N8954

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 395 OF 2015

THE STATE

-v-

GAD YAKAPUS

Lae:  Kangwia J
2021: 19th & 22nd July

CRIMINAL LAW – Willful murder - guilty plea by a first-time offender – Deceased believed as sorcerer – belief in sorcery by choice not by accident - not an extenuating circumstance - compensation paid treated as special mitigating factor – sentenced to 25 years with suspensions and deductions

Cases Cited: 

Ure Hane v The State [1984] PNGLR 105
Steven Loke Ume v The State (2006) SC836
Manu Kovi v The State (2005) SC789
Thomas v The State (2007) SC867
John Baipu v The State (2005) SC796
State v Eddy Kava Laure (No. 2) N69)
Public Prosecutor v Apava Keru & 1 Or [1978] PNGLR 78
Public Prosecutor v Uname Aumane [1980] PNGLR 510
Agoara Kebo & 1 Or v the State (1981) SC198
State v Maraka Jackson (2006) N3237
State v Joseph Tunde Binape (2004) N2727
State v Wilfred Opu Yamande Ndanabet (2004) N2728
State v Soti Mesuno & Ors (2012) N4701
State v Joel Damanin (No 02) (2002) N8420
State v Wingkeok Pitaneoc (2004) N2514

Counsel 

P. Matana, for the State
G. Peu, for the Defence

22nd July, 2021

1.      KANGWIA J: GAD YAKAPUS appears as a prisoner for sentence. He was convicted pursuant to s 299 (1) of the Criminal Code on his guilty plea to wilfully murdering one Gerard Lopis. 

Facts in brief

2.    The facts upon which he was arraigned are these. The prisoner and the deceased left their village and moved to Lae after some differences between them. The deceased lived with his family at Biwat compound.

3.     On 24 August 2014 the prisoner in the company of one Solomon Jack Goimas went to Biwat settlement where the deceased was and after some communication with the deceased relatives, they left. 

4.     Some minutes later, the prisoner and Solomon Jack returned to the yard where the deceased was. 

5.     The prisoner was armed with a grass knife while Solomon Jack was armed with a homemade staple gun. The prisoner walked straight to the deceased and while calling the deceased a sorcerer, swung his grass knife at the deceased and cut him twice on the head and neck.  

6.     He is believed to be 31 years old. He was 22 years old when he committed the crime. He is married with one child.

7.     On his allocatus the prisoner said “I have a few words to say. I say sorry for the offence committed. I believed him to be a sorcerer and did it. I say sorry for committing the offence. I ask for mercy.”

Submissions

8.     On his behalf Ms Peu through a written submission while highlighting the law on wilful murder and the sentencing principles submitted that from the various sentencing guidelines suggested this case did not fall into the categories suggested in Ure Hane v the State (1984) PNGLR 105 and Steven Loke Ume v The state (2008) SC 836. This case fell into the second category of Manu Kovi v The State (2005) SC 789 which suggested a sentence of 20 – 30 years. 

9.     While conceding that a life was prematurely terminated with the use of a lethal weapon in a cold-blooded attack, it was submitted that there were extenuating, and special mitigating factors present apart from the common mitigating factors. 

10.     The extenuating circumstances it was submitted was that the offence was influenced by his belief in sorcery that the deceased was practising sorcery after observing several unexplained deaths. The case of Steven Loke Ume & Ors was referred to as authority supporting that proposition. 

11.     The special mitigating factor was that the prisoner’s family and community had contributed K20, 000. 00 as “bel kol” money. The Court was again referred to the case of Manu Kovi as supporting compensation as a special mitigating factor.

12.     The common mitigating factors were that the prisoner pleaded guilty to a very serious offence and saved time and expenses for everyone. 

13.     He was a first-time offender and was remorseful.  He cooperated with police and a not so crushing sentence was appropriate.   

14.     On behalf of the State Ms. Patana while accepting that a life was lost submitted that the offence was in breach of the right to life under s 35 of the Constitution. A dangerous weapon was used, to attack two times. There was a strong desire to kill. There was no regard for human life. The prisoner acted with accomplices who were convicted after a trial and sentenced to 26 years. Sorcery related killings were prevalent and a custodial sentence of 20 – 30 under category 2 of Manu Kovi was appropriate. 

15.     The Court was referred to the following cases as guides in sentencing. 

16.     In the case of Thomas v The State (2007) SC867 the appellant appealed a sentence of 18 years for a sorcery related killing. The supreme Court held that the sentence was lenient and increased it to 22 years.

17.     In the case of John Baipu v The State (2005) SC 796 where the appellant was sentenced to life imprisonment for sorcery related killing of his 70 year old uncle was on appeal substituted with 25 years. It was there held that belief in sorcery was not a mitigating factor. 

The Law

18.      Under law wilful murder is a crime. It is provided and its penalty prescribed under s 299 of the Criminal code in the following manner: 

S299.	Wilful Murder

Subject to the succeeding provisions of the Code, a person who unlawfully kills another person, intending to cause his death or that of some other person is guilty of wilful murder.

(1)	A person who commits wilful murder shall be liable to be sentenced to death.

19.     Recently Parliament by legislation created a new offence under s 299A of the Criminal Code in response to the escalation of sorcery related tortures and extra judicial killings in this country. The provision is in the in the following terms:

SECTION 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, muramuradikana, vada, meamea, sanguma, or malira, whether or not connected with or related to the supernatural. 

20.     The maximum prescribed penalty for the new Offence is also death. 
In the present case, even if the prisoner were indicted under the new law (s 299A), generally there would be no marked difference in the sentence to be imposed. The only difference between the two sections is that, wilful murder under s 299 is discretionary while sorcery related wilful murder is seemingly mandatory. However, discretion under s 19 of the Criminal Code has not been fettered in any way by the creation of the new offence.   

21.     Be that as it may, despite the prisoner being indicted for wilful murder under s 299 it shall be treated as sorcery related in sentencing. 
22.     The Supreme Court in many cases have set guidelines and tariffs for sentencing in all homicides. For Wilful Murder, at the time the maximum prescribed penalty was life imprisonment, the Supreme Court in the case of Ure Hane v the State (1984) PNGLR 105 said:
 
“When considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, insofar as the law allows, categorise those “worst type” cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender.”

23.      Analogous to that determination the Court must determine whether the offence is the “worst type” of wilful murder for which the death penalty should apply. 

24.     In the case of State v Eddy Kava Laure (No. 2) N69) the court said:
 
“Each case of wilful murder must be decided on a case by case basis, but always remembering that the sentence laid down by s. 299 is death and the term of years is by virtue of s. 19.”

What the Court said in that case is adopted here. 

25.      The prisoner in the present case is facing a crime that carries the maximum prescribed penalty of death. 

26.     I am mindful of the sentencing practice as enunciated in the case of Goli Golu v State (1979) SC 172 and Ure Hane v State (1984) PNGLR 105 that the maximum prescribed penalty of death for wilful murder must be reserved for the worst category of the crime. 

27.     Sorcery related killings were traditionally treated as special category of homicides with low sentences from ordinary murders. The following cases attest to that trend.

28.    In the case of the Public Prosecutor v Apava Keru & 1 Or (1978) PNGLR 78 the prisoner who killed a reputed sorcerer was sentenced to 6 years. The sentence was increased describing it as inordinately low.

29.     In the case of the Public Prosecutor v Uname Aumane (1980) PNGLR the prisoner who was sentenced to 3 years with compensation orders for killing a sorcerer was on appeal increased to 6 years.

30.     In the case of Agoara Kebo & 1 Or v the State (1981) SC 198 the Supreme Court affirmed a sentence of 8 years on a sorcery related killing describing the sentence as not manifestly low. 

31.     In my view the leniency given by treating sorcery related killings as a special category of homicides, seemed to be based on a premise of a belief embedded in a cultural setting capable of having its own mechanism for sanction. The Courts were led to believe that it would be an intrusion into such embedded belief to impose heavy sentences hence the low sentences. 

32.     The Courts have in recent times considered that putting sorcery related killings into a special category of cases with low sentences is no longer a sentencing principle.  

33.     The sentences imposed by the Courts for wilful murder in sorcery related killings have significantly increased on the basis that a sorcery related killing is a payback or revenge killing. The following cases attest to it.  

34.     In the case of the State v Maraka Jackson (2006) N3237 the prisoner who killed a Village Court Magistrate who was believed to be a sorcerer was sentenced to 24 years.

35.     In the case of the State v Joseph Tunde Binape (2004) N2727 the prisoner who was convicted after a trial for chopping the deceased and hanging the body before dumping it was sentenced to life imprisonment, describing it as a worst case of wilful murder.

36.    In the case of the State v Wilfred Opu Yamande Ndanabet (2004) N2728 the prisoner who killed a known sorcerer for fear that he might be the next victim was sentenced to 20 years.

37.     In the case the State v Sedoki Lota & Fred Abenko (2007) N3183, the offenders who beheaded a woman on an order of a village Court Magistrate on the belief that she caused the death of their parents were sentenced to death. On appeal against the death sentence the Supreme Court substituted it with life imprisonment. 

38.     In the case of the State v Soti Mesuno & Ors (2012) N4701 the prisoners who ambushed and killed a pastor in front of his juvenile son over many deaths allegedly caused by him through sorcery, were sentenced to 34 years each. The juvenile in that case was sentenced to 17 years.

39.     In the case of the State v Joel Damanin (No 02) (2002) N8420 the prisoner who killed a reputed sorcerer was sentenced to 25 years. 

40.     These cases are a testament to the position of the Courts in this country to substantially increase the sentences for sorcery related deaths. Despite those high sentences it seems they have no deterrent effect on those who act or kill on a belief in sorcery.  

Decision

41.    This case involved a brutal killing arising out of a belief in sorcery. It is a sorcery related killing. The prisoner in his allocatus while asking for leniency said, “I believed him to be a sorcerer and did it.”  

42.    Sorcery related killings emanate from a belief and not from evidence. Belief in sorcery and magical powers assisted by unseen powers through which a sorcerer can cause a death is embedded in many societies in this country. Such belief in my view is founded on a twisted manufacture of blame on sorcery over an earlier death which is totally amiss of the naked eye. 

43.     It is my further view that belief in sorcery emanates from a choice one makes. People are endowed with the gift of talent and reasoning, and each person has a choice whether to believe in sorcery or abstain from it. No one is obligated or dutybound to believe in sorcery. It is akin to a choice of Christianity or religion generally.

44.     Christianity in this country has been unable to influence or convince people to sway from belief in sorcery. It seems the churches have left it to the State to act on it.  

45.     In a sorcery related killing belief in sorcery is no defence. Such killing is analogous to a payback killing. It is ignited by vengeance. This seems to be the situation in the present case.  

46.     A clear warning must be sent that belief in sorcery affords no justification to end another person’s life. Apart from the right to life guarantee under s 53 of the Constitution, life is a fundamental right of every human being. Once it is lost it cannot be restored.  

47.     Belief in sorcery should not and must not operate as a factor in favour of an offender in sentencing. To do so would indirectly promote or license wanton killings under the pretext of a belief, which cannot be proven by evidence. It will promote total disregard to serious crimes like wilful murder. The sanctity of life would also be put to ridicule and become meaningless.  

48.     Courts are now treating sorcery related killings as any other homicide. As reflected in the cited cases high sentences are being imposed with a view to curtailing sorcery related killings.

49.    The prisoner in the present case committed a brutal attack on the deceased. There was the use of a grass knife to cut the deceased incurring a massive wound to the head resulting in contused or injured brain matter. It appears that this matter has its genesis in East Sepik over varying differences between the prisoner and the deceased. The deceased moved away from the problems and came to Lae.  The prisoner it seems, followed him to Lae and to the yard the deceased stayed. 

50.     The story is varied when they met. The facts attached to the indictment for arraignment stated that the prisoner rushed to where the deceased was and after calling the deceased a sorcerer, cut him two times. 

51.     The statement of facts in the depositions tendered by consent showed that there was a group fight between the prisoner and the deceased with others taking sides. Group fight is affirmed in the submissions on sentence by Ms Patana that the accomplices in this matter were convicted after a trial and sentenced to 26 years. 

52.     It is safe to hold that the deceased was cut during the fight. The medical report shows that the deceased sustained an open skull fracture with contused brain matter and fractured cervical spine. 

53.     For sentencing, it is considered that the prisoner inflicted a massive cut to the head of the deceased. It is immaterial whether the wound was sustained in a direct attack or in a group fight. A lethal weapon was used. There was no consideration for the sanctity of life. A life was prematurely terminated. The deceased certainly had some years ahead of him. Life is precious and every human being is gifted with it only once. There was no expression of remorse on allocatus.

54.     In his favour the mitigating factors are that he pleaded guilty to a very serious crime as a first-time offender. 
55.     In the absence of any evidence to the contrary it is accepted that K20, 000. 00 was voluntarily paid as compensation by his people. That amount is substantially higher than the amount prescribed under the Criminal Law (Compensation) Act. That gesture is treated as a special mitigating factor. 

56.     Belief in sorcery is not a mitigating factor. Parliament by passing the new offence with a mandatory penalty removed sorcery related killings as a factor in favour of an offender. 

57.     On the issue of extenuating circumstance raised by Ms Peu, the Court in the case of Winkeok Pitaneoc(supra) further said:

“…The days when sorcery-related killings were once considered by the Courts and Judges to be an extenuating circumstance and mitigating factor are long gone. The use of sorcery is now regarded by the Courts as an excuse to harm and kill innocent people and treated as a serious aggravating factor”. 

58.     That statement is adopted here. Belief in sorcery is not a relevant factor to be accepted as an extenuating circumstance. As earlier stated, belief in sorcery is a choice. Whether to believe or not to believe in sorcery, rests on an individual. It is not imposed. It is also a choice to kill or not to kill. If one chooses to act or kill out of a belief in sorcery then, he or she must equally bear the consequences that follow. I decline to accept belief in sorcery as an extenuating circumstance.

59.     This case is similar in nature to the more recent cases cited above. I accept counsels’ submissions that the circumstance of this crime warrants a sentence within the second category of the Manu Kovi guidelines which suggested 20 to 30 years imprisonment. It involved a vicious attack with a weapon.  

60.     The prisoner is sentenced to 25 years imprisonment. Because of his guilty plea to a very serious offence and the special mitigating factors referred to, four years shall be suspended.  From the remaining 21 years the time spent in pre-trial custody from the day he was re-arrested till today shall be deducted. He shall serve the balance at CIS Buimo.

Formal Orders

1.	The prisoner is sentenced to 25 years imprisonment.
2.	From the 25 years, 04 years shall be suspended.

3.	From the remaining 21 years the period in pre-trial custody from the date he was rearrested to the date of sentence shall be deducted.
4.	The prisoner shall serve the balance at CIS Buimo.
________________________________________________________________ 
Public Prosecutor: Lawyers for the State
Public Solicitor:  Lawyers for the Defence