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State v Mesuno [2012] PGNC 80; N4701 (8 June 2012)

N4701

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1521 of 2010
CR. 1588 of 2010

STATE

V

SOTI MESUNO, LUKE LUNGU GIHIYE, MESUNO LUNGU AND MEKI SHUMBO GIHIYE
Prisoners

Goroka: Kangwia, AJ
2012: 25 April & 08 June

CRIMINAL LAW – Wilful Murder – Sorcery related killing of relative clergy man – Convicted after trial – Aggravating factors far outweighs mitigating factors – Only mitigating factor as illiterate first time offenders avoids maximum prescribed penalty – Life imprisonment inappropriate as deterrence – Adequate Fixed -term sentence appropriate deterrence – Fixed-term sentence sufficient for retribution and punishment.- sentenced to 34 years imprisonment for 2nd, 3rd & 4th prisoners.

CRIMINAL LAW - Youthful offender of 17 years with lesser degree of participation – inappropriate to apply Juvenile Courts Act in sentencing given the seriousness and gravity of the offence – appropriate sentence to be half that of co- offenders – sentenced to 17 years imprisonment for 1st prisoner.

Cases cited:

Steven Loke Ume v the State (2000) SC836;
Hure Hane v the State [1984] PNGLR 105;
John Baipu v the State (2005) SC796;
Irai Thomas v the State (2007) SC867;
The State v Isak Wapsi (2009) N3695;
The State v Adam Lembine (CR No. 1443 of 2006) (Unreported & Unnumbered Judgement of Yagi J);
Manu Kovi v the State (2005) SC789;
The State v Saweno Visare & Ors (CR 1455 of 2005) (Unreported and unnumbered judgement of Lenalia J);
Secretary for Law v Jimbun [1979] PNGLR 288;
The State v Stanley Marai Urie (2003) N2386;
The State v Kepak Langa (2003) N2462;
Lawrence Simbi v The State [1994] PNGLR 38;
The State v Joe Bal Junior & Balito Sine (CR No 615 & 616 of 2009) unreported and unnumbered Judgement of 11 Nov. 2011;
Goli Golu v the State (No.3)[1982] PNGLR 92;
Public Prosecutor v Uname Aumane [1980] PNGLR 510;
Public Prosecutor v Apava Keru & 1Or [1978] PNGLR 78;
Agoara Kebo & 1 Or v the State [1981] SC 198;
The State v Boat Yokum & Ors (2002) N2337;
The State v Maraka Jackson (2006) N3237;
The state v Joseph Tunde Binape (2004) N2727;
The State v Jude Gena & Ors (2004) N2649;
The State v Wilfred Opu Ndanabet (2004) N2728;
The State v Max Java (2002) SC 701;
The State v Yemola Mealo (2004) N2708.

Counsel:

B. Gore & K. Umpake, for the State
C. Thomas & M. Mumure, for prisoner Soti Mesuno
F. Kua & R. Kasito, for the 2nd 3rd & 4th Prisoners

8 June, 2012

1. KANGWIA AJ: The prisoners are appearing for sentence for the Wilful Murder of one Pastor Arnold Moruwo on 15 May 2010 at Kongi 01 village, Asaro, in the Eastern Highlands Province. They denied committing the offence and raised alibi defence and the issue of identification. However they were found guilty after a trial spanning nine days and convicted accordingly as principal offenders.

A. FACTS

2. The brief facts are these. The deceased was a pastor. The prisoners and the deceased are blood relatives from two paternal brothers. The prisoners' families were believed to have blamed the deceased and his family of sorcery for the death of some of their relatives, which included one Nelson the son of prisoner Makishumbo Gihiye.

3. On the day of the killing the deceased returned to their village from Lae with his son Manuel Arnold who was then 5 years old. At around 7:30 pm the deceased was attacked with bush knives and shot on the head with a homemade pistol. The deceased died instantly. He was killed in front of his son some 100 meters from his home. The prisoners were among a group of men who attacked and killed the late pastor. After killing him the body was concealed from the family members. The grave was located with the help of police who exhumed the body.

4. The autopsy report attributed the death to bush knife wounds to the legs and a gunshot wound on the head.

B. PERSONAL PARTICULARS

5. Soti Mesuno is 17 years and single. He stated that he was in grade 5 at Kongi community school but the PSR indicated that he left school because of this death.

6. Luke Lungu Gihiye is aged 38 years and married with four children but one died. He is a villager from Kongi 01 village.

7. Mesuno Lungu is aged 46 years and formerly married. He has eight children both adopted and his own. He is a villager from Kefembia in Kongi village.

8. Makishumbo Gihiye is aged 45 years and married with six children but one died. He is also a villager from Kongi village.
All prisoners subscribe to the four square church. They are all first time offenders.

C. ALLOCATUS

9. On their allocutus the prisoners stated as follows:

1. Luke Lungu Gihiye:

"I have something to say. I am now saying sorry to the court for what I did. I say thank you to the Court, lawyers and the complainants. This is my first time to be in court. I have never been in court. I am married and have 03 children. One is in school Grade 03. My father died. Mother is disabled on the hands. Our big brother died and I take care of his children. I have my father's house and 03 blocks of coffee garden. I ask the Court if it can have mercy on me and put me on probation or Good behaviour bond. That is all your honour."

2. Mesuno Lungu

"I thank you Court, lawyers and everyone in Court. Since I was born I have never been to court of any kind. This is my first time. On 11 May 2010 Andaie told the whole community in the village that 06 people had died in church. Ten others in the community died. They accused this woman and one other woman. She said when her husband returns some people will die. All the villagers heard it. Soon after he returned from Lae, this happened.

On 16 May 2010 (Sunday) everyone in the village gathered to find out the cause of death. They found out that the killing occurred after the wife said these things and compensation was ordered. That is why we are here. I am saying sorry to the Court because this is my first time. My wife died and I have 08 children. Five are in school and three in the village. My brothers are all dead. I am the only one that looks after all the family. I have asthma. I therefore ask the Court for its mercy and put me on probation and good behaviour bond.

The problem happened within the family. If I am jailed for long period my kids will be affected in education. I have 02 big coffee gardens. My brothers coffee gardens are under my care also. There might be big trouble between my children and the community and therefore I request for mercy. That's all.

3. Makishumbo Gihiye:

"I have nothing to say".

4. Soti Mesuno:

'Thank you for giving me time to talk. It's my first time to be in Court. I have been found guilty. I was 15 years when the problem occurred. I have been in custody 01 year and two months. At that time I was in school at Kongi 2 Primary School. I bailed out after 01 year and 02 months and repeated Grade 05 at Kongi 01 Primary. I have nothing much to say. I ask for leniency with probation or good behaviour bond. My father and I were kept in custody. I have a sister who is alone in the village and I feel sorry for her. I only ask for probation or good behaviour bond. That is all.

D. SUBMISSION FOR PRISONERS

10. Mr Kasito for the three prisoners submitted that the prescribed penalty for this offence was a sentence of death but that was subject to the discretion of the court conferred by s19 of the Criminal Code Act.

11. The maximum prescribed penalty is reserved for the worst type of each offence as in Steven Loke Ume v the State (2000) SC 836. The present case did not fall into any of the eight categories described in Hure Hane v the State [1984] PNGLR 105 and therefore the maximum prescribed penalty did not apply.

12. Mr. Kasito however submitted that the Courts have considered that putting sorcery related killing into a special category with low sentences was no longer an appropriate sentencing principle. He based his submission on the sentences imposed in the case of John Baipu v the State (2005) SC 796 where the prisoner was sentenced to 25 years; Irai Thomas v the State (2007) SC 867 where the Supreme Court increased a sentence of 18 years to 22 years; The State v Isak Wapsi (2009) N3695 where the offender was sentenced to 25 years and the State v Adam Lembine CR No. 1443 of 2006, Unreported & unnumbered judgement of Yagi J dated 31 July 2009 where a first time young offender was sentenced to 16 years.

13. Following the sentencing guidelines in Manu Kovi v the State (2005) SC 789 it was submitted that this case fell into category 02 which suggested a sentencing range of 20 to 30 years. Given that the mitigating factors outweigh the aggravating factors, Mr. Kasito submitted that a head sentence of 15 to 22 years with deductions for time in custody and partial suspension should be considered for the three prisoners.

