State v Sagalol [2018] PGNC 283; N7353 (13 July 2018)

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JOSHUA SAGALOL
WILLIE LOTE
WILFRED LOTE
JUSTIN LOBAU
TADIUS TOLEPUNA

CRIMINAL LAW – Sentence – after trial – Murder – s 300 Criminal Code – Sentencing Principles – Parity Principle & Degree of participation – Mitigating Factors - Payment of compensation & its Purpose - Apology & Expression of Remorse must be Genuine - Belief in Sorcery as a Mitigating Factor -Youthful Offenders, whether relevant Consideration – Sentencing Guidelines - Gravity of Crime – Retributive and Deterrent Sentence- 23 years and 22 years imprisonment.

(1)Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

3. Facts relied on for sentencing, are found in the judgment on verdict. Francis Tangaliurea (deceased) was a Catechist with the Catholic Church. He is from the neighboring Pomio village but was living at his wife’s Marmar village about a kilometre up the hills from Pomio Village. For some time villagers from Marmar village suspected him for stalking females and causing deaths by practicing sorcery and committing other wrongs. It so happened a particular small boy died and was buried in the village. The deceased was held the prime suspect for causing his death through sorcery. Some members in the Marmar community had for some time held the belief deceased was a sorcerer.
4. In a gathering at the ‘haus karai’ (temporary shelter erected for mourning) on the evening between 16 & 17 August 2017 discussions were held concerning the death of the boy. At that gathering two boys gave their stories that they had seen the deceased and the small boy (also deceased) earlier at an unspecified spot. The appearance of the boy looked abnormal. Following the discussions a large group of men and young boys numbering 20 or 30 converged at the deceased’s home at 4:00am on 17 August 2017 while deceased and his family were asleep.

5. The group threw stones on the roof and wall of the house, shouting out insults and calling for the deceased to go out of the house. The deceased and his family woke up. Deceased got hold of a bush knife and opened the door of the bed room. Damasius attempted to hit him with a crow bar and in defence deceased cut him on his hand with the bush knife.

6. The deceased and the family were forced out of the house and whilst outside was lying on the ground 10 meters from the house. He was left bleeding from the injuries and wounds he received.

7. A stretcher was made and deceased was carried to the Pomio Health Centre which is about a kilometer down the hills on the coast. He was alive on arrival but passed on at 8:00am that morning. According to the brief clinical report the deceased died of shock due to massive loss of blood. Photographs in particular exhibit 7c show the injuries victim received on various parts of his body; large open cut wound on the right ankle, lacerations and swelling on forehead above the left eyebrow, wound on the left buttock, wound on the left calf muscle, large open wound on the left ankle and wound on the right ankle covered with blood stained linen.

8. Prior to hearing of submissions each of you were given an opportunity to speak regarding your sentence. I also took note of your personal particulars.

9. Joshua Sagalol said it was first time you were in court. You respected the court, said you were innocent. You said you were there when the incident happened. You are the head of the family and in prison. Your family is suffering and asked the court to send you back home to support your family. The pre- sentence report recorded you stating you were asleep at home and never went with the mob and maintained your innocence.
10. You are about 40 or 44 years old. There is no birth certificate to prove your exact age. You are married and have 5 children of which 3 are attending primary school. The highest grade you completed was grade 5. You are a subsistence farmer. You have no history of prior convictions.

11. Willie Lote said it was your first time in court. You were there when the incident happened. You are now in court leaving your parents back at home. You asked to return home to be with your parents. In the pre-sentence report you maintained your innocence by saying you were asleep at home when attack occurred.

12. You are about 18 or 19 years old. There is no birth or registration certificate to confirm your exact age. You are educated up to grade 7 and living in the village with no immediate plans to continue your education. You do not have any prior convictions.

13. Wildfred Lote said it was your first time in court. There are three of you in the family. You help your mother to cook with the help of your sister. You were present when the incident happened. You asked forgiveness from the court and God. You asked to be placed on good behavior bond. The pre-sentence report recorded you saying you never physically harmed the deceased. You called the deceased out and when you saw deceased cut Kosalke with the bush knife you decided to defend yourself.

14. You are about 24 or 25 years of age and single. The highest grade you completed is grade 8 in 2010. You have no plans to further your education. You do not have history of prior convictions.

15. Justin Lobau said it was your first time in court. You are innocent but respect the court. The pre-sentence report recorded you saying you had merely asked the deceased about what had happened to the young child which people claimed he had poisoned. You never caused any physical harm to the deceased. You were asleep at home and was never at the scene of the crime. You are about 20 or 21 years old and single. The highest grade you completed is grade 10 in 2016. You have no plans to pursue further education. You have no history of prior convictions.

16. Tadius Tolepuna said it was your first time to stand before the court. You have never been in any court back in the community. You asked the court for leniency for what you have done and to be placed on good behavior bond. The pre-sentence report recorded you stating you had gone to merely ask the deceased about the young boy’s death that people had claimed deceased had poisoned. You admitted cutting the deceased on his buttocks with the axe to save your cousin Kosalke who was being chased by the deceased.

17. You are single and about 21 years of age. After completing grade 8 in 2013 you completed vocational training at Vunamami Training Centre and graduated with a certificate in carpentry in 2015. You have no history of prior convictions.

18. Donley Sale said it was your first time in court. You have never been in court in the past. You are innocent. The pre-sentence report recorded you stating you had gone to ask the deceased about the young boy who was believed to have been poisoned by him. You denied taking part in the attack.

19. You are single and about 19 or 21 years old. You completed grade 4 primary education and have no plans to furthering your education. You have no history of prior convictions.

20. Andrew Ailas said it was the first time you are in court. You have never been taken to court back in the village. You are concerned of your mother who is sick at home. She is worried about you. You help your mother in gardening, fetching water and gathering firewood. You participate in community activities and visit the sick. You asked for leniency of the court and to be placed on good behavior bond. The pre-sentence report recorded you stating you harmed the deceased in defence of Kosalke.

21. You are about 23 years old and single. You completed grade 10 secondary education in 2010 and went on to obtain a mechanical certificate at Vunamami Training Centre in 2011. You casually worked for Wild Dog Gold Mine at Sinivit in 2012. In 2014 you worked for Palmalmal Auto Repairs as a mechanic. You were unemployed when the offence was committed. You have no history of prior convictions.

22. Damasius Kosalke said it was the first time you are in court. You never have been in court back in the village. You are married and have 3 children. Your parents have passed on. There is no one to help your family now that you are in prison. The pre-sentence report recorded you stating you had gone to merely ask the deceased about the young child whom people claimed deceased had poisoned. You never physically harmed the deceased. The deceased attacked you first and you had to run for your life.
23. You are about 25 or 27 years old and have a wife and 3 children. You completed grade 7 in 2006. You worked as a chainsaw operator for 3 different employers from 2009 to 2017. You do not have history of prior convictions.

24. Gordon Kangeri said that you are sorry before the court and God and respected the court. You are married and have children back in the village. Your mother has high blood pressure because of you. You asked the court to release you. The pre-sentence report recorded you stating you had gone to merely question the deceased about what happened to the young boy who people claimed deceased had poisoned. You never physically harmed the deceased. You went and called the deceased. You were actually scared and ran to the edge of the deceased house and watched what was happening.

25. You are about 23 or 24 years of age and single. You have no history of prior convictions.

26. In their respective submissions counsels made reference to a number of past decided cases. Cases cited by the prosecution were more or less on general principles of sentencing, relevant factors for consideration and recommended sentencing guidelines in homicide cases. In endorsing sentiments and concerns expressed in the authorities cited prosecutions argument is that it was a sorcery related killing. The murder was executed in a gruesome and barbaric or agonizing manner using offensive weapons. Considering the enormity of the offence in the light of aggravating factors that outweigh factors in mitigation it asked the court to use 40 years as the starting point guided by considerations in Manu Kovi v The State [2005]PGSC 34; SC789 (31 May 2005).

