N2649

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 1599 of 2003

THE STATE

v.

JUDE GENA & 4 OTHERS

Waigani:	Kapi CJ.
12th, 14th, 19th, 31st May, 3rd, June, 24th September 2004

Sentence – Wilful murder – Whether the Death Penalty is suitable – Belief in sorcery is relevant in sentence – Payback is not a factor - 

Counsel:
D. Mark for the State
D. Kari for the Prisoners

24th September 2004

Kapi CJ:	The five accused were found guilty of wilful murder after a short trial.

The relevant facts for purposes of sentence are these. On 24th February 2003 at about 12.00 midnight, Jude Gena and his four co-accused sons were mourning the death of the wife and mother at their residence at Erima Settlement in the National Capital District. Many other people were present. 

The deceased wife and mother had accused the deceased sorcerer as responsible for her illness before she died. There is no suggestion that the prisoners discussed any plan to kill the deceased sorcerer. 

While they were mourning, the deceased sorcerer arrived at the residence where they were mourning. This aroused suspicion. It has not been suggested that the deceased sorcerer had any connection with the prisoners and his presence could only be described as a sorcerer coming to confirm the death as a result of his sorcery. His presence provoked the prisoners and in the heat of anger assaulted the deceased and he died as a result of the injuries received during the assault.

The medical evidence indicates that the deceased sorcerer suffered injuries from which he died.

In an effort to conceal the crime, they got the body of the deceased and dumped it at the Baruni rubbish dump.

The legislature has the authority to prescribe an offence and the penalty for a criminal offence (s 37(2) of the Constitution). The legislature has prescribed the ultimate penalty of death for wilful murder under s 299 of the Criminal Code. The death penalty is expressly acknowledged in s 35 (1) (a) of the Constitution. 

The maximum penalty of death is subject to the discretion of the Court under s 19 of the Criminal Code. The question arises whether this is a suitable case for death penalty. Counsel for the State in this case did not urge me to impose the death penalty but instead submitted that I should consider a term of imprisonment. 

Ultimately it is the responsibility of the Court to consider whether this is a suitable case for death penalty. 

The death penalty is the maximum penalty and it is at the discretion of the court to consider whether to impose it in any particular case. The general principles of sentence on imposing the maximum are applicable. That is to say, the maximum is reserved for the worst type of case. This discretion should be exercised carefully as it is a matter of life and death. In developing the relevant considerations, what must be born in mind is that it is not possible to determine neat categories of cases with corresponding sentences for each category. There is no scientific or mathematical method for determining sentence. As experience reveals, every case is to be considered on its own facts. 

I have considered the following circumstances as relevant to the question of whether I should impose the death penalty.

The educational background and the influence of government upon the lives of the prisoners is a relevant consideration. In The Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510 the prisoners came from a very remote part of the country at the time. They were regarded as persons having no contact with western civilization and did not have the influence of the administration of government in their lives. This was a relevant matter in considering the appropriate punishment. 

In the present case, the father and the four sons could not be said to have the same background. The father himself is a teacher at the time of the offence. All the four children grew up with the father during his teaching career. Their circumstances cannot be compared to Uname Aumane (supra). This consideration of itself is not an appropriate mitigating factor in their favour.

However, this case is closely related to belief and practice of sorcery. This belief is based on customs and the belief of the people. The prisoners come from Didigoro Village, Rigo in the Central Province. The belief and practice of sorcery is prevalent in this community. The belief in sorcery is even prevalent amongst the young and educated Papua New Guineans. This is recognized by the Sorcery Act. Whilst the Act does not recognize the power of sorcery, it nevertheless recognizes the belief which determines behaviour of people.

The main witness, Lucien Kaisava, a teacher from Gulf Province married a woman from Doromi/Kokila village, about 10-15 kilometers from Didigoro Village. He has lived in Rigo for the most part of his adult life and has good knowledge of the belief and practice of the Rigo people. In his evidence, which was not contested, he stated that killing by sorcery is still a very strong belief in Rigo. In the present case, they believed that the deceased sorcerer was responsible for the death of wife and mother.

The undisputed evidence is that the deceased was a reputed sorcerer. It is alleged that while the prisoners were mourning the death of the deceased wife and mother, the deceased sorcerer turned up at the premises where they were mourning. He had no reason to be there. He is not one of the relatives of the prisoners who could be said to have come along to mourn the dead. According to the belief of the people, a sorcerer may turn up where the people are mourning the dead to check out if the death has actually taken place as a result of his sorcery. A sorcerer who does this in the face of people mourning is considered arrogant. Such behaviour in the midst of mourning provoked the prisoners to attack him.

The Sorcery Act does not recognize the power of sorcery. However, the Courts have held that belief in sorcery may be taken into account as a relevant matter in sentence as it controls the thinking and actions of those who believe (The Acting Public Prosecutor v Unmae Aumane (supra), Kwayawaka v The State [1990] PNGLR 6, Roger Jumbo and Aidan Awatan (Unreported Judgment of the Supreme Court dated 26th March 1997, SC516).

The belief in sorcery simply identifies and explains who is responsible for the death and offers an explanation for the killing of a sorcerer. I should indicate that there must be some reasonable basis for holding this belief. I can imagine cases in which a belief by a person may be unreasonable (see Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78 at 80). People may use the belief in sorcery as an excuse to explain away their crime. This is a question of fact and can be determined by the court (Roger Jumbo and Aidan Awatan (supra). In the present case, the belief that the deceased wife and mother died as result of sorcery by the deceased sorcerer has not been questioned.

In present case, there was no prior plan to kill the deceased sorcerer. It happened spontaneously when the deceased sorcerer visited their residence. The prisoners were mourning and were not in a stable frame of mind to resist the temptation to kill the deceased.

Having regard to all these factors and the fact that the Public Prosecutor has not called for the death penalty, I have reached the conclusion that this is not an appropriate case for death penalty.

In considering the appropriate term of imprisonment, I have considered the fact that the prisoners all acted to pay back the death of wife and mother. In this respect, I cannot take into account the fact that they killed the sorcerer as a payback killing. Killing in payback was disapproved in Acting Public Prosecutor v Uname Aumane (supra) at pages 546-547. see also Public Prosecutor v Apava Keru and Aia Moroi (supra).

Having regard to the fact that after having killed the deceased, they got rid of the body in a deliberate manner to prevent any suspicion, I would impose a sentence of 20 years IHL. I will deduct the period they spent in custody awaiting the trial.
___________________________________________________________________
Lawyer for the State	:		PUBLIC PROSECUTOR
Lawyer for the Prisoners	:		PUBLIC SOLICITOR