N5308

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 459 OF 2013

THE STATE

V

HARMONY NABA

Vanimo: Kirriwom, J
2013: 18 & 24 July

CRIMINAL LAW – Sentence – Murder – Plea of guilty – Revenge of sorcery related death two year later – De facto provocation rejected as mitigating factor – Sorcery belief in connection with deaths blamed on acts of evil sorcery is no justification for killing another human being – Not an exceptional or special mitigating factor – Criminal Code, s.300(1)(a).

Cases cited:

John Baipu v The State [2005] SC796 
Irai Thomas v The State [2007] SC867

Counsel

V. Mauta, for the State
M. August, for the Prisoner

REASONS FOR SENTENCE

24th July, 2013

1. KIRRIWOM, J.: The prisoner pleaded guilty to murder under section 300(1)(a) of the Criminal Code. On Christmas Day 25th December 2012 at Wahu village, Amanab the prisoner and several young men from Nai No1 village were on their way to Wahu village. The prisoner was carrying a bush knife and was following the others who were in front of him. As they reached the edge of Wahu village, they met the deceased Weyaf Nakoreno who was leaving Wahu and travelling the opposite direction. The deceased walked past those in front until he reached the prisoner who without warning swung his bush knife and slashed the deceased on his head. The deceased fell to the ground and he chopped him two more times on the same spot on the head. Those with him saw this and were confused and some ran away while others reacted quickly and stopped the prisoner from delivering the fourth blow. The deceased died shortly thereafter from the injuries sustained in the attack.

2. The prisoner pleaded guilty to the charge but on allocatus gave a lengthy story of half buried grievance he harboured for several years over the death of his small sister whose schooling was interrupted by the deceased when he took her as his wife at a very young age. The sister, according to his story, became sick in 2010 and at Amanab Health Centre she was diagnosed to be anaemic and despite being transferred to Vanimo hospital where she was given blood, she died. The prisoner suspected her death was caused as a result of sorcery by the deceased. And he harboured that suspicion for several years until that day when he decided to take revenge.

3. I raised with Mr August the implication of this long story in the light of the prisoner's plea and the case law authorities on equivocal and unequivocal pleas on arraignment. Mr August submitted that the story was the prisoner's explanation for the killing which is not a rebuttal of his plea of guilty nor was he raising any defence known in law.

4. After perusing the prisoner's story thoroughly from the notes, I made in my notebook, I agreed with Mr August that the story he gave was his explanation or reasons for his actions which was not necessarily a justification in law for his actions. He may think that by custom he was justified in avenging his sister's death, but that is not a defence recognised in law. Sorcery is only a belief, a belief that was recognised by an Act of Parliament in the seventies and eighties, thereby according some form of de facto recognition of its influence, effect and impact of the citizens of the country nationwide and because of this mass influence sorcery played dominant role in the lives of the people, even judges and magistrates allowed special consideration for those coming before the courts on charges, especially of homicides in connection with sorcery beliefs. 

5. The downside of this implied legislative protection to sorcery related killings was that over the last ten or more years, vigilante-type and mob-related killings escalated in frequency and were happening right under the noses of law-enforcement agencies in towns and cities, and the mode of executions becoming more and more gruesome and barbaric. The lack of decisive action by the law enforcement agencies was indirectly viewed as tacit approval for such executions being carried out and there were cases that unrelated sorcery killings and rapes were also taking advantage of this complacency and ineffective response.

6. The prisoner is fortunate to have pleaded guilty now and have his case disposed of before the new amendment to the Criminal Code comes into effect because there are now specific laws dealing with sorcery related killings which sentences are very severe. Death penalty was mooted for this type of killings but I don't know what the Parliament decided ultimately. 

7. The prisoner is a young man aged 20, single and been to school at Biangor Primary School where he completed Grade 6 and is a member of Christian Brethern Church. He lives with his parents and other siblings in the village and has been a subsistence dweller/villager.

8. He has been in custody since he surrendered himself on the same day he committed the offence. That will make seven months tomorrow. This is his first time in trouble with the law.

9. In mitigation it was submitted that the court take into account his plea of guilty, prior good record, no pre-planning, young offender, cooperated with police and de facto provocation.

10. Mr August submitted that because of the belief in sorcery, this case must be regarded as having extenuating circumstances, as the killing was prompted by his belief that the deceased was responsible for his sister's death by means of sorcery. 

11. This submission can be rejected right away. All citizens including lawyers appearing as advocates in court must make it their business to stay tuned with changes and development taking place in the country's social-political fronts. It does not help one's client to be or to remain oblivious to initiatives under taken in the interest of the country by legislative enactments that will soon change the laws that are applied in court especially on the eve of such changes taking place. Counsel must try to rationalise the reasoning behind these moves in the context of today and be careful that they are not making submissions that could be read as misleading the court in the light of burning public opinions.

12. The move taken in the Parliament to increase penalties in sorcery related killings is consistent with what the Supreme Court and the National Court have expressed in recent times that belief in sorcery is not an exceptional or special mitigating factor in homicide cases for the reasons explained above. It is but a mitigating factor like any other mitigating factors depending on the circumstances in which it is raised. Not all sorcery related killings will deserve this consideration. Some of these observations were made in the two Supreme Court cases of John Baipu v The State [2005] SC796 (Sevua, Kandakasi and Lay, JJ) and Irai Thomas v The State [2007] SC867 (Kandakasi, Lenalia and David, JJ).

13. In this case there is no provocation, de facto or otherwise. This was a cold-blooded attack for no good reason. The prisoner's sister died two years ago and it is no good excuse to find a reason to attack him by reading a hidden message in certain utterances the deceased is said to have made about the wind blowing from a certain direction that the prisoner interpreted as his message from the deceased that he killed his sister. This is absolutely ridiculous and this is the type of sorcery belief that must be outlawed forever. This submission may have some weight if this incident took place soon after the death of the sister, not after two years.

14. It is for this reason that I will also reject the submission that there was no pre-planning. It is true that the prisoner did not take off that day to go and kill the deceased, but the fact that at the moment of meeting him he immediately reacted by attacking him with a deadly weapon like a bush knife shows that the need to attack the deceased and do him harm has always been or must have been in his mind like his number one assignment to complete any time when the opportunity availed itself to him and that is what he did when he had the chance. So it is not correct to say that this crime was not pre-planned but a spur of the moment reaction. It is also not an appropriate submission to say that the prisoner had no strong desire to kill the deceased but was a one-off incident when the prisoner came across the deceased on the road. If people are excused for killing others as one-off case when they without any warning or telling anyone kill another when they feel like killing someone, it is an open licence to kill. I am sure this is not what counsel meant in his submission.

15. It was submitted that this case fell in the second category of murder range of sentences prescribed in Manu Kovi v The State [2005] SC789 which showed presence of both mitigating and aggravating circumstances that attracted sentence between 16 and 20 years. It was submitted that an appropriate sentence would be 17 years and part suspended.

16. Mrs Mauta disagreed with defence submission on the appropriate range under the Manu Kovi guidelines. She submitted that the appropriate sentencing range was provided in the third category. This category provided that in a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years. She submits that appropriate sentence would be at the lower end of the scale in this category.

17. I agree with Mrs Mauta that this is a case where there are aggravating factors where the prisoner used a two year old grievance that he harboured within him and without warning, killed someone on the road going about his business on the Christmas Day when Christians around the world observed that festive period as time of peace and time to celebrate the birth of Christ, the saviour of the world. It was not the time to go killing people needlessly. I agree with Mrs Mauta that there was strong presence of grievous bodily harm or intention to cause grievous bodily harm as evident by the repeated blows of the knife to the head even after the deceased had fallen and was lying on the ground. These are factors that far outweigh those factors like plea of guilty, prior good record and cooperation with police by his own surrender following commission of the crime. Early surrender could have been for a number of reasons including self-preservation from any retaliatory attacks and admission of wrong-doing. 

18. The prisoner is not someone who is unsophisticated like his parents and grandparents. He has been to school, he is a member of a Christian Church in the area and both government and mission influence have been there long enough and it's no excuse when a young man like the prisoner in his early 20s kills someone and pleads un-sophistication for his action. I am even told that he had the financial ability to secure legal services of private law firm of Paul Paraka Lawyers so obviously he is modernised to know that he ought not to do what he did.

19. I think the important objective for sentencing here is deterrence. At this time and era courts must be sending strong message to the people that sorcery related killing will not receive automatic lenient consideration because of the prevalence of such killings in recent years and anyone who is guilty will be punished severely. The court must also send out the warning that the law has been changed by the Parliament recently which had increased the penalty for sorcery related killing which now going through the certification process before it is implemented. People must take heed now and desist from this crime. 

20. In all the circumstances of the case I sentence the prisoner to 18 years imprisonment in hard labour. I deduct seven months pre-trial custody period which now leaves him 17 years and five months to serve. 

Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyer for the Defence