27. Defence argument again in summary is that in a case involving a number of persons they are two lines of judicial thoughts. One line of thought is that same sentence should be imposed on all offenders. That view is on the premise that since all participated in achieving a common result all must be accorded the same penalty (Gimble v The State [1988-89] PNGLR 271). The other is the approach followed by The State v Edward Toude (N0.2) [2001] N2299, The State v Tom Keroi Gurua & ors (2002) N2312 (11 December 2002) and others. That offenders should be punished according to the degree of culpability or participation. This view is based on the premise that an offender should not be punished more than what he deserves or did.
28. Defence recommended the court followed the latter view and decide penalty according to the degree of participation in the commission of the crime. To achieve that it suggested the court use guidelines set out in Manu Kovi v The State (supra) and guided by decided sorcery related homicide cases cited.

31. The author expressed his personal assessment of each prisoner and recommended a custodial sentence was appropriate considering the enormity of the crime.

33. Apart from the other documents and information compiled which are in order I have reservation on statements of individuals who claimed to be victims of the suspected act of sorcery by the deceased. The implication of such statements is to support the belief Marmar community had of the deceased as a sorcerer apart from the church ministry work as a Catechist with the Catholic Church.

34. These statements in my view should not have been obtained and included in the pre- sentence report. These are matter for evidence. The proper course was for affidavit statements to be filed as evidence at the trial to establish the belief of sorcery being practiced. All those statements are therefore ignored and given no consideration.

35. I note that each of you have had no serious law and order issues back in the community. You have never been in court for any wrong or never been convicted for any criminal offence in the past.

36. Another factor to consider is the belief some members of Marmar community had of sorcery being practiced by the deceased. They had all along held that belief and when the particular young boy died deceased was naturally blamed. Subsequently, he was attacked and died of injuries sustained.

37. Courts have held that belief in sorcery is a mitigating factor. None of the counsels made mention of this point in their respective submissions. Following Supreme Court decisions in Acting Public Proscutor v. Uname Aumane [1980] PNGLR 514 and Kwaya Wako v. The State [1990] PNGLR 6 courts have treated sorcery related killing as a special mitigating factor because of the traditional beliefs in sorcery.

38. That decision came under scrutiny in 2005 by the same court in the survey of sentences on account of prevalence of sorcery related killings. The court considered that by putting sorcery related killings into a "special” category sentences imposed were relatively low and was no longer an appropriate sentencing practice in this day and age. Court held that belief in sorcery is no longer a "special" mitigating factor and the weight to be attached to it depends on the facts of the case. (See Irai Thomas v The State (2007) SC 867, approving John Baipu v. The State (2005) SC 796). The latest decision of the Supreme Court is binding and is adopted.

39. While the prisoners were in custody waiting sentence the leadership in the community facilitated a reconciliation ceremony on 25 May 2018. It was attended by immediate and extended family members of the deceased, family members and relatives of the prisoners, Pomio inland LLG manager and representatives of Pomio District Administration. No personal contributions towards payment of compensation came from the prisoners who were responsible for the death. Contributions in cash and kind were from their family and relatives. Compensation of a total value of K39, 415.00 was paid and received by the deceased’s family.
40. At this juncture let me make few observations briefly on the significance of customary practices of compensation and its relevance or purpose in criminal law. This I do because of misconceptions some ordinary people have of purpose of compensation in criminal cases.

41. Firstly, the practice of payment of customary compensation is not new. It has been practiced by our people through generations. The practice varies from society to society in the country but its concept is same throughout the country. Its significance was for restoration of peace and normalcy between the conflicting parties to prevent any reprisals in primitive form of eye for an eye and tooth for a tooth retributive justice.

42. In an attempt to integrate aspects of customary practices of compensation into the western based Criminal Justice System Parliament enacted the Criminal (Law) Compensation Act 1999. The Act empowered the courts to make compensation orders in addition to the penalty of a particular offence court may impose. The Act expressly states “payment of compensation is not specified as a punishment for an offence.” [s2 (1)]. That law maintains that compensation cannot be a substitute or alternative penalty for a particular offence. Compensation therefore has limited application and is often considered by the courts as a mitigating factor in sentencing. There are host of other authorities on this principle two of which are State v Rex Lialu [1988 – 89] PNGLR 499 & State v Joseph Tunde Binape [2004] PGNC 57; N2727 (12 November 2004 ).

43. If I may add here though in respect of deaths caused by killing it is often said no amount of remorse or material wealth paid as compensation can equal the value of a human life and restore it if lost. In Christian faith of all created things human being was the ultimate, created in the image and likeness of God. That is how valuable a human being is. Those who terminate someone else’s life prematurely have brought judgment upon themselves.

44. In agreement defence expressed that custodial sentence is unavoidable in an offence involving loss of life. No amount of punishment or apologies offered will restore the lost life. Defence had also conceded that these days sorcery related deaths are high and are considered serious.

45. Furthermore expression of remorse or word of apology must be unconditional to be considered genuine. It must come from deep within the heart without any strings attached.
46. All 9 of you appeared to be casual when you expressed words of apology. Few of you maintained that you were innocent despite the court’s finding. The rest of you gave excuses for the actions you took. I consider therefore your apology or expression of remorse to be superficial, shallow and not from the heart.

47. The attack on the deceased was pre – planned. At the mourning shelter earlier in the evening there had been discussions concerning the boy’s death. A mob of about 20 to 30 boys and men you included, left the shelter well past midnight and going towards morning and converged around deceased home while the family was fast asleep. The mob forcefully woke up the family. When the deceased acted in his defence of the imminent attack he was confronted and this agitated the situation even more.

48. You started attacking the deceased with objects and offensive weapons like the crow bar, axe and bush knife in the presence of his wife and children and other villagers who were looking on. You had attacked the deceased with the intention to permanently paralyze him and make him immobile to stop him from moving about the community threatening people with sorcery. He was attacked in a gruesome, agonizing and vicious manner. He was seriously injured with multiple wounds and left lying on the turf bleeding. He was carried on stretcher to the Health Center for medical attention but died due to massive loss of blood.

49. Strong sentiments have been and are repeatedly expressed by courts against crimes of homicide whether sorcery related or otherwise. Few of which were cited by the prosecution. In Joseph Nimagi & 02 ors v State [2004] PGSC 31; SC741 (1 April 2004) the Supreme Court expressed in these terms:

“We believe that the time has come to depart from some of those principles because they are no longer suitable to the situation in the country at this time, especially when one looks at the escalating and seemingly uncontrollable criminal conduct by young offenders. The complexity of criminal behaviour and frequency of these violent crimes have transcended new heights that the Courts must seriously be addressing new trends of sentencing principles to fit the crimes instead of labouring under a false illusion that the tariffs decided more than 10 years ago are still good law. The principles may still be good and applicable, however where they set tariffs or guidelines for sentencing, those must be changed to reflect the degree, enormity and frequency of these violent crimes.

The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane, the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric.

We have attempted to review and set new guidelines and tariffs in Simon Kama v. The State (SCRA 34 of 2001), a decision, which we had delivered a while ago today. We reiterate the view that the unlawful taking away of another person’s life is very serious. As such, the Courts should approach sentence with a view to imposing the maximum prescribed sentence, unless there are good reasons justifying a lesser sentence. The onus is on an offender to establish a case for leniency. Only when an offender is able to do that, should the Court consider the sentencing guidelines as modified in Simon Kama v. State (supra).”

50. The same bench in endorsing the views expressed by His Honour Kandakasi J in The State v Joseph Ulukua [2002] PGNC 98; N2240 stated:

"Parliament made no mistake in prescribing life imprisonment for someone who takes away any other person’s life without any lawful excuse or one that is not permitted by law. The onus is therefore ... on a prisoner to show why he should not be given the prescribed sentence and make a case for it.”

51. And in Mary Bomai Michael v The State [2004] PGSC 37 the same bench of the Supreme Court expressed:

“The community looks to the Courts for justice and for the protection of its interest. The Courts must therefore be responsive to the needs of the communities. If the community demands tougher penalties for serious violent offences, the Courts just cannot ignore this and turn a blind eye to the needs of the community. Indirectly, we may be contributing to the escalating prevalence of the crimes when we let serious violent offenders walk free or impose very inadequate or suspended sentences on serious violent crimes as has been seen in more recent times. Of course, we do not, for one moment, suggest that the Courts should be influenced by public demands; however, at least, if the community is complaining that the Courts are not appropriately punishing violent offenders, it is a valid issue that must be considered. Ignoring the community’s concerns may lead to distrust in the judicial system and may provide the catalyst for destructive self-help schemes such as pay back. That would in turn prove a good recipe for a serious break down in law and order and anarchy. We are now experiencing an unprecedented and a high level of crime. Judges now have the serious responsibility on behalf of the society to ensure this does not get out of control by paying close and serious attention to the kind of penalties imposed for those who are found guilty of committing serious violent offences like rape, murder, wilful murder and armed robbery.”

52. I utterly endorse the sentiments and add a few lines to the concerns expressed. The highest court of the land had explicitly expressed in no uncertain terms that we are now experiencing unprecedented high level of serious crimes committed which is portraying a negative image of our beautiful nation inundated with vast flora and fauna with diversity of culture. Against those positive attributes are the negative criminal behavior mainly by our younger populace which impacts negatively to the development of our nation.

53. The courts are vested with judicial authority held in trust for and on behalf of the people in our democratic society. That power is vested in the courts by s 158 (1) of Constitution. The same Constitution also demands for preservation, respect and protection of human rights against all forms of abuse and violence or criminal behavior. In upholding the rule of law and in the dispensation of justice the courts have a duty to be sensitive and responsive to the society’s call for stiffer penalties to be imposed in serious crimes of homicide in this modern day and age. Courts cannot turn a deaf ear to those cries and impose sentences which are inadequate and not commensurate to the seriousness of the crime committed. Otherwise sentiments expressed by the courts may be considered mere “judicial rhetoric.”

54. It is for that reason legislature has fixed a maximum sentence of life imprisonment for certain crimes including murder and maximum death sentence in other crimes such as wilful murder. More recently amongst other changes it introduced a new crime in s 299A(1) known as “WILFUL MURDER OF A PERSON ON ACCOUNT OF ACCUSATION OF SORCERY” which carries a maximum death sentence. (Amendment N0 6 of 2013 certified on 18 September 2013). Also repealed was the Sorcery Act.

55. These changes came about due to increasing instance of sorcery related killings and violation of human rights which caught the attention of the nation and global community.

56. Similar observations were made by His Honour Toliken J in State v Alois Toropo & one or (No.2) [2015] PGNC 119; N6013 (19 June 2015). His Honour observed:

“....sorcery related killings are becoming very prevalent. The last few years have seen a marked increase of reported cases on summary executions of sorcerers or reputed sorcerers. And across the country sorcery killings continue unabated with increasing levels of violence, mutilation and torture of suspects. Parliament has reacted to this and repealed the Sorcery Act Ch. 274 and inserted a new provision in the provision in the Criminal Code which created a new offence – Section 299A - Wilful murder of a person on account of accusation of sorcery. (Sorcery (Repeal) Act 2013 (No.7 of 2013)

“Parliament made no mistake in prescribing life imprisonment for someone who takes away any other person’s life without any lawful excuse or on that is not permitted by law. The onus is therefore, ...on a prisoner to show why he should not be given the prescribed sentence and make a case for it.” (Kepa Wenege v The State [2004] PGSC 22; SC742)

57. Having made the above observations does each one of you deserve the maximum life imprisonment? Each of you by the actions you took contributed to the death of a husband, father and a community church worker. In your minds you have decided his verdict and sentence following your discussions at the “haus krai”. You all then advanced to his residence in execution of the guilty verdict and sentence to permanently paralyze him for life. You manifested that intention by causing grievous bodily harm to him but he succumbed to his death when life was drain out of him from excessive loss of blood.

