State v Tumai [2021] PGNC 639; N9927 (11 October 2021)

N9927

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 07 0F 2018

THE STATE

V

KARO TUMAI
Prisoner

Popondetta: Sambua, A J
2021: 5^th, 6^th & 11^th October

CRIMINAL LAW – Guilty plea – Murder-mitigating factors-aggravating factors; appropriate sentence – has a prior conviction-

Cases Cited:
Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 514
Goli Golu v The State [1979] PNGLR 653
John Baipu v. The State [2005] SC796
Kwaya Wako v. The State [1990] PNGLR 6
Manu Kovi v. The State [2005] SC789
State v Timothy Sangai [2016] N6247
State v Todd Mari [2011] N4306
State v Cyril Nohuta & 2 others [2016] N6464
The State v. Harmony Naba [2013] N5308

DECISION ON SENTENCE

11^th October, 2021

1. SAMBUA, AJ: The State presented an indictment containing one count of murder laid pursuant to section 300(1)(a) of the Criminal Code, Chapter 262 against the prisoner Karo Tumai on the 5^th of October 2021 and submission on penalty was made by counsels on the 6^th of October 2021 and I reserved my decision on sentence. Here is my decision on penalty.
   

Brief Facts

2. The short facts giving rise to the charge were that the deceased Benny Kauto was employed by Mamba Oil Palm Estate in Kokoda, Oro Province and was living in a company provided house at Kinia compound, Mamba Estate, Kokoda, Oro Province.
   
3. It was alleged by the State that between 11:30pm and 12:00 midnight on the night of 19^th September 2015, whilst waiting for his (the deceased) pick-up vehicle to go to work, the prisoner Karo Tumai and three (3) others whilst armed with bush knives approached and attacked the deceased Benny Kauto. In the course of the attack, the deceased was cut on his left side of the neck, right wrist and left radial/ulnar artery was severed. After attacking and cutting the deceased the prisoner and his accomplices left. As a result of the injuries inflicted on the deceased by the prisoner and his three accomplices, the deceased bled to death. According to the Medical Certificate of Death, the deceased died of “haemorrhagic shock”.
   
4. The State therefore said that when the prisoner Karo Tumai and his three (3) accomplices attacked and cut the deceased Benny Kauto with the bush knives, which led to his death, they had intended to cause grievous bodily harm to him, but he died thereby contravening section 300(1)(a) of the Criminal Code Act.

The law

5. The law creating the offence of murder and prescribing its penalty is s. 300 of the Criminal Code Act. The relevant parts are in the following terms:
   

300. Murder

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

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

(b) . . .

(c) . . .

(d) . . .

(e) . . .

Penalty: Subject to s. 19, imprisonment for life.

6. The Supreme Court in Goli Golu v The State (1979) PNGLR 653 said:

“It is a general principle of sentencing that the maximum penalty should be reserved for the most serious instance of an offence, the worst possible case normally encountered in practice. This is an application of an even more basic principle, that there must be proportions between offence and sentence.”

7. The issue before this court now is what would be the appropriate penalty in the circumstances of this case.
   

Personal Particulars

8. The prisoner Karo Tumai is aged about 34 years old. He was 29 when the Record of Interview was conducted. He comes from Sopu village, Tapini, Central Province. He is a Roman Catholic by faith and attended Kokoda Primary school where he completed grade 4 only. He has a prior conviction for a rape charge where he was convicted and sentenced to 10 years.
   

Allocutus

9. In allocutus, the prisoner stated that he was sorry for breaking the mother law of the country (Constitution). He also said sorry for spoiling the name of Oro Province and was humble before the National Court, The Judge, Court officials, for hearing his case. He extended his apologies to the family of the deceased for what he had done, and they will suffer and asked for court’s mercy to give him a lesser penalty.

Submissions by counsels

10. Mr Yavisa, counsel for the prisoner submitted that this is a case falling into category 2 of the Manu Kovi case which will attract a sentence of between 16 to 20 years. In support of his submission, he referred to three (3) case law authorities. The case law authorities he referred to are; State v Timothy Sangai [2016] N6247, State v Todd Mari [2011] N4306 and State v Cyril Nohuta & 2 others [2016] N6464.
    
11. In my view the case more relevant and applicable to this case is the case of State v Cyril Nohuta & 2 ors which is a sorcery related killing like the instant case. The deceased was attacked and killed because he was suspected of being a sorcerer and that he had poisoned 38 people and had raised 8 people from death (see Q & A 16 of ROI).
    
12. Miss Kametan, counsel for the State submitted that the offence of murder is a serious offence which carries a maximum penalty of life imprisonment however subject to section 19 of the Criminal Code Act. She acknowledged that the maximum sentence is reserve for the worst type of cases and referred to the Supreme Court case of Goli Golu v The State [1979] PNGLR 653
    
13. She also submitted that this case falls between the upper end of category 2 and the lower end of category 3 of the Manu Kovi sentencing guidelines. That there was a strong desire to do grievous bodily harm and therefore the sentence should be between the range of 16 to 25 years and had referred to a number of murder case law authorities however not relating to sorcery killings.
    
14. The Mitigating and Aggravating factors are:
    

Mitigating factors;

- Guilty plea
- Co-operated with Police during investigation and admitted in the Record of Interview
- Expressed remorse during allocatus

Aggravating factors;

- A group attack on an unarmed man
- Use of offensive weapons – bush knives and grass-knife
- Attack was in the night
- Deceased was attacked and killed at his own residence where he was with his family
- It was a vicious attacked on an unarmed man with no regard to human life
- Killing was sorcery related and was pre - planned
- Prisoner has a prior conviction for rape, another crime of violence, where he was sentenced to a term of 10 years imprisonment

15. In the case of State v Nohuta [2016] PGNC 268; N6464 (2 September 2016). A decision by Auka, AJ (as he then was) here in Popondetta. It was a sorcery related killing case. In that case the three prisoners were found guilty of Murder under s.300 (1) (a) of the Criminal Code Act after a trial. The evidence was that the three (3) prisoners together with another attacked the deceased with bush knives. The deceased was chased from his garden house by the three (3) prisoners and their other relative and caught up with him near a fishpond and they all acted in concert and cut the deceased with bush knives all over his body and caused extensive and serious injuries. The attack was, violent and vicious. At that time, the deceased was all alone and defenceless when the three (3) prisoners and others attacked him using their own bush knives. The three (3) prisoners used their own knives and actually participated in cutting the deceased all over his body. His Honour Auka, AJ (as he then was) found that the attack upon the deceased was vicious and that he died as a result of the injuries sustained during the attack which was confirmed by the Post-Mortem report as a result of Blood Loss from Multiple wounds and Lacerations.
    
16. In the same case of State v Nohuta, His Honour Auka, AJ said:

“9. The killing of persons suspected to be sorcerers is in my view very prevalent in the country. Sorcery related killings have been regarded as special cases because of customary and traditional beliefs connected with it because of the traditional beliefs, the court have over the years imposed fairly lenient sentences. The courts have now deviated from the lenient approach to such killings and that approach is no longer appropriate in the sentencing process.

The cases like Acting Public Proscutor v. Uname Aumane [1980] PNGLR 514 and Kwaya Wako v. The State [1990] PNGLR 6 were few of the cases that authorised the courts to treat sorcery related killing in a special manner because of the traditional beliefs in sorcery. As I said, that leniency approach is no longer an appropriate sentencing practise. This is what the Supreme Court said in the case of John Baipu v. The State (2005) SC 796. And in the case of Irai Thomas v. The State (2007) SC 867, the Supreme Court said that the belief in Sorcery is no longer a special mitigating factor and the weight to be attached to it depends on the facts and circumstances of each case.

10. Nowadays the courts have taken the stance that sentencing in sorcery related killings must be deterrent in nature and must be treated as an ordinary homicide. This was done in the case of the State v. Harmony Naba (2013) N5308. In that case, the prisoner pleaded guilty to Murder under s.300 (1)(a) of the Code. This is a case where the prisoner was walking on the road with others when the deceased walked past. The prisoner then suddenly attacked him with a bush knife. His explanation for his actions were that about 2 years before the killing, the deceased had taken his sister at a very young age and married her. And she died soon after. The prisoner blamed the deceased for her death saying he killed her through sorcery. The prisoner was sentenced to 18 years, after considerations of the Categories in Manu Kovi v. The State (2005) SC 789....

12. The deceased is a grown man, married with children. He was in his garden house having a peaceful time with his family when the 3 accused and another person suspected him as a sorcery and killing one of their relatives through sorcery arrived. They chased him and when they caught up with him they attached him. They were all armed with bush knives when they attacked him. There was intention to cause bodily harm to the deceased.

13. The general trend for adult and young men of Papua New Guinea in villages and towns in this day and age is simply to condemn and carry out execution on victim who are suspected of sorcery without prove.

14. This case is a classic example of a group of young man who without proof and without any regard for the deceased well-being and life, attacked him, taking his life in process. That in my view is a total, reckless indifference to human life.

15. These prisoners have displayed careless and cruel attitude, I can only comprehend the deceased’s experience as unimaginable. Therefore, I can conclude that their pleas for mercy are overshadowed by their exhibitions of heartless cruelty.
Their request to this court to consider the welfare of their parents, families and children for reduction of sentence are mere excuses and I consider them with great caution. They should have thought of their sisters, mothers, grandparents, wives and children before they went off to kill the deceased.

16. This case is one of the many hundreds of cases that come through this courts where the courts have held that sentence that is imposed must be one fitting the crime and must also deter other would-be offenders”.
17. I adopt the sentiments expressed by His Honour Auka, AJ (as he then was) in that case which are equally applicable to the circumstances of this case. The deceased was attacked and killed by the prisoner and his three accomplices at his house in the middle of the night in front of one of his two wives who was breast feeding their child. The prisoner and his accomplices chose a right time to execute their plan knowing very well that, at that time of the night everyone would be sleeping, and no one will be there to stop them from executing their plan which went according to their plan. This was a very well executed killing by the prisoner and his three accomplices after they had suspected the deceased of killing people through sorcery.

18. The deceased was outnumbered and out muscled by four against one. The deceased was an unsuspecting unarmed man who was getting ready and waiting for his pickup vehicle to go to work when he was attacked and killed in a vicious and savage act by the prisoner and his three accomplices with no regard to the sanctity of human life.

19. I accept and agree with Miss Kametan’s submission that this case falls between category 2 and category 3 in the Manu Kovi v. The State (2005) SC 789 which sets the sentencing guidelines for homicide cases which should attract a sentence between 16 to 25 years.

20. In this case there was some elements of pre-planning and weapons were used and some element of viciousness as in category 2 and that there was a strong desire to do grievous bodily harm with the use of an offensive weapon as in category 3 in Manu Kovi case. It certainly comes close to falling into category 4 as it was a brutal killing of an innocent, harmless person. There is no proof that he was a sorcerer. They were acting on mere suspicion and believe to carry out their execution on the deceased.

21. The aggravating factors in the instant case far outweigh the mitigation factors. Furthermore, the prisoner has a prior conviction for a rape charge which he was sentenced to 10 years. Rape is a crime of violence. It is a crime of violence committed against women and girls. This in my view will attract a higher sentence than the sentence usually imposed on first time offenders.

22. After taking into account the mitigating and aggravating factors and considering the sentences in the three cases I have referred to above, I consider that the appropriate sentence for prisoner Karo Tumai is twenty-three (23) years IHL, less pre-trial custody period.

Order:

1. The prisoner Karo Tumai is sentenced to 23 years.

2. Pre-trial custody period to be deducted

3. Prisoner to serve the balance at Biru CS

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