Yohannes v The State [1998] PGSC 30; SC577 (28 September 1998)

Unreported Supreme Court Decisions

SC577

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 69 OF 1996
ALBERT TOTI YOHANNES
- APPELLANT
-V-
THE STATE
- RESPONDENT

Waigani

Amet CJ Salika Sakora JJ
3 March 1998
28 September 1998

CRIMINAL LAW – Severity of sentence – Life imprisonment

SORCERY CLAIM – Allocatus – Mitigating factor on sentence – No evidence.

SORCERY – Enquiry of accused and counsel – Assistance of Court – Mitigation

Held:

Appeal dismissed.

Cases Cited

Roger Jumbo and Aidam Awatan v The State (Unreported, Supreme Court decision, No. Sc 516, 26 March 1997).

Kwayawako v The State [1990] PNGLR 6.

Counsel

Appellant In Person

Mr. P Mogish for the Respondent

28 September 1998

APPEAL AGAINST SENTENCE

AMET CJ SALIKA SAKORA JJ: This was an appeal against a sentence of life imprisonment on conviction or two counts of murder and one court of wilful murder but accepted as murder on a plea.

The appellant was charged with one count of wilful murder, and two counts of murder. The State however accepted a plea to murder in relation to the wilful murder charge. He pleaded guilty to each of the two counts of murder and was sentenced to a term of life imprisonment on each of the charges. He now appeals against the severity of the sentence.

The facts of the case are that on the 5^th October 1995 at, Kimbe the appellant armed himself with a bushknife and a grass knife and attacked Dennis Lalo. Denis Lalo was able to escape the attack but sustained some injuries. The appellant started chasing people within the vicinity. He noticed Kundi William carrying her five year old daughter Joycelyn. The appellant chased them and when he caught up with them he chopped them to death. At the time Kundi William was 9 months 2 weeks pregnant and Joycelyn was three years and six months old. He cut open the woman’s womb and took the unborn child out and threw it in the river.

The killing can only be described as senseless, brutal and barbaric.

The appellant argued that the Public Solicitor stopped him from saying other things before he made the admission. The second ground is that the Court did not consider properly his allegations of sorcery used on him. The third ground is that compensation had been paid.

The appellant was represented by Mr. Oeveka a lawyer of the Public Solicitor’s office. Whatever advice the appellant may have received from his lawyer is not a ground of appeal. It is not the courts duty to determine the rights or the wrongs of that advice.

In relation to the second ground of appeal the appellant argues that the trial judge did not consider the sorcery aspect in sentencing him. The prisoner raised sorcery in his allocatus in the following way:-

“I believe that some people spoil some sort of sorcery on me so I went funny and did this to my own relatives”.

The transcript of the submissions by the defence counsel are not produced to show what his counsel said about the sorcery. The trial judge said:-

“You have suggested that someone may have done sorcery on you to make you behave like this”.

That appears to be the only sentence the trial judge said when addressing the sorcery claim. It seems to us that the trial judge did not accept that explanation because his Honour after referring to the sorcery claim immediately went on to say:

“There is a suggestion in the background story that you may have been smoking mariuana. However that cannot be a mitigating circumstance or an excuse”.

The appellant in his Record of interview with the police had told the police that he had smoked mariuana and had “blacked out” and had gotten a bushknife and a grass knife and chased a man. It seems to us that the trial judge was of the view that smoking of the mariuana had caused him to act the way he did and in doing so brushed aside the possibility of effects of sorcery made on him.

While it was open to the trial judge to brush aside the possibility of sorcery made on the prisoner, the courts must be alert to the extent that in some parts of Papua New Guinea belief in sorcery is real and has the potential to affect conduct of persons who believe in it. In that regard whenever a suggestion of sorcery is made the court should enquire of the accused or counsel of such belief. The court should then address the issue adequately in its deliberations, in the manner indicated by this Court in Roger Jumbo and Aidan Awatan v The State – SC 516 (Unreported) and Kwayawako v The State (1990) PNGLR 6..

In this case it is our view that it was open to the trial judge to think the way he did and so we do not think the trial judge fell into error in doing so.

In the circumstances we dismiss that ground of appeal.

The third ground is that compensation had been paid and that the trial judge did not take that into account when assessing sentence. This information was not before the trial judge, that is why it was not mentioned. Whatever the compensation may have been it is not going to bring back the three human lives lost. The killings were vicious and in our view any amount of compensation in this case should not affect the sentences imposed.

In the circumstances we would dismiss the appeal.

Appellant in Person

Lawyer for the Respondent: Public Prosecutor