N4438

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 859 of 2008

THE STATE

V

LAURIE KEMUEL PAUGARI

CR 813 of 2008

THE STATE

V

KOPOL KEPAO

CR 814 of 2008

THE STATE

V

RAYWILL PARAPEN

Waigani: Salika, DCJ
2011: 07 October

CRIMINAL LAW – Sentences for murder – Section 300 of Criminal Code Act – Section 19 of Criminal Code Act.

MAXIMUM SENTENCE – reserved for worst murder cases – sentencing trends – the Court has a wide sentencing discretion to consider and to impose – the sentencing court should not be limited to and be bound by the range of sentences suggested by either the Supreme Court or the National Court. – the Courts sentencing discretion must not be seen to be watered down – the prisoner who instigated the trouble must receive a higher penalty than the other two.

Cases Cited:

Acting Public Prosecutor v Uname Aumane (1980) PNGLR 510
Simon Kama v The State (2004) SC 740
Goli Golu v The State (1979) PNGLR 653
Ure Hane v The State (1984) PNGLR 105
Manu Kovi v The State (2005) SC 789
State v Tupis Tom (No.2) (2009) N3675 
State v Amos Young (2008) N3312
State v Baika Martin (2008) N3312
State v Kevin Wakore (2007) N3222
State v John Siure [2006] PNGNC 112, CR Nos 384 & 385 of 2005
State v Boat Yokum [2002] N2337
State v Harry Heni & 2 Ors; Cr Nos 487, 278 & 279 of 2009
Lawrence Simbe v the State (1994) PNGLR 38

Counsel:

Mr Ninkama, for Laurie Kemuel Paugari & Kopol Kepao
Mr Lakakit, for Raywill Parapen
Mrs T Ganai, for the State

07 October, 2011

SENTENCE

1. SALIKA DCJ: Introduction: The prisoners in this matter were originally charged with one count of willful murder but I found them guilty of murder instead under s.300 of the Criminal Code.

2. The offence was committed between 8 and 9 March of 2008 at Gerehu Stage 4 in Port Moresby.

Issue

3. The issue for the court to determine is what is the appropriate sentence to impose on the prisoners.

4. As subsidiary issue is whether the prisoners should receive the same sentence or different sentences.

FINDINGS AT TRIAL

5. It was a finding of the court at the trial that when Laurie Kemuel and the other prisoners met with Johnson Isau, Laurie told Johnson what happened to him. Johnson said they should go back to Ishmael's house to sort out the matter. All the prisoners, including Saina and Johnson and others went to Ismael's house and destroyed his house. Buka, the deceased was fatally wounded during that raid.

6. I made the point that I accepted Joy Ishamel's evidence in that it was more truthful but I also said that even if I did not believe her story as to how Buka met his death it was still open to the court to convict each of the prisoners because they were present and part of the raid when Buka was fatally wounded. In other words if there was no direct evidence that each of the accused did not assault Buka, it was open to the court to find each of them guilty of murder because they were part of the group that raided Ismael's house. They were not innocent bystanders or mere observers. They were there to retaliate for the injury caused to Laurie and his vehicle and would bring s7 of the Criminal Code into play.

7. Joy's evidence at the time of the fatal assault on Buka was that she was sitting on the verandah with Buka when Kemuel hit him with a knife.

8. She also said Kopol hit him with an iron handle axe and that Raywill also hit him as well. She said Saina also hit Buka on the back.

9. It is rather unfortunate that others like Saina and Johnson Isau were not apprehended to bring them to justice. It is not late to still bring them to the court.

10. After convicting these prisoners the defence counsel requested an adjournment to get pre sentence reports on all the 3 prisoners. Since then, I have not been given a criminal circuit in Waigani and as a result time went by until now.

PERSONAL PARTICULARS

A.	LAURIE PAUGARI

11. Laurie is 38 years old and is from Kumamanda village, Wapenamanda District, Enga Province. He is a Seventh Day Adventist church goer.

