area. There, the rest of you joined in by repeatedly kicking and punching the old man. Attempts to stop you by some of the other people who were there at the mourning failed, as you were intending on achieving your objective which was, to kill the deceased. In fact, some of the people who tried to stop you were fearful of their own lives. So they did not make any further attempts at stopping you.
   
5. During the cause of the attack, Philip Umere, you used a black palm stick to repeatedly hit the deceased causing serious injuries to the deceased left rib cage side and right elbow and the knee causing large and deep cuts and wounds. Sware Umere, after that, you tried to throw the old man out of the house down onto the ground. But the old man managed to hold on to a stud of the house at the door way. So you went onto stabbing the old man on both of his hands above the elbows. Then Philip Umere, you climbed up and kicked the old man down causing him to fall onto the ground. As he was on the ground, Philip Umere, you came down and beat the old man up with a black palm stick. By this time, the old man lost consciousness and was still on the ground. He did not recover his consciousness and eventually died at about 11:00 pm the same evening, shortly after he was taken away to the nearby house.
   
6. Medical evidence noted on examination of the dead corpse of the deceased that, he was in a pool of stale blood as a result of multiple traumatic injuries to his body generally commencing with his left aspect of his body. In particular, it noted, gross haematoma with hallow deviation possibly from crush injury to his left temporal head region. Again on his left side, there were superficial perforated knife wounds on the lower lateral aspects of the elbow joint. On the deceased right side, the medical examination noted several knife wounds to the shoulder and other areas. It also noted crushed injuries to the 8th, 9th, and 10th ribs. Additional injuries were noted on the deceased right hand and knee areas.
   
7. Whilst no post mortem was carried out, medical view was that, the "probable cause of the death was due to secondary internal bleeding into space from a pierced, crushed lung cavity associated with crushed left temporal region of the head." You men therefore, brutally and mercilessly attacked the deceased who was an old man. You gave him no chance to survive but to die allegedly for killing Garuma Enkwi’s mother. The way in which you brought about his death was slow and painful.
   

Allocutus and Address on Sentence

8. In your address on sentence through Sware Umere, you all said, you are in the eyes of the Court now as first time offenders. It is true that you killed the deceased, Sanibai Kwan, who was an uncle to you. He had been to prison two times before for killing two persons by sorcery. This time, when he killed Garuma Enkwi’s mother, who you say is also your mother, you decided to kill Sanibai Kwan to stop him from further killing people with sorcery. You said sorry to God and that you were thinking of your respective parents who are left behind without anyone to care for them, some of you have also left your schooling and caring for rubbers for some of you. Garuma Enkwi says he is a sick man. You did not provide any evidence supporting any of your claims.
   
9. Your lawyer in his submissions added that, you have all been in custody since the day of your arrest which was on 4 August 2006. You all come from Tmingondok village, Kiunga in the North Fly District of this Province. Further, except for Nellon Tero, who has reached grade 12 formal education, you all have no formal education. All of you live in your village with your parents or respective families on subsistence farming. Finally, except for Garuma Enkwi who is married with no children, all of you are single.
   
10. In addition to the above, your lawyer added that Baika Martin, you are about 22 years old. You are the first born in a family of 4 children. Sware Umere, you are your co-accused Philip and Moses Umere’s brother. You are about 26 years old. You are the first born in a family of 5 children. Guruma Enkwi, you are the son of the person you and your co-accused believed the deceased killed through sorcery. You are about 30 years old and are married with no children. You are the 2nd born in a family of 3 children. Philip Umere, you are your co-accused Moses and Sware Umere’s brother. You are about 22 years old. You are the 2nd born in a family of 5 children. Nellon Tero, you are the youngest amongst all of you. You are 17 years old and the second born in a family of 2 children. Finally, Moses Umere, you are Sware and Philip’s brother and the next youngest person amongst you men. You are about 20 years old and the 3rd born in a family of 5 children.
    
11. Your lawyer then went on to urge the Court to take into account your ready admissions in your respective records of interview with the police, that you have all pleaded guilty to a serious charge, that you have expressed remorse, that you are all first time offenders and that, this is a sorcery related killing. At the same time, your lawyer correctly acknowledges that, the offence you committed carries the maximum penalty of life imprisonment under s. 300 of the Code subject to s. 19 also of the Code, which empowers the courts to impose a lesser sentence. Further, your lawyer referred to the Court correctly to a number of Supreme Court decisions on point including the latest decision of the Supreme Court in John Baipu v. The State.[1] Having regard to these authorities and the particular circumstances of your case, your lawyer argued for a sentence between 17 and 18 years for all of you except for Nellon Tero who he submitted should receive a sentence between 15 and 16 years by reason of his age.
    
12. The State agrees with most of your lawyer’s submissions especially, in relation to case authorities and how sentence should be approached in your case having regard to the latest Supreme Court decision in John Baipu’s case. At the same time, counsel for the State urged the Court to take into account the aggravating factors in your case. In particular, counsel urged the Court to note that, you committed a very prevalent offence, this was an armed group attack of an unarmed old man who you brutally and mercilessly attacked. You used objects that were dangerous and caused various deadly injuries to the deceased which instantly and directly led to his death. He was given a summary judgment and death penalty which you executed for an alleged act of sorcery. In the circumstances, he argued that, a sentence between 20 and 25 years would be appropriate.
    
13. The arguments put forward by you through your lawyer and that of the State through its lawyer requires an examination of the relevant principles governing sentence in sorcery related killing cases. The Decision of the Supreme Court in John Baipu’s case is one of the latest decisions on point. That decision was cited with approval, modified and applied in the subsequent Supreme Court decision in Thomas Irai v. The State.[2] I was a member of the Supreme Court in Thomas Irai case.
    
14. In the John Baipu’s case, the Supreme Court significantly said:
    

"A believe in the power of sorcery is a mitigating factor on sentence where that belief was submitted as being the cause for the offence.[3] Where the belief is raised in submissions and confirmed by the record of interview the court is duty bound to allow the defendant to properly present it to the court to be taken into account in the defendants favour.[4] It has been the practice of the Court to take the version of events most favourable to the accused, in the absence of evidence from the State to the contrary[5] provided it is not utterly unreal. But the "most favourable version" doctrine cannot be applied if the prisoner on his plea and on his allocutus makes no challenge to any of the facts sworn to in the evidence: Public Prosecutor v Tom Ake[6]. For the purposes of applying this principle the allocutus includes statements made by defence counsel from the bar table: Law v Deed.[7]"

15. At the same time, the Supreme Court said:
    

"However, we are of the view that all the aspects of social change in Papua New Guinea which have permeated to even remote parts of the country means that it can no longer be assumed that a belief in sorcery will be treated as significant mitigating factor in every case. The degree to which a belief in sorcery will mitigate sentence will depend upon the facts of each case. Actions taken on the spur of the moment motivated by fear and self preservation and which have parallels to but perhaps do not amount to provocation as contemplated by s16 of the Sorcery Act are likely to increase the degree of mitigation. But such factors as educational level of the defendant, a place of residence with the availability of village councillors, village courts, police, churches, other educational influences such as radio and television and other aspects of good order and government which give the defendant alternative remedies to self help and the knowledge that it is unacceptable, may be facts which reduce the mitigating effect of the belief in sorcery. Not because the belief in the effectiveness of sorcery may be diminished, but because the belief that taking the law into the defendant’s own hands as the only effective means of dealing with the problem should and ought to be diminished. And the more these factors of social change are present in a defendant’s society the less a mitigating factor belief in sorcery should be. The result being that sentences for serious offences involving a belief in sorcery will tend over time to come closer to sentences for the same offence where no belief in sorcery is a factor."

16. The Supreme Court in the Thomas Irai case, noted that the decision in the John Baipu case reviewed the recent sentencing trends and tariffs in sorcery related killings starting with the decision in The State v. Sambura[8] to The State v. Francis Kuta Amet & Ors.[9] The Supreme Court than noted that, my decision in The State v. Maraka Jackson,[10] was the latest sentencing decision in a sorcery related killing case. The Court went on to note that, all of these cases demonstrate an increase in the kind of sentences imposed in sorcery related killing cases. Further, it noted that, most of the sentences have been around 20 years except for the decision in the Francis Kuta Amet & Ors case, which saw a sentence of 15 and 16 years on guilty pleas to a charge of wilful murder and the decisions in the John Baipu and Maraka Jackson cases, where the Court imposed a sentence of 25 years by the Supreme Court on appeal from a sentence of life imprisonment and 24 years respectively.
    
17. Further, the Supreme Court in the Thomas Irai case reviewed almost all of the past decisions of the Supreme and some National Courts’ decisions in sorcery related killings. It gave particular consideration to the issue of whether belief in sorcery should be a special mitigating factor and hence, substantially reduce sentences or, it should be treated like any other mitigating factor. The Court ultimately came to its earlier decision in the John Baipu case and concluded:
    

"That decision, correctly notes the level of change and development the country has gone through since the earlier Supreme Court decisions. The present level of education, development and change is not the same as it was in the 1970s, 1980s or even 1990s. Accordingly, we endorsed the views expressed ... in the John Baipu case. However, we do so with one correction, that the correct position is that, belief in sorcery has not always been a special mitigating factor. Instead it has been and should correctly be accepted as mitigating factor only, just like all other mitigating factors. The reasons for this were clearly explained in the Agoara Kelo & Anor and Uname Aumane & 3 Ors cases."

18. The Supreme Court in the Thomas Irai case went on to consider my decision in the Maraka Jackson case and quoted the following from my decision in that case:
    

"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 a not inconsistent with a written law and are not repugnant to the general principles of humanity. Murder, intentional or otherwise is an offence proscribe 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 world wide 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 the justification for their retention.

...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 give the same treatment as they give to other factors in mitigation such as a guilty plea, and the Courts should be careful not to drastically reduce sentences given the dangers of encouraging people intending on killing others to kill and get away by claiming a believe in sorcery."

19. The Supreme Court endorsed those views and went on to say:
    

"We observe in support of His Honour’s views that none of the earlier decisions of the Supreme Court gave any consideration to the constitutional foundation for the retention of the belief in sorcery, especially in relation to the use of that belief to avoid the full consequence of the law for the criminal conduct of serious offenders, namely wilful murderers. In view of what His Honour brings out as well as what was said in Agoara Kelo & Anor and Uname Aumane & 3 Ors cases, we endorse His Honour’s suggestion that, plea of acting on a belief in sorcery should only entitle an offender to a factor in mitigation just like any other mitigating factors and not as a special mitigating factor, if the offender is able to establish the basis for his belief. Whether the plea should be accepted or rejected would be dependant on whether the offender is able to establish the basis for his or her belief. In that regard, the decision in John Baipu’s case would be relevant and on point."

20. I do note and accept that, you and your lawyers as well as the State, were not fully aware of the decision of the Supreme Court in the Thomas Irai case, which in my view has clarified a mistaken view that belief in sorcery automatically and substantially reduces sentences in homicide cases. It is now clear that, sentence in sorcery related case has to be treated in much the same way as in all other cases of homicide. Correctly, therefore, the same sentencing considerations that apply to all other cases of homicide apply under their respective categories of wilful murder, murder or manslaughter.
    
21. In your case, you have all pleaded guilty to a charge of murder and the Court convicted you on that charge. Your lawyer and that of the State have therefore, correctly referred the Court to the decision of the Supreme Court in Simon Kama v. The State,[11] for the guidance of this Court to arrive at an appropriate decision on your sentence. That decision reviewed sentencing guidelines especially in the recommended range of sentences previously set by the decisions in The State v. Laura (No. 2)[12] initially and later endorsed by the decisions of the Supreme Court in Lawrence Simbe v. The State.[13]
    
22. The decision in the Simon Kama case varied the guidelines in the following way:
    
    1. Where there is a guilty plea with no factors in aggravation, a sentence between 12 to 16 years be imposed.
       
    2. Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence range between 17 to 30 years be imposed.
       
    3. Where there is guilty plea with aggravating factors and where there is use of firearms and such other dangerous weapon in the course of committing or attempting to commit another serious offence, a sentence between 31 years to Life Imprisonment be imposed.
       
    4. On a plea of not guilty with no other aggravating factors, a range of sentence from 17 to 21 years be imposed.
       
    5. 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 serious offence, a sentence range of 22 to 40 years.
       
    6. Where there is a not guilty plea with aggravating factors where there is a use of firearm and or such other dangerous weapons and or in a course of committing or attempting to commit another serious offence, a sentence of 41 to Life Imprisonment.
       
23. The Supreme Court acknowledged that, the guidelines it was suggesting were guidelines only. That left room, therefore correctly in my view for sentencing judges to exercise their sentencing discretion vested in them by s. 19 of the Criminal Code. The Supreme Court specifically said, where there are some good mitigating factors such as the very young age of an offender persuaded by other older people to commit the offence, may warrant lower sentences than those suggested by the Supreme Court. This no doubt, emphasizes point that, as a general rule, each case is to be dealt with on a case by case basis taking into account all the circumstances which resulted in the commission of the offence.
    

Sentence in Your Case

24. Your lawyer and that of the State, submitted that your case falls in the second category as per the revised guidelines and I agree that is the case, although, on reconsideration, your case could fall under the third category. I will nonetheless determine sentence in your case on the basis that it falls under the second category. In any case, the challenge is to determine an appropriate sentence for each of you. In order to do that, I need to and I do take into account your respective personal backgrounds as submitted by your lawyer and as I noted above. I also need to and I now proceed to consider the factors operating both for and against you, starting with those in your favour first.
    
25. Firstly, I take into account the fact that, you are all first time offenders. This means all of you have not been in trouble with the law before. So you have all been good law abiding citizens. Usually the law allows for exercise of some leniency toward first time offenders, which I must ensure you are accorded with.
    
26. Secondly, I take into account the fact that, you have all pleaded guilty to a very serious offence. This is consistent with the position you took from the point of your arrest, to committal and now before this Court. Hence, I note that you cooperated well with the authorities. Again, this factor in most cases allows for some reduction or leniency toward an offender. You will be accorded the benefit this brings.
    
27. In line with the discussion above on the law concerning the belief of sorcery, I now need to consider whether, you have made out a case for me to take that belief into account in your mitigation. There is no dispute that, the deceased was a reputed sorcerer. The District Court at Kiunga convicted him on two sorcery related charges. The first one was for performing an act of forbidden sorcery and the second was for possessing sorcery implements. However, the evidence does not go far enough to show that, the deceased killed Garuma Enkwi’s mother with sorcery. The only evidence there is, is your claim that, Garuma Enkwi’s mother said she was dying because of sorcery performed against her by the deceased.
    
28. Further, as already noted in the foregoing discussion of the case on sorcery related killings, sorcery is not a fact, it is a belief. The case authorities say that, in order for the belief to be taken into account, the basis for the belief must be established. This must be done by reference to the level of educational, government, churches or Christianity and other forms of modern influences. There is no evidence that, you come from a very remote part of this province where there is hardly, any government or Christian or other such influences. There is however, evidence of at least one of you going up to grade 12 formal education. This goes to show in my view that, you have modern influences just like anywhere else in the country. This absence of evidence would make it difficult for me to accept your claim of having acted on the belief that the deceased killed Garuma Enkwi’s mother through sorcery. That would be the result, if this was a trial. Fortunately, however, you pleaded guilty to the charge and the State decided not to take issue with your claim. In the circumstances, I note as a third factor in your favour that, you acted under the belief that the deceased killed Garuma Enkwi’s mother through sorcery.
    
29. Finally, I note your saying sorry for committing the offence against the deceased and his relatives. You also said sorry for breaking the law. Unfortunately, there is no evidence of paying compensation or otherwise appeasing the death you brought upon the deceased in the way you did. It is now clear law that, unless an expression of remorse is accompanied or supported by a payment of compensation or such other ways of restoring damages done by the commission of an offence, a mere expression of remorse is meaningless.[14]
    
30. Against you are a number of serious aggravating factors. First, I note that, you planned to kill the deceased. So it was not a spare of the moment killing. Rather it was premeditated or planned. When the deceased eventually got to the house were you were morning the death of Garuma Enkwi’s mother, you immediately attacked him, without giving him any warning or opportunity to defend himself.
    
31. Secondly, I note that, you did not heed other mourners or people present and their attempts to stop you from attacking and eventually killing the deceased. This demonstrates the fact that, the whole community or village was not with you men in your plan to kill and your eventual killing of the deceased. This also demonstrates that, the issue of the deceased allegedly killing Garuma Enkwi’s mother could have been resolved peacefully without taking the deceased life. You chose instead to go for self help in defiance of the good attempts of the members of the community.
    
32. Thirdly, I note that, you all committed an offence that is too prevalent all over the country. The cases I have discussed above and more importantly the decisions of the Supreme Court in both the John Baipu and Thomas Irai confirm this fact. These decisions make it clear that, far too many people in the country are killing other people, some in most brutal, barbaric, and merciless ways and are readily claiming sorcery as the reason for acting in such a way, to the extent that belief in sorcery is being abused or misused. Given that, the highest Court of the land has spoken in terms of increasing the sentence to deter the offenders and would be offenders. However, in view of the fact that both the State and you were not aware of the decision in the Thomas Irai case, I will go by the prevailing tariffs as at the time of decision of John Baipu.
    
33. Fourthly, you all acted in association and in aid of each other in brutally and mercilessly attacking the deceased. Each of you gave strength and energy to bring about the desired end of killing the deceased. The law often treats a case of more than two people acting together to commit an offence more serious than one that is committed by a single person. This is because of the encouragement and strength each of the offenders often give to each other in committing the offence.
    
34. Fifthly, I note that, you used dangerous weapons namely a sharp pointed knife and a palm stick in addition kicks and punches all of which you repeated, even after throwing the deceased down onto the ground. You all being young and strong went against a poor old man, repeatedly attacking him in a way that gave him no chance of survival but certain death which you meted out to him without his invitation in any manner or way apart from your claim of acting on your belief in sorcery.
    
35. Sixthly, you inflicted upon the deceased much pain and anguish going by the number of cuts, hits, kicks and punches you landed on him before throwing him down onto the ground and effecting further hits, kicks and punches. The repeated attacks of the deceased resulted in multiple serious injuries including the crashing of his ribs and the other crushing injuries ultimately and directly leading to his death immediately. I consider the death you brought upon the deceased as more severe than say a single gun shot or a sharp bush knife cutting through a vital organ of a person causing instant death. I make this contrast, not that it would matter, because, the end result, death is still the same, but one of them is slower and painful than the other.
    
36. Finally, I note that you had no direct evidence that the deceased killed Garuma Enkwi’s mother by sorcery. The Sorcery Act prohibits and prescribes acts of forbidden sorcery. Then there are both the formal and informal systems that provide for the dealing with people of committing such prohibited acts. This allows for a person suspected of committing a prohibited act of sorcery to be charged, brought to a court of law and if found guilty according to law, punish him or appropriately. Despite that available remedy, you did what the Supreme Court observed the appellant in the Thomas Irai case did. As the Supreme Court said in that case, when you acted in the way you did, you became the accuser, prosecutor, jury, judge and executioner all at the same time. You denied, the deceased the right to the full protection of the law, the very laws, you are seeking the protection of or benefit from and to be entitled to a fair trial, a fair decision on both guilt and penalty by a fair and impartial judge.
    
37. You have had the benefit of the full protection of the law. Your guilt has been determined through a fair and open process administered by a fair and impartial court and is now looking at the question of what is an appropriate sentence for you, which incidentally does not include the death penalty. You men placed no regard whatsoever for the sanctity of human life and the prohibition against the unlawful and intentional killing of a person, whose guilt was yet to be established. It was cold blooded murder in full witness of other people in the village who unsuccessfully tried to stop you from attacking the deceased. It was a calculated and a vicious attack of a helpless old man.
    
38. Weighing the factors for and against you, I find that the factors against you far outweigh those in your favour. Having accepted the submissions of both yourselves and the State that your case falls in the second category of the guidelines by the Simon Kama case, even though this is a case that could fall under the third category, I consider a sentence in the range of 17 to 30 years would be appropriate. Then taking into account the kind of sentences that have been imposed in sorcery related cases, most of which were discussed by the Supreme Court decisions in both the John Baipu and Thomas Irai cases and the sentences in those cases themselves, I consider a sentence of 24 years against Sware Umere and Philip Umere, who I find are the main actors in the killing of the deceased appropriate. Then for the rest of you, all but Nellon Tero by reason of his age, I consider a sentence of 22 years appropriate and imposed that sentence against you. Then finally for Nellon Tero, I consider a sentence of 16 years appropriate by reason of your age and I impose that sentence against you.
    
39. Out of your respective sentences of 24, 22 and 16 years, I order a deduction of the period of 1 year 7 months and 1 week and 1 day you have already spent in custody whilst awaiting your trial and sentence. That will leave you with a balance of 22 years 4 months 2 weeks and 6 days, 20 years 4 months, 2 weeks and 6 days, and 14 years 4 months, 2 weeks and 6 days respectively yet to serve. I order that you serve that part of your sentences in hard labour at the Ningerum Correction Services. A warrant of committment shall issue forthwith in those terms.
    

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

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^[1] (2005) SC796.
^[2] SCR 08 of 2006 (Unreported and judgment delivered on 28/08/07).
^[3] Acting Public Prosecutor v Uaname Aumane [1980] PNGLR 510; Kwayawako & 5 ors v. The State [1990] PNGLR 6 Amet Los and Hinchliffe J; Roger Jumbo v. The State [1998-89] PNGLR 197 Amet CJ and Salika J
^[4] Roger Jumbo v. The State (supra)
^[5] The State v. Tobby Tani, N2063 Injia AJ; R v. Gabai Vagi [1973] PNGLR 20 Raine J
^[6] [1978] PNGLR at 469 para 4, Prentice CJ, Pritchard and Greville-Smith JJ
^[7] Law v. Deed [1970] SASR 377-378, Bray CJ cited with approval in Koniel Alar and Hosea Biu v. State [1979] PNGLR 300 at 307 and Imiyo Wamela v. State [1982] PNGLR 269 at 280 Kidu CJ, Andrew J and Pratt J.
^[8] (2002) N2219.
^[9] CR1418 of 2002 & CR688 of 2003, unreported and unnumbered decision, (2004).
^[10] CR1433 of 2004, unreported and unnumbered, (2006).
^[11] (01/04/04) SC740.
^[12] [1988-89] PNGLR 98.
^[13] [1994] PNGLR 28.
^[14] Rudy Yekat v. The State (2001) SC665