|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 837 & 842 OF 2013
THE STATE
-V-
ALOIS TOROPO &
TOMBAKE NARE
(No. 2)
Mendi: Toliken J.
2015: 19th June
CRIMINAL LAW – Sentence – Murder – Sorcery related killing – A series of deaths attributed to sorcery - Use of magic bamboo to ascertain cause of death and identify alleged sorcerers – Magic bamboo procession enters deceased's premises – Deceased attacked and slashed with bush knives – Suffers multiple injuries to arms and legs – Dies from injuries later in hospital – Criminal Code Ch. 262, s 300 (1) (a).
CRIMINAL LAW – Sentence – Belief in sorcery – Belief fortified by results of magic bamboo trial/procession – Prisoners acted on such belief - Belief in sorcery an extenuating factor – Mitigating and aggravating factors considered – Aggravating factors outweigh mitigating factors.
CRIMINAL LAW – Sentence – Punishment and deterrence - Objects of sentencing in sorcery related killings.
CRIMINAL LAW – Law Reform – Role of clairvoyants, visionaries, diviners, glasman or glasmeri play in sorcery killings – Need for such persons to be held accountable for the consequences of their actions - Need for law reform to create specific offence for such persons and criminalize their practices.
Cases Cited:
The State v Aiaka Karavea & Anor (1983) N 452 (M)
The State v Avana Latuve (No.2) (2013) N5406 (20 June 2013)
Avia Aihi v The State (No.3) [1982] PNGLR 92
The State vs. Baipa Martin & Ors (2008) N3312 (12 March 2008)
The State v Boat Yokum (2002) N2337 (4 December 2002)
The State v Eugene Bangagu; The State v Gladwin Balik Niaka (2014) N5581 (14 April 2014)
Goli Golu v The State [1979] PNGLR 653
Irai Thomas v The State (2007) SC 867
The State v Jackson (2006) N3237 (24 October 2006)
John Baipu v The State (2005) SC796
Manu Kovi v The State (2005) SC 789
The State v Mathias (2011) N4670 (9 September 2011)
The State v Sedoki Lota & Anor (2007) N3183 (1 October 2007)
The State v Siune [2006] PGNC 112 (21 December 2006
Steven Loke & Ors v The State (2008) SC 836
The State vs. Wilfred Opu Yamande N'danabet (2004) N2728 (9 November 2004)
Counsel:
S Luben, for the State
P Moses, for the accused persons
JUDGMENT ON SENTENCE
19th June, 2015
1. TOLIKEN J: Alois Toropo (Alois) and Tombake Nare (Tombake) on the 12th of June 2015, after trial, I found you both guilty of the murder of Kaiyabe Yoroka, on the 11th of April 2012 at Kumiane village, Pangia, Southern Highlands Province. Your lawyer Mr. Moses requested for a Pre-Sentence Report and the matter was adjourned to 16th June 2015 to allow for the Provincial Probation Officer to compile reports for you. I was able to hear from you and the lawyers on the question of punishment on the 16th and younow appear before me for sentence.
THE FACTS
2. The facts which I am going to sentence you are as I found in my judgment on verdict. (See my unpublished judgment in this matter dated 12th June 2015) Some time before the incident in question, about eight people from Kumiane had died under "unexplained" circumstance. The most recent of these, in the month of March 2012, was that of Elvis Toropo, the elder brother of Alois and cousin of Tombake. This evoked suspicion among the villagers.
3. The Kumiane Community suspected sorcery to be cause of those deaths. So some time before the 11th of April 2012 your leaders decided to seek the assistance of, and, did send for men from Erave to come over and ascertain the cause of those deaths and identify sorcerers through the use of a magic bamboo. I described those men in my judgment as diviners for want of a better description of these practitioners of the occult or supernatural. The deceased Kayabe Yoroka had been earlier suspected for the death of Elvis Toropo.
4. It was the first time for a magic bamboo procession/trial to be conducted in Kumiane and the villagers, including the two of you, were naturally curious. You admitted that you also wanted to know the cause of Elvis Toropo's death. Leaders from neighbouring villages were invited to witness the event. These included the Chairman of Pangia Village Court Luke Norombo and his Peace Officer Martin Yoroka of Ugili village, Robert Paya of Talivigo and Simon of Molo.
5. The Erave men arrived in Kumiane on the 09th of April 2012. They commenced their "investigation" or "trial by divination" on the morning of the 10th of April around 7.00a.m. As the bamboo procession, led by the Erave men went around the village, villagers were advised to remain in their premises.
6. Two of the men from Erave held the bamboo on opposite ends and moved to where they were supposedly directed by the bamboo. Behind the bamboo and the Erave men, came the village leaders, followed by the young village men. The rest of the villagers including women brought up the rear. The procession ended at 3 o'clock in the afternoon when no sorcerers were identified. Both of you followed the bamboo procession on that first day.
7. The procession continued on the next day, the 11th April 2012, in the same order as was in the previous day. I found that the two of you again joined the procession on that day. I rejected your alibi evidence for reasons state in my judgment on verdict.
8. In morning of the 11th of April 2012, State witness Pora Yoroka (Pora), the brother of the deceased, a policeman based at the Pangia Police Station had walked to the village from Pangia Station after hearing that the bamboo trial would be conducted again that day. It took him about 30 minutes to get to Kumiane.
9. He arrived at his late brother's residence at 8.30a.m. He was sitting with the deceased and other relatives, namely his wife Diana Pora, the deceased's wife Kindeme Kaiyabe, their sister Korame Yoroka, daughter-in-law Joycelyn Noel, Jimsen Kayabe, Mali Wane and Stephen Wari in the deceased's premises, when the bamboo procession first came up the road and went past them towards the direction of Pangia Station.
10. After a while the procession returned and stopped outside the deceased's fence and the leaders asked if the Bamboo Team could come in. Smiling at them he waved them into the premises. Leaving the Erave Team with the bamboo outside, the crowd rushed into the premises. I accepted the evidence of the only State witness Pora Poroka that as soon as the crowd entered the deceased's premise, you Alois went straight to the deceased and slashed him at the back of his left leg. You, Tombake followed suit and also cut the deceased on his leg. Others like Yari Yapi, Mark Nare, Ananas Yapi and Rex Yapi also attacked the deceased even though I was of the view that none of these people and others who were there except for Yari Yapi actually inflicted any injuries on the deceased. This was because only four wounds were mentioned in the Medical Report. After the deceased attacked the crowd set a kunai hut on fire and then burned down the deceased's permanent house to ashes.
11. The Medical Report by Dr. Jan Jaworski revealed that the deceased sustained deep wounds to left thigh muscles and the right knee joint involving both upper parts of the lateral tibial chondyle bone and fibula head, the right extensor forearm involving the radius and left extensor forearm and deep flexor muscles involving both Radius bone and Ulna. I was of the view that the leg wounds appeared to be consistent with the wounds Pora said were inflicted on the deceased by the two of you.
THE OFFENCE
12. The maximum penalty for the offence of murder is life imprisonment. But this does not mean that I will sentence you to life imprisonment. Section 19 of the Code gives the Court the discretion to impose a lesser sentence if it deems it justified by the circumstances of a particular case. It is now also settled that the maximum penalty for any offence is reserved for the worst instances of a particular offence. Furthermore it is well established that the sentence in any particular case is to be determined by the particular circumstances of that case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)
13. It follows therefore that a sentencing court has to consider the circumstances of the offence, the circumstances of the offender and the purpose and object for which the sentence will seek to achieve, among other considerations. The sentencing court is also guided by sentences other judges of this court have imposed in similar cases and any guidelines that the Supreme Court may have laid down.
THE SENTENCING ISSUES
14. My task then is to decide (1) if your offence is a worst instance of murder that ought to attract the maximum penalty of life imprisonment, (2) if not what should be an appropriate sentence in the circumstances and (3) whether any part of your sentence should be suspended.
15. At the outset I must say that yours is not a case that falls in to the worst category of murder deserving of the minimum penalty of life imprisonment. Despite that, the circumstances of your offence cannot be said to be trivial. There are significant aggravating features in your offence rendering it serious enough to warrant appropriately heavy sentences below the maximum.
PERSONAL PARTICULARS
16. Let me now turn to your personal particulars, as far as I can deduce them from your Pre-Sentence Reports. Alois Toropo, you are 25 years old and come from Kumiane village, Ialibu/Pangia District, Southern Highlands Province. You have a secondary level education, having completed Grade 12 at Ialibu Secondary School in 2005. Despite your education level you are a subsistence farmer. You support yourself with income generating activities like poultry and you occasionally work as a part-time storekeeper for your sister. You are married with one child, an adherent of the PNG Bible Mission and a member of the Kumiane Rehabilitation Committee. And finally this is your first offence.
17. Tombake Nare, you also come from Kumiane village, Ialibu/Pangia District, Southern Highlands Province. You were also educated to Grade 12 at Ialibu Secondary School. You graduated in 2009. You are employed as a baker with Pangia Bakery and earn K130.00 per fortnight. You supplement your income with gardening. You are married with 2 biological children, a boy aged 7 and a girl aged 3 years who are attending Elementary 2 and Prep at the Kumiane Elementary School. Beside your children you also take care of your 90 year old mother and your disabled sister-in-law and her 4 year old child. Altogether you have 6 dependants. You are a member of a local church of which you are the Youth Chairman. This is also your first offence.
ALLOCUTUS
18. In your address to the Court, Alois, you denied chopping the deceased with a bush knife. You said that his blood is not on your hands but you nonetheless accept the Court's verdict against you. You apologised to the deceased's relatives for his death and for the destruction done to his properties.
19. Tombake, you said that even though the Court had found you guilty, you said before God you are not guilty of the offence. You said that the deceased's blood is not on your hands and you know that God will not send you to hell. But since the Court has made its decision you will surrender yourself to the Court and not do anything. And you then pleaded for mercy.
SUBMISSIONS
20. Mr. Moses submitted in your behalf that you are both first time offenders and that you both have very young families. Your people also paid a substantial amount of compensation to the deceased's people – a total of K128,000 in cash and kind. He submitted that these mitigate your offence.
21. Counsel, however, said that the deceased sustained multiple injuries and dangerous weapons (knives) were used to attack him. These factors aggravated your offence. He also said that the fact that you were convicted after trial is also an aggravating factor but I kindly reminded him that forcing a trial is and never has been regarded as an aggravating factor. And that simply is because anyone who chooses to contest his charge is merely exercise his right to the protection of the law under the Constitution and is legitimately putting the prosecution to task to prove its case and thus availing himself to the presumption of innocence. (Constitution, ss 37 (1) (3) (4))
22. Counsel referred me to a couple of sorcery related cases to assist me in arriving at an appropriate sentence for you. (The State v Avana Latuve (No.2) (2013) N5406 (20 June 2013); The State v Eugene Bangagu; The State v Gladwin Balik Niaka (2014) N5581 (14 April 2014). I will return to these cases further down in this judgment.
23. Counsel also referred me to the sentencing guidelines laid down by the Supreme Court in Manu Kovi v The State (2005) Sc 789. He was of the view that your case would attract a sentence within the range of 20 – 30 years. (Category 3 of the tariffs for murder) Comparing the sentences in the two cases that he referred to me (20 years and 18 years respectively) with your case, Counsel submitted that appropriate sentences for you should be 16 – 20 years.
24. Counsel also drew the Court's attention to the views expressed in your Pre-Sentence Reports where those interviewed were of the view that this matter should have never been brought to trial because the community of Kumiane had negotiated a peaceful outcome with the deceased's relatives. He, however, conceded that justice has to be done.
25. Ms. Luben for the State submitted that there are several aggravating factors against you. These are –
26. Ms. Luben cited three cases to me. These are The State v Siune [2006] PGNC 112(21 December 2006); The State v Jackson (2006) N3237 (24 October 2006); The State v Mathias (2011) N4670 (9 September 2011). These were all sorcery related cases which attracted sentences of 25 years, 24 years, 18 and 16 years respectively. I will also discuss these cases a little later.
27. Counsel submitted that your case should attracted immediate prison terms of 20 – 30 years. She conceded that a substantial amount of compensation had been paid but said that you must pay for your crime nonetheless. She pointed out that the views of the deceased's relatives were no gauzed and thus no suspension should be considered.
PRE-SENTNCE REPORTS
28. I have read your Pre-Sentence Reports which unfortunately only reflects yours and your relatives' views. None of the deceased's people were interviewed, out of no fault of yours, I should think, but probably because the author could not have had the time to travel to the village to interview them.
29. The Reports show that a total of K128,800.00 was paid to the deceased's relatives. This consisted of 40 pigs valued at K100000.00 and K28,000.00 in cash. It appears that the whole Kumiane Community contributed to this including the Prime Minister Mr. Peter O'Neil who contributed a pig and cash as well. The compensation was paid at a ceremony at Pangia Station witnessed by the Pangia Peace and Good Order Committee, the District Administrator, the District Police, Community leaders and thousands of people. The compensation was received by Constable Pora Yora (State witness and brother of the deceased.
30. It appears from the Pre-Sentence Report that the general thinking among the Kumiane community is that the matter should have not been allowed to go to trial at all due to the mediated outcome which led to the payment of compensation. It appears also that the deceased's relatives were chased out of the village by the community and only returned after they agreed not to pursue the matter after compensation was paid.
31. The Reports also state that what happened, including the invitation of the Erave Bamboo Team, was planned and sanctioned by the community and its leadership. Both of you are reported as saying that had it not been for the community and leadership who had resolved in their hearts and minds to commit murder, you would not have had the courage to commit this crime in broad daylight.
32. As to your attitude to the offence it is reported that you both regret denying the charge initially but that was only because you felt that the community and the leaders were very much part of the crime. You said you were sorry that your denial took up time and forced the State to incur costs. You said you were sorry for taking the deceased's life and for the destruction done to his properties. You both stated that you humbly accept your guilty verdicts and are prepared to be punished in behalf of your people.
MITIGATING FACTORS
33. Having heard counsel on these matters I do accept the mitigating factors submitted in your behalf by Mr. Moses – that you are both first time offenders and that a substantial amount of compensation was paid by the Kumiane Community to the deceased's relatives. The total value of the compensation was K128,000.00 comprising of a cash component of K28,000.00 and 40 pigs valued at K100,000,00.
EXTENUATING FACTOR
34. What Mr. Moses (and Ms. Luben for that matter) failed to mention was that your offence was influenced by your belief in sorcery. In particular you believed that the deceased caused the death of your brother and cousin Elvis Toropo. This belief was fortified by the purported findings of the magic bamboo when it led the procession to the deceased's premises on the morning in question.
35. While not acknowledging the existence of or the reality of the phenomenon of sorcery, the courts have long acknowledged the existence of the belief in sorcery – a belief that pervades every society in the country. It is a belief that knows no boundary and affects every level in the society from the person in the remotest area of the country to the very well educated professional in our towns and cities.
36. The belief in sorcery and sorcerers invokes fear into even the most ardent of church goers so much so that there seems to be a degree of "powerlessness" among the majority of our citizens in a country that has now been "Christianized" for well over a century.
37. Medical science and scientific knowledge on the causes of disease have not had any impact at all in convincing people that death is the natural consequence of disease or failure in the human physiology. Every death and more so those that are considered "unexplained" are immediately attributed to supernatural causes or explained away as the result of sorcery. The tenets of Christianity have not fared any better. Hence, the belief in sorcery has had a very tight grip in the mindset of the masses. In The State v Aiaka Karavea & Anor (1983) N 452 (M) Kidu CJ summed up the situation tersely this way:
"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."
38. The Supreme Court had said in Irai Thomas v The State (2007) SC 867 when approving John Baipu v. The State (2005) SC 796 that "a plea of acting on a belief in sorcery should only entitle an offender to a factor in mitigation just like any other mitigating factors and not as a special mitigating factor, if the offender is able to establish the basis for his belief."
39. With due respect, I should think, however, that because the belief in sorcery affects the thinking and actions of those who believe in it, and more so when it influences an accused person into committing a crime, it is not merely a mitigating factor but an extenuating circumstance which has the effect of reducing or diminishing the gravity of the offence. And this should be differentiated from mitigating factors which often have nothing to do with the crime at all even though they also have the same effect as extenuating circumstances. (Steven Loke & Ors v The State (2008) SC 836)
40. You obviously believed in sorcery and the power of sorcerers to cause harm or even death on people, a belief which was, as I have alluded to above, strengthened or purportedly confirmed by the results of the bamboo procession that morning, and, that influenced your actions that morning. Therefore I find this as an extenuating factor in your favour.
AGGRAVATING FACTORS
41. There are, however, significant aggravating factors against both of you as submitted by Ms. Luben for the State. First, sorcery related killings are becoming very prevalent. The last few years have seen a marked increase of reported cases on summary executions of sorcerers or reputed sorcerers. And across the country sorcery killings continue unabated with increasing levels of violence, mutilation and torture of suspects. Parliament has reacted to this and repealed the Sorcery Act Ch. 274 and inserted a new provision in the provision in the Criminal Code which created a new offence – Section 299A - Wilful murder of a person on account of accusation of sorcery. (Sorcery (Repeal) Act 2013 (No.7 of 2013); Criminal Code (Amendment) Act 2013 (No. 6 of 2013), s1). This new provision provides –
299A. Wilful murder of a person on account of accusation of sorcery
(1) Any person who intentionally kills another person on account of accusation that the person is practicing sorcery, is guilty of wilful murder and shall be sentenced to death.
(2) For purposes of Subsection (1), "sorcery" includes (without being exhaustive and exclusive) what is known, in various languages and parts of the country, as witchcraft, magic, enchantment, puripuri, mura mura dikana, vada, meamea, sanguma, or malira, whether or not connected with or related to the supernatural.
42. As we can see this new offence is punishable by death. You escaped this new provision because you committed your offence prior to its commencement.
43. Second, this was a mob attack on the deceased which involved the majority of the clans at Kumiane. Third, you did not act in the spur of the moment. On the contrary, there was some pre-planning by the leadership of the Kumiane and this resulted in the invitation of the Erave Bamboo Team to come up and conduct their trial or investigation. But while there is no evidence that the two of you part-took in that decision you were prepared for the inevitable outcome and indeed part-took in the procession and thereafter fatally attacked the deceased.
44. Fourth, you used bush knives to attack the deceased inflicting multiple wounds on his limbs. And fifth, you both displayed strong desires to inflict grievous bodily harm on him. This can be seen from the type of injuries that he received to his –
45. Lastly, you both continued to deny your involvement in the killing of the deceased and this I find flies in the face of your apologies to the deceased's relatives. And while you vehemently and passionately denied guilt in your addresses to the Court, your Pre-Sentence Reports tell me a completely different story. There, as we have seen, you both accepted your guilty verdicts and expressed remorse in forcing the State to run trials in your matters. You said that you will accept any punishment imposed on you in behalf of your community on whose behest and intention you acted upon. I therefore do not accept any apologies and expression of remorse by you as genuine.
CONSIDERATIONS FOR AN APPROPRIATE SENTENCE
46. What then should be an appropriate sentence for the two of you? I pause here to say that there was no significant difference in your respective degrees of participation. While it was you, Alois, who confronted the deceased first and slashed him with your bush knife, Tombake followed suit and also attacked the deceased with his bush knife. Any sentence imposed will therefore be the same for that reason.
Object of Sentencing in Sorcery Related Killing
47. But perhaps before I proceed further, I must say something about the purpose or object the sentence will seek to achieve in cases like this. I agree entirely with sentiments expressed by the current Chief Justice Injia J. (as he then was) in The State v Boat Yokum (2002) N2337 (4 December 2002), when sentencing 9 prisoners to terms of imprisonment ranging from 6 - 10 years for the wilful murder and murder of a reputed sorcerer, apparently with approval of the community much like in your case. 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."
48. Punishment and deterrence - in that order - should therefore be the over-riding objects for sentencing in sorcery related cases. A punitive sentence is intended to show the court's and the law's disapproval of this type of killings because they are in fact summary and extra-judicial executions. Offenders often act as prosecutor, judge and jury. And in so doing they deny the deceased, often defenceless, of the fundamental right to life and the right to the full protection of the law as guaranteed all citizens and resident aliens alike by the Constitution (ss. 35 (1), 37) And as such the severity of the sentence should not therefore be restricted to only to the aggravating factors of a particular offence but due consideration should be had of the deprivation of those Constitutional rights. (The State v Sedoki Lota & Anor (2007) N3183 (1 October 2007))
49. I agree with counsel that your cases fall under Category 3 of the guidelines in Manu Kovi because your offences exhibited the following features:
50. Let me briefly consider those cases that Counsel had cited to me to assist me in arriving at appropriate sentences for you.
Sentencing Trend
51. The State v Avana Latuve (No.2) (supra,): This was a trial for wilful murder I heard in Popondetta where I sentenced the prisoner to 20 years imprisonment. The only things that make this case similar to yours is that the deceased was also a reputed sorcerer was suspected by his village community of killing 34 people through sorcery among other wrongs, he was chased and attacked by the whole village who eventually stoned him to death. The attack was instigated by the prisoner and even though there was no evidence showing what he actually did to the deceased, I found that he took the leading role in the death of the deceased and that he had a very strong intention to kill among other aggravating factors.
52. The State v Gladwin Balik Niaka (supra) per Batari J: There the prisoner was amongst many other people had gathered at the residence of man whose daughter had died for her burial. After the burial, the man's son sent the people away but not before accusing them of his sister's death. Prompted by those remarks, fellow prisoner Eugene Bangagu grabbed the deceased from the group sitting under the house and dragged her out to the open. He then kicked her on the face causing her to bleed heavily from the nose. Prisoner Niaka next picked up a huge rock and repeatedly threw it against the deceased's abdomen. She collapsed and died shortly after. Niaka was charged with and pleaded guilty murder. Even though the prisoner and his lawyer did not plead the belief in sorcery as influencing his actions, His Honour nonetheless considered and made an instructive discussion of the relevant law in relation to this type of killings. He imposed a sentence of 18 years.
53. The State v Siune (supra): The two prisoners were convicted after a trial of murdering a man they suspected had killed a friend of theirs by sorcery. It was a mob attack. The victim was bashed to death. They were sentenced to 25 years.
54. The State v Jackson (supra) per Kandakasi J: The prisoner pleaded guilty to one count of murder. He had suspected the deceased, a Village Magistrate, for killing his brother with sorcery and that he was also going to kill him in a similar manner. So to prevent the deceased from killing him too he and a friend walked 5 - 6 kilometres to the deceased's village. The deceased had just woken from sleep and as he came out of his house the prisoner, who had been hiding, sprung out and without warning cut the deceased twice on his neck with a bush knife. After discussing the relevant case law on sorcery related killings and acknowledging the recent increase in sentencing tariffs for this type of killing and considering the aggravating and mitigating factors including the prisoner's belief in sorcery His Honour sentenced the prisoner to 24 years less the period spent in pre-trial custody.
55. The State v Mathias (supra) per Gabi J: The offenders, Malachi Mathias and John Giamalu were found guilty after trial for murdering three (3) persons suspected of sorcery by assisting in beating and torturing him. The deceased persons were dragged out of a police station and a policeman's house. One of the deceased was a ward councillor. The offenders were part of a group of about forty (40) people who took part in the murders but they were the only ones charged. The prisoners were sentenced to 18 years and 16 years respectively. His Honour held that removing the deceased from police custody and attacking politicians, community representatives or leaders were aggravating factors of the crime. His Honour also held there are three categories of sorcery killings. These are:
56. To these I would like to add a fourth category, which is, where an offender is prompted by a visionary, clairvoyant or diviner, glas man or glas meri or other means and processes by which a person says he or she can communicate with dead to reveal the cause of death either through direct communication, vision or by the use of objects of divination such the magic bamboo that the Erave men used in the instant case. These practices are very much popular and have contributed much to the worsening rate of sorcery related killings in the country.
57. His Honour cited several cases in this judgment that give a general view of the range of sentences that the courts have been imposing and I respectfully extrapolate the following for the purpose of this judgment.
58. John Baipu v The State (2005) SC796 (Sevua, Sawong and Lay JJ): The prisoner was convicted on a guilty plea and sentenced to life imprisonment. He believed that his pregnant wife and father were killed through sorcery. He had had lodged a complainant in Village Court officials more than a year before he committed the offence where he had undertaken not to attack the suspected sorcerers. He, however, attacked his 70 year-old uncle (one of the suspects) with a bush knife cutting him on the arms and legs and left him to bleed to death. The trial judge held, among other things, that this was not a case in which great weight could be placed on the mitigating effect of the belief in sorcery and sentenced the offender to life imprisonment. However, on appeal, the Supreme Court reduced the sentence to 25 years in hard labour.
59. Irai Thomas v The State (2007) SC867 (Kandakasi, Lenalia and David JJ): The appellant was convicted of wilful murder of a person he suspected of killing his father by sorcery. He was sentenced to eighteen (18) years imprisonment by the National Court but on appeal the sentence was increased to twenty-two (22) years. The victim was an elderly woman. The Court noted that the prisoner killed the deceased even though there was no basis for the claim that she had killed his father.
60. The State v Baika Martin & Ors ((2008) N3312 (12 march 2008 (per Kandakasi J)): A mother of one of the prisoners was believed to have been killed through sorcery by the deceased. While the prisoners were mourning her death, the deceased walked into the house. The prisoners set upon him with axes, bush knives and a piece of black palm stick and brutally and mercilessly killed him in the full view of a lot of people. The prisoners were sentenced to 16, 22 and 24 years respectively.
61. The State v Wilfred Opu Yamande N'danabet (2004) N2728 (9 November 2004 (per Davani J)): There the prisoner believed that the deceased, who was his brother in law, killed his brother by sorcery. The prisoner alleged that the deceased told others that he would kill the prisoner by sorcery. He had to kill the deceased before the deceased killed him. The court found that the prisoner killed the deceased because of his belief in sorcery. The prisoner used a knife to stab the deceased on the back and the neck. He was sentenced to twenty (20) years imprisonment.
62. As we have seen the sentences in the above cases have ranged from a low 16 years to 25 years. What then should be appropriate sentences for you?
YOUR SENTENCES
63. Given the peculiar circumstances of your case, that your aggravating factor far out-weigh your mitigating factors but acknowledging your belief in sorcery and the fact that you suspected that the deceased had killed your brother and cousin, Elvis Toropo, which suspicion was fortified by the bamboo trial that morning, I feel that a starting point for you should be 21 years.
64. And to bring home the need to punish you and at the same time deter you and others who think that it is alright to go around killing people suspected of being sorcerers with impunity, and to discourage communities and particularly their leaders from encouraging and condoning such practices, your head sentences should remain at 21 years. I therefore sentence both of you to 21 years imprisonment with hard labour.
65. I pause here to say something about what I see as disturbing features about this case and possibly other sorcery killings elsewhere in this area and elsewhere in the country. First, the bamboo trial at Kumiane seemed to have been received with approval by Village Court Magistrates such as Luke Norombo, who are the faces of justice in villages and communities. Their tacit approval of such practices and their attendance at such processions, unfortunately have the effect of giving legitimacy to these illegal practices. This practice by Villages Magistrates and their Peace Officers must therefore be condemned in the strongest possible terms.
66. Second, is the very destructive role the clairvoyants, visionaries and diviners or glasman/glas meri, such as the Bamboo Team from Erave, have been playing in fanning the flames of sorcery related killings. In some cases I think that suspicions remain innocuous or harmless, but as soon as these people perform their rituals and make their pronouncements, the result is always fatal for some unfortunate person. These people are a scourge to society and are a threat to peace and order and the rule of law.
67. While they can easily be caught by the recent amendments to the Code that I alluded to earlier as accessories or even principal offenders under Section 7 & 8 of the Code, I think that a specific offence should be created for them and to criminalize their practices. In that way they are also held directly accountable for consequences of their actions. As things now stand, these people, who are and have been responsible for so much suffering, are left to roam around freely to ply their trade another day and at another place resulting in more unnecessary deaths and misery.
68. Such is the case with the Bamboo men of Erave. They are certainly walking around freely while the two of you will spend a good part of adult lives in jail not to mention the suffering that your young families will go through and the sufferings of the deceased's family members.
69. Be that as it may, my orders are that the prisoners are sentenced to 21 years imprisonment with hard labour. None of this will
be suspended.
__________________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoners
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2015/119.html