State v Damanin (No. 2) [2020] PGNC 210; N8420 (14 July 2020)

N8420

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 424 OF 2015

THE STATE

V

JOEL DAMANIN
(No 2)

CR NO. 425 OF 2015

THE STATE

V

CECIL KINGSFORD
(No 2)

Alotau: Toliken J
2020: 14^th July

CRIMINAL LAW – Sentence – Wilful Murder on account of accusation of sorcery– Whether death penalty mandatory – Death penalty not mandatory – Court’s discretion under Section 19 (1)(aa) of Criminal Code not removed by Legislature – Criminal Code, ss.19, 229A.
SENTENCE – Wilful murder on account of accusation of sorcery – Sentence after trial – Deceased spears prisoner on thighs and tries to escape – Cut on leg by co-prisoner – Crawls away to escape - Prisoner spears deceased on the back and neck and smashes rock on head –Whether death penalty appropriate – Not appropriate – Aggravating and mitigating factors and extenuating circumstances taken into account – Appropriate sentence – 25 years less time in pre-trial/sentence detention – Nil suspension.
SENTENCE – Alternative count of murder on co-prisoner – Sentence after trial – Co-prisoner cuts deceased on leg and leaves scene – Takes no further part in killing of deceased – Mitigating and Aggravating factors and degree of participation considered – Appropriate sentence – 20 years less time in pre-trial/sentence detention – Nil suspension.
Cases Cited:

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Andrew Uramani & Ors v The State [1996] PNGLR 287
Enforcement of Basic Rights under Section 57 of the Constitution of the Independent State of Papua New Guinea; In re (2017) N6939
Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC 705
GoliGolu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Irai Thomas v The State (2007) SC867
John Baipu v The State (2005) SC796
Joseph Nimagi& 2 Ors v State ( 2004) SC 741
Kesino Apo v The State [1988] PNGLR 182
Luke Koit Bawas & Roger Gawi Kiandu; SC Reservation No. 1 of 2017 (unnumbered and unreported judgment dated 12^th December 2017).
Loke Ume v. The State (2006) SC 836
Manu Kovi v The State (2005) SC 789
Sanawi v State (2010) SC1076
Sedoki Lota v The State; SCRA 31 of 2007 (unnumbered and unreported judgment dated 20 September 2018)
Ure Hane v The State [1984] PNGLR 105
Reservation (Pursuant to Section 21 of the Supreme Act), In The Matter of National Court Proceedings CR No. 1663 & 1675 of 2016 Between The State v The State v Sagalol (2018) N7353
The State v Nohuta(2016) N6464
The State v Toropo (No.2) (2015) N6013
The State v Gladwin BalikNiaka (2014) N5581
The State v AvanaLatuve (No.2) (2013) N5406
The State v Aiya (2013) N5198
The State v Mesuno&Ors (2012) N4702
The State v Baika Martin &Ors ((2008) N3312
The State v Waninara (No.3) (2007) N3280
The State vs. Sedoki Lota and Fred Abenko (2007)N3183
The State v John KanuaSiune& Kenneth KundaSiune (2006) N5014
The State v Maraka Jackson (2006) N3237
The State v Wilfred OpuYamandeN'danabet (2004) N2728
The State v Boat Yokun and eight Others [2002] N2337
The State v Joseph Nimagi and 2 Others[2002] N2312,
The State v Baina Benny & 4 Ors; CR NO. 150 – 153 Of 2015, CR NO. 885 of 2015 (unnumbered and unreported judgment dated 19^th September 2018)
The State v Joel Damanin; CR No. 424 of 2015;
The State v Cecil Kingsford; CR No. 425 of 2015 (unreported and unnumbered judgment dated 11^th September 2018) for judgment on verdict)
Wingkeok Pitaneoc and Boiyo Kaninga (2004) N2514

Overseas Cases:
Dawson and Gaudron, JJ in Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Counsel:

A. Kupmain, for the State
P. Palek, for the Prisoners

JUDGMENT ON SENTENCE

14^th July 2020

1. TOLIKEN J: The prisoners Joel Damanin and Cecil Kingsford were each and severally indicted for one count of wilful murder on account of accusation of sorcery pursuant to Section 299A of the Criminal Code Ch. 262. After trial I found Cecil Kingsford guilty and convicted him accordingly. For Joel Damanin I, however, returned an alternative verdict of murder instead in contravention of Section 300(1)(a) of the Code. This is my sentence.

FACTS

2. The brief facts for the purpose of sentencing are as follows: The deceased, Norman Buka, was a reputed sorcerer and was alleged to have caused the illness and the deaths of several people at Nawandowan village, Rabaraba, Alotau District, Milne Bay Province. The latest accusation was that he was responsible for the illness of Joel Damanin’s wife, and of being seen around Damanin’s house on three consecutive nights prior to his killing. Both accused are related to the deceased and were concerned about the deceased’s alleged activities. On the morning of 08^th October 2013, Cecil Kingsford went up to the deceased’s hamlet at Bondiri and confronted the deceased over these allegations.

3. The deceased, however, attacked him, spearing him on his thighs with a spear and missed him with another. The deceased then ran back into his house and locked himself in. He then cut a hole in the wall to escape and as he stepped out of the hole, Joel Damanin, who arrived at the scene to see what was happening, cut his leg with a bush knife and then immediately left the scene.

4. The deceased crawled away from the house to escape into the nearby bushes. Cecil Kingsford followed him and speared him twice with two spears on the chest and neck. He then picked up a rock and smashed it on the deceased head. The deceased died as a result. (See The State v Joel Damanin; CR No. 424 of 2015; The State v Cecil Kingsford; CR No. 425 of 2015 (unreported and unnumbered judgment dated 11^th September 2018) for judgment on verdict))

THE OFFENCE

5. The offence of wilful murder of a person on account of accusation of sorcery, for which I have convicted Cecil, is a new offence, introduced in to the Code by Criminal Code (Amendment) Act 2013, No.6, Section 1 of which provides :

SECTION 299A. WILLFUL MURDER OF A PERSON ON ACCOUNT OF ACCUSATION OF SORCERY.\

(1) Any person who intentionally kills another person on account of accusation that the person is practicing sorcery, is guilty of wilful murder and shall be sentenced to death.

(2) For purposes of Subsection (1), "sorcery" includes (without being exhaustive and exclusive) what is known, in various languages and parts of the country, as witchcraft, magic, enchantment, puripuri, muramuradikana, vada, meamea, sanguma, or malira, whether or not connected with or related to the supernatural.

6. The offence of murder on the other hand is provided by Section 300 of the Code. Subsection (1)(a) relevantly provides:

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.

SENTENCING ISSUES

7. The issues for my determination in respect of the prisoners’ offences are:
Are these worst cases that ought to attract the maximum penalties of death and life imprisonment respectively? If it not what should be an appropriate sentence in each case?

8. To be fair on the prisoners, I will consider their cases separately, bearing in mind of course their respective degrees of participation in the commission of the crime.

GENERAL SENTENCING PRINCIPLES

9. While the prisoners may be liable to be sentenced to death or life imprisonment as the case may be, it is trite that the maximum penalty – for any offence – is reserved for the worst instances of offending. It is also trite that an offender must be served a sentence that is proportionate to his crime according to its seriousness, the circumstances under which he committed the crime and his personal circumstances. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)

10. Furthermore, while Gimble v The State [1988-89] PNGLR 271, stands for the principle that co-offenders ought to receive the same sentences so that equal justice is served, hence, the principle of parity, circumstances including the respective offender’s degree of participation and culpability in the crime may well justify disparity. The Statement by Dawson and Gaudron, JJ in Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, at 301 – 302stands for this principle. They said -

"The parity principle ... is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..

11. The above statement has been adopted and approved in this jurisdiction in cases such as, The State v Boat Yokun and eight Others [2002] N2337, The State v Joseph Nimagi and 2 Others [2002] N2312, Andrew Uramani & Ors v The State [1996] PNGLR 287 and Sanawi v State (2010) SC1076.

12. Wilful murder of a person on account of accusation of sorcery is a new category of homicide. It is not a simple form of aggravated wilful murder, but a completely new offence which Parliament enacted in direct response to the spate of sorcery related killings in the country which have attracted attention and condemnation, both domestically and internationally. Apart from the basic elements for the offence of wilful murder it adds the additional element of accusation of sorcery as the reason for the killing.

13. As we can see Subsection (1) of Section 299A provides that a person convicted of this offence “shall be sentenced to death.” This is to be contrasted with the offence of wilful murder under Section 299 of Code which provides that a person guilty of wilful murder “shall be liable to be sentenced to death.”

PRELIMINARY ISSUE - Whether Death Penalty Is Mandatory

14. This therefore raises a preliminary issue – whether the death penalty under Section 299A is mandatory. I invited submissions from counsel on this point and heard counsel.

15. Mr. Kupmain for the State submitted that Parliament had removed the discretion this Court has to impose a life sentence or a term of years instead of death under Section 19(1)(aa) of the Code. This, counsel said, is apparent from Parliament’s use of the term “shall be sentenced to death” for this new offence as opposed to the penalty for wilful murder where the term “shall be liable to be sentenced to death.” By the use of mandatory language in Section 299A, counsel submitted that Parliament had expressly removed the court’s discretion. Counsel submitted further that this position is supported by policy considerations behind the creation of this new offence: Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705. And while the prisoners are entitled to the full protection of the law (Section 37 of the Constitution) Parliament has decreed that those who wilfully take life on account of accusation of sorcery must be sentenced to death and it removed the court’s discretion to impose a term of years instead. (Enforcement of Basic Rights under Section 57 of the Constitution of the Independent State of Papua New Guinea; In re (2017) N6939)

16. Mr. Palek, for the prisoners submitted on the other hand that the Court’s power under Section 19 (1)(aa) of the Code had not been expressly removed by Parliament when it created this new offence. While Subsection of Section 299A of the Code does provide that a person convicted of wilful murder on account of accusation of sorcery “shall be sentenced to death” it does not go further to expressly remove the Court’s discretion under Section 19(1)(aa) of the Code by a consequential amendment to this provision. Among other authorities, Mr. Palek relied on the recent case of Reservation (Pursuant to Section 21 of the Supreme Act), In The Matter of National Court Proceedings CR No. 1663 & 1675 of 2016 Between The State v Luke Koit Bawas & Roger Gawi Kiandu; SC Reservation No. 1 of 2017 (unnumbered and unreported judgment dated 12^th December 2017).

17. There His Honour Pitpit J reserved three questions to the Supreme Court for its opinion. The questions were:

Whether the Court or judge has a discretion under Section 19 Subsection (1)(aa) [of the Criminal Code] when sentencing a person, convicted on an indictment of an offence punishable with death to impose any other form of punishment other than life imprisonment or any short term of sentence.

If negative, then, is Section 19(1)(aa) and the other subsequent restrictive provisions under the Criminal Code inconsistent and or contrary to the principle of separation of power as referred to under s.99(j) of the Constitution and thus, constitutionally invalid?

Whether Section 19(1)(d), (f) and subsection 6 of the Code are restricted and limited to the exercise of the Court's discretion to impose a penalty other than a shorter term of imprisonment only and no more.

18. In an unanimous decision, the Supreme Court (Injia CJ, Salika DCJ (as he then was), Gavara-Nanu, Batari and Mogish JJ) answered the first question in the affirmative, essentially approving and following what the court had held in Steven Loke Ume v. The State (2006) SC 836 - that notwithstanding the use of the word “shall be sentenced to death” the sentencing court’s discretion under Section 19 (1)(aa) of the Code has not been removed without a consequential amendment to Section 19 of the Code or by employing unambiguous language to limit the sentencing court’s power in the newly introduced offence.

19. If indeed Parliament had intended to remove the court’s discretion to impose a term of years instead of imposing the death penalty, I might add, then it could have done either of these two things. But it did not. The use of the word “shall” in Section 299A (1) is therefore merely directory and not obligatory or mandatory.

20. Having answered the first question in the affirmative the Supreme Court held that it was not necessary to answer the second question. It did, however, answered the third question in the affirmative. And this means that the sentencing options open to a sentencing court is not restricted to a term of years. 21. The court is at liberty to impose any other sentences as the circumstances of the case before it warrants.

22. It is to be noted that the questions referred by Pitpit J were couched in broad terms and may be correctly understood to cover all the amendments in that Amending Act which included the new offence of wilful murder on account of accusation of sorcery (s 299A).

23. The preliminary issue having been thus authoritatively settled by the Supreme Court, there is no question therefore that the Court has discretion to impose either the maximum penalty or a term of years as the circumstances of the case demands. That being the case, the normal sentencing considerations and principles must apply.

CASE FOR CECIL KINGSFORD

24. I will now consider the case for Cecil Kingsford and I do so, firstly, by way of a discussion on the prevailing sentencing principles and guidance for wilful murder generally.

Sentencing Guidelines - Wilful Murder

25. The wilful and unlawful taking of a human life is a seriously grave offence which historically has always attracted the ultimate penalty in almost all societies.

26. The modern Papua New Guinea position has changed several times from the original position at the time of adoption of the Queensland Criminal Code 1899 to the territories of Papua and New Guinea where the death penalty was prescribed. A subsequent post -independence amendment to the Code saw the repeal of the death penalty and its replacement with life imprisonment. (Act No. 2 of 1976). However, owing to the escalation of the offence, Parliament reinstated the death penalty in 1991. (Act No. 25 of 1991, s2) See Steven Loke Ume v The State (2006) SC 836 for an informative history of the death penalty in Papua New Guinea.

27. However, Parliament has again amended the Code by creating a new offence – Wilful murder of a person on account of accusation of sorcery –for which the penalty is prescribed in mandatory terms as death. This was a direct response to the sudden escalation of sorcery related killings (s 299A, Criminal Code (Amendment) Act 2013, s1).

28. The Supreme Court over the years has set guidelines and principles and tariffs for wilful murder and has categorized what it considered to be the most serious types of murder. In Ure Hane v The State (supra) the Supreme Court (Bredmeyer, McDermott, Woods JJ) held that “when considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, insofar as the law allows, categorise those “worst type” cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender.”

29. Bredmeyer J at p. 107 said that:

“... we should distil from our own experience ... what are the most serious categories of wilful murder which merit the most severe punishment. ... New situations will arise, new kinds of murders will be committed; certain kinds of murders may become more or less prevalent or more or less serious. Papua New Guinea has not hitherto had many murders caused by firearms or explosives for example. Social values are changing and will change in Papua New Guinea and the judges’ values change and will change. I hope, on matters of sentence, that judges’ attitudes will change with and reflect the best of society’s changing values.”

30. His Honour’s reference to new kinds of murders being committed and changing social values, and his Honour’s desire for judges to change their attitudes on matters of sentencing, has materialized in the creation by Parliament of a new category, if not, a new form, of wilful murder in Section 299A of the Code. It was in response to a new trend of behaviour that has the potential of causing untold devastation in our communities and the extra-judicial execution and torture of countless innocent victims given the pervasiveness of the belief in sorcery.

31. His Honour then enumerated 8 types of wilful murder which he said could be regarded as the most serious. These are:

(1) A wilful murder done in the course of committing a theft, a robbery, a break and enter, or a rape.

(2) A wilful murder of a policeman or a prison warder acting in the execution of his duty.

(3) A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody.

(5) A payback killing of a completely innocent man.

(6) Any second or third murder.

(7) Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.

(8) A wilful murder of the Governor-General, the Prime Minister, the Leader of the Opposition, the Speaker of National Parliament, the Chief Justice, a Bishop, a visiting Prime Minister, the Pope, or other V.I.Ps.

32. This classification of different types of murder was, however, roundly criticized by another bench of Supreme Court in Joseph Nimagi & 2 Ors v State ( 2004) SC 741 (Sevua, Kandakasi, Lenalia JJ). The bench there said:

The Supreme Court and even the National Court have always been inundated with references to Goli Golu v. The State, [1979] PNGLR 653; Ure Hane v. The State, [1984] PNGLR 105; and The State v. Laura No 2, [1988-89] PNGLR 193,in particular the categorization of the types of murders and the sentencing tariffs established by those and other cases. 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 (supra), 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.

33. Those concerns may have been partially addressed by the Supreme Court in Manu Kovi v The State (2005) SC 789 (Injia DCJ (as he then was), Lenalia, Lay JJ). There the Court reviewed the prevailing sentencing trend and principles and promulgated guidelines for manslaughter, murder and wilful murder. It provided 4 categories for each offence and provided the sentencing range for each category according to the seriousness of the offending. For wilful murder Manu Kovi provided the following tariffs:

Category One – On plea where there are mitigating factors with no aggravating factors i.e. No weapons used, little or no planning, minimal force used and absence of strong intent to kill - 15 to 20 years.

Category Two – On trial or plea where there are mitigating factors as well as aggravating factors. Where there was pre-planning, vicious attack, weapons used and strong desire to kill - 20 to 30 years

Category Three – On trial or plea where there is special aggravating factor and the mitigating factors are reduced in weight or rendered insignificant by gravity of offence. Brutal killing in cold blood, killing of innocent defenceless and harmless person, dangerous or offensive weapons used, killing accompanied by other serious offence, victim young or old, pre-planned and pre-meditated killing - Life imprisonment.

Category 4 – On trial or plea where there are special aggravating factors, no extenuating circumstances, no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the offence – Death.

34. In Steven Loke Ume (supra, per Kapi CJ, Injia DCJ (as he then was), Los, Hinchliffe, Davani JJ.)), decided a year later the Supreme Court again had the occasion to review the existing guidelines for wilful murder and held the death penalty may be imposed in the following circumstances:

The killing of a child, a young or old person, or a person under some disability needing protection.

The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager.

Killing of a leader in government or the community, for political reasons.

Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.

Killing for hire.

Killing of two or more persons in the single act or series of acts.

Offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence.

The prisoner has prior conviction(s) for murder offences.

35. This, however, does not mean that the death penalty will be imposed every time one of these consideration features in a case. That is because the death penalty for wilful murder is not mandatory. Hence, the sentencing court still retains its discretion under the Code (s 19) to impose a life sentence or a term of years or other options available to it under Section 19(1)(aa) of the Code as dictated by the facts and circumstances of the case before it. More is therefore needed than the mere presence of one or more of the above considerations.

36. The Supreme Court there also said that the death penalty is “qualitatively” different from other types of punishment and may only imposed in the most exceptional cases were the aggravating features are exceptionally grave. At paragraph 66 of its judgment the court said:

66. It is difficult to lay down any universal principle of general application as to the kind of intentional killing which may warrant the death penalty. Each case will depend on its own facts. In general, considering that the death penalty is “qualitatively different” from any other penalties for wilful murder and that in our Criminal Code the death penalty is limited to only three crimes considered to be the most serious crimes, we consider the death penalty may be considered appropriate in a wilful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, consciousless [conscienceless?], “senseless”, “pitiless” and “unnecessarily torturous”: see Profitt v Florida 428 US 249 at 255. The crime is committed “by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning”. Regina v Peter Ivoro, per Prentice J, at p.388-389. The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances.”

37. Hence, for the death penalty to be imposed the killing must have also been pre-meditated, vicious and brutal and done in cold blood, the victim was innocent and defenceless or harmless, or a person in authority or position of responsibility in the community, there was complete and blatant disregard for the sanctity of human life and there was no motive or lawful motive for the killing. The killing must also be “unthinkable, [conscienceless], senseless, pitiless and unnecessarily tortuous” and perhaps if I might add, gruesome or barbaric.

38. Recently the Supreme Court yet again had occasion to again comment on the imposition of the death penalty. In Sedoki Lota v The State; SCRA 31 of 2007 (unnumbered and unreported judgment dated 20 September 2018), per Injia CJ, Batari, Yagi, Kariko, Bona JJ.), the Full Bench in their joint judgment said:

7. The exercise of sentencing discretion is a balancing act between extenuating circumstances and mitigating factors on one hand and aggravating factors on the other. There is a judicial discretion to be exercised in deciding whether the death penalty is appropriate in a killing that falls under the types of killing identified in Ume & 2 others v The State and that involves a consideration of all relevant matters.

8. With regard to extenuating circumstances, Manuhu J in The State v WingkeokPitaneoc and BoiyoKaninga [2004) N2514 observed:

" The death penalty; being a fixed penalty, means that all considerations of sentence for wilful murder always begins with the death penalty; and the only exit from the death penalty is Section 19 in particular; it has to be established whether there are "extenuating circumstances such that it would not be just to inflict the punishment of death". There has to be "the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense, but broadly, regard being had not only to moral considerations, but to all considerations, which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour and the punishment of death inflicted." This approach was followed in The State v David Kana Mesu and The State v. YakotoImbuni&Ors."

Having said that, it is necessary to understand the types of circumstances that may be considered as extenuating circumstances. In Regina v Peter Ivoro, extenuating circumstances, include: primitiveness, tribal custom demanding killing, lack of formal education, primitiveness, force of custom, ignorance, upbringing, obedience to tribe, lack of sophistication, remoteness, and youthfulness "

39. And further down in paragraph 15 the court went on to say:

15. Sorcery-related killings is a serious type of killing that in itself should attract a strong deterrent and punitive sentence because of its prevalence in communities throughout Papua New Guinea and the national community's disapproval and condemnation of such barbarous act. The days when sorcery-related killings were once considered by the Courts and Judges to be an extenuating circumstances and mitigating factor are long gone. The use of sorcery is now regarded by the Courts as an excuse to harm and kill innocent people and treated as a serious aggravating factor. (Underlining added)

40. Clearly then, the principles that ensue or derive from the above cases are that in respect of wilful murder (or another offence for that matter), the consideration must always begin with the maximum – the death penalty. Whether the death penalty is mandatory, which fortunately is not the case with wilful murder under Section 299 or wilful murder on account of accusation of sorcery under Section 299A, the Court will of course have no discretion to impose anything less. But even where there is discretion, the starting point must always be the maximum penalty. And to justify the imposition of the death penalty the court must of course be satisfied that circumstances of the case before it stands at the very top – displaying a combination of those characteristics enumerated in the above authorities such as pre-mediation, viciousness, brutal killing of innocent and defenceless persons, or a person in authority or position of responsibility in the community, killing of multiple victims, prior homicide convictions, and complete and blatant disregard for the sanctity of human life. The killing must have been so unthinkable, conscienceless, senseless, pitiless and unnecessarily torturous. In such cases an offender may very well be deserving of the death penalty. Where none of the circumstances mentioned here are present then, it naturally would follow that the court may in its discretion impose a life sentence or a determinative term of years.

41. It is also well settled now that belief in sorcery can no longer be considered an extenuating circumstance regardless of how pervasive and entrenched the belief may be. By creating the new offence of wilful murder on account of accusation sorcery, Parliament has given legislative force to judicial pronouncements in this regard and there can no longer be any room for doubt as to whether or not belief in sorcery for homicide offences is an extenuating circumstance let alone a special mitigating factor. This is because the belief in sorcery and acting upon that belief is an essential element of the offence.

Sentencing Trend

42. The Law Reports are replete with cases of wilful murder and other homicide offences. Both counsel in this case cited several cases to assist the Court in determining appropriate sentences for the prisoners. I have no intention on relying on all those cases. Instead I will have recourse only to those that are sorcery related to show what the sentencing trend had been.

43. The State v Avana Latuve (No.2) (2013) N5406: This was a trial for wilful murder I heard in Popondetta where I sentenced the prisoner to 20 years imprisonment. There the deceased was also a reputed sorcerer. He was suspected by his village community of killing 34 people through sorcery among other wrongs. He was chased and attacked by the whole village who eventually stoned him to death. The attack was instigated by the prisoner and even though there was no evidence showing what he actually did to the deceased, I found that he took the leading role in the death of the deceased and that he had a very strong intention to kill among other aggravating factors.

44. The State v Aiya (2013) N5198 (Gauli AJ): The offender there was found guilty after trial for the wilful murder of a suspected sorceress. He was in the company of two other persons armed with guns and an axe. They went to the deceased’s house and found her in the presence of several other persons and slashed her with bush knives. Before they attacked her the offender singled out the deceased and told her that she was sorceress and that they had come to kill her. He then pulled out his bush knife and cut her on her hand as she lifted her hand to deflect the blow. One his accomplices then came in and cut her on the neck and as blood was gushing out from the deceased the other accomplice came and cut her on the head. Even though a first-time offender, the offender was sentenced to 30 years imprisonment.

45. The State v John KanuaSiune& Kenneth KundaSiune (2006) N5014 (Cannings J): The two offenders were convicted after a trial for murdering a man they suspected of killing a friend of theirs by sorcery. It was a mob attack. The victim was bashed to death. They were sentenced to 25 years.

46. The State v Maraka Jackson (2006) N3237 (Kandakasi J): The offender pleaded guilty to one count of murder. He had suspected the deceased, a Village Magistrate, for killing his brother by means of sorcery and that he was also going to kill him in a similar manner. So, to prevent the deceased from killing him too he and a friend walked 5 - 6 kilometres to the deceased's village. The deceased had just awoken from sleep and as he came out of his house, the offender, who had been hiding, sprung out and without warning cut the deceased twice on his neck with a bush knife. His Honour sentenced the offender to 24 years less the period spent in pre-trial custody.

47. John Baipu v The State (2005) SC796 (Sevua, Sawong and Lay JJ): The appellant was convicted on a guilty plea and sentenced to life imprisonment. He believed that his pregnant wife and father were killed through sorcery. He had lodged a complaint with Village Court officials more than a year before he committed the offence where he had undertaken not to attack the suspected sorcerers. He, however, attacked his 70 years old uncle (one of the suspects) with a bush knife cutting him on the arms and legs and left him to bleed to death. The trial judge held, among other things, that this was not a case in which great weight could be placed on the mitigating effect of the belief in sorcery and sentenced the offender to life imprisonment. However, on appeal, the Supreme Court reduced the sentence to 25 years in hard labour.

48. Irai Thomas v The State (2007) SC867 (Kandakasi, Lenalia and David JJ): The appellant was convicted of wilful murder of a person he suspected of killing his father by sorcery. He was sentenced to 18 years imprisonment by the National Court but on appeal the sentence was increased to 22 years. The victim was an elderly woman. The court noted that the offender killed the deceased even though there was no basis for the claim that she had killed his father.

49. The State v Baika Martin &Ors ((2008) N3312 (Kandakasi J)): A mother of one of the offender was believed to have been killed through sorcery by the deceased. While the prisoners were mourning her death, the deceased walked into the house. The prisoners set upon him with axes, bush knives and a piece of black palm stick and brutally and mercilessly killed him in the full view of a lot of people. The prisoners were sentenced to 16, 22 and 24 years respectively.

50. The State v Wilfred Opu Yamande N'danabet (2004) N2728 (Davani J): There the offender believed that the deceased, who was his brother- in-law, killed his brother by sorcery. The prisoner alleged that the deceased told others that he would kill the prisoner by sorcery and he had to kill the deceased before the deceased killed him. The court found that the prisoner killed the deceased because of his belief in sorcery. The prisoner used a knife to stab the deceased on the back and the neck. He was sentenced to twenty (20) years imprisonment.