14. On behalf of Prisoner Soti Mesuno, Mr Mumure submitted that the prisoner was a juvenile at the undisputed age of 17 years at the time of sentencing. The prisoner was a young first time offender who had no active participation in the killing. The killing was of a close relative and he would live with the stigma all his life which should be a punishment in itself. There was de facto provocation present and that this was not the worst type of wilful murder.

15. Mr. Mumure suggested two options to the Court in sentencing. First was to use its discretion under s18 of the Juvenile Courts Act where the maximum sentence would not exceed 18 months imprisonment.

The second was if the Court preferred to sentence him with the co-prisoners then the guidelines in Manu Kovi (supra) should not apply as the killing was sorcery related. It was suggested that the sentencing in the State v Saweno Visare & Anor CR 1455 of 2005 (unreported & unnumbered judgement of Lenalia J of 15 June 2006 where the prisoners were sentenced to 13 years and the Secretary for Law v Kaibug Jimbun & Anor [1976] PNGLR 288 where the Supreme Court increased a sentence of two years to eight years were appropriate guides in sentencing for the prisoner.

16. Mr. Mumure also submitted that the youthfulness of the offender placed this case into the category of The State v Stanley Marai Urie (2003) N2386 where a 13 year old prisoner was sentenced to 10 years for murder with deductions for time in custody.

It was finally submitted that the sentencing for this offender should be geared towards rehabilitation of the prisoner to fit into the community.

E. SUBMISSION FOR STATE

17. Mr. Umpake for the State submitted that this was a very serious case of homicide as reflected in the prescribed penalty for the offence of wilful murder. It involved the killing of an innocent and defenceless clergyman. The prisoners took the law into their own hands on the suspicion of sorcery. It was an unusual allegation that a clergy could be a sorcerer at the same time. The deceased left behind 05 children and it had a big impact on the wife and the children as reflected in the affidavit of the widow.

18. The serious nature of the offence was reflected in the use of a firearm and bush knives to cause multiple injuries. The offenders concealed a serious offence and the relatives were denied a decent burial for the deceased. There was strong desire to kill with preplanning involved. There was no regard for human life and the casual attitude displayed by the prisoners put this case into the worst category of wilful murder cases.

19. In conceding the guidelines in Manu Kovi (supra) Mr. Umpake submitted that this case fell into category three which attracted life imprisonment bordering on the death penalty. This case was similar to the State v Kepak Langa (2003) N2462 where a pastor was ambushed and shot dead with a gun and chopped. The prisoner in that case was sentenced to death. It is believed an appeal against the sentence is pending.

20. It was argued that sorcery as a mitigating factor should be given less weight in this case than those reported cases that involved killings of alleged reputed sorcerers.

21. As for prisoner Soti Mesuno, Mr Umpake submitted that since there was nothing to establish the exact age of this prisoner the Court's physical observation and determination of the prisoner was more appropriate to arrive at a suitable sentence for him.

22. Finally Mr. Umpake urged the Court to consider a sentence of 20 years to life imprisonment and not under category two of Manu Kovi (supra).

F. THE LAW

23. The penalty for the offence of wilful murder is provided under s299 (2) of the Criminal Code as follows:

299. Wilful Murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

The prescribed penalty has no sentence range from which the court can have recourse to in arriving at a suitable sentence. Neither does the penalty provision expressly provide for the exercise of discretion. However, the use of the words "be liable to" Under s 299 (2) makes it permissible to impose other sentences apart from the maximum sentence of death. Otherwise the penalty provision of s 299 (2) would have been made mandatory by excluding the words "be liable to".

24. Section 19 of the Criminal Code also makes provision for the Courts to exercise discretion to impose other sentences. It permits the exercise of discretion to impose penalties other than the death sentence in the following manner:

19. Construction of provisions of code as to punishments.

(1) In the construction of this code, it is to be taken that, except when it is otherwise expressly provided –

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term;

25. Despite the maximum prescribed penalty being the ultimate sentence of death the court is not starved of discretion to impose the second highest penalty of life imprisonment or any lesser period of imprisonment.

26. The submissions of counsels on sentencing however are at extremes. The State preferred up to life imprisonment while the defence sought sentences from 20 years and below. In that respect and to bring into perspective a sentencing guide to arrive at a suitable sentence, I adopt what the Supreme Court said in Lawrence Simbi v The State [1994] PNGLR 38 as follows;

"We say it is not a matter of tariff ... but rather that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack and the concern of the Court at people who take the law into their own hands".

27. In my view that should be the appropriate guiding principle for sentencing purposes as the determination of an appropriate sentence in each case is more an exercise of discretion by the Court. Tariffs and guidelines provide a useful guide in the exercise of the Courts discretion. In respect of tariffs and guidelines I restate what I said in the case of The State v Joe Bal Junior & Balito Sine (CR 615 & 616 of 2009) Unreported & unnumbered judgement of 11 November 2011 as follows:

"They may be useful as having a universal application for purposes of uniformity and parity in sentencing to avoid "quantum leap", "manifestly excessive", "inadequate", or inordinately low" sentences".

Having said that what then would be an appropriate sentence for this case?

28. It is a general principle of law that the maximum prescribed penalty is reserved for the worst category of each offence. In Goli Golu v the state (No. 3) [1982] PNGLR 92, the Supreme Court held that;

"The maximum penalty of life imprisonment should be reserved for the most serious instances of the offence. In sentencing, the basic principles to be observed are that the punishment to be awarded should be strictly proportionate to the gravity of the offence".

29. That decision was made when the maximum prescribed penalty for wilful murder was life imprisonment. Despite the reintroduction of the death penalty for wilful murder, the principle of law should equally apply as it is still good law and is consistent with sentencing guidelines for all types of offences.

30. In the renowned case of Manu Kovi v the State (2005) SC789 the Supreme Court set sentencing guidelines and tariffs mainly for purposes of uniformity and parity in sentencing for all homicide cases.

31. Despite opposing views and departures by subsequent Supreme Courts on the suggested guidelines in Manu Kovi the guidelines in my view are of universal application as they cover most if not all aspects of considerations a Court could draw from to arrive at a suitable sentence.

32. For wilful murder cases the Supreme Court in Manu Kovi (supra) suggested the following guidelines for sentencing:

Category one- 15 to 20 years in a plea case where there are mitigating factors with no aggravating factors i.e. No weapons used, little or no planning, minimal force used and absence of strong intent to kill.

Category two – 20 to 30 years in a trial or plea where there are mitigating factors as well as aggravating factors. Where there was pre planning, vicious attack, weapons used and strong desire to kill.

Category three – Life imprisonment in a trial or plea where there is special aggravating factor and the mitigating factors are reduced in weight or rendered insignificant by gravity of offence. Brutal killing in cold blood, killing of innocent defenceless and harmless person, dangerous or offensive weapons used, killing accompanied by other serious offence, victim young or old, pre planned and pre meditated killing.

Category four – Death sentence for worst case in a trial or plea where there is special aggravating features, no extenuating circumstances, and no mitigating factors or rendered insignificant by gravity of offence i.e. pre meditated attack, brutal killing in cold blood, killing of innocent or harmless person, killing in the course of committing another serious offence and complete disregard of human life.

33. For this case in the absence of any explanation for the killing due mainly to their denial through their defence of alibi, it was found as a fact that the motive for the killing was blame of sorcery on the deceased. This case is therefore what is commonly termed as sorcery related killing and a sentence commensurate with such killing should apply.

34. Sorcery related killings were traditionally treated as a special category of homicides with lower sentences from those ordinary murder cases as in the case of the Public Prosecutor v Uname Aumane [1980] PNGLR 510 where the prisoner was sentenced to 6 years on appeal from a 03 month sentence with compensation orders imposed by the National Court. In the case of Public Prosecutor v Apava Keru & 1 Or [1978] PNGLR 78 the prisoners who killed a reputed sorcerer were sentenced to 6 years. The sentence was increased on appeal describing the sentence as inordinately low.

35. In Agoara Kebo & 1 Or v the State (1981) SC 198 the Supreme Court affirmed a sentence of 8 years on a sorcery related killing describing the sentence as not manifestly excessive.

36. Quite recently in the State v Boat Yokum & Ors (2002) N2337 Injia J (as he then was) sentenced the offenders to various sentences from 10 years to 6 years based on their plea, youth and the nature and extent of their participation in the killing after convicting them of murder. Part of the sentence was also suspended for rehabilitation through intensive Christian discipleship education training with the AOG church. The offenders were involved in the killing of a reputed sorcerer who was allegedly responsible for the killing of 53 people. The whole community resolved to eliminate the deceased and the prisoners implemented the community's resolution.

37. These sentences reflect the special treatment given to sorcery related killings despite a death having been caused deliberately by the offenders.

The justification for the leniency seems to be based on the prisoner's belief in sorcery embedded in a cultural setting which was thought or believed to have its own mechanisms for sanction. Because of the presence of such belief the Courts may have perceived it to be an overt intrusion into such embedded cultural beliefs to impose a heavy sentence, hence the lenient sentences. There is no other rationale or plausible explanation for the previous position of the Courts to impose lenient sentences for sorcery related killings.

38. Despite the influence of Christian principles into the country, it seems such noble or more worthy principles have not permeated into the core belief of individuals and the society in many parts of this country. Belief that sorcery was the cause of death has not abated through Christian influence. Wanton killing and destruction to property premised on belief and blame on sorcery is quite regular and a seemingly casual event. Belief that a sorcerer can actually kill a person through sorcery is embedded in many PNG societies.

39. I would not be far off the mark to say that there has been an increase in such killings owing to a lot of deaths arising out of lifestyle diseases, accidents or other causes of the modern era from the recent past to the present time.

People who were perceived as not capable of dying early for instance are dying. These deaths have been made to connect to a twisted manufacture of blame on sorcery as the cause. The blame on sorcery ignites vengeance resulting in the sorcery related killings that the Courts are regularly faced with.

However the Courts have now taken a different approach from the special treatment position in sentencing for sorcery related killings.

40. Sentences have increased significantly because of the view that a sorcery related killing was in fact an act of vengeance or what is colloquially termed as "payback killing".

41. In The State v Maraka Jackson (2006) N3237 the prisoner was sentenced to 24 years for killing a village Court Magistrate who was believed to be practicing sorcery. In that case the Court stated that killing on belief in sorcery was repugnant to the principles of humanity and not a good custom to retain. It was suggested that belief as a factor in mitigation needed to be revisited.

42. In The State v Joseph Tunde Binape (2004) N2727 the deceased was chopped and hit on the head and hung up in a killing related to sorcery. The body was later dumped at the end of Jackson's airport to conceal it. The offender was convicted after a trial. Compensation paid was held to be not a substitute for punishment. It was described as a worst category of wilful murder and the prisoner was sentenced to life imprisonment.

43. In The State v Jude Gena & Others (2004) N2649 the prisoners were sentenced to 20 years after a conviction for wilful murder. This was a sorcery related killing where the belief in sorcery as a cause for an earlier death, resulted in the killing of the deceased at Erima in NCDC. The body was dumped at Baruni. It was held that payback killing was not a factor in mitigation although belief in sorcery may be taken into account as a relevant factor in sentence as it controls the thinking and actions of those who believe.

44. In The State v Wilfred Opu Yamande Ndanabet (2004) N2728 the prisoner who killed a known sorcerer for fear that he might be killed was sentenced to 20 years. It was on a guilty plea for wilful murder. It was there held that belief in sorcery simply identifies and explains who is responsible for the death and offers an explanation for the killing of a sorcerer.

45. Sorcery related killings are attracting higher or equivalent custodial sentences than other types of homicides as in the case of; The State v Max Java (2002) SC 701 where a sentence of 20 years imposed for murder on a guilty plea for cutting the deceased on the stomach with a bush knife was on appeal affirmed; and the State v Yemola Mealo (2004) N2708 where the prisoner was sentenced to 22 years for chopping the neck of the deceased.

46. The primary reasons for the increase in sentences for sorcery related killings are to preserve the sanctity of human life and for purposes of deterring vengeance or payback killings.

G. DECISION

47. In the present case the killing was found to be related to a blame of sorcery on the late Pastor over the alleged death of 16 people in the village, including Nelson the son of prisoner Makishumbo Gihiye.

48. Belief in magic powers assisted by spirits either good or bad is embedded in many PNG societies. As mentioned earlier it is founded on a twisted manufacture of blame on sorcery over a death which is totally amiss of the naked eye. Courts must perform its duty to send a clear warning that belief in sorcery affords no excuse to end another person's life.

49. Belief in sorcery should not and must not operate as a mitigating factor in sentencing, for to do so would indirectly promote or licence similar killings under the pretext of a belief, which cannot be proven with evidence. It would amount to giving total disrespect to a very serious offence under law. It would also promote ridicule to the sanctity of human life as a fundamental right of every person.

50. It now becomes my lawful duty pursuant to s 35 of the Constitution to contribute to ensuring that the sanctity of human life is preserved and protected in the face of a life having been pre maturely terminated.

51. It has been repeated so many times that life is precious as it cannot be replaced once it is lost. Life must therefore be preserved through the type of sentence imposed on those who take another person's life whether by intent or otherwise and blame on sorcery should not be an exception.

52. One way to do that is for the Courts to treat payback or revenge Killings arising out of blame on sorcery with custodial sentences. Custodial sentences no doubt serve as a deterrence and punishment as sorcery related killings afford no lawful excuse or justification to terminate another person's life.

In saying that I adopt as appropriate what the Court in the State v Boat Yokum (supra) said relating to sentencing for sorcery related killing where the Court said;

" a strong and deterrent sentence is required to punish the offender and 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".

53. It is from this position of thought that an appropriate sentence has to be arrived at. To do that I consider the factors that were raised in submissions of counsels to be in the prisoners' favour.

54. Firstly the prisoners are first time offenders with no record of any prior criminal convictions. This factor can operate in their favour in sentencing.

55. The prisoners seemed to have co-operated with law enforcement officers but in my view it should not operate in mitigation as it was all they could do in the face of a helpless situation.

56. Reasons of family welfare raised on allocatus cannot operate in their favour as well as it did not occur to them when they committed the crime. The Court should not bear their responsibility to think about the welfare of their family that they themselves forgot in the first place. Conversely they did not concern themselves with the family of the deceased as relatives when they proceeded to commit the offence. This factor does not qualify as a mitigating factor.

57. Their lack of education and coming from a village background should not operate in mitigation as the ignorance of the law affords no excuse. It would set double standards to treat illiterate villagers with favour in mitigation of sentence when the same could not possibly be said of someone literate.

58. As for prisoner Soti Mesuno his age may be taken into consideration as a special mitigating factor but given his own evidence of being able to live on his own while at the same time looking after his sister speaks volumes against him as a genuine young offender. Therefore less weight should be placed on the submission that he should be treated as a young offender. That is not to say that he is not entitled to the benefit of a youthful offender.

59. Provocation in the non legal sense was said to be present but that fades into insignificance in the face of a complete denial which triggered a lengthy trial that in the end became a futile exercise. It only became apparent in the allocatus of prisoner Mesuno Lungu that a de facto provocation was present. This factor therefore does not operate in their favour also.

60. The factors operating against the prisoners are these:

1. The killing was done in front of the deceased person's 05 year old son. There was complete disregard for the effect a killing of such magnitude will have on a child of tender years apart from the disregard of the sanctity of human life. This operates as a special aggravating factor.

2. They were convicted after a trial spanning nine days. It was an unsuccessful trial so to speak which goes to aggravate their position on sentence. A discount usually available to an offender who pleads guilty is not available to the prisoners.

3. This was a pre planned attack on a defenceless clergyman. No mitigation on penalty can arise under these considerations.

4. Offensive weapons were used in the attack. A firearm was also used to shoot the deceased on the head. Whether the firearm was licensed or not is unknown. Despite that, death was caused with the use of bush knives and a firearm and this aggravates their position in sentencing.

5. There has been no genuine remorse shown by the prisoners despite them being very close relatives of the deceased. They did not attend the funeral. They gave no reasonable explanation during the trial as to why they did not attend the funeral.

Their absence from the funeral of the deceased as a relative is inconsistent with the norms of PNG society during deaths of relatives. It reflects either a guilty conscience or a feeling of accomplishment on their part after the death. The casual treatment given by the prisoners about the death demonstrates an absence of remorse.

There was no attempt made by the prisoners or their families to express remorse through offer of any compensation. To date the PSR shows that only K1, 010: 00 has been paid as compensation pending negotiations. In my view the payment is inadequate and falls short of an expression of genuine remorse by the prisoners and their families.

6. The prisoners were in a group that carried out the attack. Despite the lesser role played by Soti Mesuno he was convicted as a principal offender as he was in the group that killed the late pastor. The gang attack must therefore operate as an aggravating factor.

7. The offence has high prevalence in this country, especially where killing of relatives over accusations of sorcery is deemed acceptable as a means of eradicating an evil amongst them. This factor goes against the prisoners in sentencing.

8. The prisoners concealed the crime. They denied the family a decent burial of their loved one. There was total disregard for a young family that the deceased raised. The family of the deceased did not matter when they committed the offence but they seemed to have concern for their own children and family members as stated through their allocatus. These acts must operate in sentencing as aggravating factors.

9. Finally there was the presence of a strong desire to kill the deceased. The attack was vicious and death was the intended outcome.

61. Given all the factors mentioned above, I find that the factors operating against the prisoners far outweigh those in their favour. The only factor in mitigation is that they are first time offenders with prior good criminal record. However their first time offence is rendered insignificant by the seriousness and gravity of the offence. Apart from that, all other factors swing totally against them which bear heavily in the sentence to be imposed.

62. Taking Manu Kovi guidelines into consideration this case overlaps into the second, third and fourth category of the sentencing criteria suggested in that case. It is made no easier by the extremely opposing submissions of counsels on what an appropriate sentence should be. As a result I must make some adjustments to somehow strike a balance to arrive at a suitable sentence.

63. Firstly, although rendered insignificant by the gravity of the offence, the prisoners are first time offenders from an illiterate background. In all fairness there should be some laxity in sentencing them as first time offenders.

64. It would border on gross unfairness and abuse of discretion to impose the prescribed maximum penalty for the offence on them as first time offenders. Therefore this factor alone saves them from the ultimate sentence of death.

65. Secondly I pause to consider what purpose would be served with the type of sentence that this Court imposes on the prisoners. A deterrent sentence is a must but it must be an effective deterrent sentence and not one that is shocking to the prisoners as well as to those would be offenders at large. A sentence of life imprisonment would in my view be a shocking sentence more than an effective deterrent sentence.

66. A person sentenced to life imprisonment would be left with hopelessness. However a person with a limited number of years in prison would look at a timeframe with hope of freedom. Yet the depth of despair at the length of time it would take to reach actual freedom would be in itself tormenting enough to act as a deterrent. Therefore I propose not to sentence the prisoners to life imprisonment.

67. A sentence must also reflect retribution and punishment for the horrendous crime that the prisoners committed against society at large and the closer family members of the deceased. They called the deceased a relative by word of mouth only. Their actions demonstrated otherwise. They should be overburdened with despair at not reaching freedom from a seemingly limited time in jail. In my view that would be punishment more severe than life imprisonment.

68. Their sole intent and purpose was to eradicate their relative whom they allegedly believed was possessed of an evil that caused many deaths. It can be presumed that they did that to save loss of lives in the future.

They succeeded in their resolve to eradicate the purported evil and therefore it would be deemed that no more deaths will arise in their village from the time of killing and into the future.

69. For that reason they should be left in confinement for a long period of time to witness whether their actions have brought about the desired outcome of having no more deaths in their village. It is on this premise coupled with their current age range that the three adult prisoners shall be sentenced to imprisonment for 34 years.

70. As for prisoner Soti Mesuno I do not consider the Juvenile Courts Act as appropriate for sentencing given the circumstances of this case and the gravity of the offence. At the same time he was not convicted as a principal offender in the Juvenile Court. Therefore his degree of participation is incapable of mitigating a sentence under the Juvenile Courts Act as he was a principal offender in a very serious offence with substantial aggravating factors present.

71. Only because he is a youthful offender will I exercise my discretion and sentence him to half of what the co-prisoners were sentenced to. He will therefore be sentenced to 17 years.

72. The pre sentence time in custody shall be deducted for all prisoners and they shall serve the balance of their sentence at the Bihute Correctional Institution Service.

_______________________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for Prisoner Soti Mesuno
Paul Paraka Lawyers: Lawyer for the other three Prisoners