58. The Supreme Court in Joseph Nimagi & 02 ors v The State (supra) critically examined the principles set in the often cited authority of Goli Golu v. The State [1979] PNGLR 653 and couple of other cases on imposing of maximum penalty. Court considered that unlawful killing of a person is very serious. As such, it suggested courts approach sentence with a view to imposing the maximum prescribed penalty, unless there are good reasons to justify a lesser sentence. Only when an offender is able to do that, should the Court consider the sentencing guidelines as modified in Simon Kama v. State (supra).

59. In Simon Kama v The State the Supreme Court was critical of guidelines in Ure Hane v The State by stating that there was an apparent misapprehension that murder cases have different categories. The court instead considered guidelines set in The State v Laura (N0. 2) and Simbe v The State for murder cases more relevant with variations based on sentences that were imposed to date and the prevalence of the offence. Depending on whether it was a plea or not guilty plea case and factors of aggravation or not the court suggested 6 categories of sentencing range.

CATEGORY	FACTORS TO CONSIDER	SENTENCING RANGE
A	Guilty plea with no factors in aggravation	12 to 16 years
B	Guilty plea with aggravating factors but no use of firearms	17 to 30 years
C	Guilty plea with aggravating factors where firearms and other such dangerous weapons are used in committing or attempting to commit another serious offence.	31 to life years
D	Not Guilty plea with no other aggravating factors	17 to 21 years
E	Not guilty plea with aggravating factors but no firearms were used in committing or attempting to commit another offence	22 to 40 years
F	Not guilty plea with aggravating factors where there is use of firearm and or such other dangerous weapons and or in committing or attempting to commit another	o life years.

61. Following that a year later Supreme Court came up with completely different set of guidelines for crimes of wilful murder, murder and manslaughter in Manu Kovi v The State. The court set down four categories of sentencing criteria from the less serious type to the worst deserving the maximum sentence.

62. For murder cases there were slight variations in the recommended sentencing range from Simon Kama’s case depending on factors that were listed.

CATEGORY	FACTORS TO CONSIDER	SENTENCING RANGE
1. In a plea case with ordinary mitigating factors and no aggravating factors.	No weapons used, No prior planning or little planning, minimum force used, absence of intention to do grievous bodily harm	12 – 15 years
2. In both early plea and trail with mitigating factors and aggravating factors	No strong intention to do grievous bodily harm, weapons used, there was some planning, there exists some element of viciousness	16 – 20 years
3. In both early plea and trial: With special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by gravity of the offence.	There was pre- planning, vicious attack, strong desire to do grievous bodily harm, dangerous or offensive weapons were used, e.g. gun or axe.	20 – 30 years
4. In both plea or trail: In an unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killing; killings in full view of the public without regard to the safety and lives of others, etc. No extenuating circumstances, no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime.	Worst type, pre-meditated attack, brutal killing in cold blood, killing of innocent harmless person, killing in the course of committing another serious crime, complete disregard for human life.	Life sentence

64. By those decisions there appears to be two set of guidelines. It gives the trial courts the liberty to choose to follow guidelines in Simon Kama or Manu Kovi. This should not be the case. This does not help in so far as to maintain uniformity and parity in sentencing tariffs.

65. In addition to the above, past decided case on sorcery related killings, like this one are worth considering. They are more relevant and useful in reaching a specific sentence. Few have been cited by the defence. In my search I came across and read a number of them. I took note of the discussions by some of the learned Justices which are invaluable and I hold with high regard. I will refer to few of them in due course.

66. At this point let me consider the defence proposition that there are two lines of judicial thinking in respect of sentencing of multiple offenders. One view is that same sentence should be imposed against all the offenders as decided in Gamble’s case and second is sentence should be imposed depending on level of participation and culpability of each offender.

67. Judgment in Gimble has come under scrutiny at least by on judge in The State v Tom Keroi Gurua & ors (supra). I quote the relevant excerpt of judgment by His Honour Kirriwom J in his discussion of Parity Principle of sentencing:

“And it is because of this that I find my task now quite a difficult one in determining what ought to be the appropriate punishment for each of these three prisoners. There is no dispute that these three acted in concert. The difficulty that faces me now is whether I impose the same sentence on all of them or must I punish each of them individually according to the level of their criminal culpability and their respective circumstances.

"The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.’

There is no question that the decision of the Supreme Court is binding on the National Court. But, with all due respect, I think that passage is misleading in that it gives the impression that all co offenders in joint criminal ventures or enterprises must be sentenced equally, which could be construed to mean that they must all receive the same sentence regardless of their degree of participation or criminality and personal circumstances. If this interpretation is correct, with respect, it would not auger well with accepted sentencing principles and practices that this court has always followed and adhered to in offences involving multiple offenders with varying degrees of criminal culpability. And I note that this argument was properly raised on appeal in Gimble’s case by counsel for the appellant but the Supreme Court brushed it aside with the remarks I quoted above, which remarks could be incorrect.

The law on sentencing of two or more persons charged and convicted together for the same offence is largely determined according to the level of their criminal culpability or the degree of their participation and their individual circumstances. This is referred to as the parity principle and the passage in Gimble’s case needs to be clarified. There is no doubt that it applies more appropriately to the issue of guilt or innocence but not so in sentencing.”

There is no rule of law which require co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and....any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with heavier sentence or to give the appearance that justice has not been done.”

69. His Honor Kirriwom J had correctly stated the parity principle of sentencing. The parity principle in sentencing is well grounded. For this court to deviate from this well-established principle adopted and applied by the courts in this jurisdiction and other common law countries over many years would amount to an obvious error. I propose to take that approached.

70. The court was never taken to task by both counsels on this factor. Though, it is worth discussing how courts have approached in sentencing youthful offenders in serious crimes such as homicide. In the past the courts have considered the younger the offender the lesser the penalty ought to be imposed. This view has now changed and is no longer a favour in favor of a young offender in the same age group as the offenders. By authority of Supreme Court decision in Joseph Nimagi & 2 ors v The State (supra) which followed on from earlier decisions in National Court and Supreme cited with approval by His Honour Kandakasi J in State v Maraka Jackson [2006] PGNC 154; N3237 (24 October 2006) that offender’s young age is no longer a factor to be considered. Particularly in a serious crime of homicide as this one. The offender in that case was a 25 year old young adult.

71. The Courts have said many times that youth is no longer a mitigating factor in a very serious crime such as this. You cannot come to this Court and justify your criminal act by hiding behind the cloak of youthfulness when you have brutally murdered an innocent person.

72. Prisoners Willie Lote, Wilfred Lote, Justine Lobau, Tadius Tolepuna, Donley Sale Andrew Ailas and Gordon Kangeri are young adult offenders.

73. Going by the authorities and which this court adopts, the named offenders are unlikely to get a special consideration because of their young age. However, in doing justice each of them will be sentenced in accordance with their culpability and level of participation.

74. There are perhaps thousands of decided cases from pre and post-independence era up to recent time. I have had the benefit of reading some recent ones in my search.

75. I took particular note of sentiments and discussions on sentencing trend. It is safe to say due to prevalence of such crimes and society’s call for tougher punitive and deterrent sentence there has been a marked increase in sentences that courts have been and continuing to impose.

77. The offender pleaded guilty to a murder charge. In his discussion his Honour made a survey of decided cases and observed sentencing trend of sorcery related killings. In endorsing guidelines set by the Supreme Court in Manu Kovi, His Honour considered factors that weighed against the offender and placed the case under category 3. Offender was sentenced to 24 years goal term.

The State v Malachi Mathias & Anor [2011] PGNC 228; N4670 (9 September 2011) Gabi J

78. After a trial the offenders were found guilty of murdering three (3) persons suspected of sorcery by assisting in the beating and torturing of the deceased. The deceased were dragged out of a police station and a policeman's house. One of the deceased was a ward councilor. The three (3) offenders were part of a group of about forty (40) people who took part in the murders and are the only offenders from the group who have been brought to justice. Bothe offenders were sentenced to 18 years and 16 years respectively.

79. Offenders were convicted on plea for offence of murder arising out of belief in sorcery. In this case a substantial amount of compensation of a total value of K128, 000.00 was paid. In his discussions inter alia His Honour observed:

“I must say something about the purpose or object the sentence will seek to achieve in cases like this. I agree entirely with sentiments expressed by the current Chief Justice Injia J. (as he then was) in The State v Boat Yokum (2002) N2337 (4 December 2002), when sentencing 9 prisoners to terms of imprisonment ranging from 6 - 10 years for the wilful murder and murder of a reputed sorcerer, apparently with approval of the community much like in your case. His Honour said –

"In considering the appropriate sentence, I have had regard to and emphasize the deterrent and retribution theory of sentence as is usually done in sorcery killing cases: see Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510. A strong punitive and deterrent sentence is required to punish the offenders and to send a clear message to their own community; who apparently seem to think that it is alright to kill a sorcerer or a reputed sorcerer for that matter; that it is wrong to kill another person including a sorcerer, reputed or not, and that they will be punished by the Courts, if they do."

Punishment and deterrence - in that order - should therefore be the over-riding objects for sentencing in sorcery related cases. A punitive sentence is intended to show the court's and the law's disapproval of this type of killings because they are in fact summary and extra-judicial executions. Offenders often act as prosecutor, judge and jury. And in so doing they deny the deceased, often defenceless, of the fundamental right to life and the right to the full protection of the law as guaranteed all citizens and resident aliens alike by the Constitution (ss. 35 (1), 37) And as such the severity of the sentence should not therefore be restricted to only to the aggravating factors of a particular offence but due consideration should be had of the deprivation of those Constitutional rights. (The State v Sedoki Lota & Anor (2007) N3183 (1 October 2007))”

80. His Honour considered factors weighing against offenders placed the case under category 3 of guidelines in Manu Kovi. Both offenders were sentenced to 21 years jail term. I endorse without reservations what was expressed by Injia CJ and Toliken J in respective judgments.

81. Having said all of the above in conclusion let me repeat by saying. Authorities cited are useful guides. Those guidelines do not in any way restrict the sentencing discretion of a judge. Each one of them was decided in accordance with merits of its factual circumstances while at the same time trying as much as possible to maintain consistency in sentencing tariff’s in the light of accommodating society’s calls for protection of human rights. A strong punitive or retributive sentence is justified to stress the need for personal and public deterrence against sorcery-related violation of human rights.

82. Now the most important question. What sentence should this court impose on each one of you?

83. Again I weigh the factors for and against. It goes without saying factors against each of you outweigh those factors that should serve in your favour. Each one of you will no doubt go to jail for a long period of time and incarcerated from your family and the community. That does not mean you will be sentenced to maximum life sentence. I do not consider your case to be classified as the worst type deserving the maximum life sentence. But the predicament I am faced with is which guidelines to follow, those set in Simon Kama or Manu Kovi. If I follow Simon Kama your case would fall into category E or F which means starting head sentence would be 40 or 41 years. That has been suggested by the prosecution in its submission. My view is that for the court to consider a 40 years sentence would be far too excessive considering the facts of this case even if I were to impose the maximum life sentence. Respectfully, I choose to follow Manu Kovi. In my assessment your case falls under category 3 of guidelines in Manu Kovi. That basically that means your sentence will fall within the range of 20 -30 years, neither any lower nor higher.

84. In doing justice in applying the parity principle each of you will be sentenced according to the level of participation in committing the crime. Based on the finding of facts on the evidence heard during trial this is how each one of you were involved in the attack.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accuseds

National Court of Papua New Guinea

State v Sagalol [2018] PGNC 283; N7353 (13 July 2018)