N4821

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 801 OF 2011

THE STATE

V

KAUL NIRUK & KUBAK NURVUE

Kokopo: Lenalia, J.
2012: 25th September & 3rd October.

CRIMINAL LAW – Murder – Sentence after finding of guilty – Factors for consideration – Sentence – Criminal Code s.300(1)(b)(ii).

CRIMINAL LAW – Murder – Sorcery related killing – Sentence – Sentencing principles – Not a worse type case – Sentence of 12 years appropriate. 

Cases cited

Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Uname Auname [1980] PNGLR 510
Ure Hane v The State [1984] PNGLR 105
Kwayawako & 5 Others v The State [1990] PNGLR 6
Lawrence Simbe v The State [1994] PNGLR 38
The State v Boat Yokum & 6 Others (2002) N2337
Max Java v The State (2002) SC701
The State v Urari Siviri (2002) N2747
Manu Kovi v The State (2005) SC 789

Counsel

Mrs. S. Cherake, for State
Ms. J. Ainui, for the two Accused

SENTENCE

3rd October, 2012

1. 	LENALIA J: The two prisoners were found guilty of one count of murder pursuant to s.300(1)(b)(ii) of the Criminal Code. The offence was committed at Vunairoto village on the North Coast area of this Province on the afternoon of 29th June 2011. This offence is punishable by life imprisonment subject to s.19 of the Code.

Addresses on Sentence

2. 	After the two accused were found guilty, (see judgment on verdict dated 25th September 2012) they were asked if they wanted to tell the court anything before their lawyer address the court on sentence. On the part of the first accused he said sorry to the court and the relatives of the victim. He said, they did not mean to kill the deceased but they assaulted him because, they suspected him of poisoning his brother. 

3.	The second accused said much the same thing. He said sorry to the relatives of the victim and to the court. This prisoner had got one conviction by the District Court in Rabaul for assault. He was sent to jail for 8 months. The defence did not dispute such conviction on the part of the second prisoner.

4.	The evidence established a case of sorcery related killing. When counsels addressed the court on sentence, the defence counsel briefly stated the law in relation to the offence committed by the two accused. Ms. Ainui submitted that the Court should take into account the fact that, the two accused did not really mean to kill the victim as they were angered by the victim's action that allegedly poisoned their brother late Retio who is now deceased. She asked the Court to consider the fact that, this was a sorcery killing involving an element of "provocation in the non legal sense". Counsel submitted for a sentence lower than category 2 in Manu Kovi-v-The State (2005) SC 789. 

5.	Mrs. Cherake submitted in reply that the court has to consider the fact that a life was lost and the court must consider sanctity of life as an important factor on consideration of an appropriate penalty. Counsel quoted cases on sorcery killing and asked the court to consider an appropriate penalty. Counsel cited the case of The State-v-John Kanua & Anor, Cr.Nos.384 & 385 of 2003. In that case the offenders were sentenced to 25 years for the offence of murder under s.300 of the Criminal Code. It was held in that case that the starting point for vicious attack mob killing motivated by belief in sorcery should be 20 – 30 years imprisonment. That case is no authority as it is a National Court decision. 

6.	She referred to a number of cases relating to sorcery killing including that of Manu Kovi-v-The State (2005) SC 789 for the principles set by the Supreme Court on the tariffs of sentences for homicide cases. I will refer to some of these cases later.

LAW

7.	The crime of murder under s.300 of the Criminal Code is punishable by life imprisonment. This is demonstrated by the wording of the section charged and the circumstances under which the crime of murder can be committed. The Section states:

"300.Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and
(ii) of such a nature as to be likely to endanger human life; or".
 ……..

"Penalty: Subject to Section 19, imprisonment for life."

8.	As submitted rightly by counsels, this Court has discretion to either impose life imprisonment on the two prisoners or instead sentence them to a term of years. Agiru Aieni and 12 Others-v-Paul Tohian [1978] PNGLR 37. On that case, Wilson, J; after stating the principles said, to apply the principle of sentencing properly, the court ought to inquire into how seriously the particular accused was involved in the offence, then the extent to which the accused was culpable. There is only one person who was not arrested for this offence. 

9.	The above principle is significant in this case to decide what part the two accused played in the killing of the sorcerer. It seems from the evidence that, the two prisoners acted by using a bush-knife and spades. The extent of their culpability was direct confrontation with the victim. The two accused were the main actors of this offence and according to the evidence, they acted directly and confronted the deceased and assaulted him right in front of the public who gathered for the burial. They are culpable for the crime they committed.

10.	It appeared from all evidence the people around the area where the offence took place still have a very strong belief in sorcery and sorcery killing. It is a widespread belief very common throughout Papua New Guinea that sorcerers can actually cause the death of other people. The extent of that belief was well summarized in The State-v-Aiaka Karavea & Anor. (1983) N452 (M) where former late Kidu CJ said:

"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."

11.	Sorcery related killings are in general committed under different circumstances. The killing of a reputed sorcerer whom people generally believe that he was a sorcerer and that he was responsible for causing an unspecified number of deaths in the village and where people believe that he was responsible for the last death as was in the case of The State-v-Kwayawako [1988] PNGLR 174. I am of the view that that line of cases may be treated differently from a case where there is mere suspicion by villagers that such person was a sorcerer. On the instant case, it is not clear nor has it been proven in evidence if the victim was at all a sorcerer.

12.	Whether Noah Kukubak was in fact a sorcerer and whether he had killed many people in the village cannot be established as he was never given the opportunity to prove his case in any court of law as required by s.37 (3) of the Constitution. He is not here today to do that. He is now dead. However one thing is clear about the allegations against the deceased and that is that, the two accused and their relative who has not been charged believed that the deceased had caused the death of late Retio, the brother of the two accused. 

13.	The Supreme Court cases of Acting Public Prosecutor-v-Uname Auname [1980] PNGLR.510 and Public Prosecutor-v-Apava Keru and Aia Moroi [1985] PNGLR.78 establish that sorcery related killings fall into a special category deserving special considerations on sentence. In the later case, the Supreme Court said at pages 80-81:

"If the killing had been of a reputed sorcerer then a sentence of six years would have been appropriate on the leading sentencing authority of Acting Public Prosecutor v Uname Auname {1980] PNGLR 510. That case puts the wilful murder of a reputed sorcerer in a special category of its own – meriting a sentence of around six years. All other kinds of wilful murder normally attract a sentence years or more up to the maximum of life imprisonment."

14.	The court understands where Mrs. Cherake was coming from when she addressed on the court on aggravations when she said, the fact that, the killing was sorcery related ought to be properly considered by this court because of the principle that sanctity of life must be up-held and given paramount consideration. I share the same view about the outcome which might have a negative impact on sentencing on sorcery killing related case. I share the view that the allegations about sorcery should not overshadow the seriousness of the killing in the instant case and if the court was to be too lenient on sentence would send a wrong signal to the public that, the killing of sorcerers is alright. I agree with the view taken by Injia, J (as he then was) in The State-v-Boat Yokum and 6 Others (2002) N2337 at 5 His Honour said:

"In considering the appropriate sentence, I have had regard to and emphasize the deterrent and retribution theory of sentence as is usually done in sorcery killing cases: see Acting Public Prosecutor v Uname Aumane & Others [1980] PNGLR 510. A strong punitive and deterrent sentence is required to punish the offenders and to send a clear message to their own community; who apparently seem to think that it is alright to kill a sorcerer or a reputed sorcerer for that matter; that it is wrong to kill another person including a sorcerer, reputed or not, and that they will be punished by the Courts, if they do."

(See also The State-v-Urari Siviri (2004) N2747)

15.	In consideration of an appropriate penalty for the two prisoners, I have considered what the two accused said in allocutus and all that were said in favour of the two prisoners by their lawyer and more particularly their expression of remorse to this very serious crime. They have each shown remorse by saying that they are sorry for committing this offence and that, they were in fact forced to commit this offence because their brother died after he was poisoned. In sorcery related killings, the balance must be struck somewhere between sentences imposed for manslaughter, murder and wilful murder on ordinary cases. In Agoara Kelo & Karunai Uraki-v-The State (1981) SC 198, the Supreme Court said: 

"The belief in sorcery taken together with other factors in their favour only operates to reduce a life sentence to a term of years. It does not and should not operate to render a sentence equivalent to that usually imposed by judges here for murder, manslaughter, dangerous driving causing death and infanticide."

16.	The court must also consider all extenuating circumstances as they appear from the evidence that came before this court. The killing in the instant case was not planned. It was done on the afternoon of the date, the victim of the allegations of sorcery was buried. There is no evidence to show if there was any complaint made to village elders, the Village Court or such complaint had been brought to police then to the District Court for prosecution under the Sorcery Act. 

17.	On the sentencing trends for sorcery related killings, starting with the case of Acting Public Prosecutor-v-Uname Auname & Others (supra), they were sentenced to 3 years of imprisonment which on appeal was held to be inordinately low. The sentence there was raised to 5 years. In The State-v-Aiaka Karavea & Anor (supra) the two brothers killed a reputed sorcerer on the belief that, their sister's death was caused by such sorcerer. They went in search of the alleged sorcerer and found him at the Ihu Police Station in neighbouring Gulf Province. Aiaka axed the sorcerer to death. He was sentenced by the National Court to 12 years. 

18.	In Agoara Kelo & Karunai Uraki-v-The State (supra), the two accused killed a reputed sorcerer who was suspected of killing 18 people by sorcery. He was sentenced to 8 years. He appealed to the Supreme Court on the basis that the sentence was too severe. His appeal was dismissed. 

19.	In Kwayawako-v-The State [1990] PNGLR 66 the appellants appealed against the severity of their sentences. They were convicted on their pleas and sentenced to terms ranging between 12-15 years. The Supreme Court up-held their appeals and reduced the sentences to 10 years on the basis that the Sorcery Act does not deny the existence of the belief and power of sorcery, hence it is permissible to take into account as a mitigating factor on sentence, the customary belief in the power of sorcery.

20.	In The State-v-Boat Yokum & Others (supra), the National Court imposed sentences ranging from 6 to 10 years on prisoners who killed a reputed sorcerer who was believed to have caused the death of the deceased and 53 other people previously. In that case, the whole community decided to end their misery by taking the life of the sorcerer which they did. 

21.	In The State-v-Urari Siviri (2004) N2747 a case in Goroka before Batari, J, the prisoner was found guilty of wilful murder for the killing of a suspected sorcerer who was to have killed the prisoner's wife by sorcery. The prisoner was sentenced to 18 years.

22.	On the instant case, there is no evidence in my view to suggest that the two prisoners acted on behalf of the community to commit a serious crime as the one under consideration as it takes or requires so much courage on the part of an actors as was the case of the two accused and those who have not been brought to justice. My only hope is that those who were involved in the planning and eventual execution of the death penalty will also be brought to court sooner or later. 

23.	Taking into account the sentencing trend in the above cases on sorcery related killing, the law also requires that, whatever the circumstances are, each case must be considered on its own merits: Lawrence Simbe-v-The State [1994] PNGLR.38. 

24.	I consider the sentencing principle which says that the maximum penalty ought to be reserved for the worst type case encountered in practice: Goli Golu-v- The State [1979] PNGLR 653 and Ure Hane-v-The State [1984] PNGLR 105.
 
24.	In the circumstances of the instant case, the court considers that, a sentence of 12 years shall be appropriate. They are each sentenced to terms of 12 years imprisonment. The court will suspend 3 years from the head sentence on condition to keep the peace after they are released. The time they have spent in custody shall be deducted and they will serve the balance.
___________________________________

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the two Accused