State v John (No. 2) [2023] PGNC 495; N10648 (22 December 2023)

N10648

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 449, 450, 451, 452, 453 OF 2018

THE STATE

V

AUSTINE JOHN, LORENZO REUBEN, PESTO JOHN,
PERRY ALEX, SEONA DANNY
(NO. 2)

Esa’ala & Alotau: Toliken J
2019: 17^th, 20^th May
2022: 02^nd July
2023: 19^th, 22^nd December

CRIMINAL LAW – sentence - Wilful murder – multiple accused – group attack on deceased – deceased killed with spears and knife – section 7 of Criminal Code not invoked - each accused by his individual action directly contributed to deceased’s death – not a worst case – mitigating and aggravating factors considered – prisoners sentenced according to their individual culpability and degree of participation – Sentences of 30 & 25 years less time in pretrial detention –Criminal Code, s 299 (1).

Cases Cited:

Lawrence Simbe v The State [1994] PNGLR 38
Goli Goli v The State [1979] PNGLR 653
Wera v The State (2023) SC2367
Mai v The State (2015) SC1462
Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
The State v Sip (2023) N10574
The State v Livai Songai (2023) N10444
The State v Varuruai (2022) N9682
State v Benny (2018) N9243
Komboli v The State (2005) N2891
The State v Alfred Tilaka; CR NO. 1430 of 2023 (unnumbered and unreported judgment by Bona J)
The State v Austine John, Lorenzo Reuben, Pesto John, Alex Perry & Seona Danny; CR NO. 449, 450, 451, 452, 453 of 2018 (unnumbered judgment of 02 July 2022.

Counsel:

R Luman and D Mark, for the State
Nick Wallis and C Namono, for the Prisoners

JUDGMENT ON SENTENCE

22^nd December 2023

1. TOLIKEN J: The Prisoners namely Austine John, Lorenzo Reuben,

Pesto John, Perry Alex, and Seona Danny were indicted for the willful murder of Bruno Eddie at Bwayobwayo Village, Salahakadi, Esa’ala District, Milne Bay Province on the 08^th day of October 2017 pursuant to Section 299(1) of the Criminal Code (the Code).

2. I convicted the prisoners on 02^nd July 2022 at Alotau after trial and adjourned generally for the administration of the allocutus and to allow, at the request of the defence, for presentence reports (PSRs) to be filed for the prisoners. The prisoners are from remote Salahakadi on Ferguson Island, Esa’ala District of Milne Bay Province. Getting PSRs ready therefore required some considerable effort and expense on the part of the Probation Service here in Alotau. See The State v Austine John, Lorenzo Reuben, Pesto John, Alex Perry & Seona Danny; CR NO. 449, 450, 451, 452, 453 of 2018 (unnumbered judgment of 02 July 2022, for the judgment on verdict.
   
3. I pause here to place on record that whilst awaiting a decision of verdict the prisoner Pesto John escaped from custody on 20 March 2022. Having escaped he has voluntarily waived or forfeited his right to be present for the continuation of his trial and sentencing. (Komboli v The State (2005) N2891)
   

FACTS

4. The prisoners are going to be sentenced on the following facts which I found at trial. On the 17^th October 2017, the deceased and the prisoner Lorenzo Reuben got into a fight over some compensation owed by the deceased’s father-in-law Ponsi Ginole for wounding Lorenzo some time back in 2014. During the fight the deceased injured Lorenzo. Lorenzo went to his hamlet and returned with his relatives including Seona Danny, Austine John, Rex Wilson, Ponso Renbin and others and they fought with the deceased and his brother Eustace Eddie and other relatives of theirs. They fought for about two hours stopping only when it got dark around 6.p.m. State witness and Village Magistrate John Waleidi was present and stopped the fight.
   

4. The next morning the 08^th October 2017, men within the Bwayobwayo community congregated at Lorenzo’s hamlet. They painted their faces with charcoal and dressed in traditional costumes and armed themselves with knives and black palm spears. Around 7.30a.m they mobilized and converged on the deceased’s and his family’s hamlet. They numbered 20 – 25 men including the 5 prisoners.

5. At that time the deceased and his relatives including Village Magistrate John Waleidi and Eustace Eddie were preparing for church service when they were attacked. They were not ready as they were the previous afternoon to fight, and so, everyone fled into the bush for their safety leaving only the deceased and John Waleidi behind in the hamlet but at different locations.

6. The deceased fled for his life across a river which was about 15 meters wide. As he was running away Perry Alex speared him on the right leg while Seona Danny speared him on his right arm or somewhere on his limbs. Austine John then chased after the deceased. He caught up with him when he stopped somewhere close to the other side of the river. Austin grabbed the deceased by his hand. The deceased told him to leave him alone since he had been wounded already. Austine John, however, lifted his bush knife and cut the deceased on his left ankle and the deceased fell to the ground. He then cut him again on his right ankle.

8. By this time Seona Danny, Lorenzo Reuben, Pesto John, and Perry Alex, who had followed Austine John caught up with him. They surrounded the deceased immediately and proceeded to spear him with their black palm spears.
   
9. Pesto John then used a black palm spear to which a metal knife blade was lashed and speared the deceased on the thigh pinning him to the ground. The deceased was already dead by then. The five accused then walked back to the other side of the river where they were met by Magistrate John Waleidi who told Seona Danny to take his group away and wait for the police to come.
   
10. The injuries observed by the Community Health Worker (CHW) Faiteli are as follows –
    

Head – Scalp laceration about 4cm long
Back – 2 spear marks

Right hand – a 3 cm laceration across the palm of the hand and laceration on the fingers

Left wrist joint – a 4 cm laceration

Legs – Right – 2 cm laceration involving the tibia (bone of the leg)

- Left – 10 cm wound is present with some of the bulk of the calf muscle having been cut out.
- Both Achillis tendons have been divided.

THE OFFENCE

11. At the time the prisoners committed this offence, the crime of wilful murder carried the death penalty pursuant to Section 299 (1) of the Code. It relevantly provided –
    
    299. WILFUL MURDER.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

ISSUE

12. The death penalty is not mandatory hence the court must determine an appropriate sentence for each of the prisoners.
    
13. Whether anyone of them or all will receive the death penalty will depend on whether this case will be regarded as a worst case of wilful murder. (Goli Golu v The State [1979] PNGLR 653) They will also be sentenced according to the facts and circumstances of their case, and according to their individual culpability and degree of participation. (Lawrence Simbe v The State [1994] PNGLR 38; Mai v The State (2015) SC1462 and Pomaloh v The State (2006) SC834)
    
14. At the outset I can say that though serious, this is not a worst instance of wilful murder. I will therefore endeavor to impose lesser sentences - be they be life imprisonment or terms of years.
    

ANTECEDENTS

Austine John

15. Austine John is from Wasio Village, West Ferguson, Esa’ala District, Alotau, Milne Bay Province. He is 36 years old. He is married with 4 children, all girls the oldest being 13 years old and the youngest 6 years old. His wife remarried in 2019 while the offender was in prison and his daughter passed away recently. He was educated up to Grade 8 only at Salahakadi Primary School in 2006. He was a member of the Catholic Church, but whilst in prison he joined the Seventh Day Adventist faith. He has no prior convictions and has been in pretrial custody since his arrest on 04^th November 2017.
    

Lorenzo Reuben

16. Lorenzo Reuben is from Isiu Village, West Fergusson, Esa’ala District, Alotau, Milne Bay Province. He is 36 years old and single. His father died in 2010, and the mother also passed away recently in 2023 while the offender was in prison. He was educated up to Grade 8 only at Salahakadi Primary School in 2006. He is a member of the Catholic Church. He has no prior convictions and has been in custody since 04^th November 2017 when he was arrested.
    

Perry Alex

17. Perry Alex is from Salakahadi Village, West Fergusson, Esa’ala District, Alotau, Milne Bay Province. He is 23 years old and single. He was 18 years old at the time of offending. His parents are still alive. He completed Grade 8 at Salahakadi Primary School in 2016 and was doing Grade 9 at Wesley Secondary School, Salamo, Furguson Island, when he committed the offence. He is a member of the Catholic Church. He has no prior convictions and has also been in custody since 04^th November 2017.
    

Seona Danny

18. Seona Danny is from Kaubwaku Village, West Fergusson, Esa’ala District, Alotau, Milne Bay Province. He is 40 years old. He is married with 4 children, the oldest being 16 years old and the youngest being 8 years old. His wife remarried in 2020 while he was in prison. Both parents have passed away. He completed Grade 8 at Salahakadi Primary School back in 1996. He later enrolled at Watuluma Vocational School between 1998 – 2000 where he completed a course of training in light vehicle repair (mechanic). In 2002, he was recruited and trained as an Elementary School Teacher in his village, a position he held until the date of his arrest in 2017. He is a member of the Seventh Day Adventist Church. He has no prior convictions and had also been in custody since his arrest on 04^th November 2017.
    

Pesto John

19. Pesto John comes from Taviguli Village, Furguson Island, Esa’ala District, Milne Bay Province. He was 19 years old at the time of his arrest on 04^th November 2017. He would be 25 years now. He would not have been married at the time of his arrest. He has no prior convictions. Nothing more is known about him because he had escaped from custody and is still at large.
    

ALLOCUTUS

20. The prisoners each addressed the court when called upon on the question of punishment. Austine John, Lorenzo Reuben and Perry Alex read from written statements while Seona Danny orally presented his plea in mitigation. Below are their statements -
    

Austine John

21. “Your Honour, I am married with four (4) children and while I was in custody waiting for my court, my wife remarried again leaving my children alone suffering with other family members. My father and mother are deceased, and no one is able to care for the well-being of my children. I am the only one who farms and market to meet the welfare of my children and while I will be serving my time in prison, no one will meet my welfare and the welfare of my children. Furthermore, I have been waiting for my court for six (6) years and two (2) months, while my second born daughter who was twelve years old passed away on May Sunday 14^th recently this year 2023. My heart was broken, and I also felt much pain in me about my daughter. However, I just humbled myself to stay and to hear and finish of the process of my court. Therefore, your honour, with due respect, I pray and plea to you, Your Honour and this Honourable Court seeking for your mercy if the court could have mercy on me and give me a lenient time and go back to my community on probation to serve my time at home so that I can reconcile and compensate the deceased family and to bring back peace into the community at the same timeserving my children.” (Sic.)
    

Lorenzo Reuben

22. “Firstly, I thank God Almighty and this Honourable Court and all the officials for your time and effort in running this case of mine. I stand before the Court as a first-time defendant to defend this charge laid against me with lots of challenges that also gave me good experience of how tough it is to face justice at the second highest level of court in the country. The tough challenges and experience that I faced during this court has helped me to become a good leader in my community to support the work of law-and-order programmes to help prevent criminal activities within families and community as a whole. This has been the very first time for me to appear before the Honourable Court to defend this allegation laid against me. As it was the first-time experience to face justice at the second highest level of court for sure. I believe that I am innocent, I used spears at all. I returned home on Sunday to my village with my three (3) spears. I also believe that there were lots of people involved in the fight. But I know my legal councillor Mr Nicky Wales sent a legal document and I received from third (3) person. Without knowing the content of the statement and I signed it, because I was fearful of the CIS Officers. I feel that it has been an injustice to me. I believe that I am innocent to the charge, but now the court found me guilty. I accept the court’s decision on me with peaceful heart as a first-time offender. I am single, and my parents died while I was in CS custody for six (6) years, two (2) months. I pray your Honour that this Honourable Court could have mercy on me and give lenient time or give me probation to serve my time outside.” (Sic.)
    

Perry Alex

23. “Thank you, Your Honour for giving me the time to speak. Before I continue to speak, firstly I would like to thank the Lord God Almighty for his guidance and protection upon my life whole through the past years.

Secondly, I would like to thank you, Your Honour and all the court officials for your time and effort being spent in running my case from the beginning up till to this day. Thirdly, Your Honour, I also would like to thank all the CS Officers for their effort spent in taking care of me whilst in custody. Lastly, Your Honour, this is my first time to stand in the eyes of the court and my first time to be in this kind of situation. I am just a young boy; I just completed my Grade 8 in year 2016 and then I attended Salamo Wesley Secondary School to do Grade 9 in 2017 but I went back home to spend my term 3 holiday and this incident happened and so I was arrested. Your Honour I believe the court has already been made aware of my story when I testified during my trial, that I went by myself, but on my arrival, I heard a gunshot from the crime scene and so I returned home. Has the biggest fear in human lives than any other weapons. And, Your Honour, a person cannot hear a gunshot and go forward to see what is happening only if he is an iron man or a hero then he would do so. Therefore, Your Honour, I strongly believe that I am still innocent in this matter because I was not there at that time, but because of hearsay stories. I was arrested and was detained in custody or CS for 6 years 2 months now and Your Honour, I am already tired of living a life in prison because life in prison is not easy, therefore Your Honour, I kindly ask the Court to look carefully on this and consider my plea and have leniency on me before you carry out your judgement on sentence because Your Honour I don’t want to deserve a punishment of a crime that was caused by someone else.” (Sic.)

Siona Danny

24. “I say sorry to the Heavenly Father and Creator, to the Constitution and to this Honourable Court. I say sorry to my victim’s relatives and to the community I belong to for my offence. Thank you for your time in running my case. Thank you for the Giligili Administration for your time and effort in looking after me in my time there. Thank you for the warders. I am married and have 4 children. While I was in custody my wife married another man and left my children without support. My parents both passed away while I was in custody further leaving my children with support. I have now been in custody for 6 years and 2 months. I pray to you and to the Honourable Court. I am just a first-time offender, the father of 4 children and pray that you consider my plea, be lenient on me and give me probation so I can serve time outside and care for my children. Thank you, your Honour.” (Sic.)
    

PRESENTENCE REPORT

25. The prisoners’ presentence report is not a balanced one because the deceased’s relatives were not interviewed. Only the prisoners and Abraham Bredan, an Elder from Bwayobwayo Seventh Day Adventist Church were interviewed. The prisoners stated that this was a community retaliation on the deceased and his relatives for theft of community owned properties. They had continuously stolen from schools in the area and abusing people in the community. They were acting like tyrants and overlords over unfortunate ones in the community and boasted openly that no one can stop them. Hence the Bwayobwayo community mobilized and retaliated when they (deceased’s relatives) started the fight.
    
26. The prisoners all denied killing the deceased and expressed their anger at being convicted. They said that they have realized where the problem is and said that they should not have taken the initiative to lead in any community fights like this for which they are the ones now suffering while the others are resting freely in the community.
    
27. They are willing though to reconcile with the deceased’s family but are not certain about whether the other side will accept their apology and reconcile with them customarily.
    
28. Nevertheless they seek the mercy of the Court and asked for lenient sentences. They promised to stay out trouble in the future.
    
29. Abraham Bredan related that he is the one dealing with this case in the community. It is a big problem and all the Churches in the area are working on it. The deceased’s relatives had initially fled to Fagululu. However, they have since returned home after negotiations resulted in a memorandum of understanding and are now leaving in peace and are awaiting the release of the prisoners. Mr. Bredan further said that the whole community is waiting in anticipation of the prisoners’ release and preparing for reconciliation. He is of the view that it is safe for the prisoners to be released back into the community because their families are now at peace with the deceased’s family.
    
30. The author of the report Heather Herman was of her view that it is difficult for rehabilitation and reintegration under probation supervision because the prisoners continued to deny their involvement and showed no remorse. She left it to the Court to pass punishment in its discretion for the benefit and safety of all parties.
    

SUBMISSIONS

31. Mr. Mark submitted that the prisoners all attacked the deceased with black palm spears and a grass knife to severe the tendons rendering him immobile. It was a repeated attack on a lone, unarmed, and defenseless person which clearly indicated their intentions, which was to kill. The prisoners he said were unrepentant in their presentence reports nor did they express any remorse. And since they still deny involvement, the author of the reports expressed the view that it will be hard to rehabilitate and reintegrate under probation supervision. Counsel submitted that the case falls under the second category of the Manu Kovi guidelines. (Manu Kovi v The State (2005) SC789)
    
32. Counsel cited a couple of similar cases; The State v Alfred Tilaka; CR NO. 1430 of 2023 (unnumbered and unreported judgment by Bona J) where the prisoner killed his pregnant wife and was sentenced to 20 years, and The State v Livai Songai (2023) N10444 by Miviri J where after trial his Honour sentenced the offender to 24 years for chasing down the deceased and stabbing him with a grass knife killing him.
    
33. Mr. Mark therefore submitted that sentences between 20 – 24 years be imposed but since this Court is not bound by the sentences in the above cases, sentences above these will be appropriate.
    
34. Mr. Namono submitted that the prisoners are all first-time offenders who had expressed remorse and co-operated with the police by voluntarily surrendering themselves when requested by the police to do so. Counsel submitted that this case falls under category 2 of Manu Kovi hence sentences between 20 – 25 years would be appropriate. He cites the following three cases; (1) The State v Sip (2023) N10574, where Miviri J sentenced the prisoners to 25 years less time in custody. They were the leaders of a group of men who went searching for the deceased who had attacked and stole from one of their relatives. They were armed with bush knives and grass knives and other weapons and were accompanied by the others. Finding the deceased, they set upon him cutting him all over the body. The deceased bled to death from the injuries he sustained. They intended to kill the deceased and did so; (2) Wera v The State (2023) SC2367, where on a review under Section 155(2)(b) of the Constitution, the Supreme Court refused to review and set aside the applicant’s sentence of 30 years for the wilful murder of his victim. He was with relatives some of whom were armed with iron bars, sticks and stones. He crossed the street and entered the deceased’s premises. He approached the deceased who was sitting with two relatives and repeatedly struck him with an iron bar. When the deceased’s relatives called a taxi to take the injured deceased to the hospital, the applicant stood on the road with his iron bar and chased the taxi away. The deceased died from heavy loss of blood as a result; and (3) The State v Varuruai (2022) N9682 where Tusais AJ (as he then was) sentenced the offender to 30 years. The offenders there were part of a group of 6 co-offenders, and others, who broke and entered the deceased’s home in the early hours of the morning and attacked him after suspecting him of practicing sorcery. The deceased died from heavy loss of blood.
    

OBJECTIVE SERIOUSNESS

35. As I have already alluded to at the outset this is not a worst case of wilful murder. It is nonetheless a very serious one. I agree with counsel that it is one that falls under the second category of the guiding principles set by the Supreme Court in the leading case of Manu Kovi v The State (2005) SC789. It had the following features - there was pre-planning, the attack on the deceased was vicious, weapons were used and there was a strong desire to kill. The Supreme Court suggested that a sentence between 20 – 30 years would be appropriate in such circumstances. What then should be an appropriate sentence for the prisoners? The State did not invoke section 7 (or s 8 for that matter) of the Code, hence the prisoners will be sentenced according to their individual degree of culpability and participation. (Pomaloh v The State (supra.)
    

MITIGATING FACTORS

36. The prisoners are all first-time offenders, of prior good character, unsophisticated and simple villagers from a remote part of the Furguson Island in the Esa’ala District of Milne Bay. It appears that they acted at the behest of the community who were unhappy with the deceased’s alleged criminal behaviour such as stealing from the local school, health post and church and possession of illegal firearms. That of course was an added reason to what was really a retaliatory attack and a continuation of the previous day’s fight between them and the deceased and his brothers.
    
37. After the end of their trial on 20^th May 2019 at Esa’ala, the decision on verdict was not delivered until the 02^nd of July 2022. And because of the need for presentence reports which could not be prepared and filed promptly due to the remoteness of the prisoners’ villages, it took another 1 year and 5 months after that before submissions made a couple of days ago followed by sentencing today. They have thus waited for the conclusion of their trial for a period of 6 years, 1 month, and 18 days. This would have weighed heavily on the prisoners and affected them psychologically. I note and accept also that they voluntarily surrendered to the police when requested to do so.
    
38. All the above are mitigating factors which are common to all prisoners.
    
39. At least two of the prisoners were youthful offenders at the time of offending. Perry Alex was 18 years old and in fact was a Grade 9 student at Wesley Secondary School, Salamo. He was on his third term school break when he got entangled with the issue that ultimately led him to participating in the wilful killing of the deceased. Pesto John was also a 19-year-old youth who in his youthful exuberance succumbed to the urge to join his seniors in attacking and killing the deceased. While youthfulness can no longer be a special mitigating factor, it is nevertheless a normal one. And so, I apply this in favour of these two prisoners.
    
40. Austine John and Seona Danny, who are the oldest among the prisoners apologized for the part in the killing of the deceased and pleaded for mercy and prayed to be placed on probation so they can serve their term outside to care for the children. I am of the view that they are genuinely remorseful. Both their wives have left them and remarried while they were incarcerated, and both have lost family members as well. Austine John lost his 12-year-old daughter in May this year (2023). Seona Danny also lost both his parents. Of course, these deaths were things that nobody had any control over and would have happened anyway irrespective of whether or these prisoners were incarcerated or not.
    

AGGRAVATING FACTORS

41. That said, there are aggravating factors against the prisoners. They used dangerous weapons such as spears and knives. This was a group attack which was obviously pre-meditated and planned. The attack was vicious and there was a strong desire to kill the deceased. These factors are common to the prisoners.
    
42. Prisoners Perry Alex and Lorenzo Reuben maintained their innocence despite being found guilty and hence are not remorseful.
    

CULPABILITY & DEGREE OF PARTICIPATION

43. What then was the individual culpability and degree of participation of each prisoner? In other words what was their individual contribution to the death of the deceased?
    
44. Austine John’s involvement started from the fight on Saturday, which, though stopped, spilled over the next day when he and other villagers colluded and planned to attack the deceased. He had revenge on his mind. When the mob confronted the deceased and after Perry Alex and Seona Danny had speared and injured the deceased as he was fleeing across the river, Austine John chased after him. When he caught up with the deceased he grabbed him by his hands, and despite the deceased’s plea for him to let him go as he was already injured, Austine John instead cut him on his left ankle then immediately followed through by cutting him on the right ankle as he lay on the ground. This is consistent with the wounds observed by the Community Health Worker. She reported that both Achilles tendons were divided or severed. Austine John’s action rendered the deceased not only defenseless but most importantly completely immobile and unable to make an escape. As it were, he became a sitting duck for the co-prisoners. Austine John’s culpability or moral blameworthiness was therefore extremely high, and he contributed significantly to the killing of the deceased.
    
45. Lorenzo Reuben started the fight on Saturday with the deceased. While he may have been genuinely aggrieved about the compensation that the deceased’s father-in-law owed him, he chose to raise his issue with the wrong person – the deceased. This led to the initial altercation between them in which the deceased wounded him. Lorenzo went to his village and returned with Seona Danny, Austine John, Rex Wilson, Ponso Renbin and others and they fought with the deceased and his brothers. Lorenzo was the instigator of the whole incident. He had revenge in his mind. The night’s hiatus or break did not damper his desire to get back at the deceased. Using the alleged criminal activities of the deceased as a front or excuse, he colluded with others in the community who had met at his house the next morning and converged on the deceased’s hamlet. With faces painted with war paint (charcoal) and armed with spears, these men were prepared for a fight. Lorenzo admitted that he carried three black palm spears with him purportedly for protection as he went with other to the deceased’s hamlet. At the scene of the crime Lorenzo joined his co-prisoners in attacking the deceased with spears as he lay helpless after Austin John had slashed his Achillis tendons. The evidence does not show exactly what specific part of the body he speared. Nonetheless, he participated in the killing of the deceased. And he had the motive to do so – retaliation – as he had been wounded by the deceased the previous day. He was not an innocent bystander. His culpability was high, and even though I cannot say for sure what he really did at the crime scene and despite the State not invoking Sections 7 or 8 of the Code his degree of participation was high, like Austine John’s. He did not come after the deceased for some innocent purpose. He came with criminal intentions.
    
46. Perry Alex was present and took part in that fight the previous day. The next morning when the men came pass his village, with painted faces and traditional costumes, on the way to the deceased’s village, he armed himself with 6 black palm spears and followed them. He said when they came close to the deceased’s hamlet, they heard shots, so he got afraid and turned back and returned to village. I did not believe this. On the contrary I found that he was first one to hurl a spear after the deceased as he was fleeing across the river hitting him on the right leg. This is consistent with the Community Health’s Worker Faiteli’s observation – that there was a 2cm laceration of the right leg or tibia. He did not desist or stop there. Rather, when Austin John immobilized the deceased Perry Alex ran over with rest of the co-prisoners, surrounded the deceased as he lay helpless and continued their assault on him. The evidence did not show what further injury he inflicted on the deceased but that does not detract from the fact that he pursued the deceased and further attacked him. I find his culpability and degree of participation high but not as high as that of Austine John and Lorenzo Reuben.
    
47. Seona Danny was also involved in the Saturday fight. Whether he actively participated is not clear from the evidence. The evidence by the State did not show also that he was involved in planning the attack on the deceased on Sunday morning. What is clear and which I found to be a proven fact was that he was with the mob that converged on the deceased’s hamlet that Sunday morning. He was the second person to spear the deceased as he was fleeing across the river. Like Perry Alex he did not stop. Rather he joined the others to surround the deceased and continued to attack the deceased as he lay helpless and unable to flee after Austine John had cut both his Achilli’s tendons off. Even though the evidence did not show what injury he inflicted on the deceased at that moment, there is no doubt that he joined the others in further attacking the deceased and thus contributed to and accelerated his eventual demise. His culpability and degree of participation is like that of Alex Perry.
    
48. Pesto John was also involved in the Saturday fight. He was also present at the deceased’s village the following day. He was not an innocent observer but one who had gone there with the others to confront the deceased. At the river as the deceased lay helpless and defenseless, Pesto John speared the deceased on the thigh pinning him to the ground with a spear lashed with a knife blade. His action contributed directly to and accelerated the deceased’s death, His culpability and degree of participation is like that of Alex Perry and Seona Danny.
    
49. The cases cited by Mr. Namono are on point – they all involved group attacks on a single victim. Unlike Wera, the other two cases, Sipa and Varuruai both involved multiple offenders who all partook in attacking and killing their victim and section 7 of the Code was invoked by the State, which is not the case here. And as I have said the prisoners here will be punished for their individual culpability and degree or level of participation.
    
50. I have dealt with a few cases here in Alotau which are quite like this current case. I will cite only one which is almost on all fours with the current case, except that it was a sorcery related killing.
    
51. In The State v Benny (2018) N9243, the five prisoners killed the deceased in similar circumstances. They were relatives of the deceased, who, like here, acted on a decision of their community to kill the deceased because he was suspected of causing the deaths of people in the community through sorcery. The prisoners were selected by community leaders to carry out the killing in what was an extra judicial execution. It involved not only the deceased’s own relatives but the Ward Councilors and a Reserve Policeman who supplied the bullet for gun which was used to kill the deceased. It was a cold-blooded killing where the offenders showed no real remorse. I sentenced the prisoners there according to their individual culpability and degree of participation. After expressing the view that those with lesser culpability and degree of participation should get a sentence starting at 35 years, and those with high culpability should get 40 years, I sentenced the first three offenders whose culpability and degree of participation was higher to 40 years, while the other two got 35 years each because their lesser involvement and culpability.
    
52. In passing sentence, I said the following –

92. To impress upon the prisoners that you cannot take it upon yourself to kill a suspected sorcerer or any person for that matter, even if he were a relative or with the concurrence and approval of the community, as was the case here, sentences must start at 35 years for those with a lesser degree of participation. Those who actually did the killing ought naturally to get higher sentences and I should think that 40 years would be appropriate.

93. These sentences may be seen as a quantum leap, from those that have been imposed in some of the cases cited above. However, it must not be forgotten that killings of reputed sorcerers have also taken a quantum leap over the last few years and the circumstances under which some have been carried out have been so horrendous that the courts can no longer give offenders a slap on the wrist.

94. People should not be under any illusion that they will get off lightly if they kill under these circumstances. Community leaders should not think that they have any right, whatsoever, to pass judgment on suspected sorcerers and worst still sanction their killings or removal from society. If village leaders and their people are allowed or given the impression that they can extra-judicially order and carry out the killings of reputed troublemakers in communities, then anybody can fall victim.

95. If the rational for such killings is for the good of the community, then the next victims might as well be drug addicts and drunkards who are causing so much disharmony in the villages and communities. And that is something that the courts are not going to sit by, and watch let alone condone.

53. While directed at sorcery related killings, what I said there is as relevant to any other situation where the community sanctions a killing, such as the case to here, to rid a person from society purportedly for the protection of the community.
    
54. The prisoners admittedly acted on urgings by their community and their leaders. They did not only accompany the others to the deceased’s village, but a few of them, the ones like Seona Danny, Austine John Lorenzo Reuben, played a leading role, of course spurred along by the fight with the deceased and his relatives the previous day. Despite their different degrees of Involvement what remains true is that they all had a hand in killing the deceased.
    
55. The circumstances in Benny were much graver than the current case. That should therefore justify sentences below what I imposed there for the prisoner.
    
56. I must say here, however, that the killing here by the prisoners was totally unnecessary. Their actions have had the completely opposite result to what they may have hoped for or intended. They have recked their own and the lives of their families, not to mention those of the deceased’s own family.
    
57. Even if the deceased was a thief and rascal, and even if he was armed with firearms, the community of Bwayobwayo was not entirely helpless. They had the police at Esa’ala or even Alotau to take their concerns to. They did not, and instead activity participated in the illegal scheme that the community and their leaders cooked up at Lorenzo’s house on that Sunday morning.
    
58. Did they think of the consequences which would naturally flow from their criminal acts? Did they contemplate losing their liberty? Did they think about their families and the hardship and suffering they will go through should they lose their freedom? Did they think about the fact that the rest of the community who stood back while they rushed at the deceased headlong like headless chickens will continue to live and enjoy life in the village while they will wallow in a prison cell or compound for a good part of their life? Did those who were married contemplate the real likelihood that their wife may marry another man and abandon their children? Or that they will lose a loved one and being unable to say their last goodbye? Did the younger ones think about the fact that they will spend a good part of their youth in prison, or for the young man who was on term break, did he imagine that he will be spending the period he was supposed to be in school in a prison compound instead of a school dormitory?
    
59. Unfortunately, they did not contemplate any these events which have now all come to fruition to their collective and individual detriment. They have now realized that they were used a pawns or scapegoats by their own community. They now regret that they ever took part in this ill-fated criminal enterprise. But it is all too late now, and they have nobody else to blame but themselves. (Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000)
    
60. That said, I am of the view that this is a case that should sit comfortably at the top of category 2 of the Manu Kovi guidelines for those with a higher degree of culpability and participation, and a lesser sentence for those with less. I do consider their mitigating factors, but these should not cloud over the need to pass strong punitive and deterrent sentences, so people in our villages, towns, cities, and communities should start solving their disputes and issues in a legal and civil manner.
    
61. There is too much of this type of tribal and herd mentality in our villages, towns and cities. Newspaper reports and electronic media reports are replete with news, almost daily, of armed confrontations between armed groups often resulting in unnecessary and sometimes barbaric killings, destruction of property and lives and displacements of communities, most of whom are innocent.
    
62. And so, coming back to the case at hand, I have found that Austine John’s and Lorenzo Reuben’s moral blameworthiness or culpability and degree of participation was high hence I sentence them to 30 years imprisonment with hard labour less 6 years, 1 month and 18 days they had spent in pretrial detention.
    
63. For their lesser degree of culpability and participation, the prisoner’s Pesto John, Perry Alex and Seona Danny are sentence to 25 years imprisonment less 6 years, 1 month and 18 days spent in pretrial detention.
    
64. No part of the resultant sentences will be suspended.
    

ORDERS

65. The sentences and order of the Court therefore are these-
    
    1. The prisoner Austin John is sentenced to 30 years imprisonment with hard labour, less 6 years and 18 days spent in pretrial detention. No part of the resultant sentence is suspended.
    2. The prisoner Lorenzo Reuben is sentenced to 30 years imprisonment with hard labour, less 6 years, 1 month and 18 days spent in pretrial detention. No part of the resultant sentence is suspended.
    3. The prisoner Pesto John is sentenced to 25 years imprisonment with hard labour in absentia, less 6 years, 1 month and 18 days spent in pretrial detention. None of the resultant sentence is suspended.
    4. The prisoner Perry Alex is sentenced to 25 years imprisonment with hard labour, less 6 years, 1 month and 18 days spent in pretrial detention. No part of the resultant sentence is suspended.
    5. The prisoner Seona Danny is sentenced to 25 years imprisonment with hard labour less 6 years, 1 month and 18 days spent in pretrial detention. None of the resultant sentence is suspended.
    6. The prisoners have the right to appeal to the Supreme Court within should they be aggrieved with their convictions and/or sentences.

Ordered accordingly.
________________________________________________________________
R Luman, Acting Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner