N5198

PAPUA NEW GUNEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 14 OF 2011

THE STATE

-V-

SAKU UKI AIYA

Porgera: Gauli AJ
2013: 17, 19 April

CRIMINAL LAW – Sentence – Guilty after trial – Wilful murder – Criminal Code, s. 299 (1) – Group attack – Killed deceased inside her house – In the presence of family members – Armed with homemade guns, bush knives and axe – Accused first cut the deceased on her right hand – Other man chopped her on the neck with an axe – Third person chopped her on the top of her head with a bush knife – deceased died instantly – Attack was vicious, brutal and senseless – Suspected deceased of witchcraft – Sentenced to 30 years imprisonment – Time in custody deducted – Balance be served out in prison.

Cases Cited: 

Goli Golu v. The State (No.3) [1982] PNGLR 92
Manu Kovi v. The State (2005) N789
Thress Kumbamong v The State (2008) SC1017
Avia Aihi v. The State (No.3) [1982] PNGLR 96 
Public Prosecutor v. Don Hale (1998) SC564
The State v. Ambrose Lati (No.2) (2009) N3742
Steven Ume & 2 Ors v. The State (2006) SC836
The State v. Peter Gilgil Angara (Unreported) CR.1680 of 2006; 18/11/09.
The State v. Urari Siviri (2004) N2747
The State v. Joseph Tunde Binape (2004) N2727
The State v. Lawrence Mattau (Unreported); CR. 920 of 2006: 18/11/08. 

Counsel: 

Public Prosecutor, for the State
Public Solicitor, for the Prisoner

SENTENCE

1.	GAULI AJ: The prisoner Saku Uli Aiya was found guilty after trial on one count of wilful murder, charged under Section 299 (1) of the Criminal Code. This provision is stated in these terms: 

299 Wilful murder

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person is guilty of wilful murder. 

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

2.	The brief facts are that on the 26th of June 2010, at Paiela area in Porgera District in Enga Province, the accused Saku Uki Aiya with two others namely Londen Mara and TimothyLarsen walked from their Yaman village to Tumbena village which is a walking distance of four hours. They arrived at Tumbena village about 6.00 o'clock in the morning. They were each armed with homemade guns, two of them had bush knives while the other had an axe. They approach the house of one Penny Toyo. 

3.	Penny Toyo was inside the house with her brothers and sisters namely Oraie Toyo, Rebecca Toyo, Kessy Toyo, Catherine, Tony and others. Some of them went outside. Those who remained inside were all seated around the fire in the middle of the house warming themselves.

4.	The accused Saku Uki and his two companions knocked on the door. One of them said: "Penny the witchcraft woman is living here and we come to kill her. Open the door." Then one of the three armed men pushed open the door. The accused Saku Uki first entered the house and approached Penny Toyo. As he approached her, he pulled out his long bush knife, he said: "Penny you are the witchcraft woman. You ate Nuna Akaip and now we are going to kill you". And he swung his bush knife aimed at Penny's neck. Penny raised her right hand to deflect the knife and she was cut on her right hand. 

5.	Then Londe Mara went in and he cut Penny on the front part of her neck. Blood gushed out and sprayed the house. She fell down. Then Timothy Larsen went in and he cut Penny on the top of her head. The deceased's brothers and sisters were present then. The accused and his two accomplices escaped. 

ANTECEDENT RPORT

6.	The prisoner has no prior conviction. 

ALLOCUTUS

7.	Before sentencing, I gave the prisoner the opportunity to say what matters the court should take into account when deciding on sentence. And he said: 
"I am sorry to this court for what I did. I ask the court for mercy." 

PERSONAL PARTICULARS 

8.	He is 21 years old from Yamen village in Paiela area of Porgera District. He is single, both parents are alive. He is the only male among the seven children in the family. He is the sixth born in the family. He left school after completing Grade 3 at Kolombi Primary School at Paiela area. 

SUBMISSIONS BY DEFENCE 

9.	The defence counsel in his oral submission submitted that although the penalty for wilful murder is death, the present case does not fall in the worst category of wilful murder to impose death sentence. He referred to Goli Golu v. The State (No.3) [1982] PNGLR 92. He also referred to the sentencing guidelines in Manu Kovi v. The State (2005) SC789 and submitted that this case falls within Category 2 where court can impose sentence between 20 - 30 years. However, the Supreme Court in Thress Kumbamong v. The State (2008) SC1017 criticised the guidelines in Manu Kovi. 
 
10.	Counsel submitted that the prisoner only chopped the deceased once on her hand. He is the first time offender and he comes from a very remote area where there are no government services. He submitted a sentence to be between 20 - 25 years as appropriate. 

SUBMISSION BY THE STATE

11.	Prosecutor referred to the principles in Goli Golu v. The State (above) and Avia Aihi v. The State (No.3) [1982] PNGLR 96. The present case is not a worst type of wilful murder. The victim was an innocent young lady she has a long life to live. Prisoner and two others were armed with 3 homemade guns, 2 bush knives and an axe when they attacked her. The deceased lived part of her life with the accused's uncle as his wife in the accused's village. The accused should have protected her as she is his aunty but he violated that trust on the deceased. 

12.	The deceased was suspected of causing death to a person from accused's village by sorcery. The deceased was returned from the accused's village only a week before she was murdered. Accusation of sorcery is becoming very prevalent but only few are reported in the media. In most cases females are accused of practising sorcery. Therefore more stringent sentence be imposed than what is currently been practised. Deceased was slaughtered in front of her family members. The witness Orai Toyo expressed his feelings and that of his family members and the community that the accused should be sentenced to death.

13.	 That from time to time Judges should increase sentences on wilful murder to reflect the seriousness of the offence: Public Prosecutor v. Don Hale (1998) SC564. Prosecutor referred to The State v. Ambrose Lati (No.2) (2009) N3740. In that case the accused shot his step son by shooting him with a gun. There was a thief in a neighbour's resident. Accused went out armed with a gun in case the thieves come that way. He saw his step son coming and shot him thinking he was one of the thieves. He was sentenced to death. In the present case the deceased is the prisoner's sister. And he submitted that a sentence between 25 years to life be appropriate. 

DECISION OF THE COURT

14.	The maximum penalty for the offence of wilful murder is death since the Parliament made an amendment to Section 299 (2) of the Criminal Code by the Act No. 25 of 1991 where a sentence of life year imprisonment was amended to death penalty. The Parliament saw the seriousness and the prevalent of the offence of wilful murder and the Parliament has expressed and reflected its concern to protect lives by legislating death penalty for wilful murder.
 
15.	But the court has considerable discretion given to it by Section 19 (1) (aa) of the Criminal Code as to whether or not to impose a maximum prescribed penalty. The Supreme Court in Steven Ume & 2 Ors v. The State (2006) SC836, suggested that without being exhaustive, death penalty may be imposed in the following types of cases:

1)	Killing of a child, a young or old person, or person under disability needing protection.
1)	Killing a person in authority or responsibility in the community providing valuable community service who are killed in the course of performing their duties, e.g. policemen, CIS Officers, teachers, government officers, church worker, company director or managers. 
2)	Killing of a leader in government or community for political reasons.
3)	Killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.
4)	Killing for hire.
5)	Killing of two or more person in a single or series of acts.
6)	Killing by a prisoner in detention or custody serving a sentence for another serious offence of violence.
7)	The prisoner has prior conviction(s) for murder. 

16.	The above features show the serious category of wilful murder cases where a sentence of death may be imposed. The present case does not fall into any of these categories above that would warrant the imposition of a death sentence here. Both the defence and the prosecution counsel referred to the case of Manu Kovi v. The State (2005) SC 789 which set out the sentencing guide lines for wilful murder cases. This provides useful guidelines and the courts have opted to apply it. However, the guidelines in Manu Kovi have been criticised by a later Supreme Court decision in Thress Kumbamong v. The State (2008) SC1017: "... that they are unnecessary and illegal curtailment or fettering and or restriction of the discretion vested in the trial judge. ... " 

17.	 Though the sentencing guidelines in Manu Kovi are useful, I would determine what sentence to be appropriate in a particular case depending on its own merits and circumstances. 

18.	In the present case, the deceased was suspected of killing someone from the prisoner's village by sorcery. And the accused and two others went and terminated her life. There have been many situations of sorcery related killings both in the past and in the recent times particularly in the Highlands region of Papua New Guinea. And there has being a public outcry of these senseless and unhuman killings. In my view some are using sorcery as an excuse to terminate someone's life though the suspect may not be a sorcerer. We have established forums such as the Village Courts, District Court and the National Court to bring the grievances to be settled before these courts rather than taking the law into their own hands. 

19.	In most cases, women folks are been either murdered or tortured when 
they are been suspected of practising sorcery or witchcraft. Killing on suspiciousness of sorcery is becoming so prevalent in the Highlands region. And many innocent women have been either killed or tortured. The courts must come down hard with more stringent sentences to eradicate this evil or deceased that is continuously creeping into our society. 

20.	There are a number of decided cases where sentences on wilful murder cases have been imposed where killings occur on suspicion of sorcery or been suspected of killing another as a means of payback or retaliation. In The State v. Peter Gilgil Angara, CR. 1680 of 2006 (Unreported and Unnumbered); dated 18 November 2009, His Honour Kirriwom J, sentenced the accused to life year imprisonment. In that case the prisoner and his accomplice abducted an innocent young man in retaliation for the death of the other young man. The accused and his accomplice cut the deceased with bush knives and axes over his head, face and stabbed him several times on his chest. It was a senseless, brutal, barbaric and cold blooded murder. It was a worst case of wilful murder. 
 
21.	In The State v. Urari Siviri (2004) N2747, His Honour Batari J, sentenced the accused to 18 years for suspecting the deceased of being responsible for the death of his wife by sorcery. The accused's wife was hospitalized for abdomen pain. Before she died she told her husband that the deceased was responsible for her illness. When the wife died a community meeting was held that the wife must be buried with the deceased. So the deceased was tied to a tree, she was beaten to death with a coffee stick in the presence of many people. Her skull, nose bone and right leg were fracture with bruises all over her body. 

22.	In The State v Joseph Tunde Binape (2004) N2727, His Honour David J, sentence the accused to life imprisonment. In that case, while people were mourning in a house over a death person, the accused pointed to the victim and told him that he was the sorcerer. The accused walked into a room, came out armed with an axe and cut the victim on his back and head. Six others tied him and hanged him to the ceiling. The accused gave the axe to another man who cut the victim on the fore head and he died. 

23. The cases cited above are very relevant to the present case. Before the accused and his two accomplices murdered late Penny Toyo, they told her in front of her family members that she was a sorcerer and she was responsible for the death of another person. And they chopped her with bush knives and an axe. This was a senseless, brutal, barbaric and cold blooded wilful murder. It falls in the worst category of wilful murder cases. And it calls for stringent sentence. 
 
24. I do consider the mitigating and aggravating factors for and against the prisoner. His mitigating factors are that: 

•	He has no prior convictions. 
•	He is a young man of 21 years now. 
•	At the time of the offence he was 18 years old. 
•	He cut the deceased only once on her right hand.

25. The aggravation factors are these:

•	He used an offensive weapon namely a bush knife.
•	It was a group attack, all armed with firearms, bush knives and an axe. 
•	The deceased was attacked in her house in the presence of her family members.
•	The accused's accomplices chopped the deceased on the vital part of her body namely the neck and head with axe and bush knife resulting in her death.

26. Although the accused's blow was aimed at the vital part of the deceased's body, the blow landed on the deceased's arm. That was not likely to cause death. He was the first to cut the deceased. And in his presence, his accomplices finished her off by inflicting blows to the vital part of the body. The deceased is the aunty to the accused, a very close relative. He did not show any respect nor love to his aunty. He did not stop the others from chopping her. He is equally responsible as if it was his blow that caused the death of the deceased, as per Section 7 of the Criminal Code. 
 
27. The prisoner only expressed remorse to the court. He has shown no remorse to the relatives of the deceased. There was no compensation paid to the deceased relatives by the accused as an expression of his remorse to them. 

28. Having considered the circumstances of the case in which the killing took place and the seriousness of it, and of course the mitigating factors that favours the accused, I impose a sentence of 30 years imprisonment. I deduct the period of time he spent in custody, that being a period of 2 years 8 months 3 weeks.

29. I considered whether I should suspend part of the sentence. Suspended sentence is not an exercise of leniency but it is a form of punishment to be served in the community for the purpose of reforming the prisoner: see The State v. Lawrence Mattau (Unreported) National Court Judgement; CR. 920 of 2006; dated 18/11/2008. However considering the seriousness of the crime that it was brutal, vicious and senseless killing of a defenceless and harmless person in her house and in the presence of the family members, I do not think this is an appropriate case to suspend any part of the sentence. 

SENTENCE:

30. Saku Uki Aiya, you having being convicted of wilful murder, you are now sentenced as follows:

Length of sentence imposed : 30 years
Time in custody deducted : 2 years 8 months 3 weeks. 
Resulting length of sentence to be served : 27 years 3 months 1 week. 
Amount of sentence suspended : Nil. 
Time to be served in prison : 27 years 3 months 1 week. 

Sentenced accordingly.

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner