State v Junior (No 2) [2023] PGNC 301; N10433 (14 August 2023)

N10433

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 12 OF 2021

THE STATE

V

SHANE AWAS JUNIOR
(NO 2)

Aitape: Miviri J
2023: 14^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death – intent to kill – Deceased Cut with Welded steel Axe – Prisoner part of a Group Attack – Sorcery – Skull Laceration With Open Fracture of Skull – Traumatic Brain Injury – Left Neck Laceration Involving Carotid Artery Severed – Cut All Over Body – Determined Persistent Attack – Attack In Premises of Deceased– No Respect for Rule Of Law – Sanctity of Life Section 35 Right to Life – Taking Law Into One’s Own Hands – prevalent offence – Life years Appropriate.

Facts
Prisoner was part of a group of men who went to the premises and house of Deceased attacked and cut him with the weapons they had all over his body. He had caused the death of a relative by sorcery. Prisoner cut the deceased on the head with a welded Steel Axe causing traumatic brain injury. Death resulted. And together with all prisoners intended to kill him.

Held
Intention to kill.
Sorcery Killing.
Group Attack
Sanctity of life
Prevalent offence
Strong deterrent sentence.

Cases Cited:
Kumbamong v State [2008] PGSC 51; SC1017
Simbe v The State [1994] PNGLR 38
Ripuna & ors v The State [2022] PGSC 29/04/22; SCRREV 34, 35, 36, 37, & 38/2019.
The State v Manu Kovi [2005] PGSC 34; SC789
Baipu v The State [2005] PGSC 19; SC796
State v Jackson [2006] PGNC 154; N3237
State v Mohavila [2006] PGNC 106; N3385
Michael v The State [2004] PGSC 37; SC737
Public Prosecutor v Don Hale [1998] SC 564
Sanawi v The State [2010] PGSC 31; SC1076
Kalabus v The State [1988-89] PNGLR 193
Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
Anis v The State [2000] PGSC 12 SC642
The State v Nimagi [2004] PGSC 31; SC 741
Kwayawako v The State [1990] PNGLR 6
Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
The State v Aihi (No 3) [1982] PNGLR 92
The State v Hagei [2005] PGNC 60; N2913

Counsel:

D. Mark, for the State
P Moses for the Defendant

SENTENCE

14^th August 2023

1. MIVIRI J: This is the sentence upon Prisoner Shane Awas Junior of Prou Hamlet Lemieng, Aitape, West Sepik Province convicted after trial that he on the 24^th April 2020 at Kunai hamlet, Lemieng, Aitape wilfully murdered Dominic Elias Elrem.
   
2. The material evidence is that the prisoner was one of four men who was at the lead to kill the deceased at his house. They had intended to kill 50-year-old Dominic Elias Elrem because he was responsible through Sorcery, poison or “Sanguma” for the killing of Ailleen Moipu, their immediate relative. He was accompanied by Vence Moipu, Gabriel Tape who all followed one Rumold Moipu who started swearing ran into his house came out of the house armed with two pieces of iron. It was a very well-planned crime because they were in numbers and masked themselves. Then they divided themselves into three groups with the group that the Prisoner was in leading eventually to the house and premises of the deceased leading upfront. That is clear and bound out by the fact that the second group that came as the deceased was attacked by the Prisoner and the others went and destroyed the deceased’s properties. There was yet another group that came and cut his legs as he lay after the Prisoner hit him with the Axe and he fell to the ground.
   
3. He chopped the victim on the head with a steel welded axe from which he died. In the group that attacked initially included Gabriel Tape, Vence Moipu, Rumold Moipu and the Prisoner Shane Awas Junior. I have detailed the role of the prisoner in causing the injury to the deceased. It is the secondary cause of the death of the deceased. Which is set out by the medical report in this way, “Traumatic Brain Injury from Multiple bush knife wounds.” The doctor describes the head injury this way, “There was skull laceration with open fracture of the skull and evidence of traumatic brain injury.” It is measured by the Doctor as “Two Lacerations over the head; one measuring 9cm longitudinal and width of 1.5cm exposing the skull and brain matter (figure 4)
   
4. So, the hand and the role of the Prisoner in the death of the deceased did not just help, but he was responsible for inflicting the secondary major injury, the head injury which was the secondary cause that led to the death of the deceased. And the deceased was singled out in his house and premises by the Prisoner with the others. They came in a group outnumbering him. He stood no chance with the weapons that were in their possession. He was cut and did not stand any chance of survival given how they attacked him. The repeated infliction of the injury, first by the bush knives followed by the axe of the prisoner and then finally the cut to the legs by the last group, was not carving up a log to make a canoe but cutting axing a fellow human being. In the way it was carried out no men would live, let alone survive, and the deceased was no different.
   
5. All because he was alleged, not convicted that he was a sorcerer responsible for the death of Ailleen Moipu. It was not clear as to the basis of determining what was it that established that he had through sorcery caused the death of Ailleen Moipu. And it was no exception, whether with, or without evidence, it was a belief without any evidence as to how it was tangible, in what form to sway that there was indeed evidence for the Prisoner and the others to behave as they did. The National Court is of Law present. Evidence must be laid out that this is the aspect of sorcery that prompted the behaviour of the Prisoner and all who were of his line with him to act in this way. We, here in West Sepik Province particularly from Lemieng Village where the deceased and the prisoner are from, see this material as evidence of the belief that She Ailleen Moipu has died as a result of sorcery. Let alone any person for the same within our village. In other words, that is the standard material to justify our actions on this day. And here it is by this material proving that the sorcery is by the deceased. This material is the direct link to the deceased Dominic Elias Elrem as being directly responsible in sorcery for the death of Ailleen Moipu. And he has killed her in this way using these materials or implements which were uncovered from his house by this means.
   
6. This is a killing that took place on the 24^th April 2020. Recently the Criminal Code was amended by No. 14 of 2022 and it was certified on the 16^th May 2022. It inserted the new Division VII.4 Acting like or purporting to be a glasman or glasmeri into the Criminal Code Act. It inserts sections 520A to 520G. It details out the offences of Interpretation; Acting as a glasman or glasmeri; Attempt to use a glasman or glasmeri; Use of a glasman or glasmeri; Accusation of Sorcery; Forfeiture of profits of Acting like or purporting to be a glasman or glasmeri; and corroboration.” This is now the law of the 16^th May 2022. This killing is not covered but what that law seeks to uncover was not the case here.
   
7. There is no evidence called of this fact but a mere assertion that the deceased was a sorcerer responsible by that means for the death of Ailleen Moipu. The belief must be affirmed by evidence for the Court to go down that path. Here also it will be argued that the defence have raised it. It is incumbent on the State to disprove with material, otherwise without which the sentence must take account of that fact to sentence. The benefit must go in favour of the prisoner. But this is a matter within the peculiar, confined knowledge of the defence, the prisoner, it is a matter not within the knowledge of the State to negative, as in the case of medical evidence that it can readily call up to prove or disprove. And section 37 (4) (a) of the Constitution is very clear and explicit, that the prisoner is innocent and the burden is always on the State to prove, “but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge;” There is no expert on sorcery and how it is used to kill in the hands at the discretion of the State to call to disprove or prove as the case maybe. For example, in the case of Alibi when it is raised by a notice by the defence. That is not the case here at all. This is not a case likened to that fact. Therefore, rightly it is upon the defence who have raised it so must get the evidence to set the foot hold to sway. Otherwise, it is just a wilful murder that must be addressed by its own facts circumstances from its own sentence due in law: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). And that is how I will address the sentence of the prisoner here. He will get the sentence due and proportionate by his own facts and circumstances in law: Simbe v The State [1994] PNGLR 38.
   
8. Belief in sorcery has seen serious and unprecedent defiance of the rule of law, time and again all over the Country: Ripuna & ors v The State [2022] PGSC 29/04/22; SCRREV 34, 35, 36, 37, & 38/2019. The Supreme Court accepted this but stated that the sentence must not be in leaps and bounds, but gradually. That confirms to Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). For our present purposes here by the facts and circumstances, this is a category three (3) and four (4) by that precedence. A trial was conducted. This is an offence that was well planned and well executed with precision. It was a very brutal killing depicted out by the medical report set out above. Including the planning and execution set out above. There really is no mitigation except that the prisoner is a first offender. Any other identifiable and apparent is rendered subservient by the gravity of the offence detailed out by the weapons used and the manner of its execution. And the killing was in his own house and premises witnessed by his own family who were told not to cry or call out in any way by the prisoner and accomplices.
   
9. This is now almost the 48^th anniversary of the Independence of our Country. And Christianity has come into our midst and is part of our lives by our Constitution. The sixth commandment of the ten (10) commandments that GOD gave is, thou shall not kill. Clearly Dominic Elias Elrem was killed in defiance, because of sorcery which is still part of our distance past that hinges on our face in this way. Our hearts have come to accept and to behave in this manner despite our primary and secondary education, or even tertiary. The prisoner is no exception because he was doing grade 10 at the Vanimo Secondary School. He ought to by that fact know as to the causes for the death of the deceased aunty. But still by that education to take the matter to a process of law in the village Court. Even village court officials are not immune from this tentacle of violence rampant country wide: Baipu v The State [2005] PGSC 19; SC796 (1 July 2005) and State v Jackson [2006] PGNC 154; N3237 (24 October 2006). They themselves have become victims to this unprecedented level of violence, defiance, abhorrence of the rule of law. The former on appeal 25 years was substituted for life imprisonment. And the latter drew 24 years IHL on a guilty plea, both on a charge of murder, not wilful murder as is the case here. If this is the kind of violence that will be visited even on village court officials should the Constitution be bended backwards to condone this violence. I think not, it is time to settle the supremacy of the Constitution and the dictate it bestows upon this Court: State v Mohavila [2006] PGNC 106; N3385 (25 October 2006). That is still very open given my facts here against the prisoner.
   
10. The Courts must not fail in their spirit to the Constitution and to the People and must deliver justice fair and square, because who else will serve the people justice. And the Supreme Court endorsed this in very broad terms saying, “Accordingly, we are of the view that in the light of the fact that more and more murders and wilful murders are being committed, the National Court must seriously look at tougher penalties. It is the view of this Court that the argument of "leaps and bounds" that some Courts apply with respect, is not found in any statute, and certainly not in the Criminal Code. We consider that the legislature, the Parliament, has determined the maximum penalties for homicide cases and other violent crimes in the Criminal Code. The Parliament has also determined that the National Court would have some discretion on sentencing therefore it ensured that the Court’s discretionary power is found in the statute. That is why Courts have been given that discretion under Section 19 of the Criminal Code. Other than what the Parliament has enacted, we should not go outside of the statutes to look for ways to compromise the National Court’s discretionary power of sentencing by using a notion that has no relation to the prevalence of the offence, the quantum leap, the offence under consideration has taken. The Courts have to appropriately respond to the wishes and or calls of the community to increase sentences to meet the ever increase level of such serious crimes as, wilful murder, murder, manslaughter, rape and armed robbery, Michael v The State [2004] PGSC 37; SC737 (1 April 2004).
    
11. The home is no longer safe because of the tentacles of violent crimes. And it is no exception here. The deceased was attacked in his premises and house in front of his family. It is no longer his castle by the law. And it would not be erroneous to follow the path of Public Prosecutor v Don Hale [1998] SC 564, although is a case of the robbery, protection of the dwelling house with the sentence that was imposed is good law applicable given the facts here, homicide committed within. It would not be parting company with parity where; “A consideration of all these authorities shows that a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after trial, and playing a more active and leading role in the commission of an offence. Such factors need not exit in one case at the same time. There could be just one such factor or there could be a combination of them,” Sanawi v The State [2010] PGSC 31; SC1076 (29 September 2010). The facts are very clear he was one of the leaders of the pack in the attack.
    
12. I am versed and consider that the prisoner at that time was 20 years old and had an education of grade 10. He was then in the village when he committed the offence. He had a relationship resulting in two children, first 6 years old, and second aged 3 years old both of whom are now with his parents. He is a first time offender of Prou village, Aitape, Aitape Lumi District, West Sepik Province. He has no formal employment record and is of the United Pentecostal Church. There is nothing really mitigating the offence any further than the fact that he is a first offender. He expressed remorse in this way, “I accept the decision of the Court. I say sorry to the Victim and immediate family of the victim deceased. I did my grade 10 I did not complete it. I have two children one is six (6) years old. And the other is three (3) years old in the care of my parents. They are both villagers and stay in the village. Have mercy, give me time that I can serve so that I can help my parents to look after my children.”
    
13. He pleads for mercy yet gave none in the words of the Senior State Prosecutor, silent plea for mercy, each time he got up and ran after being attacked. In my view this expression is not genuine remorse. It came out after trial. It maybe his right but where the evidence is clear it would be genuine remorse for the defendant to make the plea at the outset. The weight here is overwhelm such that it falls into oblivion: Kalabus v The State [1988-89] PNGLR 193. This prisoner’s personal circumstances will not override the seriousness of the offence and what is due to him. He will be dished out what is called in law to him: Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000. And in this regard I do not classify him in the same as Anis v The State [2000] PGSC 12 SC642 (25 May 2000) where the youthfulness of the offenders was not given due consideration in the sentence that was given for aggravated armed robbery of a factory. Here is a leader to the demise of the deceased directly the assailant responsible for the secondary cause of death of the deceased confirmed by the Doctor. This is not a young at heart who has been lured by adults to commit the offence. The Supreme Court rejected the plea of youthfulness and confirmed the sentence of 50 years for murder in Nimagi v State [2004] PGSC 31; SC741 (1 April 2004). I take that view and stance given the meaning by the Supreme Court. He will be sentenced as a leader of the offence. It is a very violent offence, and the seriousness of the offence is overwhelming compared.
    
14. Because every man is innocent, just as the prisoner was until the verdict announced after consideration of all. The process of law was not exhausted to return the verdict against the demise of Dominic Elias Elrem. He was neither charged nor was he convicted of an offence that was written in law. Nor was his penalty, nor did it have the seal of the Legislative Counsel as emanating from the chambers of parliament duly passed with a number and date coming into force. He died charged by his accusers who also carried out his penalty, which was death by Bush knives and an axe. This is very clear breach of the Constitutional provisions under section 37 Protection of the law. He died without a law spelling the offence and penalty section 37 (2) of the Constitution. And it is even a very serious breach of section 35 right to life also of the Constitution.
    
15. The roots of sorcery is deeply rooted traverse across the length and breadth of our country: Kwayawako v The State [1990] PNGLR 6 which acknowledged Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510, that there is this belief widespread that has held as is the case here serious homicide offences known to the law committed. A sentence of 15 years in hard labour was varied by the Supreme Court down to 10 years imprisonment because of that belief. An increase was ordered to 5 years 5 months for the initial and primary order of three months’ imprisonment with hard labour and purporting to rely on section7(e) of the Native Customs (Recognition Act 1963 and ordered “each of them to pay five native pigs to the deceased’s younger son immediately upon release”. Both these cases were 1980, and 1990, 10 years apart we still are in the traversed by this heinous circle digging our advance into a never-ending pit despite advancement in technology and the like. The Constitution of Papua New Guinea is supreme Law. This Court will be its guardian and will ensure its reign is without question. And this sentence will reflect.
    
16. The prisoner will be sentenced to a maximum of life imprisonment by section 299 (1) of the Criminal Code. Which is the maximum penalty by law. Judicial discretion will be exercised in accordance with the mitigating, aggravating and extenuating circumstances to arrive at a proportionate sentence due him for his crime of wilful murder: Aihi v The State (No 3) [1982] PNGLR 92.
    
17. In my view I have tried to set all these out in the headings of the discussion above. After due consideration also that there are no extenuating circumstances as viewed in State v Hagei [2005] PGNC 60; N2913 (21 September 2005). I determine that the proportionate penalty due for the wilful murder of Dominic Elias Elrem committed by the prisoner on the 24^th April 2020 at Kunai hamlet, Lemieng, Aitape is the maximum imprisonment of life years. And I so impose that upon the prisoner.
    

Orders Accordingly,

__________________________________________________________________Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Defendant