N3695

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1203 OF 2008

THE STATE

V

ISAK WAPSI

Madang: Cannings J
2009: 8 April, 8, 15, 24 July

SENTENCE

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – guilty plea – young man killed a man by cutting his legs with a bushknife, severing one leg – sentencing guidelines for wilful murder – when appropriate to impose death penalty – circumstances in which belief in sorcery can be considered as mitigating factor – proof of belief – weight to be attached to belief in sorcery – sentence of 25 years.

A young man pleaded guilty to the wilful murder of a man in the village who he claimed was a sorcerer. The deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg.

Held:

(1)	The starting point for sentencing for this sort of killing, a planned and vicious attack with a lethal weapon with both mitigating and aggravating factors, is 20 to 30 years imprisonment.

(2)	Mitigating factors are: the offender acted alone, not in a mob; he was motivated by a genuine belief in sorcery; he co-operated with the police and made very early admissions of guilt; he is a first time offender; he pleaded guilty; he is a relatively unsophisticated villager.

(3)	Aggravating factors are: this was a vicious and barbaric killing; the offender directly killed the deceased; the offender has shown little remorse; the circumstances of the incident show that there was a strong desire to kill; there has been no peace or reconciliation with the deceased’s relatives and no payment of compensation.

(4)	A sentence of 25 years imprisonment was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Irai Thomas v The State (2007) SC867
John Baipu v The State (2005) SC796
Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Sedoki Lota and Fred Abenko (2007) N3183

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

N Goodenough, for the State
K Nanei, for the offender

24 July, 2009

1. CANNINGS J: This is a decision on sentence for a young man, Isak Wapsi, who pleaded guilty to the wilful murder of a fellow villager, Philip Asoka. The offence was committed at Kukum village in the lower Ramu area of the Bogia District, Madang Province, between 6.00 and 7.00 pm on Sunday 27 April 2008.

2. The deceased was working at a fermentery in the village. The offender approached him and without warning or provocation cut his legs with a bushknife, severing the right leg and inflicting significant damage to the other leg. The deceased died of severe blood loss on the way to the health centre.

3. The offender was arrested soon after the incident. He immediately admitted to the police what he had done and said he killed the deceased as he was a sorcerer.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to address the court. He said:

I thank the Judge and the Court for the time spent on my case. We are now at the end of my case. I apologise for the wrong that I committed. There was a reason why I did what I did: the deceased threatened to kill me. This is my first time to appear before the National Court. Please consider me for a short term sentence.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

7. Two matters are relevant here. The first is not contested by the prosecution and will be taken into account as a mitigating factor. The offender co-operated fully with the police. He was arrested on Monday 28 April then was subjected to a formal interview at Bogia police station on Tuesday 29 April. He made admissions, acknowledged his guilt and said that he intended to kill the deceased.

8. The second matter is more contentious. The offender said in his police interview that the deceased was a sorcerer and that many people in the village knew him to be a sorcerer and feared him. Further, the deceased had threatened to kill him, so the offender made the decision to kill the deceased before he was himself killed. He largely repeated these assertions in his allocutus. The State submits that in an appropriate case a genuine belief in sorcery can be taken into account as a mitigating factor but this was not such a case as there is insufficient evidence of that belief. I reject that submission. I acknowledge that there is a danger in courts too readily accepting sorcery as an offender’s motivation for killing. But here, the claim was made very early in the police investigation, corroborated by the pre-sentence report and repeated in the allocutus. I see no reason, given that the offender has pleaded guilty, to doubt the genuineness of the belief. I accept that the offence was motivated by a genuine belief in sorcery and that this should be a mitigating factor for sentencing purposes. However, it is no longer a "special" mitigating factor. The weight to be attached to it depends on the facts of the case (John Baipu v The State (2005) SC796; Irai Thomas v The State (2007) SC867). This was not a case where the offender’s belief caused him to act on the spur of the moment, so that tends to lessen the mitigating effect of the belief. On the other hand the offender is a relatively unsophisticated villager so it is easier to appreciate why he decided to take the law into his own hands. To sum up, his belief in sorcery is accepted as genuine and will be taken into account as a medium-level mitigating factor.

PRE-SENTENCE REPORT

9. Isak Wapsi is 26 years old and single. His parents are alive but elderly. He was raised in the village. He has had no formal education or employment. He is the fifth born in a family of seven. All family members are supportive of him and appear to share his belief in sorcery. They believe that there is a sorcery network operating in their area. He is well regarded in his local area and the Church of Christ Pastor at Kukum village speaks highly of him and seeks leniency on his behalf. There is apparently a preparedness to assist with compensation for the deceased’s relatives. The Deputy Chairman of the local Village Court says that K5,000.00 in cash and a live pig and other goods could be arranged.

10. The deceased’s relatives (including his son, who was interviewed) say that the offender’s people have made no attempt to reconcile or meet compensation demands (in the order of K200,000.00). They do not want the offender shown any leniency. If he is treated leniently, the tension between them and the deceased’s relatives will not subside.

11. The report contains no recommendation for probation. It suggests that if the offender were given a suspended sentence and the compensation demands of the deceased’s relatives were not met, there would be a risk of a payback killing.

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Nanei submitted that this was not a ‘worst case’ of wilful murder and did not warrant the death penalty. There are a number of mitigating factors, he submitted, that bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, so the starting point should be in the range of 20 to 30 years imprisonment. The offender’s strong belief in sorcery provided motivation for the offence. The offender’s actions were akin to someone acting in self-defence, as he had been threatened by the deceased and genuinely felt he had to kill the deceased to defend himself. His early guilty plea has saved the State considerable resources and expense and has also relieved the deceased’s relatives of the trauma that would have been associated with a trial. The mitigating factors warrant a sentence of 15 to 20 years imprisonment, Mr Nanei submitted.

SUBMISSIONS BY THE STATE

13. Mr Goodenough, for the State, agreed that this case did not fall within the worst case category of wilful murder and did not press for the death penalty. He submitted that there was insufficient evidence of a genuine belief in sorcery – a submission which I have rejected – and submitted that if such a belief were taken into account it should only be regarded as a mild mitigating factor. To argue that the offender acted in self-defence is not a tenable proposition, Mr Goodenough submitted. However, he agreed with the defence counsel’s description of the case falling within category 2 of the Manu Kovi guidelines and suggested that the mitigating factors warrant a sentence at the lower end of the available range. 

DECISION MAKING PROCESS

14. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?

•	step 2: what is a proper starting point?

•	step 3: what sentences have been imposed for equivalent offences?

•	step 4: what should the head sentence be?

•	step 5: should the pre-sentence period in custody be deducted?

•	step 6: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

15. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

16. Wilful murder is one of only four crimes that attract the death penalty. The others are treason (Section 37), piracy (Section 81) and attempted piracy (Section 82). For other homicide offences (murder, manslaughter and infanticide) the maximum penalty is life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

17. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Kovi guidelines

18. In Kovi a man who stabbed his wife to death on a PMV in Port Moresby had his appeal against a sentence of life imprisonment dismissed. The Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill	Life imprisonment	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death 	

The Ume guidelines

19. In Ume three men were convicted of the payback killing in 1995 of an innocent, harmless woman at Pangalu village in the Talasea area of West New Britain. She was tortured and made to die a slow and painful death. The offenders were sentenced to death by the National Court but their appeal to the Supreme Court was upheld and their sentences reduced to life imprisonment.

20. While agreeing that it was a horrendous crime, the Supreme Court held that the trial judge committed a number of sentencing errors, e.g. suggesting that the death penalty was mandatory, shutting his mind to the existence of mitigating factors (the offenders were ordinary villagers of previous good character and good family and church backgrounds), failing to ascertain each offender’s degree of involvement, failing to consider circumstances personal to each offender, failing to consider whether any customary considerations influenced the killing and regarding the rape of the victim as an aggravating factor without making a specific finding of fact that she was raped.

21. As to the facts that would warrant the death penalty, and without being exhaustive, the Supreme Court suggested:

1	The killing of a child, a young or old person, or a person under some disability needing protection.

2	The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for a fee, killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. a police officer, correctional officer, government officer, schoolteacher, church worker, company director or manager.

3	Killing of a leader in government or the community, for political reasons.

4	Killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape or robbery.

5	Killing for hire.

6	Killing of two or more persons, in a single act or series of acts.

7	Killing by a prisoner in detention or custody serving a sentence for another serious offence of violence.

8	The offender has prior conviction(s) for murder.

Applying the guidelines

22. I will apply the guidelines from those two cases to arrive at a starting point.

23. As for the Ume guidelines, the case is not any of the eight types that the Supreme Court suggested would warrant the death penalty. Even if it did fit into one of those eight categories, the court, in my view, should hesitate to use the death penalty as a starting point if an offender has pleaded guilty.

24. As to the Kovi guidelines, I readily accept the defence counsel’s submission – agreed to by the State – that this is not a worst case scenario. I less readily accept the proposition that this is a category 2 case. I think there is a strong argument to say that the case should be regarded as category 3: it was a brutal killing, in cold blood of a defenceless and – at the time he was killed – harmless person. However, as the offender has pleaded guilty and as the State has agreed that the case belongs to category 2, I will treat it as a category 2 case.

25. The starting point is therefore in the range of 20 to 30 years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

26. Sentences for sorcery-related killings have been closely considered by the Supreme Court in two recent cases. In John Baipu v The State (2005) SC796, the Court said that putting such cases into a special category and imposing a relatively low sentence was no longer an appropriate sentencing practice. In that case the offender had placed a complaint of sorcery in the hands of Village Court officials more than a year before he committed the offence. Then he cut his 70-year-old uncle with a bushknife and left him to bleed to death contrary to an undertaking he had given not to attack the sorcery suspects. It was not a case in which great weight could be placed on the mitigating effect of the belief in sorcery. Upon review by the Supreme Court the offender was sentenced to 25 years imprisonment.

27. In Irai Thomas v The State (2007) SC867, the appellant was convicted of wilful murder of a person he suspected of killing his father by sorcery. He was sentenced to 18 years imprisonment by the National Court but on appeal the sentence was increased to 22 years. The victim was an elderly woman. The Court noted that the offender killed the deceased even though there was no basis for the claim that she had killed the offender’s father.

28. In The State v Sedoki Lota and Fred Abenko (2007) N3183, two offenders who pleaded guilty to wilful murder of a suspected sorcerer in Milne Bay Province were sentenced to death. They entered the deceased’s house, tied both her hands, blindfolded her, and then chopped off her head with a knife. The trial judge accepted that the belief in sorcery could be a mitigating factor but stressed that the circumstances of the killing were so callous and unimaginable, it was a premeditated execution-style killing in which the culpability of the offenders was so grave that it warranted the death penalty.

STEP 4: WHAT IS THE HEAD SENTENCE?

The approach

29. I will now assess the mitigating and aggravating features of the case. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point range.

Mitigating factors

•	The offender acted alone, not in a mob.

•	He was motivated by a genuine belief in sorcery.

•	He co-operated fully with the police and made very early admissions of guilt.

•	He is a first time offender.

•	He pleaded guilty.

•	He is a relatively unsophisticated villager and was well regarded in the local community prior to commission of the offence.

Aggravating factors

•	This was a vicious and barbaric killing.

•	The offender directly killed the deceased.

•	The offender has shown little remorse.

•	The circumstances of the incident show that there was a strong desire to kill.

•	There has been no peace or reconciliation with the deceased’s relatives and no payment of compensation. There is no evidence before the court to back up the claim that the offender’s relatives have already sorted out compensation.

Determination

30. The mitigating factors and the aggravating factors are about evenly balanced. I reject the defence counsel’s submission that a sentence below 20 years is warranted. The recent Supreme Court cases are consistent with this sort of case attracting a sentence in the range of 20 to 30 years.

31. I see no good reason for sentencing at the lower end of the range. I am not bound by the prosecutor’s concession on that issue. A sentence in the middle of the range is appropriate. I fix the head sentence at 25 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

32. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, three months, three weeks, four days.

STEP 6: SHOULD ANY PART OF THE HEAD SENTENCE BE SUSPENDED?

33. No. The pre-sentence report shows that there has been little done about reconciliation or forgiveness. Relations between the offender’s people and the deceased’s people are strained.

34. A suspended sentence would send the wrong message to the local community. It might add to tension and create a risk of payback killings. A suspended sentence would provide little deterrent to sorcery-related killings. Everyone must understand that a belief in sorcery is not an excuse to kill. The offence is too serious to warrant any suspension.

SENTENCE

35. Isak Wapsi, having been convicted of one count of wilful murder under Section 299 of the Criminal Code is sentenced as follows:

Length of sentence imposed	25 years imprisonment	
Pre-sentence period to be deducted	1 year, 3 months, 3 weeks, 4 days	
Resultant length of sentence to be served	23 years, 8 months, 3 days	
Amount of sentence suspended	Nil	
Time to be served in custody	23 years, 8 months, 3 days	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.

________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender