State v Latuve [2013] PGNC 207; N5406 (20 June 2013)

N5406

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 626 OF 2009

THE STATE

V

AVANA LATUVE, JOEL LOVI & MALO BAGESA (No 2)

Popondetta: Toliken, AJ.
2013: 15th April, 20th June

CRIMINAL LAW – Particular Offence – Wilful Murder – Trial - Deceased suspected of sorcery, reputed to have killed 34 people through sorcery – Deceased apprehended by Police – While in police custody deceased attacked by prisoner - Attack incited other villagers to attack and chase deceased out of village – Prisoner led villagers to chase deceased – Deceased killed by villagers a kilometre out of the village – Prisoner confessed to participating in the killing Criminal Code Act Ch. 262, s 299.

CRIMINAL LAW – Sentence –Mitigating factors - Prisoner first offender – Showed genuine remorse – Belief in sorcery a de facto provocation – Extenuating factor - No evidence of what prisoner actually did when he participated in killing – Aggravating factors - Prisoner instigated the attack and actively partook in the killing – Strong motive and intention to kill – Prisoner attacks deceased while deceased was in police custody – No respect for the law and authority of the police – Prevalence of sorcery related killings

CRIMINAL LAW – Appropriate sentence – Stiff punitive sentence for personal and general deterrence – Sentence of 20 years less time spent in pre-trial custody – Nil suspension - Pleas for suspended sentences in sorcery related killings not to be easily acceded to.

Cases cited:

The State v Jude Gena & 4 Ors (2004) N2649
Thomas v The State (2007) SC 867
The State v. Nickson Sambura & Anor (2002) N2219
The State v Kumbi Koti & Ors CR 94 of 1999 (Unreported and unpublished judgment dated 17th of November 2000)
State v. John Baiga, CR 733 of 2003(Unreported and unpublished judgment dated 09th & 23rd July 2003)
The State v Sedoki Lota & Anor (2007) N3183
Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510
The State v Boat Yokum (2002) N2337
Manu Kovi v The State (2005) SC 789
The State v. William Kapris
The State v Elison Tayamina CR 302 of 2010 (No.3) (unreported and unpublished judgment dated 10th may 2013)
The State v Avanah Latuve & ORS CR 626 (No.1) of 2009 unreported and unpublished judgment dated 15th April 2013

Counsel:

J W Tamate, for the State
D Mamu and E Yavisa, for the accused

JUDGMENT ON SENTENCE

20th June, 2013

1. TOLIKEN AJ: The prisoner Avana Latuve and his co-accused were charge with the wilful murder of one Danny Iruva on the 09th November 2008.
   
2. The co-accuseds were acquitted of the crime but a guilty verdict was returned for the prisoner on 15th of April 2013. I heard submissions on sentence in April but was unable to pass sentence as the circuit was about to close. I reserved my decision on sentence and I now deliver the judgment.
   

THE FACTS

3. For the purpose of sentence I adopt my findings of fact from my judgment on verdict. (The State v Avanah Latuve & ORS CR 626 (No.1) of 2009 unreported and unpublished judgment dated 15th April 2013).
   
4. On 09th day of January 2008, a detachment of three policemen and a soldier (Security Personnel), then based at the Kokoda Station during Oro Disaster Relief operations had gone to Kovelo Village in search of the deceased who was suspected of having an unlicensed firearm in his possession.
   
5. They picked up Community Based Constable Julius Kadova, Benson Kadova and Village Councillor Lance Lovi at Kovelo and proceeded to Hoi, the deceased's hamlet. They located the deceased and searched his house but came up empty handed. They nonetheless apprehended the suspect and returned to the main village arriving there sometime between 11.00 a.m. and 12.00 p.m.
   
6. They left the deceased standing on the road and went to Benson Kadova's house for refreshment. They had intended to address the villagers later. As the deceased was standing on the road the prisoner confronted him. He started assaulting and chasing the deceased with a long grass knife all the being encouraged along by his immediate family members.
   
7. Other villagers soon joined in. Fearing for his safety the deceased ran to where the Security Personnel were. Seeing what was happening the Security Personnel tried firing several warning shots but their weapons misfired. According to State witness Julius Kadova they tried six times to fire their gun but the gun misfired on all six attempts. Completely over-powered and helpless to protect the deceased or disperse the angry crowd, they called out to the deceased to run for the Kokoda Station for his safety.
   
8. The deceased turned and ran for the Station. The mob, led by the prisoner and which included men, women and children chased after him. They were armed with stones, knives and sticks. They caught up with him at a rubber plantation a little over a kilometre from the village. They killed him and returned to the village leaving the body on the road.
   
9. The Security Personnel, CBC Julius Kadoga and his brother Benson Kadoga followed the villagers but were unable to keep up with them. They, however, met them about a kilometre from the village as they were coming back after having killed the deceased. About 100meters from where the deceased was killed they met the prisoner who said to them "We already killed the man and we are going back to the village."
   
10. I found that the prisoner instigated the whole incident and that he had the motive to do so. He admitted that he was angry with the accused – a reputed sorcerer - whom he blamed for the death of his brother Mado and 33 other people in the village. The ensuing involvement of other villagers was because of the prisoner's initial confrontation and attack on the deceased.
    
11. Community Based Constable Julius Kadova who, together with another CBC was the first to arrive at the scene of the killing observed the deceased's condition and ran to the Kokoda Station for assistance. He returned with the Health Extension Officer and the police.
    
12. The HEO took photographs of the scene and the deceased's body lying dead on the crime scene. The colour photographs show in very clear detail the various wounds that were inflicted on the deceased's body, its position on the road and stones that were obviously used to kill the deceased with.
    
13. The HEO Nasa Yagom examined the body on the scene and the body was taken away by relatives for burial. HEO Yagom later prepared a Report which he annexed to an affidavit dated 18/01 /2008. This was tendered by consent and marked Exhibit A for the State.
    
14. The principal findings of the Medical Report were as follows:
    

"... The examination reveals knife wounds on the right hand involving index finger extending to the metacarpal of the middle finger as well.

The deceased also sustained blunt wounds on the right lateral aspects of the base of the head parallel to the right ear thus having contact to the brain leading to head injury and instant death.

Conclusively, the deceased was alleged to have been murdered as a result of trauma to the base of the skull leading to death secondary to internal haemorrhage and head injury."

15. Simply put the deceased died from head injuries caused by blunt objects to the base of the skull and from internal bleeding.
    
16. I found that the deceased was a reputed sorcerer and was widely suspected of having been responsible for the deaths of some thirty four (34) people in the village, the most recent of whom were the prisoner's brother Mado Latuve and Joel Lovi's sister (unnamed). In fact the villagers were still in mourning and were in their respective haus krai when this incident occurred. The villagers were very much angered by this.
    
17. I also found that apart from this the villagers were also angry with the deceased because he had obtained monies from them (some K8000 or K800?) in the pretext of hosting a funeral feast for the death of his child. He never held the feast.
    
18. The prisoner and his two co-accused (who have since been acquitted) were handed over to the police by the community one week and two days after the killing.
    
19. The prisoner admitted his involvement in the killing of the deceased in the Records of Interview which were tendered by consent (Exhibit C1 and C2, Exhibit D1 and D2 respectively). And even though he admitted that he was not pressured by the arresting officer, he claimed that he was coerced by the community and community leaders. I, however, found that this was not the case.
    

ALLOCUTUS

20. The prisoner apologized to God, the Court and Court officials and the lawyers and the community and the deceased's family. He said that he has large family of 10 consisting of 6 brothers and 4 sisters. Of the six brothers he is the only one still alive. Two of his sisters are deceased. Of his two surviving sisters one has married out of their area and the other one has been divorced from her husband.
    
21. The prisoner said that he has a large tract of land. He has a one hectare block of oil palm, a guest house used by trekkers and a canteen. No one has been tending to these since his apprehension as his sister finds it difficult to look after them.
    
22. He told the court that he was the sole provider for his brothers and sisters children totalling 11 altogether. He used to pay for their school fees from sales from oil palm but the oil palm block is now over-grown and there is no one to harvest the fruits.
    
23. His guest house which trekkers to the Kokoda Track use is now run down and has fallen into disrepair. It is no longer used as it is leaking. It is really now very difficult for his sister to maintain their family home as there is no man around the house to attend to and provide household needs.
    
24. Though he had been found guilty he asked the court to consider the community's involvement in the offence. He also asked the Court to assess the Medical Report which revealed that death was by stoning and compare it with the evidence of a witness who said that he had used a knife.
    
25. Finally he sincerely apologised for his offence and asked if he could be given a suspended sentence or good behaviour bond.
    

SUBMISSIONS

26. Mr. Mamu submitted that the evidence showed that the prisoner was part of a group who set upon the deceased. The evidence, however, does not show what the accused actually did to the deceased. While there was some suggestion that he used a knife counsel urged the court to give the prisoner the benefit of a doubt as the medical Report showed that the deceased died from trauma caused by blunt objects. This he said went to the prisoner's criminal culpability though they do not deny his participation and thus he is caught by Section 7 of the Code.
    
27. Counsel submitted that the prisoner and his co-acuseds were used as scapegoats if not sacrificial lambs to carry the community's burden.
    
28. He also asked the court to reflect in its sentence its view when handing down its verdict that if there was evidence that they were indeed pressured by the community to admit the offence in its behalf. Things would have turned out to be different.
    
29. While the court found that the prisoner had a motive, counsel said that that motive was induced by his belief in sorcery. Here the deceased was commonly and reasonably believed to have taken 34 lives by use of sorcery. It was commonly held in the community that such person – sorcerers – ought to be removed from society. His is only one life while he was responsible for the loss of 34 lives.
    
30. Counsel further submitted that in the traditional context belief in sorcery is real. And it was that belief that influenced the prisoner and the community to do what they did on that day.
    
31. This was a mob attack, counsel said, and the prisoner was used as a sacrificial lamb. As such not everyone is in court. There were many but only one is facing the law. See The State v. William Kapris where Sakora J. said that while he appreciated what the prisoner in that case did he was used as a sacrificial lamb. Many benefitted from the robberies but not all of them were brought to court. Hence His Honour suspended the entire sentence. In the current case counsel urged the court to at least allow some discount for the prisoner.
    
32. Mr. Mamu submitted that the prisoner is remorseful of what he did. There is evidence of non-legal provocation. The deceased was blamed for many deaths, stole by false pretence from the community and had unlicensed firearms in his possession.
    
33. There was no pre-planning on the part of the prisoner or the community. They were simply angered by the presence of the deceased in the village and hence impulsively attacked him. There was therefore very strong provocation in the minds of the community.
    
34. Counsel further submitted that the deceased contributed to his own death by angering the community.
    
35. Mr. Mamu said the circumstances of the case fell within Category 2 of the Manu Kovi tariffs (Manu Kovi v The State (2005) SC 789) attracting a sentence between 20 – 30 years. He, however, asked for a term of 15 years of which 5 years and 4 months should be deducted for the pre-trial custody period.
    
36. While counsel appreciated what the Supreme Court said in Acting Public Prosecutor -v- Uname Auname [1980] PNGLR. 510 – that punitive sentences ought to be imposed on this kind of killings – he submitted that one objective for sentencing is rehabilitation and the court should consider this in the exercise of its discretion. Hence the court should consider suspending a portion of the sentence with strict conditions as the pre-trial custody period is a long enough time as punishment for the prisoner.
    
37. Counsel assisted the court by citing several cases to arrive at an appropriate sentence.
    
38. Mr. Tamate on the other hand agreed that this case falls under Category 2 of Manu Kovi. However, he urged the court to take into account the following factors.
    
    • The killing had a strong motive
      
    • The prisoner did not act alone. This was a group attack where there was strong intention to kill because of the strong belief that he was a sorcerer who had killed 34 people in the village and that he had stolen from the community by false pretence.
      
    • The prisoner did not use the courts and other authorities like the police to sort out his concerns
      
    • The case is serious because the deceased was taken out of the authorities (police) who had apprehended the deceased on those complaints.
      
    • The prisoner was the instigator of the attack on the deceased. He was not a sacrificial lamb
      
    • Weapons – knives, stones and sticks – were used
      
    • The attack was vicious. The deceased was not given the chance to defend himself.
      
    • The prisoner and the villagers took the law into their own hands and had no respect for the law.
      
39. Counsel submitted that this type of killings have increased so greater penalties should be imposed as many innocent lives continue to be lost due to belief in sorcery and the belief should not be used to soften sentences.
    
40. Counsel strongly objected to suggestion that 34 lives were lost through sorcery. He said the prisoner had recourse to the Village Court which has the power to hear and resolve any complaints according to custom but he chose to take the law into his own hands.
    
41. He submitted that a sentence should be in the range of Category 2 of Manu Kovi less the pre-trial custody period. He strongly objected to any suspension of the sentence.
    

THE LAW

42. The offence of wilful murder is provided by Section 299 of the Code in the following terms:

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 person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

43. Wilful murder is the most serious of homicide offence and thus attracts the maximum penalty of death.

44. The courts have consistently given effect to Parliament and society's view through legislation that the offence must be met by stiff punitive sentences principally to punish or deter perpetrators and hopefully deter others as well.

45. The Supreme Court has laid down sentencing principles in the Manu Kovi case, more as a guide than an attempt I guess to tie the hands of the sentencing court in respect of homicide offences.

46. For wilful murder, the Manu Kovi tariffs are:

CATEGORY	WILFULMURDER		SENTENCING RANGE
CATEGORY 1		15 – 20 YEARS
Plea: Ordinary cases - Mitigating factors with no aggravating factors. No weapon used – little or no pre-meditation or pre-planning – Minimum force used – absence of strong intent to kill.		No weapon used – little or no pre-meditation or pre-planning – Minimum force used – absence of strong intent to kill.
CATEGORY 2		20 – 30 YEARS
Trial or Plea: Mitigating factors with aggravating factors.		Pre-planning – vicious attack – Weapons used – strong desire to kill.
CATEGORY 3		LIFE IMPRISONMENT
Trial or Plea: Special Aggravating factors – Mitigating factors reduced in weight or rendered insignificant by gravity of the offence.		Brutal killing – Killing in cold blood – Killing of innocent, defenceless or harmless person. Use of dangerous or offensive weapons. Killing accompanied by other serious offence – Victim old or young – pre-plaaning orr pre-meditation – Strong desire to kill.,.
CATEGORY 4		DEATH
Worst Case – Trial or Plea: Special aggravating factors – No extenuating circumstances – No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.

SENTENCING TREND

47. Killings induced by belief in sorcery have increased markedly over the years and prisoners have been met by appropriately stiff sentences by this court.

48. While it is settled that belief in sorcery is a mitigating factor the courts have not been indifferent to the fact that this type of killings must attract stiff punitive as well as deterrent sentences.

49. In The State v Boat Yokum (2002) N2337, Injia J (as he then was) when sentencing the prisoners to terms of imprisonment ranging from 6 - 10 years for the murder of a reputed sorcerer, apparently with the tacit approval of the community. He 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. (emphasis added)

50. In The State v Sedoki Lota & Anor (2007) N3183 Sevua J. expressed much stronger views when he sentenced the prisoners to death for the wilful murder of a reputed sorcerer by the prisoners. His Honour said at paragraph 26:

".... 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."

51. Then at paragraph 35 His Honour continued:

35. 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)of the Constitution. Her right to life had been intentionally deprived without an order of the Court.

52. And further down at paragraph 39 he went on to say:

39. 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.

53. In The State v. John Baiga, CR 733 of 2003(Unreported and unpublished judgment dated 09th & 23rd July 2003) the prisoner was sentenced to life imprisonment.

54. In The State v Kumbi Koti & Ors CR 94 of 1999 (Unreported and unpublished judgment dated 17th of November 2000) was sentenced to 20 years while the prisoners in The State v. Nickson Sambura & Anor (2002) N2219 were sentenced to 18 years upon plea.

55. In The State v Jude Gena & 4 Ors (2004) N2649 9 (Kapi CJ) the prisoners were mourning the death of Gena's wife. The wife had previously accused the deceased of causing her illness. When the deceased turned up at the funeral, the prisoners were provoked and killed the deceased and disposed of the body to prevent any suspicion. His Honour acknowledged the fact that belief in sorcery was strongly held by people in the prisoners' society and included educated ones but sentenced the prisoners to 20 years imprisonment.

56. In Thomas v The State (2007) SC 867, the appellant appealed against his sentence of 18 years. He was the leader of a group that had killed the deceased whom he believed to have caused the death of his father through sorcery. The Supreme Court dismissed the appeal and increased the sentence to 22 years.
57. There are numerous cases of this type some of which the defence cited in their submission.

THE PRESENT CASE

58. In arriving at an appropriate sentence in this case, I consider firstly the factors subjective to the prisoner and his offence.

59. I find the following factors in the prisoner's favour:

• He is a first time offender
• He is genuinely remorseful
• He was influenced by his belief in sorcery
• Belief that the deceased caused his brother's death provoked him in the non-legal sense.
  

60. I also find that while he was the instigator the incident that provoked the community in chasing, attacking and eventually killing the deceased, there is no direct evidence showing what he individually did to the deceased. This I find to be an extenuating factor in his favour.

61. There are, however, aggravating factors. These are:

• There was a strong motive behind the killing
• The prisoner did not act alone. This was a group attack.
• There was a strong intention to kill because of the strong belief that the deceased was a sorcerer who had killed 34 people in the village and that he had stolen from the community by false pretences.
• The deceased was taken away from the authorities (police) who had earlier apprehended the deceased on those complaints. Hence the prisoner displayed a total disregard for the law and authority of the police.
• The prisoner was the instigator of the attack on the deceased. He was not a sacrificial lamb
• Weapons – knives, stones and sticks – were used
• There is a prevalence of sorcery related killings here in Popondetta and elsewhere in the country
  

APPROPRIATE SENTENCE

62. The maximum penalty is death. However, it is trite law that the maximum penalty is reserved for worst category of cases and each case should be treated on the merits of its own circumstances.

63. This is not the worst of cases and hence does not warrant the maximum penalty of death. It however, must attract a sentence that must bring home the need to punish people like him who feel that it is justified to kill sorcerers or reputed sorcerers and to deter the many in his own community and other communities in the country who hold similar views.

64. In this case the prisoner and his community believed that the deceased had caused the deaths of 34 people including the prisoners own brother. He instigated the attack on the deceased who at that time was in the custody of the police when he attacked him, chasing him with a grass knife. His attack obviously incited the rest of the villagers, who, similarly attributed those 34 deaths on the deceased. The community led by the prisoner chased the deceased for about a kilometre and killed him by stoning. This was a sustained act from which it can be reasonably inferred that there was a strong intention to kill.

65. While the belief in sorcery is a mitigating factor, it has been said that this belief ought not to be over-emphasized. It is, however, not a special mitigating factor but only a mitigating one just like other mitigating factors. (Acting Public Prosecutor v Uname Auname & Ors (supra).

66. In The State v Maraka Jackson CR1433 of 2004, unreported and unnumbered, (2006) His Honour Kandakasi J. Said:

"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.

67. In John Baipu v. The State (SCR 71 of 2003 - unreported and unnumbered judgment (2005), the Supreme Court anticipated that as more and more areas in the country are influenced by modern social changes the belief in sorcery will no longer be treated as a significant mitigating factor: It said:

"... 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 a significant mitigating factor in every case. The degree to which a belief in sorcery will mitigate a 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 alternate remedies to self help and the knowledge that it is unacceptable, may be factors which reduces the mitigating effect of the belief in sorcery. Not because the belief in the effectiveness of the sorcery may 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."

68. This, however, seem to have not been the case at all. Sorcery-belief induced killing have not diminished. If anything killings have become more horrendous as seen from recent public torture and killings such as the much publicized killing of a young mother in Mt. Hagen who was burned to death with a tyre around her neck.

69. Defence counsel in his submission said that the deceased's life was only a single one compared with the 34 that he had taken through sorcery. He seemed to imply firstly that those deaths were in fact caused by the deceased when there is no solid or empirical evidence to prove that. Despite the fact that belief in sorcery may be real it does not necessarily follow that sorcery itself does in fact work or if it works at all those deaths can be attributed to the deceased.

70. Secondly this type of argument can be taken to legitimizing the extra-judicial and summary killings of sorcerers or reputed sorcerers and that such killings are done for benefit and protection of the community at large.

71. This type of thinking is dangerous in a modern State and the rule of law and should be nipped at the outset. They should not be allowed to fester or grow any roots. Any argument in support of such preposterous ideas from the bar table should also be quickly rejected and must not be allowed to see the light of day.

72. We live in a society where the law rules supreme. The State has institutions such as the police and the courts where people can take their grievances to for the lawful and just resolution of disputes.

73. So regardless of how engrained the belief in sorcery is, and, whether the community allows or accepts the extra-judicial killings of suspected sorcerers, nobody should be allowed to take life readily in the manner the prisoner and his community did in this case.

74. In The State v Elison Tayamina CR 302 of 2010 (No.3) (unreported and unpublished judgment dated 10th may 2013), a case I recently heard in Alotau I said:

"While most societies in the country have been exposed to western civilisation and most, if not all, profess to be Christians, these influences do not seem to have had an impact at all in diminishing if not eradicating the belief. The liberating tenets of Christianity in particular have had no effect at all on the masses, who would give no second thought in executing anyone suspected of practicing sorcery.

The recent spate of public executions and killings of suspected sorcerers calls for affirmative action by the courts. As we have seen the courts have expressed strong views that this type of killings must be visited upon with strong punitive and deterrent sentences to impress upon perpetrators that such killings cannot be allowed to continue as they are a denial of the most fundamental of all human rights – the right to life.

75. As seen from the cases reviewed above, the courts have imposed stiff custodial sentences and at least one case warranted a life sentence.

76. So what should be an appropriate sentence in this case?

77. I take into account the mitigating factors in favour of the accused – his belief in sorcery and that the deceased was responsible for his brother's death and others, that he is a first offender and that it has not been shown the exact nature of his attack on the deceased on the road, and that he was only one of the many who caused the deceased's death.

78. I also take into account the adverse effect of his imprisonment on his family's welfare.

79. However, the aggravating factors out-weigh his mitigating factors. He was the instigator of the attack on the deceased. He led the mob in chasing the deceased down for not less than a kilometre and finally killing him. He displayed total disrespect for the law and the authority of the police. Even after they had killed the deceased he could say arrogantly to the Security Personnel and Benson Kadoga that they had already killed the deceased and were returning home. These factors significantly reduce the mitigating factor in his favour.

80. I agree that the circumstances of the case fall under Category 2 of the Manu Kovi tariffs. The only consideration missing there is that there was no pre-planning involved and this I take into account in the prisoners favour. I find that what happened was on the spur of the moment and this I will appropriately take into account.

81. In the circumstances I feel that a starting point should be 20 years. To further demonstrate the need to punish and deter people who kill on the belief in sorcery the head sentence should remain at 20 years.

82. I therefore sentence the prisoner to 20 years imprisonment with hard labour less the period spent in custody which is 5 years and 4 months. He shall therefore serve a term of 14 years and 8 months.

83. There is no doubt that the prisoner's family will be greatly affected by his long period of imprisonment. However, that is the price he has to pay even if it means that people close to him have to suffer for his criminal behaviour.

SUSPENSION

84. The prisoner has asked for the sentence to be suspended or that he will be placed on good behaviour.

85. I do not think that this is an appropriate case for that. The prevalence of this type of killings demands stern punishment hence pleas for suspension should not be readily acceded to.

SENTENCE

86. The prisoner is hereby ordered to serve his resultant sentence of 14 years and 8 months at Biru Corrective Institution.

Ordered accordingly.

___________________________________________________

The Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner