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State v Dakol [2018] PGNC 364; N7444 (10 September 2018)


N7444

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 171, 172, 173 & 174 of 2018


THE STATE


V


SINA DAKOL, JONATHAN MAVES, YAGUM ALUNG & BOBBY DAKOL


Lae: Kaumi AJ
2018: 13 July
8, 13, 14, 24 August
7 & 10 September


CRIMINAL LAW – Sentence-Criminal Code Act 1974- Section 300 subsection (1) (a) Murder -Sorcery related killing-Group of men slashed reputed sorcerer to death-Multiple wounds to head, throat, chest and arm-victim bled to death.


CRIMINAL LAW- Sentence- Sorcery only a belief not a fact-Belief in sorcery-Belief reinforced by community–Close relatives died- Deceased reputed sorcerer suspected- Prisoners acted on such belief-Evidence of such belief provided- Facts of case indicate decrease in degree of mitigation of belief in sorcery.
CRIMINAL LAW- Mitigating and Aggravating Factors-Belief in sorcery not a special mitigating factor-Plea of Guilt- First Offenders-Prevalent Offence- Genuine Expression of Remorse–Prevalent Offence


CRIMINAL LAW- Should All or Part of the Sentence be suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report


CRIMINAL LAW- Usual purposes of criminal sentencing of Deterrence and Retribution take precedent over Rehabilitation-Not worst type of offence-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.


Facts


The offenders pleaded guilty to one count of murder of a reputed sorcerer. The matter was for sentence.


Held:


[1] Sorcery is only a belief and not a fact. Acting Public Prosecutor vs. Uname Aumane & Others [1980] PNGLR 510.


[2] Acting on a belief in sorcery can only operate as a factor in mitigation of the offenders sentence, just like all other mitigating factors that the Courts often take into account before passing sentence provided the offender establishes the basis for holding and acting on such a belief: John Baipu v The State [2005] SC796 and Irai Thomas v The State [2007] SC867.


[3] The Supreme Court in the case of John Baipu v. The State (supra) correctly qualified the belief in sorcery and its degree in mitigating a sentence by accommodating the advent of the effects of modernization throughout the length and breadth of this country.


[4] 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: John Baipu v The State [2005] SC796


Cases Cited:


Golu v The State [1979] PNGLR 653
Acting Public Prosecutor vs. Uname Aumane & Others [1980] PNGLR 510
State v Arnold [1997] PGNC 154; N1658 (21 November 1997) unreported
The Acting Public Prosecutor v Don Hale (27/08/98) SC 564
The State v Boat Yokum and Eight Others [2002] N2337 Injia. J (as he then was)
The State v Nick Sambra & Another [2002] N2219
The State v Francis Kuta Amet & Ors CR 1418 of 2002 & CR 688 of 2003, unreported
John Baipu v The State SCR 71 of 2003 unreported and unnumbered judgement (2005)
The State v Irox Winston [2003] N2347 Kandakasi. J
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730 (3 October 2003)
The State v Urari Siviri [2004] N2747
The State v Wilfred Opu Yamande N’danabet [2004] N2728 (9 November 2004)
John Baipu v The State [2005] SC796
Kovi v The State [2005] SC789
Yaul v The State [2005] PGSC 29; SC803 (4 November 2005)
Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006
The State v Raka Benson [2006] PGNC 68 CR 447, 445
The State v Maraka Jackson [2006] N3237 (24 October 2006)
The State v John Kanua Suine & Kenneth Kunda Suine [2006] N112 (12 December 2006).
Irai Thomas v The State [2007] SC867
Saperus Yalibakut v. The State [2008] SC890
Thress Kumbamong v The State [2008] SC 1017 (Salika DCJ, Kandakasi and Yagi JJ)
The State v Baipa Martin & Ors [2008] N3312 (12 March 2008)
The State v Malachi Mathias & John Giamalu [2011] PGNC 228; N4670 (9 September 2011)
The State v Avana Latuve (No.2) [2013] N5406 (20 June 2013)
The State v Gladwin Balik Niaka [2014] N5581 (14 April 2014).


Legislation Cited


Constitution of Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986


Counsel


Ms. Langtry, for the State
Mr. Tsipet, for the offender


SENTENCE


10th September, 2018


  1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a group of men who pleaded guilty to one count of murder on 13 July 2018 contrary to Section 300 (1) (a) and State invoked Section 7 (1)(c) and Section 8 (c) of the Criminal Code Act Chapter 262.

ISSUE


  1. The relevant issue is what the appropriate sentence is in this case.

FACTS


  1. The State alleged that all four accused namely Sina Dakol, Bobby Dakol, Yagum Akung and Jonathan Maves, suspected the deceased, Galang Waiseuk, of practicing witchcraft and they blamed him for the death of one of their brothers.
  2. At around 5am on the 15th day of August 2017, all four accused armed themselves with bush knives. They went to the house of the deceased at Popdubi village and surrounded it. They waited until 6am when there was light and observed the movements of the deceased. They thought he performed a ritual because when the deceased came down from his house he stood on the ground and threw one of his hands up into the air. He then went all over his area and performed the same action of throwing his hand up into the air. Afterwards the deceased went up to the house. When the deceased came out again, he went and sat at his haus win and talked with his wife and two children. On seeing him talking with his wife and children, Yagum Alung rushed at him and cut him with a bush knife on the neck and the back of the head. The deceased got up to run away but Yagum Alung grabbed his hand and restrained him. Yagum Alung then tried to chop the deceased’s leg but his trousers prevented the knife from cutting him and the deceased fell to the ground. As he was lying on the ground, Yagum Alung swung his bush knife at the deceased and cut him on the throat. Sina Dakol then chopped him with a bush knife on his stomach and Bobby Dakol chopped him on his arm. Jonathan Maves also slashed the deceased on his chest and stomach.
  3. After chopping the deceased, the four accused left him lying on the ground and went back to their village.
  4. The deceased suffered the following injuries and died:
  5. The State therefore said that when the accused chopped the deceased with the bush knife they caused his death and at the time intended to cause him grievous bodily harm and thereby contravened section 300 (1) (a) of the Criminal Code Act.

ANTECEDENT


  1. Their respective Antecedent Reports provided to the Court by the State states that they have no prior convictions.

ALLOCATUS


  1. When I administered allocatus to the offenders i.e. allowing them the opportunity to say what matters they would like the court to take into account when contemplating what kind of punishment to give them, the following is a paraphrased summary of their responses:

“I’m sorry in the eyes of God, and Court and lawyers and public in court. In custody where I was, there is plenty of us, TB is rampant and spreading in custody. I am a student and I ask for Court’s mercy, and give me Good Behaviour Bond. Thank you.”

(b) Bobby Dakol-

“What happened is what we are saying to this Court that it is true. What we have done is gone already and we know that I am wrong. I say sorry in the eyes of God, Court, lawyers and public in Court and I am sorry to the complainant and what I’ve done has spoiled their living. I am a student and at the village. I have a new cocoa garden. In custody it’s overcrowded and TB is spreading. I ask for the Court’s good knowledge and mercy of the Court, if the Court can give me Good Behaviour Bond or Court Fine. Thank you.”

(c) Yagum Alung-

“The problem I have already committed. On top of sorcery /witchcraft was done. It’s through the influence and the well-being of the community this trouble happened. I say sorry to eyes of God for what I’ve done, sorry to the Court, lawyers and public witnessing today in Court. I say sorry to the deceased Galang Waiseuk who lost a lot of blood and died. I say sorry to his wife, his children and all his relatives. I honour this high Court of this country, your seat and all the counsels and I ask for the mercy of this Court to give us Good Behaviour Bond, Probation to step into my time. Because I’m a first-time offender. In 2016 I was a student at Bugandi Secondary School and school fee problem and school fights so I left school and went back to the village. So 2017 I enrolled back but lack of space so I went back to the village. So I would like to go back to continue my education as it is my life. So far I have missed my lessons. Thank you.

(d) Jonathan Maves-

I’m sorry for what trouble I did to the eyes of God, Judge, counsels and public witnesses. I’m sorry to the family and relatives of Galang Waiseuk for losing his life. I ask for good thoughts to give Good Behaviour Bond. Thank you.”


OTHER MATTERS OF FACT


  1. The offenders pleaded guilty and so I will give them the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. In their respective records of interview the prisoners stated their belief in sorcery and I accept their belief just as a mitigating factor but not as a special mitigating one. I will give my reasons for this later in my judgment.

SUBMISSION BY DEFENCE COUNSEL


  1. Mr. Tsipet highlighted the mitigating factors in the case and their strong belief in sorcery leading to the commission of the offence. He referred the Court to penalties imposed by Courts in similar cases.
  2. He further submitted that an extenuating circumstance was that the deceased was a reputed sorcerer in the village who the villagers believed responsible for many deaths in the village and feared him. At the material time the deceased was suspected as being responsible for the death of someone very close to the accused persons hence they went and cut him with bush knives causing grievous bodily harm to the deceased and he died.

SUBMISSION BY THE STATE


  1. Ms. Langtry highlighted the aggravating factors. She referred to the sentencing guidelines set out in Kovi v The State [2005] SC789 for murder cases and if the Court had regard to the sentencing guidelines in Kovi (supra) it would find that the present case attracted a penalty of 16 to 20 years imprisonment.
  2. Further that the maximum sentence is life imprisonment. It was trite law that the maximum penalty should be reserved for the most serious instances of an offense: Goli Golu v The State [1979] PNGLR 653. That the State did not say that this case falls into the category of worst cases. However, it is serious for the aggravating reasons she had referred to. She referred the Court to cases involving sorcery related killing.
  3. She submitted that the penalty for this offence suggested that Murder is a very serious matter and to personally deter the prisoner and other like-minded individuals from committing similar offences a term of imprisonment between 16 to 20 years was appropriate.

DECISION MAKING PROCESS


  1. In arriving at a penalty that befits the offence for which the prisoners have pleaded guilty to I apply the following process:

STEP 1: WHAT IS THE MAXIMUM PENALTY?


  1. The prisoners have pleaded guilty to one count of murder under Section 300(1)(a) of the Criminal Code, which states:

300. MURDER.

(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;

Penalty: Subject to Section 19, imprisonment for life.’

  1. Section 19 of the Criminal Code Act allows for the discretion of the Court in sentencing the prisoner.

STEP 2: WHAT IS A PROPER STARTING POINT?


  1. The Supreme Court in the case of Manu Kovi v The State (supra) set out the sentencing tariffs for Homicide cases.
  2. The Supreme Court in the case of Thress Kumbamong v The State (2008) SC 1017 (Salika DCJ, Kandakasi and Yagi JJ) said that despite the tariffs set in Manu Kovi (supra) the sentencing discretion of the court remains very much unfettered.
  3. This case falls under category three of the Manu Kovi (supra) categorization of murder cases as it is characterized by elements of pre-mediation, viciousness in attack, a strong desire to do grievous bodily harm to the deceased and the use of dangerous weapons, bush knives so the proper starting point in this case is 21 years.

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


  1. I will now consider the sentencing trends in recent history.
  2. In The State v Siune Arnold (1997) N1658 the prisoner killed the deceased because he believed that the deceased was responsible for the death of his sister and was sentenced to 9 years.
  3. In The State v Nick Sambra & Another (2002) N2219 the prisoners believed that the deceased was the cause of their father’s and other deaths within their area through sorcery. They planned and shot him. 20 years and 18 years sentences respectively were imposed.
  4. In The State v Urari Siviri (2004) N2747 the prisoner believed his wife who said on her dying bed that the deceased caused her illness. The Community agreed through a meeting that the deceased be eliminated so the accused, his sons and other men dragged, tied and beat the deceased to death at the pastor’s house in the presence of others in the community and 18 years was imposed.
  5. In The State v Wilfred Opu Yamande N’danabet (2004) N2728 (9 November 2004) the ROI showed the belief in sorcery was the cause of accused killing the deceased believing he would be killed next and 20 years imprisonment was imposed.
  6. In John Baipu v The State (2005) SC796 the prisoner convicted on guilty plea after committing offence after laying a complaint with Village Court officials more than a year ago. He murdered the deceased who bled to death and was sentenced to 25 years imprisonment with hard labour.
  7. In The State v Maraka Jackson (2006) N3237 (24 October 2006) the accused killed Village Court Magistrate upon the belief of him causing the death of his brothers through sorcery and that his own would follow. 24 years imprisonment was imposed.
  8. In The State v John Kanua Suine & Kenneth Kunda Suine (2006) N112 (12 December 2006). The prisoners were convicted of murder after a trial was held after believing a friend of theirs was killed through sorcery. It was a mob attack. 25 years imprisonment was imposed on each prisoner.
  9. In Irai Thomas v The State (2007) SC867 the appellant convicted of murder for killing deceased who he suspected killed his father through sorcery. He was sentenced to 18 years but increased upon appeal to 22 years imprisonment.
  10. In The State v Baipa Martin & Ors (2008) N3312 (12 March 2008) the deceased was set upon at the funeral of one of the accuseds’ mother who was believed to be killed through sorcery. Sentences of 16, 22 and 24 years were imposed on the prisoners respectively.
  11. In The State v Mathias (2011) N4670 (09 September 2011) the two prisoners were part of a 40 men mob that removed the 3 deceased from the police station and a police man’s house and killed them. Sentences of 18 and 16 years respectively were imposed.
  12. In The State v Avana Latuve (No.2) (2013) N5406 (20 June 2013) the deceased was a reputed sorcerer in the community and the accused took lead in the mob killing of the deceased. 20 years imprisonment was imposed.
  13. In The State v Gladwin Balik Niaka (2014) N5581 (14 April 2014). The accused murdered the deceased because he had accused her of sorcery. 18 years imposed.
  14. The above cases all demonstrate that the Supreme and National Court view the sorcery related killing seriously and in recent years have responded by increasing their sentences in direct correlation to the increase of such cases, the abhorrence and outrage voiced both nationally and globally at the pervasive occurrence and statistics of these cases and further by the recent legislative imperative by Parliament in increasing the maximum penalty to one of death.
  15. The average sentence range is between 16 years to 25 years.

STEP 4: WHAT IS THE HEAD SENTENCE?


  1. The aggravating and mitigating factors that assist the court in arriving at what the head sentence should be are derived from a consideration of the particular circumstances in which an offender has committed an offence and which he has pleaded guilty to.
  2. The circumstances giving rise to the charge are sorcery related so in addition to my consideration of other mitigating factors I must consider the prisoners’ belief in sorcery. I highlight this consideration in the form of two questions:
  3. I propose to consider firstly the prisoners’ belief in sorcery.
  4. The prisoners through their counsel submitted in submissions on sentence their belief in sorcery as being the motive for their killing of the deceased and this was confirmed in their respective records of interview.
  5. The Supreme Court in the case of Acting Public Prosecutor vs. Uname Aumane & Others [1980] PNGLR 510, acknowledged that sorcery is only a belief and not a fact.
  6. In the case of John Baipu v. The State (supra) the Supreme Court expounded on the belief in sorcery and acting on it by stating, “A believe in the power of sorcery is a mitigating factor on sentence where that belief was submitted as being the cause of the offence. 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 defendant’s favour.”
  7. In the case of Irai Thomas v The State (supra) the Supreme Court reaffirmed its decision in John Baipu (supra) in the following manner, “As can be seen, these decisions stand for the proposition that, acting on a belief in sorcery can only operate as a factor in mitigation of the offenders sentence, just like all other mitigating factors that the Courts often take into account before passing sentence on offenders, provided the offender establishes the basis for holding and acting on such a belief. The mitigation only reduces the sentence from the prescribed maximum of death penalty (life then) to life imprisonment or a determinate term of years where such sentences are warranted”.
  8. Gabi. J (late) in The State v Malachi Mathias & John Giamalu (supra) stated, “To rely on sorcery, evidence must be called to establish the belief and there must be reasonable basis for the belief”.
  9. In the instant case I gave the defence counsel the opportunity to address the court on sentence and he applied for an order from the court for the Community Based Corrections Office to prepare a Pre-Sentence Report and did not specifically call evidence to establish the belief the prisoners had in sorcery at the material time. However I have found evidence of this belief in the statements collated in the Pre-Sentence Report which were obtained through interviews with two community leaders and a relative of the prisoners from their village of Popdubi.
  10. Firstly, Mr Yana Willie a community leader of Popdubi village, Salamaua was interviewed on 31 July 2018 and stated that the deceased was well known and feared by the community as a reputed sorcerer in the village. He said that the prisoners did what the villagers were supposed to do and that the community was behind them and supported them. That after the prisoners killed the deceased they went home and carried on with their daily activities until they were arrested. Further that the deceased’s family did not retaliate or ask for compensation and accepted what was done to the deceased because they all knew that he practiced sorcery. He volunteered to supervise the prisoners if they were given a suspended sentence.
  11. Secondly, Mr Leti James a Seventh Day Adventist Church Youth leader from Popdubi village was also interviewed on 31 July 2018 and confirmed that the deceased was killed because he had continued to practice sorcery in their community. It was fed up with him to the extent that they didn’t care if something bad happened to him. That the community had always been in fear of him and that after his death had started living normal lives again.
  12. Lastly, Mr Hobart Jerry a brother-in-law of the prisoners said the deceased was killed because the community had already made a stand to end the practice in their community. He said the village had experienced death after death in their community and were fed up. Essentially that the village had sanctioned his killing after a cousin of the prisoners had died under suspicious circumstances and the deceased was blamed for it.
  13. I accept that the offenders believed that the deceased was a reputed sorcerer in the village who they and other villagers believed responsible for many deaths in the village and they feared him. At the material time the deceased was suspected as being responsible for the death of someone very close to the offenders hence they went and cut him with bush knives causing grievous bodily harm to the deceased and he died.
  14. I answer the first question in the affirmative and will consider the second question.
  15. The Supreme Court in the case of John Baipu v. The State (supra) correctly qualified the belief in sorcery and its degree in mitigating a sentence by accommodating the advent of the effects of modernization throughout the length and breadth of this country in this manner:

"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 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."

  1. I hasten to add another factor and that is the advent of the digital era, cyber space and particularly the use of mobile phones and the availability on mobile phones of a whole host of sites both good and bad which essentially brings the world to the user at the tap of a fingertip.
  2. In applying the qualification set out in John Baipu (supra) I consider each of the prisoners:
  3. All prisoners were educated through the formal education system, are active members of the SDA church, are constituents of ward 5, Salamaua LLG and without doubt have been exposed to the influence of modernization and for these reasons it cannot be strongly argued that their belief in sorcery should hold sway. Indeed the opposite to this notion is applicable and that is the effect of the factors I have alluded which in my opinion dictate that their belief in sorcery has a diminished effect as a mitigating factor and is not special as a result and I treat their belief as another mitigating factor and this answers the second question.
  4. The aggravating factors are as follows: the offence is a prevalent offence; the offence was serious; the offence was pre-meditated and planned; the offenders used dangerous weapons to cut the deceased, they were acting in concert with one another, vicious attack on an unsuspecting unarmed man; the victim sustained numerous injuries; the attack was vicious, they did not assist the deceased to receive medical attention, all four offenders are educated and to that extent they are sophisticated persons who should have known better than to commit a crime.
  5. The deceased sustained numerous injuries and the determination of the offenders to cause him grievous bodily harm is evidenced by the nature of the injuries he suffered. The deceased suffered the following injuries and died:
  6. Mitigating factors.
  7. I note in this matter that the aggravating factors outweigh the mitigating ones. The prevalence of this type of offence increases at an unabated rate in this country today despite the best of efforts to deter or minimize it.
  8. I note the offenders’ co-operation with police at the early stages of investigation and the extenuating circumstance that the deceased was a reputed sorcerer allegedly responsible for the deaths of village people. Whilst I accept their expressions of remorse as genuine and what appears to be a sanctioning of the killing of the deceased by the offenders by the villagers of Popdubi even by his own relatives, I note his wife has lost a husband, a soul partner and supporter and his daughters a father and it is them who will bear for the rest of their lives the pain and loss of the deceased in a lot of ways as a result of the prisoners’ decision to terminate his life in this manner and not respect the sanctity of life. I acknowledge that in Popdubi village the deceased was a reputed sorcerer and feared by its villagers and the offenders as being responsible for deaths in the village but this belief did not in any way or form give any right whatsoever to the offenders to kill him. Indeed if I was to accept their belief as a special mitigating factor I would inevitably be legitimizing their actions and lending such killings a veil of credibility that could easily be interpreted as licensing the killing of reputed sorcerers and people suspected of sorcery. The Lord giveth and the Lord taketh.

While in this vein I note what Injia J (as he then was) said in the matter of The State v Boat Yokum and Eight Others [2002] N2337, which in my opinion is the correct approach to sentencing in sorcery related killing and which I endorse as the premise from which sentencing courts in such cases should start:

"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."

  1. The Supreme Court in the case of Acting Public Prosecutor v Uname Aumane & Ors (supra) reasoned that “customs should not override the clear dictates of the Parliament that those who commit the crime of wilful murder attract to themselves the possible penalty of imprisonment with hard labour for life...”
  2. I note that since the Aumane (supra) case the belief in sorcery as a special mitigating factor has been given less weight by the courts and sentences have increased but that belief in sorcery nevertheless remains a mitigating factor.
  3. The courts continued to deal with cases of killings prompted by beliefs in sorcery from the 1980s upwards and in 2007 these cases were reviewed by the Supreme Court in 2007 in the case of Irai Thomas v State (supra). The National Court imposed 18 years on him and he appealed and the Supreme Court substituted that sentence with 22 years. Upon reviewing sentences in other sorcery related homicide cases the Court said that “...after the clarification we have endeavoured to make in this judgment, we expect sentences to be in the range we have suggested, that is, between the prescribed death penalty and life imprisonment or something very close to it, given the seriousness of the offence”.
  4. The sentencing trend that sufficed in review by the Court was most of the sentences were around 20 years. In plea cases to the charge of Wilful murder saw 15 and 16 years in the case of The State v Francis Kuta Amet & Ors CR 1418 of 2002 & CR 688 of 2003, unreported. The highest reviewed was in the case of John Baipu v The State (supra) where the National Court imposed a sentence of life imprisonment which the Supreme Court on appeal had it reduced to 25 years.
  5. The sentencing trend in homicide cases involving belief in sorcery and killing of person(s) suspected of practicing sorcery is 20 to 25 years. That is very close to a life year imprisonment and so it can come within the Supreme Court’s enunciation in Irai’s (supra) case that “we expect sentences to be in the range we have suggested, that is, between the prescribed death penalty and life imprisonment or something very close to it, given the seriousness of the offence”.
  6. The head sentence I impose is guided by the Supreme Court case of Irai Thomas v State (supra) that I have discussed. In this case the Supreme Court noted that the trial considered the sentencing guidelines of Manu Kovi v State (supra) and thereafter sentenced the appellant to 18 years which was increased on appeal to 22 years.
  7. “Something very close to life imprisonment” connotes a term of years. What then would be the term of years close to life depends on the average life span of a person which further depends on other factors peculiar to a case.
  8. The case before me does not fall into the worst category of cases but in my opinion finds itself at the lower range of the Manu Kovi (supra) category 3 of cases.
  9. The instant case before the court is a guilty plea to Murder and the head sentence is 20 years.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?


  1. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

  1. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
  2. The offenders spent one year and 23 days in custody and it is proper that this period is deducted.

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


  1. The PSR recommends all the offenders as suitable candidates for Probation Supervision. And it cites the reasons for its recommendation as being, the offenders’ lack of prior convictions, the community’s sanctioning of the killing (I take this to mean that the community is willing to accept them into the community and manage them whilst on probation), remorsefulness and contrition by the offenders and the willingness of the community leader at Popdubi village to be a Voluntary Probation Officer to monitor and supervise them on a weekly basis and make monthly reports to the Community Based Corrections office in Lae.
  2. There are sufficient Supreme and National Court authorities that provide that not only is sentencing a community responsibility but that it is incumbent upon the sentencing Courts in discharging this duty when exercising this people’s power to reflect their attitude towards a particular offence and impose a sentence that is correspondent to it. In Acting Public Prosecutor v. Don Hale (27/08/98) SC 564, the Supreme Court said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The Supreme Court in that case said:

“If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So, community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

  1. In The State v Irox Winston (N2347) [2003] Kandakasi. J, going by the authority of the Don Hale (supra) case held that:

"...If the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court cannot arrive at such a sentence."

  1. The above views were endorsed by the Supreme Court in two subsequent judgments in Edmund Gima v The State & Siune Arnold v The State.
  2. His Honor Cannings. J held in the case of The State v Raka Benson [2006] PGNC 68 CR 447, 445 that:

"...where there is no pre-sentence report supporting a suspension of sentence, no Court can suspend either the whole or a part of any sentence. The question then is, should the Court proceed to suspend any sentence merely because a PSR speaks in favor of it. In my view, that would not be in line with the intent and purpose of requesting and considering a PSR, which is to ensure that there is basis in the report for a suspension of any sentence. It follows therefore that, where there is no proper foundation for a recommendation for suspension of sentence, the Court cannot proceed to suspend because there is no basis for any suspension of sentence".


  1. A summary of the principles enunciated in these cases are as follows:-
  2. I have considered the above discourses by both the Supreme and National on suspension of sentences and I am of the view that the deterrence and retribution purposes of sentencing must feature more prominently over that of rehabilitation in the sentence. The reason for this is that people in the community both in rural and urban settings must be made aware that when a death occurs in their midst and sorcery is suspected they have no right to conduct “kangaroo courts” under the pretext of trying to establish the cause of death. Recent history in this country has shown that more often than not this leads to the marginalized members of the community being singled out, interrogated, tortured and then brutally attacked in the most unimaginable ways when they “confess” under duress thinking that such a confession will be their saving grace from further torment. Their constitutional right to life is not respected at all when death occurs nor their right to full protection of the law. In the instant case the offenders were informed by the community that the deceased was responsible for the recent deaths of an uncle and a brother and when they came upon the deceased at his home early in the morning in pursuit of their plan to attack him they saw him moving his hands around in the air and took this as a confirmation of sorcery. I find this reason most ridiculous and certainly flies in the face of their professed Christian belief. Was he doing morning stretch exercises like “Tai Chi”, whatever he was doing will never be known as he has been deprived of his life unlawfully by the offenders. It is for these reasons I consider that deterrence and retribution must hold sway over rehabilitation and so I will only suspend part of their sentence in view of the mitigating factors in their favour.
  3. I am fortified in my reasoning by what the Supreme Court pointed out in Uname Aumane & 3 Ors (supra) that a belief in sorcery need not be overemphasised when considering an appropriate sentence. Further that because a belief in sorcery was only a belief and not a fact a person who is accused or suspected of engaging in sorcery has a constitutionally guaranteed right to full protection of the law.
  4. I note the prevalence of this type of offence, the fact that it continues to increase at an unabated rate despite the best of efforts to curb it and the unimaginable levels of brutality involved. It seems like this country despite 43 years of independence and over 150 years of Christian and western influence is digressing to days of Medieval Europe where suspected witches were burnt alive at stakes. It is for the aforementioned reasons above and the circumstances of this case, there should only be a partial term suspension conditionally.
  5. The offence is prevalent and there needs to be deterrent sentence to deter likely-minded persons in the community.
  6. Therefore the sentence I impose is one which will serve the purposes of sentencing of Deterrence and Retribution and Rehabilitation.
  7. I suspend 2 years 1 month and 22 days of the sentence subject to the following condition:

SENTENCE


  1. The orders of the Court are as follows:
Length of Sentence imposed
20 years
Pre-sentence period to be deducted
1 year 10 months 22 days
Resultant length of sentence to be served
18 years 1 month 11 days
Amount of sentence to be suspended
2 years 1 month 11 days
Time to be served in custody
16 years to be served at Buimo Correctional Institute.
Bail
NA

  1. Sentence accordingly.

REMARKS


  1. In passing I note that the Sorcery Act was repealed by the National Parliament and in my view this created a void in terms of a legal recourse for people aggrieved by the actions of persons suspected of sorcery.
  2. It is imperative that our legislators legislate a law to fill in this void so people have recourse in law to deal with such situations and are not left to their own devices, the consequences of which can be seen being played out in the most tragic circumstances today.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders

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