51. The State vs. Sedoki Lota and Fred Abenko (2007)N3183(Sevua J): There the offenders, who believed that their parents were killed by the deceased through sorcery, pleaded guilty to wilful murder of a reputed sorceress. Acting on an order or direction by a Village Court Magistrate, they entered the deceased's house, tied both her hands, blindfolded her, and then chopped off her head with a knife. The trial judge accepted that the belief in sorcery could be a mitigating factor but stressed that the circumstances of the killing were so callous and unimaginable, was a premeditated execution-style killing in which the culpability of the offenders was so grave that it warranted the death penalty. On appeal the Supreme Court, however, quashed death sentence and substituted it with a life sentence instead. (Sedoki Lota v The State; SCRA 31 of 2007 (unnumbered and unreported judgment dated 20 September 2018, per Injia CJ, Batari, Yagi, Kariko, Bona JJ.)

52. The State v Mesuno &Ors (2012) N4702 (Kangwia AJ): There the four offenders which included a 17 year old juvenile were convicted after trial for the wilful murder of a pastor who was related by blood to them. The offenders’ families had blamed the deceased for causing the death of some 16 relatives of theirs, including the son of one of the offenders by means of sorcery. On the day of the killing the deceased had returned to the village from Lae with his 5 year old son. That night the offenders and others attacked him about 100 meters from his house with bush knives and shot him on the head with a homemade pistol in front of his son. After killing him they secretly buried the body without telling family members. The body was later exhumed with the help of the police. The autopsy report attributed the death to bush knife wounds to the legs and a gunshot wound on the head.

53. After considering the mitigating and aggravating factors His Honour chose not impose the death penalty, holding that it would be grossly unjust to do so given the fact that they were all first time offenders. The three adult offenders were then sentenced to 34 years. As for the juvenile offender, even though the court did not consider the provisions of the Juvenile Courts Act appropriate in sentencing him, he was nonetheless sentenced to 17 years due the lesser degree of participation he played in the killing.

54. The State v Baina Benny & 4 Ors; CR NO. 150 – 153 Of 2015, CR NO. 885 of 2015 (unnumbered and unreported judgment dated 19^th September 2018): There the deceased was with his wife and others in another person’s house at a local Primary school, in Rabaraba, when they were approached by the five offenders who were armed with two shotguns. The offender Baina Benny, who was armed with one of the two guns, called out for the deceased to be shot. The offender Luke Willie, who had the other gun, then shot the deceased on his chest. All this was done in the presence of the other co-offenders. Despite being shot the deceased grabbed a bush knife and chased the offenders out of the house and down to the school playing field where he was chopped with an axe by the offender Richard Ripuna. The offender then escaped the scene. The prisoners had suspected the deceased of practising sorcery. The State invoked Section 7 of the Code.

55. The depositions, the offenders addresses in mitigation and the offenders’ Pre-sentence Reports showed that the community leaders had in fact counselled and decided that the deceased be killed because he was reputed to have killed a lot of villagers, including his own relatives, through sorcery and had to be killed for the community’s preservation. A police Reservist supplied the bullets for the guns. And even the deceased’s own wife and son agreed with the plan and even received compensation for the villagers for his killing. The offenders who were all closely related to the deceased were chosen to carry out the killing. This was an execution type killing. I sentenced Baina Benny, Luke Willie and Richard Ripuna to 40 years while the other two got 35 years for their lesser degree of participation in the killing.

Whether Worst Case

56. So, is this an appropriate case for the imposition of the death penalty? In other words, is a worst case of wilful murder?

57. Viewed objectively, this is not, in my opinion, necessarily a worst case of wilful murder whether it was on accusation of sorcery or not. Despite the fact that a life has been taken – the ultimate harm to a victim there is – the prisoner’s culpability is not one that, in my opinion, can be classified as extremely high. I say this because, whilst the offence was motivated by accusations of sorcery, the prisoner’s initial intention as I found at trial was to bring the deceased down to the Government Station for the accusations against him to be sorted out. There was also extreme provocation involved when the deceased speared the prisoner. I must therefore consider either a life sentence or a determinate sentence with a term of years.

Antecedents

58. The prisoner Cecil Kingsford would be 37 years old now. He comes from Bondiri village, Rabaraba Sub-District, Alotau District of Milne Bay. He is married with one child, a daughter aged 6 years. He is the sole survivor in a family of 4 siblings. His mother is deceased, but his father is still alive. He is a member of the Anglican Faith. He is illiterate. His only form of formal employment was with the Milne Bay Estates at Padipadi as a harvester from 2005 – 2007. He is a first-time offender and had been in re-trial/sentence detention for a period of 5 years, 10 months and 8 days.

Allocutus

59. On his plea in mitigation, the prisoner asked to be set free because he is a first- time offender. He was worried about the welfare of his old father and his family. He also said that he had lost a lot of properties while in custody. He asked to be placed on probation so that he can reconcile with the deceased’s people and compensate them. Finally, he promised never to re-offend.

Submissions

60. Mr. Palek submitted in behalf of the prisoner that this is not necessarily a worst case of wilful murder on account of accusation of sorcery. I agree that it is not, as I have alluded to above. Counsel submitted further that the deceased was not entirely innocent. He came out of his house armed with two spears and threw the first one hitting the prisoner on the right thigh. The spear was thrown at such force that it penetrated right through the thigh and into the other thigh. 61. He then threw the second spear which fortunately missed the prisoner and landed just next to him. This enraged the prisoner so much that after removing the spear from his thighs with the help of State witness Winter Diweni, with much pain he pursued the deceased and killed him.

62. Mr. Palek submitted that the circumstances of this case would place it under Category 2 of the Manu Kovi tariffs and thus should attract a sentence between 20 – 25 years.

63. Counsel cited several factors which he said ought to mitigate the prisoner’s offender’s offending. This include no prior convictions, illiterate, remorse, non-legal provocation, injuries inflicted on him by the deceased and that the death of the deceased was self-inflicting as he is a relative of the prisoner. (Kesino Apo v The State [1988] PNGLR 182) Counsel submitted that the fact that the deceased attacked the prisoner with spears hitting him with one and narrowly missing him with the other should be taken as an extenuating circumstance which should be given sufficient weight.

64. The prisoner’s pre-sentence report (PSR) is non-committal. The author left it very much up to the court to impose an appropriate sentence at its discretion. The prisoner and his relatives had, however, offered to pay compensation which will include a portion of land, cash and kind.

65. Mr. Kupmain on the other hand submitted in behalf of the State that Parliament had decreed that for this offence the penalty shall be death. This leave the court with no discretion to impose any other penalty. As such the prisoner must be sentenced to death. It will be noted. However, this argument is rendered nugatory by the Supreme Court’s decision in The Matter of National Court Proceedings CR No. 1663 & 1675 of 2016 Between The State v Luke Koit Bawas& Roger Gawi Kiandu; SC Reservation No. 1 of 2017 (Supra).

Mitigating/Extenuating Factors

66. I find the following mitigating factors in favour of the prisoner:

The prisoner is a first-time offender

He is simple, illiterate and unsophisticated villager

He was of prior good character

He was provoked in the non-legal sense in the most extreme way, having been speared through his thighs by the deceased and narrowly missed with another spear. But for the fact that he attacked and killed the deceased as he was crawling away unarmed to escape after he was speared by the prisoner and was in turn cut by co-prisoner Joel Damanin, the prisoner may have very well acted in self defence had the deceased not been rendered helpless. That said, I find this to be not a mere mitigating factor but an extenuating circumstance which would weigh heavily in the prisoner’s favour.

I find also that there was no preplanning to attack, let alone kill the deceased. As I found at trial the prisoner’s initial intention that morning was to bring his uncle, the deceased down to the Kumani Government Station to sort out accusations of sorcery on villagers levelled against him (the deceased). Things escalated and went out of hand after the deceased attacked and injured the prisoner.

I find also as an extenuating factor that the prisoner was himself seriously injured when the deceased attacked and speared on his thighs.

I am asked to also accept that this prisoner is remorseful. Merely saying sorry does not demonstrate genuine remorse. In any case the deceased, though related to the prisoner, was a reputed sorcerer who had vexed the community and his relatives so much with his alleged activities, that I do not see how this prisoner could be genuinely be sorry for his crime.

I am also asked to accept and apply in his favour that his killing of the deceased was self-inflicting on the prisoner as they were related and the death of the former has resulted in a loss of service and support to the prisoner and his relatives. While the principle in Kesino Apo v The State (supra) is good law and may apply meaningfully in most cases of killings involving close relatives whose loss of services and support will be detrimental to the offender, not all such killings will be self-inflicting. In The State v Baina Benny & 4 Ors; (supra) where the offenders had counselled with community leaders to kill the deceased - a reputed sorcerer who was related to them - I rejected the defence’s submission which was supported by the State, that the killing in those circumstances was self-inflicting. I could not see how the death could be self-inflicting when this was a deliberate and wilful killing a person to remove him from the community to save them from the deceased’s evil spell of sorcery. The current case, in somewhat similar, even though the prisoner here did not initially set out to kill the deceased to remove him from the community, as I found at trial. Nevertheless, the deceased was a reputed sorcerer and his demise and loss of services and support would not be self-inflicting on the prisoner or to anybody else related to them. Of course, the deceased’s wife and children if any will miss his services and support but that is an aggravating factor.

Aggravating Factors

67. Against the prisoner are the following aggravating factors:

The prisoner used offensive weapons – a spear and a stone - to kill the deceased.

There was a very strong intention to kill. He speared him on the chest and neck leaving the spears in situ. He then got a stone and smashed it on the deceased head.

The killing was brutal and merciless.

The killing was done when the deceased was crawling away helpless and defenceless after co-prisoner Joel Damanin cut him on the leg thus rendering him practically unable to walk or stand let alone put up a good fight to defend himself.

The prisoner did not act alone. His co-prisoner Joel Damanine’s part in crime, whether inadvertently or not, enabled this prisoner to easily pursue the deceased without too much trouble and kill him.

Sorcery related killings are very prevalent.

Deliberations For an Appropriate Sentence

68. What then should be an appropriate sentence for this prisoner? Obviously, I will not impose the death penalty because I am of the view that this is not a worst case of wilful murder on account of accusation of sorcery. As I said at the outset, this is a new offence and there may not be many reported cases of its kind. Be that as it may, the cases of wilful murder I have cited above should provide some guideline.

69. That said, what needs to be given prominence is the fact that the Legislature has decreed the death penalty for this kind of killing, fully cognizant of the upsurge in sorcery related killings and the brutal, barbaric, merciless and inhuman manner in which such killings were and are continuing to be carried out. Sentences must therefore reflect Parliament’s will. And so, where appropriate, the court will not shy away from imposing the ultimate. If the circumstance do not warrant that then a life sentence or a determinate term of years will be appropriate.

70. Considering the circumstances under which this offence was committed, I am also not of the view that it should attract a life sentence. A determinate term of years will therefore be most appropriate. So, what sentence should impose? Considering the tariffs suggested by Manu Kovi, I agree with Mr. Palek that this case will fall under Category 2 and should therefore attract a sentence between 20 – 30 years.

71. I accept that there are significant mitigating and extenuating factors and circumstances working in favour of the prisoner. I accept that he did not set out deliberately to kill the deceased. Rather because of reports that the deceased had been practising and casting sorcery spells on villagers, the latest victim purportedly being the wife of co-prisoner Joel Damanin, he had gone up to Bondiri to take the prisoner down to Kumani Station to sort out the issue. This would have been the second time as the deceased was previously brought to the Station for sorcery accusations.

72. The deceased, however, was not going to surrender quietly. I accept that the prisoner did not quietly ask the deceased to accompany him to the Station. It is obvious to me that he obviously had displayed a bit of aggression because the deceased locked himself in his house before coming out and spearing the prisoner on his thighs and narrowly missing him with another spear. He immediately went back into his house as Winter Diweni was helping the prisoner to remove the spear from his thighs outside the house.

73. The deceased tried to escape by cutting a hole through the wall of his house but as he was stepping out, co-prisoner Joel Damanin cut him on the leg rendering him almost immobile. As he crawled away from the house to the nearby bush in what was to be a futile attempt to escape, the prisoner, who by now was injured and extremely enraged followed him and speared him with the same two spears that the deceased had used against him on the back and neck and then struck him on the head with a rock. The deceased died almost immediately.

74. In those circumstances I accept that the prisoner was extremely provoked in the non-legal sense. He simply lost all sense of reason and merciless killed the deceased. I find this to be an extenuating circumstance.

75. I also accept all the other mitigating factors cited above - that he is a first - time offender and he is illiterate and unsophisticated.

76. Against these mitigating and extenuating factors are the aggravating factors I have enumerated above. Offensive weapons were used, the killing was merciless and brutal and there was a strong intention to kill, notwithstanding the fact that the prisoner had himself been injured by the deceased and was obviously in a lot pain. And of course, sorcery related killings are very prevalent.

77. With the proliferation of Christian denominations of every colour and shade in this country, one would think that this would have a liberalizing effect on the masses. Unfortunately, the churches have not had much success in convincing their adherents not tomurder, let alone get away from the belief in sorcery and its alleged effects, opting instead for a legal cure or solution to the problem through State action.

78. Of course, we all know that despite the prescription of the death penalty into our criminal law, and the imposition of the death penalty on several offenders, life sentences and long determinate sentence, the State through the Criminal Justice System has not succeeded in arresting this scourge in our society.

79. In spite of these failings, this does not mean that the courts will wring its hands in defeat. People who have no respect for the sanctity of life must be punished appropriately. They need to be removed either permanently from society through the imposition of the death penalty or life sentences, or long determinate sentences that keep them away from society for sufficiently long periods of time. Whether such sentences have the desired effect of personal and general deterrence or not should not detract the courts, for what is important is to send a message to society and to offender and those similarly inclined that you will lose your freedom and even your life if you take someone else’s life, irrespective of motive.

80. Be that as it may, I must impose an appropriate sentence on this prisoner commensurate with the circumstances of his offending. Of the cases cited above I find some similarity between this case and that of The State v Baina Benny (supra). The offenders there and the prisoner here come from around the same area – an area which the belief in sorcery is very prevalent and pervasive. Baina Benny and his co-offenders were selected and willingly acceded to their community leaders’ decision to remove the victim (an alleged sorcerer) from the community by killing him. This was in effect an extra-judicial execution which the offenders willingly executed. I sentenced the prisoners there to sentences ranging from 40 years to 35 years depending on their degree of participation.

81. The case of The State v Sedoki Lota (supra) also has some similarities with the instant case. The offenders there killed the victim on a direction by a Village Court Magistrate because she was suspected of practicing sorcery which resulted in the deaths of certain in the village. The circumstances of the killing were describedbythe trial judge as so callous and unimaginable, a premeditated execution-style killing where the culpability of the offenders was so grave that it warranted the death penalty. The offenders were sentence to death but on appeal the Supreme Court, however, quashed death sentence and substituted it with a life sentence instead. (Sedoki Lota v The State. (supra)

82. The killing in the instant case was, however, not pre-mediated or pre-planned and even though it was brutal and merciless and the prisoner displayed a strong intention to kill, the mitigating factors, and extenuating circumstances under which the prisoner killed the deceased should justify a sentence well below that of Baina Benny and Ors. (supra)

83. In the circumstances, all things considered, I should think that an appropriate sentence for this prisoner ought to be 25 years. This sentence should not be seen as downplaying the severity and the untold misery wrought upon victims of accusations of sorcery which are often totally unfounded but often result in their extra-judicial executions. Rather it reflects the circumstances and facts peculiar to this case so that the prisoner is served individualized justice. Important as the need for consistency is to maintain equal justice, an offender must always be served punishment that befits his crime - no more, no less.

Sentence

84. I therefore sentence the prisoner Cecil Kingsford to 25 years imprisonment. The time spent in custody awaiting trial and sentence, which is 5 years 10 months and 4 days shall be deducted from the sentence. None of the resultant sentence will be deducted.

CASE FOR JOEL DAMANIN

85. In the case of Joel Damanin, I was not satisfied on the required standard that he had intended to cause the death of the deceased. However, I found that he intended to cause him grievous bodily harm when he cut him on the leg as he was coming out of his house to escape. Hence, I returned the alternative verdict of murder instead against him.

Sentencing Principles For Murder

86. For the offence of murder, Manu Kovi has also provided guideline tariffs. While there are other cases which provide guidelines for murder Manu Kovi being the prevailing authority will suffice for our present purposes. The Manu Kovi guideline tariffs are:

Category 1: Ordinary cases where the mitigating factors but no aggravating factors, no weapons are used, little or no pre-planning, minimum use of force and absence of a strong intent to do grievous bodily harm – 12 – 15 years.

Category 2: Plea or trial. Where there are mitigating and aggravating factors, no strong intention to cause grievous bodily harm, use of a weapon, some planning and some element of pre-planning – 16 – 20 years.

Category 3: Plea or trial, where are special aggravating factors, mitigating factors are reduced in weight or rendered insignificant by the gravity of the offence, pre-planning, vicious attack, strong desire to do grievous bodily harm, use of a dangerous or offensive weapon such as a knife or an axe and where other offence of violence are committed – 20 – 30 years.

Category 4: Trial or Plea where there special aggravating factors, no extenuating circumstances, no mitigating factors or mitigating factors are rendered completely insignificant by gravity of offence, pre-meditated attack, killing is brutal and cold-blooded, killing in course of committing another offence and complete disregard for life – Life imprisonment.

Sentencing Trend

87. The State v Toropo (No.2) (2015) N6013. There a procession led by diviners or glasman using a so-called magic bamboo led to the purported identification of the victim as the sorcerer responsible for a spate of deaths in the village. The so-called magic bamboo led the procession of some 500 villagers to the deceased’s premises whereupon the offenders immediately attacked the deceased with bush knives killing him instantly. They then took the deceased’s brother – a policeman – captive and strung him up in the village square until he was rescued several days later. After a trial I sentenced the offenders to 21 years after trial.

88. The State v Waninara (No.3) (2007) N3280 (Lelania J): There after trial for wilful murder, the offender was found guilty of murder instead. The offender had attacked the deceased with a bush knife slashing him on the stomach resulting in his death. Lenalia, J. assessed the circumstances of the case as falling under Category 2 of Manu Kovi and sentenced the offender to 18 years imprisonment.

89. The State v Gladwin Balik Niaka (2014) N5581( Batari J): There the prisoner was amongst many other people had gathered at the residence of man whose daughter had died for her burial. After the burial, the man's son sent the people away but not before accusing them of his sister's death. Prompted by those remarks, co-offender Eugene Bangagu grabbed the deceased from the group sitting under the house and dragged her out to the open. He then kicked her on the face causing her to bleed heavily from the nose. Co-offender Niaka joined in and picked up a huge rock and repeatedly threw it against the deceased's abdomen. She collapsed and died shortly after. Niaka was charged with and pleaded guilty for murder. Even though the offender and his lawyer did not plead the belief in sorcery as influencing his actions, His Honour nonetheless considered and made an instructive discussion of the relevant law in relation to this type of killings. He imposed a sentence of 18 years.

90. The State v Nohuta(2016) N6464 (Auka AJ): The offenders there were convicted after trial for murdering the deceased whom they suspected of causing the death of one of their relatives by means of sorcery. The offenders and another relative found the deceased in his garden hut and chased him. They caught up with him near a fishpond and viciously attacked him with bush knives, inflicting extensive and serious injuries on the deceased from which he died. The prisoners sentenced to 23 years imprisonment. A co-offender who pleaded guilty to the offence was separately sentenced to 20 years.

91. The State v Sagalol (2018) N7353 (Susame AJ): The deceased was a Catechist who at the time of his death was residing in his wife’s village. For some time, villagers there had suspected him of stalking females and causing deaths in the village by means of sorcery and for committing other wrongs.

92. It so happened that a small boy in the village died. The deceased obviously became the prime suspect for causing his death through sorcery. During the wake when the villagers were discussing the death of the boy two village boys told the gathering that they had seen the deceased and the boy together at an unspecified location. To them the boy did not look normal.

93. Following the discussions, a large group of men and young boys numbering 20 to 30 converged at the deceased’s home at 4:00a.m. while deceased and his family were asleep. They hurled 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. The deceased got hold of a bush knife and opened the door of the bedroom. One of the offenders attempted to hit him with a crowbar and in defence the deceased cut him on his hand with the bush knife. The deceased and the family were then forced out of the house. Whilst outside the mob attacked the deceased and left him lying on the ground 10 meters from the house, bleeding from his injuries. He was stretchered to the Health Centre a kilometre away on the coast but died on arrival.

94. The brief clinical report the deceased died of shock due to massive loss of blood. Photographs show the injuries victim received on various parts of his body - a 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.

95. The offenders were all youthful and had shown genuine remorse. Coupled with good mitigating factors His Honour assessed the circumstances of the case as falling under category 3 of the Manu Kovi tariffs (20- 30 years). He therefore imposed sentences of 22 years for 5 of the offenders and 21 years for the other 4 according to their degree of participation.

Whether Worst Case

96. Now is this a worst case of murder? Objectively, this prisoner’s culpability is quite low as was his degree of participation. This is therefore not a worst case and should attract sentencing within Category 2 of the Manu Kovi tariffs.

Antecedents

97. The prisoner is 39 years old and is married with 3 children. His wife has passed away and his children are now living with relatives. He is the first born in a family of 7 siblings. Both his parents are still alive, and he is an adherent of the Bahai Faith. He was only educated up to Grade 6 and is a first-time offender. He had also been in pre-trial/sentence custody for a period of 5 years 10 months and 4 days.

Allocutus

98. On his plea in mitigation, the prisoner apologised to the deceased’s families for his crime. He said he did not mean to kill him but cut his leg only to prevent him from further attacking Cecil Kingsford whom the deceased had already injured. He said that after he cut the deceased, he immediately left the scene and did not know what happened after that. He asked to be placed on probation so that he could take care of his children since his wife had passed away. They are being currently cared for by his parents. Two of them are in Elementary School. If the Court is unable to place him on probation, then it should impose a fair sentence which will allow him to ask for parole when he becomes eligible.

Submissions

99. Mr. Palek submitted in behalf of this prisoner that this is not a worst case. I have already expressed the same view. Counsel further submitted that the case falls under Category 2 of the Manu Kovi Tariffs which I also agree with, thus it should attract a sentence between 16 – 20 years. There are, according to Mr. Palek, good mitigating factors such as his educational background and lack of sophistication, his lack of prior convictions, prior good character, his co-operation with the police, the death of the deceased was self-inflicting (Kesino Apo v The State(supra) and expression of remorse. Counsel, however, conceded that the offence is aggravated by the prisoner’s use of a bush knife to cut the deceased and the prevalence of this type of offence.

100. Like that of his co-prisoner, this prisoner’s PSR is non-committal and also left it very much to the court to impose and appropriate sentence. The prisoner also offered to pay compensation in cash and kind to the value of K1925.00.

101. Mr. Kupmain, for the State, submitted that the Court should consider the prisoner’s role in the death of the deceased. He cut the deceased’s leg making him unable to escape harm and that resulted ultimately in the co-prisoner attacking and killing him. Counsel referred the Court to Simon Kama v The State (2004) SC 740 (Sevua, Kandakasi, Lenalia JJ) where the affirmed a sentence of 25 years for murder but not before castigating the Public Prosecutor for opting to indict the appellant for murder after plea bargaining for a case which the court viewed clearly as one justifying a charge for wilful murder. Hence, if we were to apply the Manu Kovi tariffs to the circumstances of the instant case, an appropriate sentence ought to be between 30 years and life imprisonment.

102. Let me now consider what an appropriate sentence for this prisoner should be.

Mitigating Factors

103. I accept the following factors as mitigating this prisoner’s offending:

The prisoner is a first-time offender.

He is a simple, illiterate and unsophisticated villager

He was of prior good character.

There was no pre-planning or pre-meditation involved

He has expressed some remorse, but I would place very little weight on this. His offer to pay K1927.00 in cash and kind as compensation is laughable as it demonstrates how this prisoner values a valuable life and its sanctity.

Despite the part that this prisoner played in the deceased’s death, I am prepared to accept that killing may be self-inflicting as he is also related to the deceased, but given the fact that the deceased did not have such a good reputation in the village and that this would have upset his relatives including the prisoner, I would reiterate what I have expressed in the case of co-prisoner Cecil Kingsford.

I will also accept that he inflicted but a single injury on the deceased and did not stay around after he cut him. Hence, he took no further part in the eventual killing of the deceased by Cecil Kingsford.

Aggravating Factors

104. I the following should operate against this prisoner:

He used an offensive weapon against the deceased.

He did not act alone.

This offence is very prevalent.

Deliberations

105. Based on this prisoner’s own degree or level of participation in the commission of this offence and of course his mitigating factors, my considered opinion is that he ought receive a sentence slightly lower than that imposed on Cecil Kingsford. This is unavoidable because the prisoner must be served individualized justice commensurate with his part in the killing of the deceased. I am, however, not blind to the fact that it was because of his act of cutting the deceased’s leg, thus rendering the deceased incapable of escaping or defending himself effectively, that effectively put the deceased in harm’s way and he became an easy target for Cecil Kingsford.

106. On the order hand, had he not done what he did, things would have turned out very differently for Cecil Kingsford, who, at that critical time, was being assisted nearby by Winter Diweni to pull the spear out of his thighs. This prisoner did what he thought was the safest option in order to save Kingsford from eminent danger. Unfortunately, his action contributed to the killing of the deceased by Kingsford. He was placed in a situation where whatever he did would have potentially endangered either of the two.

107. Of course, in hindsight he could have restrained the deceased. He was in very close proximity to him and could have easily restrained him so that he did not continue to pose a threat to Cecil Kingsford. He chose to cut deceased’s leg instead and this contributed directly to his fate at the hands of Kingsford. He was, if you may, caught between a rock and a hard place. There is just no way of knowing what Kingsford would have done if Joel Damanin had managed to restrain the deceased. What is certain though is that Kingsford would have sought to get back at the deceased, one way or another, which of course he did. Be that as it may,JoelDamanin must be punished for his part in the ultimate killing of the deceased, taking into account of course that he took no further part in the eventual killing of the deceased.

108. The circumstances of this case are quite similar to those of the cases I have cited above. The sentence there were 21 years in The State v Toropo, 18 years in The State v Waninara, 18 years inThe State v Gladwin Balik Niaka, 23 & 20 years inThe State v Nohuta(and 22 & 21 years in The State v Sagalol (supra.) In the circumstances I would impose a sentence of 20 years. Granted, he did not deliver the fatal blows on the deceased. However, his act in cutting the deceased on his leg made him an easy target for Kingsford, and for that he must be appropriately punished.

Sentence

109. I therefore sentence the prisoner Joel Damanin to 20 years imprisonment, out of which 5 years, 10 months and 8 days will be deducted for the pre-trial and sentence detention period. None of the resultant sentence will be suspended.

ORDERS

110. My orders are therefore as follows:

The prisoner Cecil Kingsford is sentenced to 25 years imprisonment out of which 5 years, 10 months and 8 days shall be deducted for the period spent in pre-trial sentence/detention. None of the resultant sentence shall be suspended.

The prisoner Joel Damanin is sentenced to 20 years imprisonment, from which 5 years, 10 months and 8 months shall be deducted for the pre-trial sentence/detention period. None of the resultant sentence will be suspended.

The prisoners will serve their sentences at the Giligili Correctional Institution.

The prisoners have the right to appeal against their convictions and/or sentences within 40 days from today.
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P. Kaluwin, The Public Prosecutor: Lawyer for State
L.B. Mamu, The Public Solicitor: Lawyer for the Accused