12. He is married and has 3 children and all reside at Section 240, Allotment 72, Gerehu Stage 2.

13. Laurie has 3 children from a previous marriage who attended the Amapyaka Highlands Lutheran International School.

14. He also has taken 4 other children from his current wife's previous marriage who attend the Kopkop college.

15. He has a degree in law – Bachelor of Laws from the University of PNG.

16. Laurie has had several jobs and the most recent one was as a Personal Loans Officer with the Bank of South Pacific.

B.	KOPOL KEPAO

17. Kopol Kepao is 20 years old now and comes from Rakamanda Village, Wabag, Enga province. He is a Seventh Day Adventist.

18. Kopol is single and was residing with his older sister and her husband prior to his incarceration at Simona Street Section 296, Allotment 38, Gerehu Stage 3(b). He had been living there for 9 years.

19. He comes from a family of 7 and is the 6th born in the family.

20. Kopol is educated to Grade 12 at the Boroko Flexible and Distance Education but did not complete that as a result of this charge and conviction.

C.	RAYWILL PARAPEN

21. Raywill Parapen is a single 19 years old man and is from Rakamanda, Wabag in the Enga province.

22. He was living with his parents at Section 307, Allotment 47, Gerehu Stage 3 B and is a Seventh Day Adventist churchgoer.

23. He has two younger brothers and two younger sisters. He is the first born in the family.

24. This prisoner was dong his Grade 11 at the time of the incident then went onto do his Grade 12 after granted bail but when convicted he was incarcerated.

WHAT IS THE MAXIMUM SENTENCE FOR MURDER

25. Section 300 of the Criminal Code Act prescribes the maximum sentence to Imprisonment for life, subject to s.19 of the same Act. This means the court has discretion to impose any term up to a life imprisonment. 

26. The imposition of a sentence is usually done to serve a purpose and the purpose is deterrence, separation, rehabilitation and retribution.

27. The Supreme Court in Acting Public Prosecutor v Uname Aumane (1980) PNGLR 510 said:

"Deterrence is one of the most frequently used purposes in sentencing Under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.

The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.

The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose. In others they have introduced probation services for releasing the offender into the community under special supervision. In this regard, we are far too behind in developing our institutions and programmes to effectively carry out this purpose of sentencing. Legislation for probation is now under consideration. Until these programmes are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.
The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as "vengeance". This conveys the notion that the person who commits a crime must "pay" for it, or "deserves" it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as "payback". This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment."

28. For my part I agree with the principles as stated above by the Supreme Court relating to sentence and I adopt them in this case.

SENTENCING TRENDS IN THE NATIONAL COURT

29. What is the current sentencing trend? In order for the court to determine appropriate sentence, reference must be made to the current sentencing trend for the offence of murder.
30. The court must then consider the circumstances under which this offence took place including the mitigating factors, special or otherwise if any and the extenuating circumstances of the commission of the offence.

31. The Supreme Court in Simon Kama v The State (2004) SC 740 said this:

"On the Court's part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence were evidence is required. Once the offender is able to do that, only than should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind, we are of the view that the guidelines set by State v. Laura (No. 2)20 and Simbe v. The State21 for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

"(a)	where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b)	where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c)	where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to committed another serious offence, a sentence of thirty one (31) years to life imprisonment;

(d)	on a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty one (21) years;

(e)	on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;

(f)	where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to committed another offence, a sentence of forty one (41) years to life imprisonment;"

32. It is well entrenched in our jurisdiction that the maximum sentence is usually reserved for the worst type of offences in the categories of offences for which a person has been convicted for and is a principle that is repeated by our courts time after time when sentencing offenders.

33. The courts are given a wide discretion to impose a sentence they consider appropriate taking into account all the relevant factors in a case pursuant to s.19(1)(a) of the Criminal Code Act.

34. Each case is different and a sentence must be determined on its own facts and that the maximum prescribed sentence must be reserved for the worst type of a murder – see Goli Golu v The State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105.

35. The prisoners through their respective lawyers have submitted that the present murder case is not the worst type of murder and therefore does not warrant the imposition of the maximum prescribed sentence of life.

36. They further submitted that because it was not the worst type of murder in its category the court should exercise its sentencing discretion under s.19 (1)(a) of the Criminal Code.

37. I agree with Counsel for the prisoners that this is not the worst type of murder case and being such and it goes without saying that the court will indeed exercise its discretion under s.19 (1) (a) of the Criminal Code, and in that regard the court must have regard to the current sentencing trends and for the need to look to case precedents to assist it to come to an appropriate sentence.

38. The often cited case of Manu Kovi v The State (2005) SC 789 relating to homicide offences is the first point of call to go to.

39. The Supreme Court in that case suggested the following tariffs: 

CATEGORY 1	12 – 15 Years	
Plea
•	Ordinary cases
•	Mitigating factors with no aggravating factors	•	No weapon used
•	Little or no pre-planning
•	Minimum force used
•	Absence of strong intent to do GBH	
CATEGORY 2	16 – 20 Years	
Trial or Plea
•	Mitigating factors with aggravating factors	•	No strong intent to do GBH
•	Weapons used
•	Some pre-planning
•	Some element of viciousness	
CATEGORY 3	20 – 30 Years	
Trial or Plea
•	Special Aggravating factors
•	Mitigating factors reduced in weight or rendered insignificant by gravity of offence	•	Pre-planned. Vicious attack
•	Strong desire to do GBH
•	Dangerous or offensive weapons used e.g. gun or axe
•	Other offences of violence committed	
CATEGORY 4	Life Imprisonment	
WORST CASE – Trial or Plea
•	Special aggravating factors
•	No extenuating circumstances
•	No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	•	Pre-mediated attack
•	Brutal killing, in cold blood
•	Killing of innocent, harmless person
•	Killing in the course of committing another serious offence
•	Complete disregard for human life	

40. The Supreme Court went on to say that all relevant mitigating and aggravating factors be taken into account in determining an appropriate sentence but as to what weight is given to those factors is a discretion of the court.

41. It is conceded by the prosecution that this murder case falls under category 2 of the Manu Kovi classification. I am also of the same view.

42. Category 2 therefore would attract a sentence of a term between 16 years and 20 years.

43. Counsel for the prisoners have gone on to submit that the court should now consider whether the starting point should be higher or lower or within the range suggested in the Manu Kovi case.

44. That is a problem I have always had with the courts, both the Supreme Court and the National Court setting out what the starting point of a sentence should be.

45. On one hand the statute law, that is s.19(1)(a) of the Criminal Code says that a person liable to imprisonment for life or for any other period may be sentenced to imprisonment for any shorter term, while on the other hand the case law spell out what the sentence range should be and even state the starting points.

46. The statute law gives a wide discretion but the case law gives the impression that a sentencing judge must give sentences from a certain range.

47. The case law authorities of both the National Court and the Supreme Court should be a guide to sentencing tariffs to assist judges and should not be seen to be binding on the judges in my view.

48. The same sentiments were made by the Supreme Court in the matter of James Yali v The State.

49. When the Supreme Court in the Manu Kovi case said the sentencing range for category 2 murders should be between 16 and 20 years, to me with respect, it means that the sentencing judge should impose a sentence of between 16 and 20 years, nothing more, nothing less.

50. To me with respect the Supreme Court effectively took away the sentencing discretion of a judge to impose a sentence lower than 16 years and a sentence higher than 20 years.

51. By authority of the Manu Kovi case the sentencing trend for category 2 types of murders is locked between 16 years and 20 years, but if I were to apply s.19 of the Criminal Code, I would have a discretion to consider a non custodial term and consider a term from life to a term of years imprisonment.
52. In this case I will, with respect go back to s.19(1)(a) of the Criminal Code and to come to an appropriate sentence and I will consider other case precedents on murder cases, and I will consider the circumstances of the case to come to an appropriate sentence.

53. The aggravating circumstances in this case are:

(i)	Use of weapons, bushknifes and axe.
(ii)	Mob attack.
(iii)	Element of payback for assault on Laurie Paugari and his vehicles.
(iv)	Prisoners told to go home and that the matter will be resolved the next morning and the prisoners did leave but came back with reinforcements who were armed which lead to the killing of Buka.

CIRCUMSTANCES IN MITIGATION

54. The following mitigating circumstances are taken into account.

(i)	All the prisoners are first time offenders.
(ii)	There was no pre planning.
(iii)	This matter started out as a drunken brawl.
(iv)	Prisoners Kopol Kepao and Raywill Parapen were juveniles when the offence was committed are therefore youthful offenders.

Other special mitigating factors

55. There was reconciliation arranged and all the prisoners and their respective tribesman have paid what is commonly referred to as "belkol" money. This is usually done to restore peace and harmony and allow the families to go about their business without fear of any payback in retaliation. I take that factor into account that peace has been restored and maintained.

56. Counsel has referred to other possible mitigating factors such as:

(i)	Education of the prisoners
(ii)	Religion of the prisoners.
(iii)	Some element of provocation in the non legal sense in that Laurie Paugari was assaulted and his vehicles rear vision mirror was destroyed.

57. I do not treat them totally as mitigating factors for the following reasons:

(i)	Education factor can be viewed from both sides. On one hand their future education opportunities will be greatly affected if sentenced for long period. On the other hand they are all well educated already by PNG standards and living in a city. The barbaric act of mob attack such as this is not something educated people should be involved in.

(ii)	Religion or Christians – on one hand they are Christians of a certain Christian faith and respectable people. On the other hand Christians should not kill or attack other people and resolve their disputes in a peaceful manner. It is unchristian behavior to kill or to stir up trouble.

(iii)	Provocation – argument was stopped and the prisoners were told to go home and that the matter would be resolved the next morning. Early the next morning the prisoners attacked in a mob and Buka was killed in that attack.

58. I am mindful though of the circumstances of the offence and take them into account in the overall sentencing of the prisoners.

59. I am also mindful of a large young family Laurie Paugari is going to leave behind to virtually fend for themselves.

60. I am also mindful of the educational opportunities all the prisoners will forgo as a result of the sentence.

61. I am also further mindful of the fact that Saina and Johnson were not charged and I can only say that police should still have them charged together with those others who raided Ishmael's house. They also should be made to account for their actions. Police should not pick and choose who to charge and who not to charge without fear or favour.

62. I am mindful therefore that not all the people who assaulted Buka are before this court.

EXTENUATING CIRCUMSTANCES

63. I make the following observations of the circumstances under which the offence was committed:

(i)	The prisoner Laurie Paugari defended Buka when the first argument arose.
(ii)	Laurie Paugari was punched on his face for defending Buka.
(iii)	Buka and the prisoners for a good part of the night were together riding in Laurie Paugari's vehicle and drinking together.
(iv)	The prisoners were later part of the group that attached Buka.
(v)	The prisoners individually did not inflict more than one cut on Buka.

COMPARATIVE SENTENCES

64. I now turn to some case precedents involving murder cases in the recent past that may be helpful in arriving at appropriate sentences.

65. I now refer to relevant cases where various sentences were imposed and in those cases similar circumstances exist like the present case. These similar circumstances are:

(i)	The death was a result of a mob or group attack.
(ii)	The injuries or blows inflicted on the deceased were done by different members of the mob;
(iii)	The degree of participation of each member of the mob or group was considered;
(iv)	Where a member of the mob was a juvenile or youthful offender;

Relevant Cases similar to present case.

No	Case Ref	Details	Sentence	
1	
State v Tupis Tom
(No.2) (2009) N3675	
Trial – murder – deceased victim of a mob attack, both prisoners fought in a drunkard brawl, no weapons used only bare fists, first offender only punched deceased several times, second offender landed single fatal blow, attack was vicious but not pre-planned, equal sentence, imposed despite extent of each prisoners participation.	
12 years	
2	
State v Amos Young
(2008) N3312	
Trial – victim died from a single fatal stab wound, prisoner part of a mob who had attacked deceased, no pre-planning and element of viciousness.	
17 years	
3	
State v Baika Martin
(2008) N3312	
Guilty plea – murder – prisoners members of a mob who attacked deceased, sorcery related killing, each prisoner contributed in inflicting traumatic injuries, injuries consisted of multiple stab/knife wounds, sharp knife and palm sticks used apart from a lot of kicking and punching, all youthful offenders.	
24 years (2 main offenders)
22 years (3 offenders and 16 years (1 17 years old prisoner)	
4	
State v Kevin Wakore
(2007) N3222	
Guilty plea – murder, prisoner in company of his relatives armed with a homemade gun and bush knives attacked deceased, two cuts inflicted by bush knife and shot once on chest which is cause of death, vicious killing but no preplanning, 4 years of sentence suspended with conditions.		
5	
State v John Siure [20606]
PNGNC 112 Cr Nos 384 & 385 of 2005	
Trial – murder, mob attack, vicious attack on unarmed and innocent man, strong desire to do grievous bodily harm.	
12 years	
6	
State v Boat Yokum
[2002] N2337	
Guilty plea – murder – sorcery related killing, 9 prisoners pre-planned and executed their plan to cause grievous bodily harm to victim, each offender played a part six of the offenders were juvenile between the age of 15 to 18 years, sentence imposed according to the degree of their participation, suspension on sentence with conditions.	
25 years (to both co-offenders)	
7	
State v Harry Heni & 2 Ors; 
Cr Nos 487, 278 & 279 of 2009	
Trial – murder, prisoner in company of other offenders, armed with knife and pieces of wood attacked deceased, the deceased was initial and main aggressor, deceased sustained stab wounds and 1 proved fatal, no pre-planning, no compensation paid, mob attack, 2 offenders juveniles at time offence was committed, youthful offenders at the time of sentence.
	
i)	Mire Basanu (21 yers old) – 10 years
ii)	Totona kakana (30 years old) 9 years
iii)	Tawan Yasaling (16 years old) 8 years
iv)	Karao Kakanana & Bayawe Eli (16, 17 & 18 years) 7 years
v)	John Yowa (15 years) 6 years	

66. I now discuss particular cases from the table which are relevant for purposes of this submission.

67. In the State v Tupis Tom (No 2) 2009 N3675, the deceased was killed in a drunkard brawl. Tupis Tom punched and fought with the deceased but was removed from the club when his co-offender Nathan Bobi attacked the deceased.

68. The aggravating factors in that case were, the punching of the deceased was vicious, an intention to cause grievous bodily harm and customary compensation was not paid. However, the court considered that there was no pre-planning, de-facto provocation existed when the deceased swore at Tupis Tom and no weapons were used apart from bare fists.

69. As to the degree of participating though Tupis Tom only punched the deceased several times without causing his death unlike Nathan Bobi, whose one punch proved fatal, the court held, that the general rule is all active participants in the crime should be sentenced on the same basis.

70. However, there is an exception where the court held that, in cases where a co-prisoner is of a tender age and there exists a big age difference the sentence of each offender will not be the same. Though Tupis Tom was a youthful offender and there was an age difference of 6 years, the court considered that they were both no juveniles and so there was no need to impose a lesser sentence for Tupis Tom. The term of 12 years was imposed.

71. Another case would be that of The State v Baika Martin (2008) N3312. This is sorcery related killing where a suspected sorcerer was brutally killed. The accuseds totalling six (6) rushed on the deceased and each contributed in inflicting traumatic injuries. The weapons used were a palm stick and sharp knife besides punching and physical assaults. The accuseds were convicted after pleading guilty and the court sentenced the first two main offenders to 24 years, while the others were given 22 years and the youngest accused who was 17 years old was given 16. Also in that case the offenders were all youthful offenders apart from the sole juvenile offender.

72. The prisoners all pleaded guilty to the offence of murder. The aggravating factors which were considered are pre-planning to kill the deceased, it was a pre-mediated killing, the prisoners didn't take heed to the other villagers attempts to stop the attack, sorcery related killings are prevalent, each co-offender acted in aid of each other, dangerous weapons namely a sharp pointed knife and palm stick were used, the deceased was an old man compared to the prisoners, infliction of multiple injuries that were serious which included the crushing of his ribs.

73. On the other hand the prisoners had pleaded guilty to a serious offence, they were all first time offenders, they expressed remorse but did not pay any compensation, and the offenders all aged between 17 to 30 years old where the oldest is 30 years while the youngest is 17 years. 

74. When imposing the sentence degree of participation was not considered as all the offenders attacked the deceased at the same time and it was not clear as to who inflicted what sort of injuries. The only consideration was the age of Nellon Tero who was 17 years old and a sentence of 16 years was imposed while the others all received 22 years.

75. Similar case to this case is The State v Kevin Wakore (2007) N3222. The offence was committed by a mob of villagers who approached the deceased and his clansmen and demanded compensation for a case of adultery. A struggle ensued after a confrontation and the accused grabbed a gun from his clansman and shot the deceased on the chest after being cut with a bush knife by other persons.

76. The Kevin Wakore (supra) case though was a mob attack like the present case, it is more serious in that the actual murder weapon used was a gun which is far more lethal than a bush knife or axe.

77. Apart from that aggravating factor, the court also considered that there was no intervening cause of death and the death was a direct consequence of the action of the prisoner; the deceased had no pre-existing, susceptible condition that accelerated his death; death was a foreseeable consequence of the assault; the prisoner played a major role in the death of the deceased.

78. His Honour Justice Cannings took all these factors into consideration and imposed a starting point range of sentence according to category No 2 of Manu Kovi (supra). His Honour held that, the very strong mitigating factors were the prisoner's preparedness to accept responsibility for the death and the reconciliation within the community. On that basis the starting point of sentence was commenced outside the sentence range that is at 12 years and even 4 years of that sentence was suspended.

79. The mitigating factor were, de facto provocation, co-operation with police; compensation paid and peace and reconciliation established; early guilty plea; and first time offender and the prisoners taking full responsibility for the crime committed.

80. The State v Boat Yokum (2002) N2337 case was where 9 co-offenders pleaded guilty to a sorcery related killing. The deceased was believed by members of his community to be a sorcerer and by a general agreement within the community the prisoners volunteered to kill the deceased. The prisoners approached the deceased at his house and surrounded him, dragged him out. Then they shot him with a gun, chopped him up with axes and bush knives and left him there to bleed to death.

81. The mitigating circumstances were that all the offenders were young offenders except for Totonu Kakanana, unsophisticated villagers, early guilty plea, no prior convictions, all of previous good character and all expressed remorse. An extenuating circumstance in that case was all the prisoners volunteered to kill the deceased, they did so upon their belief in sorcery and what they did was in honour of their duty to the community.

82. The aggravating factors were pre-planning, strong intention to cause grievous bodily harm to the deceased, deceased surrounded and brutally attacked without warning, the prisoners maintained that the community authorize the killing.

83. The court decided that since the case was related to a belief in sorcery which contradicts Christian principles a rehabilitative sentence was necessary to enable the prisoners to undergo rehabilitative education which would change their belief about sorcery. Prior to saying that the court held that sorcery killings are payback killings and punitive and deterrent sentence is necessary. However, it exercised its discretion under s.19 of the Code and imposed a rehabilitative sentence.

84. The main offender who was armed with the only shotgun, Mine Basanu (21 years old) was given 10 years as he was the leader of the group, Totonu Kakanana and Karao Kakanana (both 30 and 35 years respectively) received 9 years for severing the right hand of the deceased, Tawan Yasaling and Bagon Yokum (aged between 16 -18 years) were given 8 years for dragging the deceased out of his house before being chopped, Boat Yokum, Arabau Kakanana and Bayuwe Eli aged 16 – 18 years) got 7 years for the participation as watchman and Johnyawa (15 years) got 6 years for being watchman. Then the court suspended half of all those sentences.

85. The final case is the case of CR 487, 278 & 279 of 2009; The State v Harry Heni & 2 Ors. This is a recent case decided by Justice Mogish in May 2011. The prisoners were charged with Wilful Murder but later convicted after trial for murder. Briefly the facts are that the prisoners together attacked the deceased after the deceased provoked them by verbal insults. The deceased also at that time was armed with a knife and chased one (1) of the accused persons towards his house. The three (3) prisoners together went to the aid of the other accused (who was acquitted after a no case submission). The prisoners used varying weapons and participated at different stages of the killing without acting at the same time.

86. The prisoner Harry Heni received 13 years as his degree of involvement was to the extent that he used a piece of wood on the deceased hitting him and causing him to fall and he did not further attack the deceased. Then his co-offender Heni Naime picked up the deceased's own knife and stabbed him on various parts of his body. Finally, the prisoner Vaguio Konio picked up an empty alcohol bottle and a water container and threw on the deceased when he was lying unconscious.

87. The court considered the varying degree of participation of each offender particularly the different weapons used at different times the offenders got involved and the individual ages of the offenders as two (2) of them were juveniles.

88. This case is similar to the case of the Harry Heni (supra) and is less serious than the cases of Baika Martin (supra) and Boat Yokum (supra) which are cases that involve brutal killing of an innocent man which involved much pre-planning.

89. Murder is very serious crime, in fact, it is the second most serious homicide offence in this jurisdiction. However, it is also settled law that, every case must be decided on its own merits (Lawrence Simbe v the State (1994) PNGLR 38).

90. On that premise, though the aggravating factors in this case are serious such as the use of a dangerous weapon (bush knife and axe), multiple injuries were inflicted, conviction after trial and more significantly the loss of an innocent life. Mitigating factors and extenuating circumstances assist in reducing the gravity of the offence.

91. It is clear to me from the analysis of the case law that the sentencing range for murder cases is from about 12 years to about 25 years depending on the circumstances of each case.

92. In this case I also consider the participation of each of the prisoners in the commission of the offence.

93. Considering all the circumstances of the case, I impose the following sentences.

94. Laurie Kemuel Paugari is sentenced to 14 years imprisonment with hard labour. One year two months is taken off for pre-trial and pre sentence custody. The balance of the time to spend in jail is twelve (12) years and ten (10) months.

95. I have considered whether any suspension should be accorded to the prisoner but I have decided against that for the reason that a life was lost unnecessarily and without good reason.

96. Kopol Kepao is sentenced to 12 years imprisonment with hard labour. One year 2 months 1 week is taken off for pre-trial and pre sentence custody. For the same reasons no part of the sentence is suspended. He is to serve 10 years, nine (9) months 3 weeks.

97. Raywill Parapen is sentenced to 12 years. One year for pre-trial and pre sentence custody. The balance he will serve is 10 years 9 months 3 weeks.

98. None of his term will be suspended for the same reason as above.

99. As noted Laurie Paugari's sentence is higher than the other two for reasons that he was the instigator and he started everything.

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Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the 1st & 2n'd Prisoners
Lakakit Lawyers: Lawyer for the 3rd Prisoner