State v Apo [2019] PGNC 112; N7827 (16 February 2019)

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CRIMINAL LAW – Sentence – Guilty Plea - Wilful Murder - Section 299 (1) Criminal Code – Use of dangerous weapon – pre-planned – assault vicious with multiple wounds- sorcery related killing.

CRIMINAL LAW – Sentence – Guilty Plea - Wilful Murder - Section 299 (1) Criminal Code – Use of dangerous weapon – pre-planned- vicious and cowardly.

CRIMINAL LAW – Sentence – Guilty Plea – Sentenced to 22 years in hard labour – Probation not considered appropriate under the circumstances.

Cases Cited:
Kwayawaka v The State [1990] PNGLR 6
Manu Kovi v The State [2005] PGSC 34; SC789
Roger Jumbo and Aidan Awatan (1997) SC516
Saperus Yalikabut v The State [2006] SC890
State v Saku Uki Aiya (2013) N5198
State v Elison Tayamina (2013) N5288
State v Kerri Miva
State v Sedoki Lota & Ors (2007) N3183
State v Urari Siviri [2004] PNGLR 12
The Acting Public Prosecutor v Umane Aumane [1980] PNGLR 510
The State v Goli Golu [1979] PNGLR 653
The State v John Kalabus [1988] PNGLR 193
The State v Jude Gena and 4 Ors (2004) N2649
Thomas v The State (2007) SC 867
Ure Hane v The State [1984] PNGLR 105

Counsel:
Ms. Therese Aihi, for the State
Mr. Kennedy Masket, for the Accused

Note: This is the refined and edited version of the sentence which was delivered ex tempore.

1. GEITA J: The accused was indictment with one count of wilful murder of Felix Farawin on 15 June 2018 at Paipai village, Amanab, Sandaun Province, pursuant to Section 299 (1) Criminal Code, Chapter Number 262. On arraignment he pleaded guilty.

Brief Facts
3. The brief facts as agreed to by the Prosecution and Defence on the depositions for the plea of guilty are these. On 15 June 2018 at about 8 am in the morning the deceased was at home with his grandchildren when the accused approached him, armed with a bush knife and cut him on his neck. He further cut him again twice on his arm as he lay bleeding. The deceased died from his wounds. The State alleged that the accused intended to kill the deceased when he cut the deceased on his neck. The accused committed the crime on allegations of sorcery performed by the deceased resulting in his wife’s death earlier on.

5. During allocutus the accused said he was sorry for causing the trouble and admitted causing it. He said sorry to the victim’s family and to his family. He asked for leniency and to be put on probation. I thank you hearing my case and said I am wrong.

6. Guilty plea, first time offender, remorseful, early admissions in ROI, co-operated with police.

9. The accused aged 38 years is married with four children. He is a villager with some work experiences as a telephone linesman job with Telekom in Vanimo. He relies on income from his clan’s timber royalty monies. Due to distance the Probation Officers were not able to get the views of the victim or the community. The report does contain some elements of fear of sorcery and retaliation. After all this death was caused by allegations of secrecy: Sorcery performed by the victim on the accused’s wife resulting in her death. He appears to have a good standing in his community according to his father in law. His suitability for probation was not recommended by the probation office due to the serious nature of the crime. Again I must thank Ms. Marilyn Binjari for a job well done in preparing this pre-sentence report.

10. Counsel of Defence submitted that this case be determined on its own peculiar facts. He further submitted that this was not the worst case of wilful murder and that the maximum death penalty not be imposed: (Goli Golu v The State [1979] PNGLR 653.). He argued that as the mitigating factors were evened out the prisoner be sentenced to between 10 and 15 years in his prepared submissions. However in his oral address he seem to have settled for 20 to 30 years in category 2 of Manu Kovi which he cited. (Manu Kovi v The State (2005) SC789)

11. Mr. Masket referred me to four cases. Two of which I consider were not relevant to the case on hand. The remaining two include Thomas v The State SC 867 of 2007 and The State v Jude Gena and 4 Ors N2649. In the Thomas case the appellant pleaded guilty to a wilful murder charge and was sentenced to 18 years. His appeal was however dismissed and his sentence increased to 22 years by the Supreme Court due to inadequacy of sentence. The appellant killed the deceased whom he suspected of using sorcery in the death of his father. Jude Gena and his brothers were sentenced to 20 years in a wilful murder case in which sorcery was suspected. The Court noted that the belief in sorcery was prevalent in that community but fell short of imposing the maximum death penalty.

12. Notwithstanding the two case precedents and the sentence imposed Mr Masket submitted that a sentence of between 10 to 15 years be consider in this case.

13. Ms Aihi conceded with defence submissions on matters relating to mitigation including some element of de facto provocation. As to aggravating factors she submitted that the crime committed was serious in that a life was lost, multiple wounds inflicted, the killing done in the presence of the deceased’s grandchildren. Furthermore the factor of prevalence need to be considered in this case.

14. Ms Aihi submitted that the facts of this case fall under category 2 for wilful murder in Manu Kovi guidelines. (supra). She submitted that the attack was pre-planned and vicious, a weapon was used and there was a strong desire to kill which was done in cold blood and in a cowardly manner. I agree with State submissions and the manner in which the attack was described. In support of her submissions the following cases were referred to the Court to assist in its deliberations of an appropriate sentence for the accused.

*State v Sedoki & Ors N3183.*	The prisoner was sentenced to death on 1 Oct 07 (The *State v Sedoki Lota & Fred Abenko* (2007) N3183). The prisoner’s application to the Supreme Court for review of his conviction and sentence, SC Rev No 15 of 2015, has not yet been heard.
*State v Elison Tayamina* N5288	Sentence – Wilful murder – Brutal attack on elderly female victim – Reputed sorceress – Multiple stab wounds – Vicious brutal attack on harmless and defenceless old woman - Juvenile offender – Belief in sorcery a mitigating factor – Prevalence of this type of killings – No respect for sanctity of life and rule of law – Denial of charge not an aggravating factor - Need for punitive and deterrent sentence – Age of prisoner taken into account – Existing sentencing guidelines considered - Sentence of 20 years - Criminal Code Act Ch. 262, s 299 N5288
*State v Kerri Miva*	Sentence – Guilty after trial – Wilful murder – Group attack – Killed deceased inside her house – In the presence of family members – Armed with homemade guns, bush knives and axe – deceased died instantly – Attack was vicious, brutal and senseless – Suspected deceased of witchcraft – Sentenced to 30 years imprisonment.
*State v Saku Uki Aiya (2013)* N5198	Sentence – Guilty after trial – Wilful murder – Criminal Code, s. 299 (1) – Group attack – Killed deceased inside her house – In the presence of family members –Attack was vicious, brutal and senseless – Suspected deceased of witchcraft – Sentenced to 30 years imprisonment – Time in custody deducted.
*State v Urari Siviri* PNGLR 10	Guilty plea, W/Murder, Sorcery related, victim beheaded with skull fracture. Sentence 18 years, Sorcery killing - Belief in sorcery.

15. Ms. Aihi submitted that from the comparable cases cited above sentences of a low 18 years to a high 30 years were imposed by the Courts in wilful murder cases. She submitted that in light of the accused’s mitigating and extenuating circumstances a head sentence of 25 years be considered by the Court.

16. Your case is not uncommon. It is sad that in most parts of PNG including your community in Amanab sorcery related killings appear to be the accepted form of retaliation against alleged sorcerers. You admitted in your allocutus of killing the victim in retaliation of what you believed to be sorcery performed by the accused which caused the death of your wife. The belief and practice of sorcery is prevalent in your community but this does not mean that it’s alright to kill other persons whom you suspect of practising sorcery. Although this is recognized by the Sorcery Act. Whilst the Act does not recognize the power of sorcery, it nevertheless recognizes the belief which determines the behaviour of people.

17. Courts in Papua New Guinea are struggling with the ever increasing sorcery related killings. Courts have held that belief in sorcery may be taken into account as a relevant matter in sentence as it controls the thinking and actions of those who believe: (The Acting Public Prosecutor v Unmae Aumane (supra), Kwayawaka v The State [1990] PNGLR 6, Roger Jumbo and Aidan Awatan (Unreported Judgment of the Supreme Court dated 26th March 1997, SC516).

18. By amendment of 18 September 2013 of the Criminal Code Act 2003 several modes of execution were introduced including lethal injection, medical death, firing squad and or electrocution. 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. Due to public outcries and ever increasing wanton killings related to sorcery Parliament has seen fit to protect lives by legislating death penalty for wilful murder.

19. To my mind this was not a spur of the moment attack but an attack which was carried out with some planning beforehand. As regards what type of sentence this Court should impose upon you I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). I am more inclined to agree with the State submission that this act of killing was uncalled for, unwarranted and cowardly. An innocent life tragically lost as a result the attack.

20. Both counsels have rightly pointed out the sentencing tariffs in the case of Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) in these types of cases.

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. - Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body. -Vicious attack. -Multiple injuries. -Some deliberate intention to harm. -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
Trial or plea -Special Aggravating factors. -Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood -Killing of innocent, defenceless or harmless person. -Dangerous or offensive weapons used. -Killing accompanied by other serious offence. Victim young or old. -Pre-planned and pre-meditated. -Strong desire to kill.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. -Vicious and planned attack. -Deliberate intention to harm. -Little or no regard for safety of human life.

21. As can be seen from the category and range of sentences under wilful murder, your case is mirrored under category two: sentence between 20 years and 30 years. So the question I have to ask myself is what than should the appropriate sentence be in your case. I have had the benefit of submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. I need not restate them here again. The death was tragic, not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the “worst types” wilful murder cases. I hold the view that your guilty plea in allocutus and favourable mitigating factors must go in favour also, hence falling short of the “worst type” category warranting death. In any event your remaining mitigating factors have been grossly overshadowed by your aggravating factors. I have said it on many cases that I have decided that offender(s) who plead guilty ought to be given the benefit of reasonable doubt on mitigating matters raised in depositions, the allocutus or in submissions that are not contested by the prosecution.( Saperus Yalikabut v The State (2006) SC 890.

22. As regards defence submissions for a sentence between 10 – 15 years I must say with respect that I do not agree with this argument. From the cases that they have relied upon and from the cases the State has relied upon, which were all sorcery related killings Courts have imposed sentences above 18 years to a high 30 years. It therefore would be a fallacy in my view to consider a sentence below such range, especially in wilful murder cases.

23. After the benefit which I have had on the cases presented before me and the most helpful arguments for and against I have come to the conclusion that the appropriate head sentence to be imposed upon you is 25 with a slight movement downward to 22 years within the mid-range Category 2 in the Manu Kovi sentencing tariff. Your early guilty plea and your extenuating circumstances has contributed to this downward slide.

24. I have read through your report prepared by Marilyn Binjari from Vanimo CBC Office, I must thank her for the report. I gather from your report that your suitability for probation was not readily recommended. For its worth the Court has been assisted greatly with your personal particulars, your family history and your future plans etc. Due to the very serious nature of this crime, I have decided against considering a probation sentence in your case. Your final sentence is as follows:

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

Albert Apo	Sentenced to...	22 years
	Less pre-trial period	7 months and 27 days.
	Resultant sentence	21 years 4 months, 3 days.

National Court of Papua New Guinea

State v Apo [2019] PGNC 112; N7827 (16 February 2019)