N7944
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 402- 417 of 2016 &
CR. NO. 432-439 of 2017

THE STATE

V

REX UMA
DAVID LOIA
STEVEN KENA
JOSEPH KAULE JIMMY
JOHN KANDE PIPI PULMAN
ALEX NOU JIMMY
MORRIS LUKAS

Lihir:   Susame, AJ
2019: 11, 13, 17, 18, 19 & 21 June

CRIMINAL LAW – Sentence after Trial – S 315 Offence –Grievous Bodily Harm With Intent

Cases Cited:

Paulus Pawa v The State [1981] PNGLR 498

Counsel

Mr. L. Rangan, for the State
Mr. A. Tunuma, for the Prisoners 

DECISION ON SENTENCE

21 June, 2019

1.      SUSAME, AJ:  The prisoners appear today to receive their sentence. After trial for 03 counts of attempted murder charge they were convicted of a lesser charge of grievous bodily harm with intent.

My task is to decide the appropriate sentence befitting the merits of the case. 

Penalty

2. Offence of grievous bodily harm with intent carries a maximum penalty of life imprisonment.  Prisoners are therefore liable to be imprisoned for life. However, that does not remove the court’s discretion to impose a lesser sentence under s 19. The law is explicitly clear on this point.    

3. With respect to maximum penalty the sentencing practice is that it is reserved for the worst type of case encountered in practice. There is ample authority on that. Mr. Rangan representing the State has urged me to impose the maximum life sentence on each of the prisoners in the present case.  I will consider that a bit later. 

Allocutus

4. The following is what each of the prisoner said in allocutus. 

5. Rex Uma – First he apologized to the court. Second it was his first time in court. Third he asked for court’s mercy to be placed on good behaviour bond. Fourth K7000.00 and 06 pigs were paid as compensation. Cost of one pig was K2000.00. 

6. David Loia- First it was his first time in court. He asked court to have mercy on him. They have solved the conflict. K7000.00 cash and 06 pigs were paid as compensation. 

7. Steven Kena- First he said sorry to the court. Second it was his first time in court. Third they have apologized to the 03 victims and paid K7000.00 and 06 pigs as compensation. The event was witnessed by Police Station Commander Taksir, leaders of the Church and public. They had food and shook hands and conflict was resolved. Fourth he asked the court to have mercy on him and place him on good behaviour bond. 

8. Joseph Kaule – Firstly he apologized.  It was his first time in court. He had shook hands with the 03 women with payment of K7000.00 and 06 pigs paid as compensation. He never thought the matter will end up this way. He realized his wrong and asked for mercy of the court to place him on good behaviour bond.

9. John Kande Pipi – Firstly, he said sorry to the court. That was the first experience on sorcery. He said the incident went too far. He asked the court have mercy on him and consider a good behaviour bond sentence. Next the matter had been resolved in the community. Community paid cash and pigs. He said incident will not happen again in the area they live.

10. Alex Jimmy- He said sorry to the court. The matter had been resolved with the 03 women. Community killed 06 pigs and paid K7000.00. He asked the court for mercy and place him on good behaviour bond. 

Antecedents

11. Rex Uma – He is 38 years old and hails from Kagua, Southern Highlands Province. He is married and has 4 children.  He is self-employed and lives at Landolam Settlement. He is a first time offender.

12. David Loia- He is 35 years of age and comes from Pale village, Southern Highlands Province. He is married and has 2 infant children. He lives at Landolam Settlement. He is a first time offender. 

13. Steven Kena- He is from Nunga village, Western Highlands Province. He is married and has 03 children. He resides at Landolam Settlement. He is self-employed. He is a first time offender. 

14. Joseph Kaule- He is from Londolovit village Lihir.  He is married and has six children who are in school. He resides at Landolam Settlement. He is employed. He has no prior convictions and a first time offender. 

15. John Kande Pipi – He is 42 years of age and hails from Spango village Lihir. He is married with 07 children who are all in school. He lives at Landolam Settlement. He is employed He has no prior convictions and a first time offender. 

16. Alex Jimmy – He is 27 years old and comes from Londolovit Village Lihir. He has a wife and 2 children. He is self-employed. He resides at Landolam settlement. He has a prior conviction for offence of unlawful assault from the District Court. 

Submissions

17. Court has considered the submissions.  Let me set out in summary the arguments as I understood. 

18. First argument. Mr. Tunuma argued prisoners should be punished according to the degree of culpability or participation. He relied on the authority of State v Edward Toude ( No. 2) (2002)  N2299, The State v Tom Keroi Gurua & ors (2002) N2312.

19. Second point for me to consider is whether I should consider whether traditional belief in sorcery should be considered a special mitigating factor. Counsel made reference to dissenting Supreme Court authorities of Acting Public Prosecutor v Uname Aumane (1980) PNGLR 514 & Kwayawako  v The State [1990] PNGLR 6 verses  John Baipu v The State (2005) SC796 &  Irai Thomas v The State (2007) SC 867.
 
20. Third argument. Counsel argued the charges arose from the same transaction and facts are the same in relation to the charges. He submitted sentence imposed should be made concurrent. 

21. Fourth argument. Court should consider compensation has been paid to the victims to restore peace and normalcy. For that reason sentence imposed should not be harsh or crushing on each prisoner.  Mr. Tunuma urged the court to impose a head sentence of 3-5 years to be wholly suspended with conditions for a period of 03 years. 

22. Mr. Ragan argued the following as I construe.  The facts constituting each of the three charges fall within the worst category. Counsel reminded the court to take into account the totality principle and decide whether sentence impose should be made concurrent or cumulative. Counsel argued prisoners are principal offenders. There are no extenuating circumstances. Mitigating factors are made insignificant by the aggravating factors. Therefore, prisoners should receive the maximum penalty life imprisonment.

Court’s Opinion
 
23. The facts are found in the judgment delivered on 18 June 2019. They are set out below.
24. The 03 women were suspected of practicing ‘sanguma’ at the Landolam Settlement. Joseph Kaule’s Daughter, Lavinia felt an odd sensation within her heart. A group of women who attend the Revival Church prayed over her. It was during that prayer session names of the 03 women were mentioned as the ones responsible for Lavinia’s disorder of the heart. It was claimed her physical heart had been removed by work of sanguma had to be restored. The 03 women were the prime suspects. The women were summoned to a meeting and made to sit up on a platform with their hands tied up in the evening of 22 July 2015. A large fire was made few meters in front of them. Metal objects were placed in the fire plus a kettle of water was placed on the fire. These were done for purposes of interrogation and torturing of the women to make them confess. 

25. As they were being questioned hot metal objects were placed on their bodies. Hot boiling water was poured over them to make them admit their alleged sorcery practices. They were tortured for 3 to 4 hours until they were rescued by police. As a result the women received severe 1st, 2nd and 3rd degree burns.

26. Let me make a preliminary point before I continue my discussion. Case against accused person Morris Lukas has not been decided even though he has been indicted. He is on bench warrant. The indictment presented before me on 11 June 2019 is still alive and valid. His case will be heard before another Judge as and when he is arrested and brought to court.   

Maximum Penalty

27. Mr. Rangan has urged the court to consider imposing the maximum life sentence on the prisoners. I wonder if he was serious about that submission. To send someone to life imprisonment is not a trivial matter.  It is quite serious. People’s liberty will be restricted. Their lives and that of their families will seriously be affected. It is not a matter court should approach casually or lightly. It requires serious thought and consideration.  If counsel was that serious he should have made reference to decided cases in which offender or offenders received a life year sentence for this particular offence. It was incumbent upon him to properly assist the court as a senior State counsel and officer of the court. Without such assistance how can he ask for the maximum penalty? Whether Mr. Rangan realizes it or not his conduct may amount to professional misconduct under the rules of professional practice. I warn counsel to refrain from making similar hasty submissions in the near future.  
28. Having made that observation I consider facts of this case are quite serious in nature. It does call for heavier punitive custodial sentence. Maximum penalty of life imprisonment may have been considered if the court had been properly assisted by reference to decided cases. For that reason the maximum penalty is not being considered. 

Mitigating Factors

29. All are first time offenders except Alex Jimmy who has a prior conviction. 

Aggravating Factors

30. Most of the factors have been set out by Mr. Rangan in his submission. I adopt them and they are:

•The torturing of the 03 women were pre-planned, 
•Prisoners forced the case to trial with unnecessary wastage of time and cost. Two of the victims had to relive the painful ordeal and were subject to public humiliation and a lot of questioning in court.
•Torturing of 03 women, two of whom were pregnant and one an elderly woman was atrocious and inhumane and make the case quite serious.
•The 03 women were so traumatized from the painful ordeal they went through
•The women received server pain and 1st, 2nd and 3rd degree burns on their bodies as a result of being branded repeatedly with hot metal objects and hot boiling water poured over them over a period of 3-4 hours. 
•Sorcery/witchcraft accusations and torturing of women and men is becoming so prevalent in our society in this modern day and age.  
 
31. No extenuating factors are present in the case. Five prisoners except Alex Jimmy are first time offenders. That is insignificant considering the seriousness of the offence and the weight of aggravating factors present. 

Belief of Sorcery as Mitigating Factor

32. The traditional judicial philosophical thought was that traditional belief in sorcery/witchcraft was considered a special mitigating factor in sentencing offenders in sorcery related killings. If I may add perhaps in other life threatening offences like the present case. (Prosecutor v. Uname Aumane [1980] PNGLR 514 and Kwayawako v. The State [1990] PNGLR 6.) That is no longer the position today. Belief in sorcery is no longer a special mitigating factor by the Supreme Court authorities of Irai Thomas v The State (2007) SC 867 & John Baipu v. The State (2005) SC 796). That is the law. Hence, I do not consider the prisoners’ belief in sorcery (which motivated them to torture the women) a special mitigating factor.

Compensation

33. Each prisoner has expressed remorse and pleaded for court’s mercy.  They have asked court to place them on good behaviour bond. I believe that was on the basis they have apologized to the victims and reconciled with the victims with payment compensation of a total value of K19 000.00 in cash and kind. 

34. The relevance and significance of compensation in criminal cases have been expressly stated in many judgments. I have shared my bit in State v Sagalol Mr. Tunuma has referred to. I endorse what I said “…the practice of payment of customary compensation is not new. It has been practiced by our people through generations. The practice varies from society to society in the country but its concept is same throughout the country. Its significance was for restoration of peace and normalcy between the conflicting parties to prevent any reprisals in primitive form of eye for an eye and tooth for a tooth retributive justice.” 

35. The Criminal Law Compensation Act 1999 expressly states that compensation payment cannot be regarded as punishment for an offence. Compensation is considered as a mitigating factor. (The State v Rex Lialu [1988-89] PNGLR 449, Joseph Tunde Binape [2004] PGNC 57; N2727 (12 November 2004).  

36. People must now realise that compensation cannot automatically justify a non-custodial sentence. It is a matter of judicial discretion depending on the nature of the charge, circumstances and facts of a particular case being decided. If the nature of the charge and factual circumstances are such that court should release the offender conditionally it may do so in the exercise of its powers under s 19. However,  in serious cases even if compensation is paid an offender may still be incarcerated or go to jail depending on the facts and seriousness of the charge.

Parity Principle

37. This principle of sentencing dictates that where two or more persons are convicted for the same offence their sentence is largely determined by the level of their culpability or degree of participation and their individual circumstances.  The practice has long been observed by the courts in this jurisdiction and abroad. I adopted the approach in sentencing several offenders in a sorcery related murder case in The State v Sagalol (13 July) N7355.  [In Lowe (1984) 154 CLR 606 & The State v Tom Keroi Gurua & Ors (2002) N2312 (11 December 2002)].

38. In this particular case, each of the prisoners were actively involved in the planning and setting up of the meeting venue and the method to be adopted for interrogation of the women. Each one of them by deed and word instigated, abetted, encouraged, incited and stirred up the crowd and the youths to execute the torture of the 03 women. Prisoner Alex Nou Jimmy went to the extent of pouring hot water on their bodies.  Each one of them are principal offenders and active participants in the torture of the women. Prisoners had one common and concerted purpose.  That was to force the 03 suspected sorcerers to admit to the entire Landolam Settlement community their alleged ‘Sanguma’ (witchcraft) practices and that they had removed Lavinia’s heart and have it restored.  Given the facts and circumstances of the case each of the prisoner will be sentenced in the same measure.  

Totality Principle

39. This principle comes into operation when sentencing an offender or offenders convicted for multiplicity of charges.  This is when court is faced with the task of deciding whether sentences should be served concurrent or cumulatively.  The accepted sentencing practice is that when charges emanate from the one and the same transaction sentences imposed must be made concurrent. 

40. Totality principle comes into play when cumulative sentences are to be imposed. If different and distinct offences are committed in the prosecution of a common purpose or in the same transaction cumulative sentence may be justified. The rational of the principle is that aggregate sentence should not be manifestly harsh & excessive. There is a whole host of authorities on this point. (Public Prosecutor v Terence Kaveku [1977] PNGLR 110).  

41. The prisoners in the present case were charged with the same offence. But because 03 women were victims each prisoner was charged for 03 counts arising from the same set of facts. Offences were committed in the same transaction. Naturally, sentences should run concurrent.

Further Observations

42. Medical Report dated 25 July 2015  tendered into evidence by consent shows that Lavinia had no serious medical condition. Full examination was done on her. She had a mild moderate headache and was treated with pain relief.  No abnormalities were found. She is alive and well. 

43. I find it rather strange to comprehend how a vital organ that pumps blood to all parts of the body can be removed from the body by a spirit.  The moment heart is removed life stops and person is no longer a living being but a corpse. If Lavinia’s heart had been removed she would no longer be alive today. People are miraculously healed for any illness through Christian faith. God does not expose names of persons to be condemned for their wrong doing but to save lives. Persons who were involved in the prayer meeting and came up with the names should also be held liable and prosecuted for providing misleading information and had the innocent women subjected to torture. 

44. There has been so much public outcry on sorcery related injuries and killings.  It is becoming a practice in some parts of the country suspected sorcerers are usually rounded up and  brutally tortured to the point of receiving permanent injuries and death. Properties are destroyed and burnt.  The situation got worse and caught the attention of the global community and human right advocates for the PNG to intervene. Because of the immense pressure put on the government   whole scale changes were to the laws with the repealing of the Sorcery Act and introduction of new penalties for sorcery related killings. Wilful murder arising out of accusation of sorcery now carries the maximum death penalty. (Amendment N0 6 of 2013 certified on 18 September 2013)   There has is so much publicity in the media and awareness by human right advocates and law enforcement agencies like police against sorcery related violence and killings 

Tariffs in decided cases. 

45. Counsels have not assisted me with tariffs in decided cases as a guide. Nonetheless, I have gone online and read few decided published judgments on Paclii. In State v Hilary Joe [2019] PGNC 153; N7854 (13 May 2019) my brief survey of cases sentences vary sentences vary from case by case. Sentences range from as low as 3 years to 8 years. In at least two cases one offender was sentenced to 15 years and in the other 10 years was imposed. [Stated v Tony Gabby [2014] PGNC 362; N6523 (12 December 2014) & State v Pokira Kadog [2015] PGNC 24; N5904 (19 March 2015].  The cases were decided on their own merits. None of them is binding on this court. In State v Hillary Joe (supra) I considered 07 years was appropriate starting point for the offence.   In view of more aggravating factors present in that case I went upward by 01 year from the head sentence. Prisoner received an effective sentence of 08 years imprisonment. 

46. This is a serious life threatening offence. That is why parliament prescribed the maximum penalty of life imprisonment. The law does not discriminate. When a person commits a serious he will be separated from his family, his friends, his work and community. That is a natural consequence of committing a serious crime such as this one. Three innocent helpless women, two of whom were pregnant mothers almost lost their lives had it not been for police intervention. This court has a constitutional mandate to protect lives of innocent people.  Circumstances of the offences warrant immediate punitive custodial sentence.

47. Sentence I will impose is aimed at specific or personal deterrence as well as public or general deterrence against such inhuman and serious life threaten offence, committed on unfounded allegations of sorcery practices. 
I maintain that 07 years will be the starting sentence for each count. Considering the gravity of the offence and its prevalence in society sentence will increase by 03 years to 10 years sentence for each count. However, in the exercise of my discretion 02 years of each count will be suspended taking into account K19 000.00 compensation paid during the reconciliation ceremony.  That leaves the balance of 08 years sentence for each count.

48. Effective sentence each prisoner will serve for each count is as follows:

1.	Rex Uma  is imprisoned for a period of 08 years on each count;
2.	David Loia is imprisoned for a period of 08 years on each count
3.	Steven Kena is imprisoned for a period of 08 years on each count
4.	Joseph Kaule is imprisoned for a period of 08 years on each count
5.	John Kande Pipi is imprisoned for a period of 08 years on each count
6.	Alex Jimmy is imprisoned for a period of 08 years on each count

49. I order that sentence imposed are to be served concurrently.  That means each prisoner will serve an imprisonment sentence of 08 years. Sentence is to be served with hard labour at Kavieng Jail to take effect forthwith. All bail monies shall be refunded forthwith
 __________________________________________________________________
Public Prosecutor:		Lawyer for the State		
Public Solicitor:		Lawyer for the Prisoner