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State v Nailas [2018] PGNC 329; N7401 (8 August 2018)

N7401

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 138 OF 2017

THE STATE

V

MANUEL VEE NAILAS

Kimbe: Miviri AJ
2018 : 8 & 19 June

CRIMINAL LAW - Trial-Wilful Murder- S299 CCA – 12 year old child killed – belief in sorcery – attack on mother – innocent vulnerable life taken – broad daylight attack – vicious attack– sanctity of life – strong deterrent and punitive sentence.

Facts

Accused chased the deceased and mother over allegation of sorcery against the mother. Both separated he pursued the deceased and cut his leg from which he died from blood loss.

Held

1. Serious offence
2. Prevalent offence
3. Deterrent and punitive sentence
   

Cases Cited:

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.
Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.
The State v Avia Aihi (No.3) [1982] PNGLR 92
The State v Baipu [2005] PGSC 19; SC796

The State v Hurotove [2017] PGNC 114; N6754
The State v Kovi [2005] PGSC34; SC 789
The State v Lialu [1990] PNGLR 487
The State v Mathias [2011] PGNC 228; N4670
The State v Siviri [2004] PNGLR 12

Counsel:

L. Jack, for the State
D. Kari, for Defendant
SENTENCE
8^th August, 2018

1. MIVIRI AJ: This is the sentence of a man who cut a 12 year old child on the leg from which the blood loss led to death.
   

Brief Facts on arraignment

2. The accused was armed with a bush knife on the 9^th November 2016 at Tamba Section 9. He saw Yuth Paul who was with his mother Gaita Paul. He accused her of sorcery against him and chased her with the bush knife. Both mother and son ran trying to escape. During the course of the chase both became separated. The Accused pursued the son who fell and he cut his right leg causing bleeding which led to his death despite admittance to hospital.
   
3. The State charged under Section 299 (1) of the Criminal Code against the prisoner contending he intended to kill Yuth Paul and did in fact carried out that intention. The evidence did not sustain on intent to kill and prisoner was found guilty of Murder pursuant to Section 300 of the Code.
   
4. Section 300 of the Criminal Code is in following terms:
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–
     

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

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

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

5. Prisoner is liable to be sentenced to life imprisonment for the offence of murder. That is the maximum by law and usually is served upon the worst case of murder. The facts and circumstances of the present offence do not depict it to such and therefore a determinate term of years will be imposed: Avia Aihi v The State (No.3) [1982] PNGLR 92 (5 March 1982). Viewed in the light of the often quoted case of Kovi v The State [2005] PGSC34; SC 789(31 May 2005) the present case falls into category 3 spanning a range from 20 to 30 years imprisonment. There was preplanning involved by the prisoner because he laid in wait for the mother of the deceased who he suspected of sorcery upon him. He set upon her with a bush knife armed ready to do what he did. There was preparedness in the attack. It was not justified to attack the deceased who was his adopted son as the father was his brother. The deceased was a vulnerable 12 year old who stood no chance of survival from the bush knife held by the prisoner and inflicted in the way that he did. He stood no chance of survival from an adult male armed with a bush knife. It was necessary and fundamental to impose that the law protected the frail venerable members of the Community. The deceased and any others similar was no different.
   

Defence counsel urged that his case was likened to the second category in Manu Kovi (supra) but given what has been set out above inapplicable. His case would be more within the parameters of category 3 a range of 20 to 30 years imprisonment fundamentally for the reasons set out above. Because his case cannot be likened to Lialu v The State [1990] PNGLR 487 (30^th November 1990) manslaughter case where a single punch culminated in death from a fracture skull. It was not expected that death would result from a punch. The bush knife is a cutting tool and if used in the way it was, injury or death was imminent and foreseeable.

6. Even more aggravating was that the offence was inspired by belief in sorcery. Even 43 years on after independence senseless and brutal killings have culminated because of this belief. Here the life of an innocent 12 year old child was taken over an allegation against the mother who successfully escaped from the prisoner. The prisoner was undeterred determined and executed what he initially set out to do not on the person alleged but a completely innocent 12 year old child has been denied of a long life ahead without any cause on his part. The court will not ignore deliberate and calculated defiance of the rule of law lightly. Sorcery and belief in it will not be a mitigating factor against the sentence of a prisoner as in here. If not it is a very serious aggravating feature because the Constitution declares the Country as a Christian country and this belief dismantles. Lawlessness and disorder stemming from it must be tied down with strong deterrent and punitive sentences. This is not to say that the prisoner bears the brunt but each case is determined on its own facts and circumstances. In Baipu v The State [2005] PGSC 19; SC796 (1 July 2005) life sentence was reduced on appeal to 25 years IHL for sorcery related murder.
   
7. Conversely any plea for leniency upon the prisoner must also be balanced out with the life of the deceased. The presentence report of the prisoner furnished spells that he has a problem with abuse of alcohol but is suitable for probation. In view of the gravity of the offence this will not be proportionate. And this view is firmed by the relatives of the deceased in the means assessment report. Prisoner is married but the wife left him, he supports the two children of that union. He does not have a formal education or history of formal employment. No payment of compensation has been attempted nor made. The mother of the deceased voiced that prisoner should serve time for the offence and not compensation. Given these any sentence out of the ordinary will be disproportionate to the gravity of his offence.
   

Issue

8. What is an appropriate sentence upon the prisoner?
   

Aggravation

9. The life of the 12 year old boy was so violently ended that morning as he was on his way to school with his mother. He was innocent and did not deserve to be chased and cut to suffer and die as he did. The assailant prisoner was his own uncle, the small brother of his father. It was in broad view of all members of the public at a public frequented area. Prisoner was not deterred by that fact and used the bush knife upon an unarmed and defenceless young boy.
   

Antecedents

10. Prisoner is 46 years old with no previous conviction, was originally from Bunawi village Maprik, East Sepik Province but has been resident all along here in Tamba section 9 Block 551. He has no formal education and no record of prior criminal history. But the presentence report discloses that he has history of abuse of alcohol and does not control himself when influenced. He maintains livelihood from 3 hectare family block. The deceased is the adopted son of his second born brother one Paul Nailas also resident at the same block.
    
11. The belief in sorcery and its powers is evil and unconstitutional. After 43 years of independence the repeal of the Sorcery Act has not seen any decline in belief or practise. What that Act of Parliament prevented by imposing penalty upon practise of bad sorcery is no longer there. A family has lost a loved one because of belief in it leading to a violent death. Lawlessness and disorder resulting from belief in it will not be tolerated by the courts. The protection of lives property from it by the imposition of heavy punitive and deterrent punishments must be meted to stop it. This court has always stressed this in many instances that have come before it, State v Mathias [2011] PGNC 228; N4670 (9 September 2011); State v Siviri [2004] PNGLR 12 (30 August 2004). In both instances 18 years IHL was imposed upon the prisoners convicted. That is clear emphasis that a killing of a fellow human being on the basis of belief in sorcery will not be a light matter as in Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. Sentence must fit the crime according to law and will not be dictated by custom or practises in life. The original sentence was set aside on appeal to the Supreme Court. A similar approach is adopted here in the sentence of the prisoner.
    
12. That would be consistent with Manu Kovi v The State (supra) which sets out that given the facts and circumstances here this would be a category 3 offence drawing 20 to 30 years imprisonment. There was planning involved and the prisoner laid in wait for the mother of the deceased to execute that plan. He had the bush knife posed and ready for that purpose. He intended to cause grievous bodily harm which is clear from the medical report and the location of the injury on the body. He persisted in the chase of the 12 year old boy knowing that he was innocent of the allegation that he drew against the mother.
    
13. There is consistency in this approach because, “The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles. An attempt to apply a mathematical calculation was rejected by this court in Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299. In that case I said (303): This raises the question of proper approach to sentencing. In practise most Judges take into account the aggregate effect of all the relevant facts, mitigation factors and principles when coming to a term of sentence. There is no mathematical formula for the determining the actual length of sentence. In determining the term of sentence in this way, the experience and the good judgment of the Judge is a big factor. A Judge who is comparatively less experienced can get a lot of assistance from the range of sentences customarily imposed by the court for the particular offence” Lialu v The State (supra).
    
14. Life is lived only once and is therefore sacred. It is fundamental under our Constitution section 35 and only by process of law can life be taken. The Sentence will reflect that. In State v Hurotove [2017] the deputy Chief Justice Sir Gibbs Salika made this very clear:
    

“ The Court has a duty to impose sentence that are not only punitive on the prisoners but must have a deterrent effect on not only the offenders but other likeminded Papua New Guineans who plan on taking the law into their own hands. I do not say this lightly because in this country there are so many wanton killings as if life is some form of a commodity or a replaceable item that can be borrowed or bought from a hardware shop in town. Moreover killings in this country are becoming more daring without fear and with no respect for the sanctity of life. Spending a lot of time in prison is not an inhibiting factor, it seems. Being separated from family and loved ones is not an inhibiting factor. The mere fact of taking a human life is not an inhibiting factor. Even the imposition of the death penalty in wilful murder cases seems not to be an inhibiting factor. Our People need to be educated to a level that will instil moral values in people’s lives. Living in a city with church influences has not helped to curtail these wanton killings.”

Head sentence of 22 years IHL was imposed after trial for murder.

15. That is applicable here given all the facts and circumstances. Taking the law into one’s own hands must be stopped and the process of law must be followed to settle differences in disputes whether it is an allegation of sorcery as here or any other for the same. The prisoner and any others similar must be discouraged and deterred by the imposition of strong punitive and deterrent sentences. There are no extenuating circumstances apparent or identifiable to sway otherwise than the proportionate sentence given the facts and circumstances of 25 years IHL which I so impose upon the prisoner for the crime of Murder pursuant to section 300 of the Criminal Code.
    
16. The sentence of the court is therefore 25 years IHL less time in remand.
    

Orders accordingly,
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant