N2451

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 733 of 2003

THE STATE

-V-

JOHN BAIPU

Mt. Hagen: Jalina J
2003: 9 & 30 July

Criminal Law – Murder – Sentence – Plea of Guilty – First Offender – Attack on deceased uncle with bushknife – Deceased and others believed by prisoner to have been responsible for the death of his father and his wife by sorcery – evidence of prisoner torturing one suspect to death – prisoner taking the law into his own hands when matter already before Village Court – prisoner attacking suspects in breach of undertaking to Village Court officials not to attack suspects – whether belief in sorcery is a mitigating factor in the circumstances – Criminal Code s. 300.

Cases cited:
Simbe –v- The State, [1994] PNGLR 38,
The State –v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997
The State –v- Haihavu Kori Kaiks, an Unreported National Court decision dated 21st April 1998,
Jeffrey Harold Malepo –v- The State, an Unreported Supreme Court Judgment dated 13th December 2000,
Sap James Kumbapen –v- The State, (SCRA 14 of 2001), an Unreported Supreme Court judgment dated 26th April 2001,
The State –v- Kore Ase, an Unreported National Court judgment N2220 and dated 22nd June 2001,
Acting Public Solicitor –v- Uname Aumane [1980] PNGLR 510, Kwayawako & Five Ors –v- The State [1990] PNGLR. 6

Counsel:
J. Waine for the State
M. Kupil for the Prisoner

30 July 2003

JALINA J: This prisoner has pleaded guilty to a charge that he on 9th October 2002 at Fiwaga Village in the Pimaga area of the Southern Highlands Province, murdered one Hahu Hafinibu.

From the facts put to the court for purposes of arraignment as well the evidence as contained in the Statement of Village Court Chairman Buri Mea which is supported by Statements from Ward Councillor Nelson Tami and Councillor Mark Ganewabo, show that this prisoner had accused the deceased who was his real uncle and others of killing his father and his wife by sorcery between May and June 2001. He reported the matter to Village Court Chairman Buri Mea who in turn informed police at Pimaga and also set up a mediation team comprising himself, the two Councillors I have mentioned above and others.

The suspected sorcerers appeared at the mediation and witnesses were called when they denied being involved. Witnesses were called from areas as far as Kikori in the Gulf Province. There was no real proof against the suspects but the mediators nevertheless ordered the suspects to pay compensation to the prisoner but the prisoner refused to accept the compensation and demanded that he would only do so upon production of the implements of sorcery by the suspects. Such demands forced the mediators to adjourn and carry out investigation into a wider area including Foe in the Gulf Province. In the meantime the prisoner accused Buri Mea of taking sides with the suspects. So he assaulted one of the mediators namely Sabua Kaiyabe. He also got hold of suspects Buiabi Age, Siamo Hauwano and tortured them until Biabi Age died while Siamo escaped. He also apprehended an older man Mana Bundu and tortured him but police intervened and rescued him. 

The committee’s attempt to complete the mediation was disrupted by the 2002 National Elections. After the elections the Committee decided to resume the mediation. Included in the mediation team was the newly elected Councillor for Pimaga Ward, Councillor Albert Sesemena. Councillor Sesemena sought an undertaking from the prisoner that he would not attack the suspects if they attend the mediation or threaten the mediation Committee which the prisoner did undertake.

Following the undertaking by the prisoner, Buri Mea and two others went into where the suspect Siamo Huwano was hiding and interviewed him leaving the deceased Hahu Hafinibu at his hiding place. Later the deceased was interviewed. The mediation was scheduled to commence on 11th October but to his surprise, Buri Mea learnt that the deceased was murdered by the prisoner on 8th October 2002 which was in breach of the undertaking the prisoner had given to the mediators who were leaders of the people in the area.

The Medical Report on the deceased who was aged about 70 years shows that he had a deep laceration to the left foreman with an amputated ulna and radius bone. The radial artery and tendon were also severed. There was also a deep laceration to the left knee with a fractured patella. The cause of death was due to severe haemorrhage secondary to severed artery and amputation of the left forearm and laceration to left knee. 

The offence of murder is serious as it involves loss of human life. Such seriousness is reflected in the penalty of life imprisonment which the legislature has prescribed under s.300 of the Criminal Code subject to the court’s discretion to impose a lesser sentence under s. 19 of the Code. In recognition of such seriousness, both the National and Supreme Courts have imposed fairly stiff sentences. For instance in Simbe –v- The State, [1994] PNGLR 38, the 14 years imposed on the appellant who killed the deceased with a bush knife instantly when he saw the deceased enticing his wife into having sex with him was found by the Supreme Court not to be excessive. 

In The State –v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997 Batari, AJ. (as he then was) sentenced the prisoners to 25 years imprisonment for the murder of brothers Ephraim Makis and Albert Uming inside their residential area. Ephraim Makis was shot at point blank range and Albert Uming was stabbed in the back several times.

In The State –v- Haihavu Kori Kaiks, an Unreported National Court decision dated 21st April 1998, Los, J. imposed 23 years imprisonment on the prisoner who scaled the walls to the fourth floor of the Lodge Apartment, Hunter Street in Port Moresby and stabbed a geologist to death in the presence of his wife inside their apartment. In imposing the sentence the trial judge stressed that the offence was committed after invasion of the deceased’s private home or dwelling which was in effect done in breach of the deceased’s right to privacy of his home which was guaranteed under the Constitution.

In Jeffrey Harold Malepo –v- The State, an Unreported Supreme Court Judgment dated 13th December 2000, the Supreme Court dismissed the appellant’s appeal against a sentence of life imprisonment for murder. In that case the deceased was killed when she was tangled in the seatbelt of her vehicle and was dragged along the bitumen road for three Kilometre after her vehicle was taken from her by the prisoner and his colleagues.

Her body was badly mutilated. In dismissing the appeal against sentence of life imprisonment, the Supreme Court accepted that the murder in those circumstances was among the "worst murder" case.

In Sap James Kumbapen –v- The State, (SCRA 14 of 2001), an Unreported Supreme Court judgment dated 26th April 2001, the Supreme Court dismissed an appeal against both conviction and sentence of life imprisonment for murder where the appellant chopped the deceased with a bushknife after gaining entry into the residence where the deceased was staying that night with his brother after falsely pretending that he was being chased by some people from four –mile near Kainantu in the Eastern Highlands Province.

In The State –v- Kore Ase, an Unreported National Court judgment N2220 and dated 22nd June 2001, I sentenced the prisoner to 15 years imprisonment for murdering the deceased by chopping him on the head, neck and other parts of the deceased’s body with a bushknife. 

In The State –v- Nickson Sambura and Trophimus Sambura, an Unreported National Court Judgment No. N2219 and dated 18th April 2002 which Ms. Kupul for the prisoner has referred me to, I sentenced the two brothers to 20 years and 18 years imprisonment in hard labour respectively after they pleaded guilty to killing an old man with a shot gun for allegedly killing a number of people from their village by sorcery. 

In considering the penalty I should impose, I have taken into account the provisions of the Criminal Law (Compensation) Act 1991 and am of the view that compensation is not an appropriate penalty for the crime of murder. In fact, in my view, compensation should not be the penalty for any offence of homicide where weapons are used or where human life is lost through some deliberate act of another person except in wholly exceptional circumstances.

I have also taken into account his personal antecedents including the other matters mentioned in his statement on the allocutus together with his plea of guilty, his expression of remorse, and the submissions by his lawyer Ms. Kupul in mitigation of sentence. She however did not elaborate on sorcery as a mitigating factor on sentence. Even if she did, I consider this particular killing to be quite different from a type of killing where belief in sorcery is a major factor. In what I would call a "normal" sorcery based killing, a person would be "provoked" in a sense and react almost immediately against the alleged sorcerer whereas in the present case the killing was carried out after the death of this prisoner’s father and wife in 2001 which was after the lapse of a long period of time. The matter was taken to Village Court magistrates and mediators who were prepared to investigate the allegation but the prisoner took the law into his own hands in breach of the undertakings he gave to the Village Court magistrates and mediators not to harm any of the suspects. The prisoner has tortured suspected sorcerers to such a extent that one died. That is apart from the deceased in the present case. This was done without any proof at all and again without any respect for the law by reason of the matter being already in the hands of Village Court magistrates and mediators.

In Acting Public Solicitor –v- Uname Aumane [1980] PNGLR 510 and Kwayawako & Five Ors –v- The State [1990] PNGLR 6, the Supreme Court did say that belief in sorcery may be taken into account as a mitigating factor on sentence. But those cases are distinguishable from the case before me on the facts and on the basis I have pointed out above in regard to the prisoner’s modus operandi in bringing about the death of the deceased.

Furthermore, Uname Aumane’s case was decided more then 20 years ago while Kwayawako’s case was decided more than 12 years ago and Papua New Guineans are more educated and there have been advancement in communication technology even to the extent of people in the remote areas now being able to be reached by television, radio and even satellite phones. Even churches have sprung up in the remotest areas and the Word of God appears to have been preached to more people than before. The Word of God as contained in the Bible of course prohibits killing of another person.

The prisoner’s Antecedent Report shows that he is educated to primary school level. The statement of Pastor Nixon Gurabo shows that the prisoner was a committed or faithful member of EPNG Church at Kaubgu where he was the pastor. So this prisoner was not an illiterate person nor was he someone who did not know the Word of God as contained in the Bible about taking some one else’s life. 

So in this case, belief in sorcery does not become an major mitigating factor on sentence.

From the evidence that the prisoner has tortured people even to the extent of one of them losing his life in addition to the deceased who was the Prisoner’s real uncle, it seems to me that the prisoner is dangerous to society and is someone who does not respect human life. He is someone who would not hesitate to kill even a close relative so he needs to be deterred with a long period of imprisonment.

The sentence I therefore consider appropriate in all the circumstances of this case is a period of imprisonment for life.
________________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Prisoner	:	Public Solicitor