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State v Anda [2005] PGNC 195; N4962 (20 December 2005)

N4962

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1285 AND 1284 OF 2004

THE STATE

V

STEVEN ANDA AND MICHAEL TAVUREL VELE

Kimbe: Cannings J
2005: 10 October, 20 December

CRIMINAL LAW – Section 307 (conspiring to kill) – sentence on plea of guilty – sorcery – killing not carried out – sentence of 3 years each

Two men gave instructions to a group of sorcerers to kill a man by sorcery. They promised that shell money and pigs would be paid to the sorcerers when the killing was done. However, the victim of the conspiracy was not killed. He complained to the police who arrested and charged the two co-accused with conspiracy to kill. They pleaded guilty.

Held:

(1) Conspiring to kill someone is an affront to the constitutional right to life guaranteed to all persons in Papua New Guinea, irrespective of the manner in which it is planned that the killing will take place.

(2) As this is the first reported case of its kind (conspiring to kill by sorcery) sentencing guidelines were formulated.

(3) A strong aggravating factor was the lack of remorse shown by the offenders.

(4) Strong mitigating factors included the lack of a clear and definite plan to kill; the small degree of likelihood that the target of the conspiracy (ie the victim) would be killed; the fact that the victim is still alive.

(5) In the circumstances a sentence of 3 years imprisonment each was appropriate. It is not appropriate to immediately suspend either of the sentences due to the lack of remorse and tangible attempts to reconcile with the victim.

Cases cited

The following cases are cited in the judgment:

Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78
The State v Aaron Lahu (2005) N2798
The State v Aiaka Karavea and Lelehua Karavea (1984) N452(M)
The State v Mark Kanupio and Others (2005) N2800
The State v Urari Siviri (2004) N2747

PLEA

Two co-accused pleaded guilty to a charge of conspiring to kill a person and the following reasons for sentence were delivered.

Counsel

J Kesan, for the State
O Oiveka, for the accused

20 December, 2005

1. CANNINGS J: This is a decision on the sentence for two men who pleaded guilty to the offence under Section 307 of the Criminal Code of conspiring to kill another person. The conspiracy took place at Aimialo village in the Gloucester area of West New Britain Province. The offenders conspired with a group of sorcerers to kill another man by sorcery.

2. In June 2004 there was a traditional sing-sing at Potpotbua village, in the Gloucester district. A well known Gloucester sorcery group, the 'Red Light', were present. The sing-sing ended on 20 June and three Red Light members were heading back to their village, together with the second offender, Michael Tavurel Vele, who told them to wait for him on the road while he went to get the first offender, Steven Anda. He got Anda and they both went to meet the three Red Light members and told them to kill a man, Pius Aisipel, or one of his relatives. They promised that if the sorcerers succeeded they would pay them with shell money and pigs. The sorcerers went on their way.

ANTECEDENTS

3. Neither offender has any prior convictions.
ALLOCUTUS

4. The first offender, Steven Anda, stated:

I talked about poisoning Pius as he had caused trouble for my children and grandchildren. He made three of my daughters pregnant.

5. The second offender, Michael Tavurel Vele, stated:

I only followed Steven. Pius was causing problems with Steven's granddaughters. Pius caused no other problems.

OTHER MATTERS OF FACT

6. Though each prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in their favour, may be relevant to the sentences. In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor's summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The principles to apply are as follows:

• The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
  
• Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
  
• If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor's summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.
  
• If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.
  
• If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.
  
• If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
  

7. I now apply the above principles to the present case. I have detected the following mitigating factors from the depositions.

8. There were about six suspicious deaths in the Gloucester district in the middle of 2004. A police investigation task force was dispatched from Kimbe. The offenders were the prime suspects in the killing of a small boy, Desmond Tepli, who went missing, presumed dead, but whose body was never found. The boy was the grandson of the person the offenders conspired to kill, Pius Aisipel. The offenders were arrested and charged with the boy's murder. The trial of that matter was to be heard at the same time as the conspiracy to murder charge. However, the murder charge was dropped, leaving the conspiracy charge as the only one the offenders faced. The motive for wanting to kill Pius Aisipel is that he was alleged to have made two of Steven Anda's granddaughters, plus his daughter, pregnant. Pius was perceived to be a troublemaker. He was married with one wife but had a reputation for sleeping around with other women. The offenders decided that he needed to be eliminated.

RELEVANT LAW

9. Section 307 of the Criminal Code states:

A person who conspires with any other person to kill any person, whether that other person is in Papua New Guinea or elsewhere, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

10. I am satisfied that the elements of the offence of conspiring to kill were adequately set out in the indictment, that the offenders were aware of their significance and that the summary of the facts pleaded to by the offenders supported those elements. The offenders are therefore each liable to a maximum penalty of 14 years imprisonment. That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

SUBMISSIONS BY DEFENCE COUNSEL

11. Mr Oiveka referred to a number of mitigating factors. The offenders pleaded guilty, saving the trouble and expense of a trial. They are both first time offenders. Both admitted to the police at the outset that there was a plan to kill. Steven Anda is an elderly man, aged 63. There is little point in condemning him to a long term of imprisonment. The court should not impose a crushing sentence. Michael Vele is in his late 40s. There was substantial provocation provided by the victim. Steven committed the offence out of shame and anger, in view of what Pius had been doing to Steven's family. Michael was concerned also. Michael has five children to care for. They are all related. Steven is Michael's uncle. Pius is a cousin-brother of Steven and a nephew of Michael.

SUBMISSIONS BY THE STATE

12. Mr Kesan, for the State, submitted that the offenders were guilty of a serious offence. There was a plan to kill more than one person. They have not expressed remorse. They have given no indication that they now bear no grudge against Pius. They have not said that they no longer intend to kill him. If the court is to consider a non-custodial sentence, strict conditions should be imposed. A head sentence of at least three years is necessary. This will allow time for the problem in the community to be resolved. At the moment, there is no resolution.

PRE-SENTENCE REPORT

13. To help me make a decision on the appropriate sentences I requested and received pre-sentence reports under Section 13(2) of the Probation Act in relation to the offenders. The reports were prepared by the Kimbe office of the Community Correction and Rehabilitation Service. I received two reports on each offender. The first reports were very negative and suggested that both men were known troublemakers in their local community and it would not be a good idea for them to be released back there. I was concerned that those reports were based only on interviews with the victim, Pius Aisipel, and his relatives and friends. So I requested supplementary reports. These reports were also quite negative, though it was again apparent that the Community Corrections and Rehabilitation Service was relying on limited sources of information.

14. Gloucester is a remote area and no one had travelled there to interview people 'on the ground'. Nor had effective communication been made with people on both sides of the dispute that led to these crimes being committed. One person has made a statutory declaration that two pigs valued at K2,000.00 have been given to Pius Aisipel at separate peace ceremonies. However, Pius Aisipel denies this.

DECISION MAKING PROCESS

15. To determine the appropriate penalty for each offender I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

16. In setting an appropriate head sentence for each offender I will take this approach:

• first I will identify an appropriate starting point;
  
• secondly I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly I will apply those considerations to the circumstances of the offenders, thus arriving at a head sentence.
  

17. There are very few reported cases on the crime of conspiracy to kill. Neither the National Court nor the Supreme Court has given any sentencing guidelines. This appears to be the first case reported in which somebody has been convicted of conspiring to kill another person by sorcery. There is little to go on, therefore, when determining a starting point or what considerations ought to be taken into account for sentencing purposes. I will, however, refer to three previous cases involving sorcery or payback killings. In each case the court had something significant to say about both sorcery, the right to life or ignorance of the law.

18. The first case is The State v Aiaka Karavea and Lelehua Karavea (1984) N452(M). Kidu CJ sentenced two brothers who had pleaded guilty to murder of, and conspiracy to kill, a suspected sorcerer, Oira Haiae. The brothers believed that Oira was responsible for the death of their sister, Hiripa, who died during childbirth. On her deathbed Hiripa said it was Oira who had made her sick. Aiaka was given 12 years for murder; Lelehua, six years for conspiracy to kill. Lelehua confessed to a real intention to kill Oira. The only reason he did not is that Aiaka got to him first by axing him to death. Kidu CJ stated:

There is no doubt that in this country the belief in sorcery is widespread and nobody really has to prove to the court that it exists. Belief in sorcery exists amongst some of the most backward of our people up in the mountains of every province and also in the urban areas, including Port Moresby. Very well-educated people believe that sorcery exists and that there is power in people who practice evil sorcery to cause the death of other persons.

19. His Honour considered that if the offenders had been brought up without any church or State influence in a remote area and had no knowledge of Christianity or the modern law, they might be able to plead ignorance, ie that they did not know that what they planned to do, and did, was wrong. However, his Honour stated:

In fact the evidence is that they are aware that The Bible says that they should not kill. And I'm sure that they are also aware of the fact that the law says, the written law, the Criminal Code, says that you cannot kill other people. And their knowledge of these things operates against them. There is also another factor that should be balanced against their belief in sorcery and that is the Constitution of Papua New Guinea. The Constitution, which is the highest law in Papua New Guinea, guarantees every man, woman and child in this country, whether primitive, educated or whatever, the right to live and the right to live is an important right for everybody. Sorcerers included. And this sorcerer, Oira, even if he in fact was, nevertheless, he was entitled to have his life and was entitled under the law to be tried by the courts of law. The Parliament of this country in 1971 was so concerned about sorcery and the practice thereof it made this law called the Sorcery Act. Now this law had two intentions. One was to punish those who practice evil sorcery, that is people who make sorcery to kill or make other people sick. Secondly, the other intention of that law was to ensure that people did not take the law into their own hands, but to take sorcerers or those who are believed or reputed to be sorcerers before the courts of this country and be tried according to the law. Our people must be encouraged not to take the law into their own hands like these people did. They must be encouraged, especially in areas like Kerema, not to take the law into their own hands, but take people who practice sorcery to the courts.

20. The second case is the Supreme Court's decision in Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78, Kidu CJ, Bredmeyer J, Amet J. The court upheld an appeal by the Public Prosecutor against the leniency of sentences imposed on two Goilala villagers for wilful murder by increasing the sentences from 6 years to 15 years and life imprisonment.

The second killing was an indiscriminate payback for the first. The court addressed the issue of whether the offenders' lack of sophistication could be a mitigating factor. Their Honours stated:

The old view was that a person's "sophistication" was judged by whether he went to school, whether he left his village to take outside employment, the economic development in his area and the distance from a "civilising" influence such as a town or mission; and the more primitive a person was the less punishment he should receive. The rationale for this view was twofold: the more primitive man had a less developed sense of right and wrong and less control over his passions such as anger, fear, revenge and shame; and/or did not know that there was a Government in Papua New Guinea available to redress his grievances. We think the first reason plainly wrong. The unsophisticated man may be just as fine a man in the moral or spiritual sense as the sophisticated man. The uneducated man living in a village and wearing traditional dress may have just as developed (or as poor) a moral sense as the educated man living in a town. All men have consciences which tell them right and wrong. All men succeed at times, and fail at other times, in obeying their consciences and controlling their passions. We consider that the second reason is still valid. If an offender comes from such a remote area that he does not know that there is a Government with a police force and courts to redress his wrong, so that he is forced to resort to self-help actions, then we would reduce the sentence for that reason. But there must be very few people indeed living in Papua New Guinea who fall into this category. Certainly these two respondents living at the Goilala area of the Central province do not fall into this category. We would allow them no reduction of sentence for lack of sophistication.

21. The third case is The State v Urari Siviri (2004) N2747, in which Batari J convicted a man for the wilful murder of a woman he suspected was a sorcerer who had killed his wife by sorcery. His Honour referred to Aiaka Karavea and Apava Keru with approval and stated:

In this case before me, the prisoner and his fellow villagers are from just outside Goroka in the Kabiufa area. A long established SDA Mission Station with a high school and a government high school is in the area. The people believe in Christianity and the evidence shows a church establishment in the village. The general area is no doubt, under strong Christian and State influence. It must be a well known fact to the people that, it is against the Christian faith and the law to kill another person. The prisoner knows that it is wrong and against the law to kill. He had initially evaded arrest and I think he only surrendered to the police after weighing up his chances of being a fugitive for the rest of his life. His knowledge of these things is a factor against him.

Another factor that should be balanced against the prisoner's belief in sorcery is the protection of the right to live, guaranteed by the Constitution to everyone irrespective of colour, creed, religion, race, tribe, sex, status in this country, be he a villager or urban dweller, primitive or educated, sorcerers included. This is one constitutional right that is highly valued and treasured by everybody. You do not simply terminate someone's precious life because you believe in sorcery and you suspect him to be a sorcerer. He is entitled to have and live his life to the fullest and he is entitled under the Constitution to be tried by the courts of law for any alleged wrongdoing.

22. The facts of the above cases are quite different to those of the present case. In two of them a suspected sorcerer was the victim. In the present case it is the sorcerers who (though they have not been charged) are the ones said to be the criminals, in league with the two offenders. However, the cases are relevant as they highlight the reality of the widespread belief in sorcery in Papua New Guinea and the attempt by the legislature, through the Sorcery Act, to curb its evil effects. The Sorcery Act distinguishes between forbidden sorcery and innocent sorcery. The above cases highlight the importance of the right to life – a fundamental, basic, human right – guaranteed to every person in Papua New Guinea by Section 35 (right to life) of the Constitution, which states:

(1) No person shall be deprived of his life intentionally except—

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—

(i) for the defence of any person from violence; or

(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv) in order to prevent him from committing an offence; or

(v) for the purpose of suppressing piracy or terrorism or similar acts; or

(c) as the result of a lawful act of war.

(2) Nothing in Subsection (1)(b) relieves any person from any liability at law in respect of the killing of another.

23. In Papua New Guinea, belief in the powers of evil sorcery has led to the commission of a number of different types of crimes. Retaliatory or payback killings through sorcery to even the score are too prevalent. Nowadays people can induce sorcerers with bribes of money or material goods to commit evil acts of sorcery against another person or persons. Sorcerers have assumed a new role, as "hired killers" or "hitmen", while the other perpetrators of the crime or attempted crime can remain hidden. However, the laws of the country prohibit such "hidden" acts of crime. Conspiring to kill someone is an affront to the constitutional right to life guaranteed to all persons in Papua New Guinea, irrespective of the manner in which it is planned that the killing will take place. People are not entitled to take the law into their own hands and organise extra-judicial executions, even if they think the person that they want to kill deserves it; or even if it is clear that the person has done something very bad. The laws of Papua New Guinea condemn evil sorcery, payback or retaliatory killings. All of these things need highlighting in the special circumstances of the present case – where the offenders have conspired to kill by sorcery – to guard against any tendency that the sentencing judge might have, due perhaps to a personal lack of belief in the reality of sorcery, to deal with the crimes as trivial matters. The policy behind the Sorcery Act is to prohibit the practice of forbidden sorcery. A person who agrees to pay someone for practising forbidden sorcery is by that act alone committing a crime under Section 7 (criminal acts of sorcery) of the Sorcery Act. Conspiring to kill by sorcery is therefore to be treated like conspiring to kill by any other means. It is a serious crime. In light of the above I set a starting point for sentencing purposes in the present case in the middle of the available range: seven years imprisonment for both offenders.

24. I will now set out the things I consider should be taken into account when determining whether to increase or decrease the head sentences or leave it at the starting point. I reiterate that I am starting with a clean slate. This is the first case of its kind: conspiracy to kill by sorcery.

25. The relevant considerations are:

1. Was the offender unaware that it is a crime to kill or conspire to kill another person?
   
2. Were there only a small number of people involved in the conspiracy?
   
3. Was there a lack of a clear and definite plan of action agreed to? (That is, was there only a vague, ill-defined expression of an intention to kill, as distinct from a clear and definite action plan?)
   
4. Was there only a small degree of likelihood that the target of the conspiracy (ie the victim) would be killed?
   
5. Is the victim alive or, if deceased, was the cause of death unrelated to the conspiracy?
   
6. Was the killing to be effected in a relatively painless or humane way?
   
7. Did the victim or any other person provoke the offender in 'the non-legal sense', eg did the victim commit a crime against the offender?
   
8. Did the offender give himself up after the incident?
   
9. Did the offender cooperate with the police in their investigations?
   
10. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    
11. Has the offender pleaded guilty?
    
12. Has the offender genuinely expressed remorse?
    
13. Is this his first offence?
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
15. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

26. The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors. Another thing to note is that there are, in general, three sorts of considerations listed. Numbers 1 to 7 focus on the circumstances of the conspiracy. Numbers 8 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

27. I will deal with both offenders in the same way and apply the above considerations as follows:

1. No though they live in a remote district of the province, I presume that they are fully aware that it is a crime to kill or conspire to kill another person.
   
2. No there was not a small number of people involved in the conspiracy. There was the two offenders plus three members of a reputedly well known sorcery group.
   
3. Yes there was a lack of a clear and definite plan of action agreed to. There is no evidence to suggest that the plan to kill Pius was advanced very far. It seemed to remain a vague, ill-defined expression of an intention to kill.
   
4. Yes there seems to be only a small degree of likelihood that the target of the conspiracy (ie the victim) would be killed.
   
5. Yes the victim is still alive.
   
6. No there is no evidence that the killing was to be effected in a relatively painless or humane way.
   
7. Yes there is evidence that the victim provoked the first offender, Steven Anda, and also the second offender, Michael Tavurel Vele, by having extra-marital sexual relations with Steven's granddaughters and daughter and that he fathered children of all those women.
   
8. No the offenders did not give themselves up.
   
9. Yes the offenders cooperated with the police, by admitting their involvement in the conspiracy early on in their investigations.
   
10. There is insufficient evidence that the offenders have done something tangible towards repairing their wrongs. It is claimed that two pigs with a total value of K2,000.00 have been given to the victim, but the victim denies that.
    
11. Yes both offenders pleaded guilty.
    
12. No I accept the prosecutor's submission that neither offender has indicated any concern for the victim. They have not expressed remorse.
    
13. Yes both are first-time offenders.
    
14. Yes their personal circumstances need to be taken into account. Steven Anda is a man in his 60s and conditions at Lakiemata Correctional Institution, where he is presently detained and where he would be expected to be imprisoned, are far from ideal for a village man that age. Michael Vele is in his late 40s and has five children. Their relatives at Gloucester do not have ready access to the gaol.
    
15. No there are no other circumstances of the incident or the offender that warrant mitigation of the head sentence.
    

28. I regard consideration No 12 as a serious aggravating factor. Against that, there are some weighty mitigating factors: those numbered 3, 4, 5, 7, 9, 11, 13 and 14. The other considerations are those that are neutral (No 10) or not significantly aggravating (1, 2, 6, 8 and 15). Taking all the above considerations into account, the head sentence in each case is three years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

29. The offenders have not expressed remorse and there is insufficient evidence that meaningful attempts have been made to bring peace to the district in which the crime was committed, to suspend the sentences immediately. I will nonetheless qualify each sentence by ordering that it can be suspended after the offender has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached. A separate application would need to be made and there would have to be an updated report from the Community Corrections and Rehabilitation Service. The behaviour of the offenders in gaol would also be a relevant consideration. The issue of reconciliation with the victim and compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the offenders and the victim would be viewed favourably. I will set a minimum term of imprisonment of 18 months.

SENTENCE

30. The Court makes the following order:

(1) Steven Anda and Michael Tavurel Vele, having been convicted of the crime of conspiring to kill, are each sentenced to 3 years imprisonment in hard labour, 18 months of which must be served and the balance of 18 months of which may be suspended by order of the National Court if and when an application for suspension is granted.

(2) For the avoidance of doubt:

• (a) suspension of the above sentences will only come into effect if and when ordered by the National Court; and
  
• (b) there shall be deducted from the terms of imprisonment the periods in custody, if any, that the offenders have already spent in relation to this offence.
  

Sentenced accordingly.
__________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused