State v Songua [2022] PGNC 86; N9498 (21 March 2022)

N9498

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 880, 881 & 882 OF 2021

THE STATE

v

JOSHUA SONGUA
And
FRANCIS YAWA
And
DAVID JAMES

Murray J
Lae/2022: 18^th February
Bulolo/2022: 2^nd, 7^th, 8^th, 17^th & 21^st March

CRIMINAL LAW – sentencing – Criminal Code, Section 300 (murder) and Sorcery Act-vicious killing of a person suspected of being a sorcerer – mob attack – deceased attacked with knives, sticks and stones all over his body–guilty plea to knife wounds to the back and thigh–not direct cause of death – deceased died from acute massive blood loss due to penetrating chest wound- varying degree of participation- varying sentences.

Cases Cited:

Manu Kovi v The State (2005) SC789
Thomas Irai v. The State SCR 08 of 2006
Saperus Yalibakut v The State (2006) SC890
The State v Lagu [2011] PGNC 80; N4354
The State v Dakol [2018] PGNC 364; N7444
The State v Bob [2019] PGNC 455; N8234
State v Baika Martin & Ors (2008) N3312
The State v Mathias, CR 550, 551 & 545 of 2019
The State v Ngase Saomai, CR 793 of 2015
The State v Michael Gend, CR 760 of 2011

Counsel:

Mr. J. Done, for the State
Ms. G, Peu, for the Prisoner

SENTENCE

21^st March, 2022

1. MURRAY J: On 8^th March 2022, all of you pleaded guilty to murdering one, Mengisa Wara, a person who you 3 and many others from the village of Elauru, claim that he was a sorcerer. The crime you committed is prescribed in s. 300 (1) (a) of the Criminal Code. After being satisfied that there was basis for your guilty pleas, I convicted each of you on the charge as presented, then I heard each of you on sentence and following an application by your lawyer for a Pre-Sentence Report & a Means Assessment Report, I adjourned submissions on your sentence pending the production of those 2 reports. I received both reports on 17 March 2022 and heard submissions from both lawyers on sentence and adjourned to today for decision.
   

Issue

2. The only issue for me to determine is, what is an appropriate sentence for each of you in this case taking into account amongst others that, this is sorcery related killing.

To determine this issue, there are a number of factors I had to consider, starting with the facts you all pleaded guilty to.

Facts

3. The facts which supported the charge laid against each of you and which were put by the State to you on 8 March 2022, and to which you all pleaded guilty to are these: Between 7.00 and 8.00 in the morning of 24 March 2019, you were in Elauru village here in Bulolo. Suspecting the deceased of being a sorcerer, you all got together with others, armed yourselves with bush knives, grass knives, sticks and stones and went over to the deceased’s house.
   
4. When you got to the deceased’s house, you, Francis Yawa forced the deceased to sit on a 44 gallon drum and forced him to admit that he was a sorcerer. When he denied, you, Joshua Songoa, using a bush knife you had on you, cut the deceased on his back, whilst you, David James, also using a bush knife you had on you, cut the deceased on his thigh. Then each of the many others who were with the 3 of you, also using the weapons they had on them, took turns to assault the deceased all over his body.
   

Medical report

5. At autopsy, external examination of the deceased body carried out by Dr. Jeremiah Yupae, showed:
   
   • Right posterior shoulder blade clear laceration measured 6cm x 2cm x 1cm deep
   • Mid upper back open wound 6cm apart and 2cm x 1cm x 5cm deep
   • Right back bruise measured 4cm x 0.5cm (linear)
   • Left mid back laceration measured 3cm x 1cm x 12cm deep blood oozing
   • Right lateral thigh stab wound measured 2cm x 1cm x 3cm deep
   • 10cm above knee, left arm bruise linear measured 9cm x 1cm
   • Left face bruise 2 x 0.3cm
   • Left chest massive old blood in cavity, 4L old blood
   • Stab wound lower lobe left lung measured 2cm x 1cm x 6cm deep
   • Stab wound left 7^th intercostal space measured 1cm x 3cm
   • Right chest cavity 200 mis old blood
     
6. From that examination, Dr. Jeremiah Yupae, concluded that, the deceased died from acute massive blood loss due to penetrating chest wound.
   
7. Having had regard to the autopsy report that states that, the cause of death is acute massive blood loss due to penetrating chest wound, it will be noted and taken into account, as a special mitigating factor that the injuries inflicted by you, Joshua Songoa which you pleaded guilty to and you, David James, which you also pleaded guilty to, did not directly cause the death of the deceased.
   

Antecedent

8. After I convicted each of you, following your guilty plea on 8 March 2022, the State lawyer tendered each of your antecedent reports. I have read those and note all of you have no prior convictions.
   

Allocutus

9. In your address on sentence, although, each of you spoke separately, you all said the same thing and that is, you are all in the eyes of the Court now as first-time offenders. You all acknowledged that by killing the deceased, you all have broken both the law of God and the law of this country, and you are all sorry for what you all did. You all also apologised to the wife and children of the deceased, to your own respective families and to the community at large. Following that, each of you asked for mercy of this Court and further asked that you be given a probation sentence.
   

Other matters of facts

10. As you pleaded guilty you will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

Pre-sentence (PSR) & Means Assessment (MAR) Report

11. Pursuant to the order of this Court made on 8 March 2022, the Bulolo District Probation Officer prepared and filed both reports on 17 March 2022 for all three of you. A means assessment report is really a means test to ascertain an offender’s financial capability to help determine whether a fine or a compensation order would be appropriate. Given the crime, all of you have been convicted of it is not necessary in my view to have a MAR as orders for fines or compensation payments are in my view also, not appropriate in homicide cases. However, if compensation payments have been made, such information is relevant to mitigate an offender’s sentence and such information can be received through submission on mitigating factors or through a PSR or an affidavit. Having said that, of the 2 reports complied and furnished, I have only considered the PSR and note the following:
    

Joshua Songoa

12. You are now aged 24 years. You are the 6^th child in a family of seven children. Your father is deceased. He passed on while you were in custody. Your mother is alive and living in Elauru village. That is where, both your parents are from. You completed your year 10 and was accepted into year 11 at Dregahaffen in Finschaffen but withdrew from studies due to family issues. Since you left school you got married and have 2 children, 6 and 4 years old. Your wife is supportive of you. You own and live in a 4 bedroom permanent house with your wife, your 2 children, your mother and younger sister. You are a villager and subsistence farmer, earning a small income from sale of cash crops such as coffee and other garden produce. There is no report of any bad behaviour by you in the community, prior to commission of the offence. Instead, you were regarded as a youth leader and well respected for your leadership role in the community. As you have stated in allocutus, it is reported that, you not only admitted to cutting the deceased on his back with a bush knife, which you are sorry for, but you now regret your action in taking the matter into your own hands instead of referring it to appropriate authorities and blame yourself for that. It is also reported that, compensation payment of a total of K20,000.00 comprising of K10, 000.00 cash, and other things including, both store and garden food, a cow, and 5 pigs, altogether worth K10, 000.00 was made to the relatives of the deceased on behalf of you and your 2 co-offenders to appease the relatives of the deceased from a confrontation with you and your co-offenders. It is worth noting, however, that none of the deceased’s relatives were interviewed. Thus, it is unclear whether the compensation that has been paid is full compensation resulting in an effective reconciliation between you and your 2 co-offenders and the relatives of the deceased.
    

Francis Yawa

13. You are now aged 23 years. You are the eldest child in a family of 4 children. Both your parents are alive and living in Elauru village. That is where, both your parents are from. You completed your year 7 and was doing your year 8 at the community school in Elauru village when you committed the crime. You are single with no children, and you live in a 2 bedroom permanent house with your parents and siblings. You are also a villager and subsistence farmer, earning a small income from sale of cash crops such as coffee and other garden produce to help your parents sustain your family’s needs. Like Joshua, your co-offender, there is no report of any bad behaviour by you in the community, prior to commission of the offence. Instead, you were regarded as a good young person, dedicated to both church and community youth activities. In addition to what you said in allocates, you said, you did not use any weapons to assault the deceased, however, you accept that what you did you also contributed to the death of the deceased, and having realised your mistake, you now regret your action in helping the others in taking the matter into your own hands instead of referring it to appropriate authorities and blame yourself for that. It is also reported that, compensation payment of K20,000.00 comprising of K10, 000.00 cash, and other things including, both store and garden food, a cow, and 5 pigs, altogether worth K20, 000.00 was made to the relatives of the deceased on behalf of you and your 2 co-offenders to appease the relatives of the deceased from a confrontation with you and your co-offenders. It is worth noting, however, that none of the deceased’s relatives were interviewed. Thus, it is unclear whether the compensation that has been paid is full compensation resulting in an effective reconciliation between you and your 2 co-offenders and the relatives of the deceased.
    

David James alias Komas

14. You are now aged 21 years. Like Francis, your co-offender, you are also the eldest child in a family of 4 children. Both your parents are alive and living in Elauru village. That is where your father is from whilst your mother is from Waria. Again, like Francis, you also completed your year 7 and was doing your year 8 at the community school in Elauru village when you committed the crime. You are single with no children, and you live in a 2 bedroom permanent house with your parents and siblings. You are also a villager and subsistence farmer, earning a small income from sale of cash crops such as coffee and other garden produce to help your parents sustain your family’s needs. Like your co-offenders, Joshua and Francis, there is no report of any bad behaviour by you in the community, prior to commission of the offence. Instead, you were also regarded as a good young person, dedicated to both church and community youth activities. In addition to what you said in allocutus, you now say that, having realised your mistake, you now regret your action in helping the others in taking the matter into your own hands instead of referring it to appropriate authorities and blame yourself for that. It is also reported that, compensation payment of K20,000.00 comprising of K10, 000.00 cash, and other things including, both store and garden food, a cow, and 5 pigs, altogether worth K20, 000.00 was made to the relatives of the deceased on behalf of you and your 2 co-offenders to appease the relatives of the deceased from a confrontation with you and your co-offenders. It is worth noting, however, that none of the deceased’s relatives were interviewed. Thus, it is unclear whether the compensation that has been paid is full compensation resulting in an effective reconciliation between you and your 2 co-offenders and the relatives of the deceased.
    

Your Lawyer’s submission

15. Your lawyer in her submissions for all 3 of you, added that, you have all been in custody since 26 March 2019. If that is confirmed, all 3 of you would have been in custody prior to when I heard submissions, for a period of 2 years, 11 months 2 weeks and 3 days.
    
16. Your lawyer then went on and referring this Court firstly to the Supreme Court case of Manu Kovi v The State, submitted, given the facts you all pleaded guilty to, your cases fall within the second and third categories of Manu Kovi case. Thus, attracting a starting point of 16-30 years imprisonment.
    
17. Having submitted what category your cases fall into; your lawyer went further and submitted a number of factors and urged that I take them into account as mitigation factors. Those factors include:
    
    • That each of you pleaded guilty.
    • Thus saving the Court and State time and resources in running a full trial.
    • The prisoners are a young men in their 20’s, all first-time offender, with no prior convictions.
    • They surrendered to the Police with the assistance of community leaders.
    • They have become scapegoats of the whole village actions taking sole blame for the incident. Many remain at large without any arrest.
    • The prisoners have cooperated with Police, throughout the investigation making early admissions in the Record of Interview.
    • Previous Good Character.
    • Payment of compensation in the sum of K15, 000.00 paid to the deceased family reconcile and make peace.
      
18. Further, your lawyer referred to a number of National Court decisions in her submission and asked I also look at to help me decide on an appropriate sentence for each of you.
    
19. Thus, having regard to those authorities and the particular circumstances of your cases, your lawyer submitted that this Court impose a sentence between 14 and 20 years for all of you.
    

State Lawyer’s submission

20. Counsel for the State also referring to the Manu Kovi case, firstly, submitted, all your cases fall within the third category. Further, Mr. Done also referred to a number of cases in his submission and urged this Court to look at as well for purposes of comparison when deciding on an appropriate sentence. At the same time, Mr. Done urged this Court to take into account the aggravating factors in your case. In particular, counsel urged the Court to note that:
    • you all committed a very prevalent offence,
    • this was an armed mob attack of an unarmed old man who you brutally and mercilessly attacked.
    • You all had strong desire to do grievous bodily harm, which counsel submitted is evident in the injuries sustained to the chest area which is a vulnerable part of the body
    • You all used bush knives, sticks and other weapons to attack the deceased which are all dangerous weapons
      
21. In the circumstances, Mr. Done argued that a sentence between 20 and 30 years would be appropriate.
    

Maximum Penalty

22. The maximum penalty prescribed for murder, is life imprisonment under s.300 of the Criminal Code subject to s.19 also of the Criminal Code, which empowers the courts to impose a lesser sentence. As to whether to impose the maximum for any offence, it is trite law that the maximum penalty for any offence must be reserved for the worse type of the offence under consideration. In Manu Kovi vs. The State (2005) SC789, the Supreme Court hearing an appeal against the decision that imposed life sentence in a willful murder case dismissed the appeal and confirmed the life sentence imposed by the National Court decision and in the process set out sentencing guidelines and tariffs for all homicide cases in different categories. The guideline for murder cases is as follows:-
    

Category 1 – Sentence range of 12 – 15 years.

The type of cases that fall into this category are cases where no weapons are used, there is little or no pre-planning, minimum force used and absence of strong intent to do grievous bodily harm.

Category 2 – Sentence range of 16 – 20 years.

The type of cases that fall into this category are cases where there is no strong intent to do grievous bodily harm, there is use of weapons, there is some pre-planning and some element of viciousness.

Category 3 – Sentence range of 20 – 30 years.

The type of cases that fall into this category are cases where there is pre-planning, vicious attack, strong desire to do grievous bodily harm, use of dangerous offensive weapons such as gun or axe used and other offences of violence committed.

Category 4 – Sentence of life imprisonment.

The type of cases that fall into this category are cases where there is pre-meditated attack, brutal killing in cold blood, killing of innocent harmless person, killing in the course of committing another serious offence and where there is complete disregard for human life.

Sentencing Trend

23. The following cases were cited by both lawyers:
    
    • (i) State v Baika Martin & Ors (2008) N3312 (Kandakasi J). A mother of one of the prisoners 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.
    • (ii) The State v Mathias C.R 550, 551 & 545 of 2019 per Murray J: The offenders, Baziro Wellam, Nason Ikupu & Joesph Gahanoa were found guilty after trial for murdering an elderly man suspected of sorcery by assisting in beating and torturing him. The deceased person were dragged out of the village into the bushes, tortured and killed. The offenders were part of a whole village who took part in the murders but they were the only ones charged. The prisoners were sentenced to 25 years respectively.
      • (iii) The State v Dakol [2018] PGNC 364; 7444 per Kaumi, J: The four accused persons pleaded guilty to one count o Murder pursuant to s.300 (1)(a). They suspected the deceased for practising witchcra t and they blamed him for the death of one of their brother. On the alleged date the accused persons armed themselves and went and surrounded the deceased house very early and started to monitor him. When he came out of his house he stood on the ground and put one of his hands into the air, he continued this all around his house. The accused thought he was performing some kind of ritual so when he was seated with his family they rushed to him assaulting him by cutting him all over his body. He died as a result of the injuries sustained. The prisoners were sentenced to 20 years with the pre-trial period in custody deducted and a further 2 years suspensions leaving a balance of 16 years to be served.
      • (iv) The State v Bob [2019] PGNC 455; N8234 per Kaumi.J (supra,): The four accused persons pleaded guilty to one count of Murder pursuant to s.300 (1)(a).On the alleged date the deceased was attending a mediation in which he was accused of sorcery. Whilst he was answering questions put to him, the offender and his accomplice who were armed with sharp objects rushed at him. The offender stabbed the deceased with a 30am ling knife on the right side of his stomach. The other accomplice stabbed the deceased on the left side of his shoulder causing him to collapse and die instantly as a result of the stab wounds. He died as a result of the injuries sustained. The prisoners were sentenced to 14 years with the pre-trial period in custody deducted and a further 4 years suspensions leaving a balance of 16 years to be served.
      • (v) The State v Ngase Saomai, Cr. No: 793/15, Pitpit, J
        The prisoner was sentenced to 20 years IHL less PTC and the balance to be served in custody. On the 27^th September 2015 between 6-7am in the morning accused Ngase Saomai and his accomplices were at Dengaru village, Sialum LLG. The accused and his accomplices were involved in a fight between Kebrum and Nunzen villages and extended to Dengaru village. During the fight many properties including dwelling houses, trade stores and four (4) motor vehicles were burnt to ashes and two of these vehicles belonged to Sialum LLG. During the course of the fighting, the deceased Wiwinuka Leka was chased into the kunai bushes where they chopped and killed him with bush knives. The accused person was indicted with murder pursuant to Section 300 (1) (a) of the Criminal Code.
      • (vi) The State v Lagu [2011] PGNC 80; N4354 (11 August 2011), Cannings J.
        The prisoner killed fellow villager by stabbing him with pocket knife-sentence of 20 years.
      • (vii) The State v Michael Gend, CR # 760/2011, 17/02/14, Gabi J
        The prisoner pleaded guilty and he was sentenced to Twenty-Five (25) years in hard labour less pre-trial custody period of 3 years, 2 months, 2 weeks and 5 days leaving the balance of 21 years and 9 months which will be served in custody. It is alleged that on Tuesday, March 1, 2011 between 3.00pm and 3.30pm the accused and his deceased wife engaged in an argument which started from the market place to their house. At the time the accused was armed with a knife which he began to use to stab the deceased at the back until they reached their house where he stabbed her again in the genital and abdomen area. The deceased fell to the ground and died instantly due to loss of blood from the injuries she sustained. The deceased sustained multiple injuries to the body. She was rushed to the Angau Hospital where she was pronounced dead. The deceased was four (4) months pregnant at the time. The State alleges that the accused intended to cause grievous bodily harm however due to the injuries sustained and the loss of blood she died. He is indicted pursuant to Section 300 (1) (a) of the Criminal Code.
        
24. Of all the cases cited, I consider the 4 cases cited by Ms Peu more applicable and helpful in that, the circumstances in those cases are like yours. They all involve sorcery related killings.
    

Sentence in Your cases

25. Your lawyer submitted, your cases fall within the second and third category, whilst the counsel for the State, submitted that your cases fall only within the category three of Manu Kovi guidelines. Although, your case could fall under the third category, I am reluctant to agree with the State lawyer as I disagree that there is a strong desire to do grievous bodily harm. Thus, I consider your cases fall under the second category.
    
26. Having decided on that, I now move on to determine an appropriate sentence for each of you. In order to do that, I need to and I do take into account your respective personal backgrounds as submitted by your lawyer and as I have noted above arising from your respective PSR. I also need to and have taken into account, the factors operating both for and against all 3 of you, as submitted by both lawyers.
    
27. To those factors already submitted by your lawyer in your favour, I add, as a special mitigating factor for all 3 of you, is the fact that the injuries inflicted by you, Joshua Songoa which you pleaded guilty to and you, David James, which you also pleaded guilty to, did not directly cause the death of the deceased. The autopsy report is very clear in that, the deceased died from acute massive blood loss due to penetrating chest wound. This means the knife wound cut to the back of the deceased and the knife wound cut to the thigh of the deceased by both, you, Joshua and you David were not with strong desire to do grievous bodily harm to the deceased. Putting it another way, the deceased did not die from the injuries you, Joshua and David inflicted.
    
28. Despite that, both Joshua and David, and including Francis whose degree of participation is much less, have all accepted full responsibility for the actions of the whole community who attacked the deceased but have not come forward to take responsibility for their actions. This is another and strong factor in your favour.
    
29. And to those factors already submitted by the counsel for the State against the 3 of you, I add to those, the fact that, I note that you had no direct evidence that the deceased was a sorcerer. Nor was there direct evidence that he killed someone. You all acted on mere suspicions that he was a sorcerer. The Sorcery Act prohibits and prescribes acts of forbidden sorcery. Then there are both the formal and informal systems that provide for the dealing with people of committing such prohibited acts. This allows for a person suspected of committing a prohibited act of sorcery to be charged, brought to a court of law and if found guilty according to law, punish him appropriately. Despite that available remedy, you did what the Supreme Court said to the appellant, Thomas Irai in the case of Thomas Irai v. The State SCR 08 of 2006 (Unreported and judgment delivered on 28/08/07). In that case, the Court said: when you acted in the way you did, you became the accuser, prosecutor, jury, judge and executioner all at the same time. You all denied, the deceased the right to the full protection of the law, the very laws, you are seeking the protection of or benefit from and to be entitled to a fair trial, a fair decision on both guilt and penalty by a fair and impartial judge.
    
30. Applying that to your cases, you all have had the benefit of the full protection of the law. Your guilt has been determined through a fair and open process administered by a fair and impartial court and is now looking at the question of what is an appropriate sentence for you.
    
31. Weighing the factors for and against you all, I find that the factors in your favour far outweigh those against you and further noting that I consider that your case falls in the second category of the Manu Kovi guidelines, even though this is a case that could fall under the third category, I consider a sentence in the range of 16 to 30 years as submitted by your lawyer would be appropriate.
    
32. Then further taking into account the kind of sentences that have been imposed in sorcery related cases, as set out above, one of which is my decision following a trial, I consider a sentence of 22 years against Joshua Songoa and David James alias Komas, who I find actually used knives to cut the deceased inflicting knife wounds on the deceased’s body, appropriate and impose that sentence against the both of you. Then for Francis Yawa, by reason of your degree of participation in causing actual injuries to the body of the deceased with dangerous weapons which I find is nil, I consider a sentence of 20 years appropriate and imposed that sentence against you.
    
33. Out of your respective sentences of 22, and 20 years, I order a deduction of the period of 2 years, 2 months, 2 weeks and 6 days you have already spent in custody whilst awaiting your trial and sentence. That will leave you, Joshua and David, with a balance of 19 years,1 week and 4 days and for you, Francis, 17 years, 1 week and 4 days yet to serve. I order that you serve that part of your sentences in hard labour at the Buimo Correction Services.
    

Summary of Sentence

34. Joshua Sangoa, Francis Yawa & David James alisa Komas, having been convicted of the crime of murder under Section 300 (1) (a) of the Criminal Code, you are now sentenced as follows:
    

Length of sentence imposed	22 & 20 years respectively
Pre-sentence period to be deducted	2 years, 2 months, 2 weeks and 6 days
Resultant length of sentence to be served	19 years,1 week and 4 days and 17 years, 1 week and 4 days respectively
Amount of sentence suspended	None
Time to be served in custody	19 years,1 week and 4 days and 17 years, 1 week and 4 days respectively
Place of custody	Buimo Correctional Institution

35. A warrant of commitment shall issue forthwith in those terms.
    

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender