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State v Siviri [2004] PNGLR 12 (30 August 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

URARI SIVIRI

GOROKA: BATARI J

30 AUGUST 2004

CRIMINAL LAW – Sentence – Wilful Murder - Sorcery killing - Belief in sorcery – Proof of – Reduction in seriousness of offence - Reduction from the death penalty.
CRIMINAL LAW – Sentence – Wilful Murder – Sorcery killing – Prevalence of - Victim beaten to death on precincts of church grounds in an area well permeated by government and mission influence – Community involvement – Prisoner as main perpetrator.
CRIMINAL LAW – Sentence – Wilful Murder – Sorcery killing – Mitigation – Extent of – Sentencing guide – Consideration of – Need to increase sentence – 18 years appropriate.

Facts

The prisoner was found guilty and convicted of wilful murder of the deceased under s.299 of the Criminal Code. The prisoner was the only one arrested and charged with the killing of the deceased, although it was 'sanctioned' by the community in the belief that the deceased had caused the sudden death of the wife of the prisoner by sorcery. The deceased died from fractured skull and brain damage due to a blunt blow to the head inflicted by the prisoner.

Held

1. Sorcery killings has long been established as falling into special category deserving special considerations on sentence as was affirmed in the case of, Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78 at 80-81:

a. "If the killing had been of a reputed sorcerer then a sentence of six years would have been appropriate on the leading sentencing authority of Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. That case puts the wilful murder of a reputed sorcerer in a special category of its own - meriting a sentence of around six years. All other kinds of wilful murder normally attract a sentence of years or more up to a maximum of life imprisonment."

2. Whatever the circumstances, each case must be sentenced on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

3. 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 (Agoara Kelo & Anor. v The State. (1981) SC 198; Acting Public Prosecutor v Uname Aumane & Others [1980] PNGLR 510 applied).

4. 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"(The State v. Boat Yokum & Ors. (Unreported National Court Judgment - 2002) No. N2337 referred to).

5. It is in the interest of the State that those who offend against the laws of this country are punished with personal and general deterrence sentences and I propose to impose a sentence that serves both aspects of sentencing. (Kwayawako v The State [1990] PNGLR 6; State v Aiaka Karavea & Anor (Unreported National Court Judgment, 1983) N452(M); The State v Boat Yokum& Ors (Unreported National Court Judgment - 2002) No. N2337; Agoara Kelo & Anor v The State (Unreported Supreme Court Judgment - 1981) SC 198 referred to).

6. The appropriate sentence is imprisonment for 18 years minus 1 year and 11 months the prisoner has served in custody.

Papua New Guinea cases cited

Acting Public Prosecutor v Uname Aumane & Others [1980] PNGLR 510.
Agoara Kelo & Anor v The State (Unreported Supreme Court Judgment - 1981) SC 198.
Avia Aihi v The State (No.3) [1982] PNGLR 92.
Kwayawako v The State [1990] PNGLR 6.
Lawrence Simbe v The State [1994] PNGLR 38.
Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78.
State v Aiaka Karavea & Anor (Unreported National Court Judgment, 1983) N452(M).
The State v Boat Yokum & Ors (Unreported National Court Judgment - 2002) No. N2337.
The State v Kwayawako [1988] PNGLR 174.

Counsel

J. Kesan, for the State.
M. Apie'e, for the accused.

30 August 2004

Batari j. The prisoner has been found guilty and convicted of wilful murder under s.299 of the Criminal Code. His offence carries the ultimate death penalty. A brief summary of the facts of the case are as follows.

The prisoner is the only one arrested and charged with a killing that was 'sanctioned' by the community in the belief that the deceased had caused the sudden death of his wife by sorcery. According to the prisoner's oral testimony, his wife had complained of stomach-ache during the day of or about 10 December, 2002 and upon admission to the hospital, she died on the same night. He testified that, before her death, she named the deceased woman, Komano Paul, as the person responsible for her illness. The prisoner believed what his wife had told him because he then immediately told others in the village. In a public meeting held for that purpose, the killing of Paul so that she would be buried with the prisoner's wife, was decided. The meeting was held on 13 December, 2002 on which day, burial of the prisoner's wife had been delayed for some 3 days, I think purposely to await the out-come of the public meeting on the future of the deceased.

Whether Paul was in fact a sorcerer and whether she killed the prisoner's wife or not, we'll never know because she was never given the opportunity to defend herself in courts of law. She is not here today to do that. She is dead. But one thing is clear about the allegations against the deceased and it is that the prisoner believed what his wife had told him and he believed that the deceased was responsible for his wife's death through sorcery.

Immediately following the community consensus to eliminate the deceased, the prisoner, his two sons and other young men from the village set out in search of her. They located the deceased and dragged her to a Four Square Church pastor's house where they tied her hands and feet to an avocado tree and literally beat her to death with coffee sticks in the presence of others. The medical report described her injuries as follows:

"HEAD/NECK: Depressed fracture of the temporal bone of the skull, fracture of the nose bone, striated marks around the neck.

CHEST: Bruising generally

ABDOMEN: Normal

LIMBS: (i) hands striated around wrist joints.

(ii) fracture of the right leg."

These medical findings were contained in a report compiled by Dr. Thomas Kubu, Senior Medical Officer In-charge of the Accident & Emergency Unit of Goroka Base Hospital. In his opinion, the deceased died from fractured skull and brain damage due to a blunt blow to the head.

It was a brutal killing carried out with great determination and in the most barbaric manner. The evidence also showed that her death was precipitated by shame and humiliation. Her captors first took her around the village, assaulting her at the same time before she was fastened to a tree and beaten to her death. The striated marks around her neck further suggested that a rope was tied around her neck at some stage before she died. From the whole of the evidence, it is open to inference that Paul was first secured to the tree and then beaten on various parts of her body with coffee sticks before the final and fatal blow to her head. I have witnessed pigs killed unceremoniously with a single blow to the head in that manner in this region, including my own and I think the blow to her head was intended to have that effect. There can be no doubt; she died from a very painful, slow death. The deceased was literally tortured and dehumanized before life was snuffed out of her by that single blow to the head.

It may have been part of the initial plan to take Paul to the pastor's house for interrogation in his presence. But then what followed next resulted in the killing of the deceased in the presence of a church pastor who appeared unconcerned about the unholy event taking place on purported sacred and neutral location. The killing on church premises is a very serious matter for two basic reasons. First, it is generally accepted that church grounds are sanctified holy and sacred places for worship and must be treated with respect and held in reverence for that purpose. It is in my view tantamount to sacrilegious to use church facility for unholy events as in this case, let alone breaking God's first Commandment, "Thou shalt not kill".

Second, the church grounds and the presence of church clergy did not stop Paul from being brutally murdered in the manner described because it is generally accepted that church grounds and God's servants would provide safe havens for the faithful and unfaithful alike. The clergy did nothing to prevent the brutal attack on the deceased and this also raises a serious question about his own impartiality. The evidence is that he was present at his house at the time of the killing. He has not availed himself the opportunity to explain his role when he was named as a witness but failed to give evidence. Did he have a hand in the killing of Paul? And if a person cannot be safe in village church grounds or in the hands of the clergy, then where else can they seek protection? A similar sentiment which I adopt and apply was expressed in connection with killings in the presence of the courts in the case of Avia Aihi v The State (No.3) [1982] PNGLR 92 where the Supreme Court stated that, persons who are in the custody of the court should feel safe. That proposition was extended to killings in the custody of the police in the case of, State v. Aiaka Karavea & Anor. (Unreported National Court Judgment, 1983) No. N452(M) where Kidu CJ stated:

"When people who are accused of crimes seek the protection and custody of the police, it is one place where they should feel safe and be confident that they will have a proper trial in the courts of law".

I would extend that proposition to village settings where there is presence of missions and government agents in the form of Local Level Government members and committees and village court officials. These local authorities are intermediatories charged with responsibilities to deal with immediate law and order and other social issues in the villages. The people who are suspected of offences have the right to trust and feel confident in those in church and government leadership positions in the village when they are brought to them, that they are not only safe, but that they will also be safely delivered to police custody for proper trials in courts of law.

In this case, the public execution of the deceased was done in deliberate contempt of the established system. The prisoner and his accomplices took the law into their own hands. They became the accuser, the police, the courts and the executioner, ignoring the presence of the clergy, government representatives and many others around. The facts of this case quite clearly fall into the most brutal category of wilful murder and consequently, the 'worst type of wilful murder case' deserving the ultimate death sentence.

I have however found on the evidence that the accused and his fellow villagers and those in the general area believe in sorcery and sorcery killings. The prisoner believed the death of his wife resulted directly from sorcery. It is the existence of this sorcery factor that will save the prisoner from the death sentence. It is a mitigating factor that I must take into account.

The extent of belief in sorcery in Papua New Guinea is well summarized in State v. Aiaka Karavea & Anor. (supra) where Kidu CJ stated:

"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."

Sorcery killings has long been established as falling into special category deserving special considerations on sentence as was affirmed in the case of Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78 at 80-81:

"If the killing had been of a reputed sorcerer then a sentence of six years would have been appropriate on the leading sentencing authority of Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. That case puts the wilful murder of a reputed sorcerer in a special category of its own - meriting a sentence of around six years. All other kinds of wilful murder normally attract a sentence of years or more up to a maximum of life imprisonment."

Sorcery related killings are in general committed under different circumstances and there are different types of sorcery cases. Killing of a reputed sorcerer where the village people generally believe that he was a sorcerer and that he was responsible for unspecified number of deaths and that he was responsible for the last death in the village as in the case of, The State v Kwayawako [1988] PNGLR 174 may be treated differently from a killing upon mere suspicion on the first occasion that the deceased was a sorcerer. Where the killing of a reputed sorcerer is in an arena that had not been permeated by either government or church influence and the people are neither Christians nor do they believe in God, there can be a real difficulty in trying to balance the effect of the belief in sorcery and the introduced law.

Whatever the circumstances, each case must be sentenced on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38. In this case before me, the prisoner and his fellow villagers are from just outside Goroka in the Kabiufa area. A long established SDA Mission Station with a high school and a government high school is in the area. The people believe in Christianity and the evidence shows a church establishment in the village. The general area is no doubt, under strong Christian and State influence. It must be a well known fact to the people that it is against the Christian faith and the law to kill another person. The prisoner knows that it is wrong and against the law to kill. He had initially evaded arrest and I think he only surrendered to the police after weighing up his chances of being a fugitive for the rest of his life. His knowledge of these things is a factor against him.

Another factor that should be balanced against the prisoner's belief in sorcery is the protection of the right to live, guaranteed by the Constitution to everyone irrespective of color, creed, religion, race, tribe, sex, status in this country, be he a villager or urban dweller, primitive or educated, sorcerers included. This is one constitutional right that is highly valued and treasured by everybody. You do not simply terminate someone's precious life because you believe in sorcery and you suspect him to be a sorcerer. He is entitled to have and live his life to the fullest and he is entitled under the Constitution to be tried by the courts of law for any alleged wrong doing.

In this case the proper venue to deal with Paul was to lay a formal complaint against her with the police under the Sorcery Act. Instead, she lost her life without a trial upon mere belief that she was a sorcerer who had caused the death of the prisoner's wife through sorcery. It shall never be known whether she in fact was a sorcerer because she is not here today to speak for herself. There is however no evidence that she was a reputed sorcerer. Hence, the possibility remains that she might well be innocent and that the prisoner and his accomplices had killed an innocent person in a village summary execution without a trial. The fact that the prisoner will be punished should also tell and encouraged the people to take suspected sorcerers to the police so that they are properly tried according to law.

I take into account what has been said in the prisoner's favour, in balancing them against the interests of the State. Sorcery is a major mitigating factor that must be taken into account together with other factors. The killing here was premeditated and by consensus resolution of a community to rid itself of a purported sorcerer. It was payback killing and the prisoner is only one of the many that agreed to and carried out the actual murder. For his part, he has been charged and convicted. I propose to sentence him as an individual and only for his part in the killing. I will not make a scapegoat of him for a crime committed by numerous others who might never be brought to justice. His role as I have found against him are that, he was the main instigator and perpetrator of the killing. He described himself in his own evidence as, "the owner of the trouble" in reference to the murder of the deceased. The killing would not have occurred without his initiative and urging.

In considering what might be the appropriated sentence in all the circumstances, I am guided by what was said in the Supreme Court case of Agoara Kelo & Anor. v The State (1981) SC198 that:

"The belief in sorcery taken together with other factors in their faviour only operates to reduce a life sentence to a term of years. It does not and should not operate to render a sentence equivalent to that usually imposed by judges here for murder, manslaughter, dangerous driving causing death, infanticide."

Mr. Kesan has also strongly submitted that the sorcery factor should not overshadow the seriousness of the killing in this case on sentence. He urged the court to consider the possible effect of sending a wrong signal to public that it is alright to kill sorcerers by imposing an inordinately low sentence. That view which I also adopt and apply was expressed in the case of, The State v Boat Yokum & Ors. (Unreported National Court Judgment - 2002) No. N2337 where his Honour Injia, J (as he then was) stated:
"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".

I have researched cases on sorcery related wilful murder killing sentences and there are few reported. In Kwayawako v The State [1990] PNGLR, 6 the appellants appealed against the severity of their sentences. They were convicted on their pleas of guilty to a charge of wilful murder of a reputed sorcerer and were sentenced to terms of imprisonment ranging from 12 to 15 years. The appellants planned to kill the deceased and they carried out the plan as a payback and more importantly they did so under a belief that their action would prevent further deaths in the village in the future. The Supreme Court upheld their appeal and varied their sentences to 10 years on the basis that the Sorcery Act does not deny the existence of belief in the power of sorcery, hence; it is permissible to take into account as a mitigating factor on sentence, customary belief in the power of sorcery.

In Agoara Kelo & anor v The State (supra), the prisoners killed a reputed sorcerer who was suspected of killing 18 other people previously through sorcery. The Supreme Court, on appeal against severity sentence, dismissed the appeal and confirmed the 8 year sentence imposed by the National Court. In State v. Aiaka Karavea & Anor.(supra) two brothers in their belief that their sister's death was connected with sorcery, planned to kill the alleged sorcerer. They went out in search for him on the same day their sister died and located him at Ihu Police Station, Kerema. Aiaka then literally axed the deceased to death. He was charged with wilful murder and was sentenced by the National Court to 12 years imprisonment.

In The State v. Boat Yokum & Ors. (supra) Injia, J (as he then was) imposed sentences ranging from 6 years to 10 years on prisoners who killed a reputed sorcerer believed to have caused the death of the deceased and 53 other people previously. The whole community decided to end their purported misery by eliminating the deceased. This act was carried out by the prisoners. That was a murder case but the facts are similar to the wilful murder case before me.

The Supreme Court case of Angoara Kelo in 1981 and the National Court case of Aiaka Karavea in 1983 are more than 20 years ago and at the time it may be generally accepted that sorcery killings were common in certain parts of the country and government and Mission influence was not quite that strong. Circumstances are now different. Influences by the Churches and State services are now far greater then previously experienced and these are having greater impact on social and economic activities of the people to the extent that the people are placing greater reliance on the formal dispute resolution avenues to settle differences. Hence, in some areas, sorcery killing is now lessen because the people are taking alleged sorcerers to a court of law instead of the unlawful summary executions as are still practiced in some parts of the country like the prisoner's area: The State v Boat Yokum & Ors. (supra). Consequently, the sorcery factor in mitigation, in my view, should no longer be a significant factor.

I have made reference to the two cases that are more than 20 years old to also demonstrate a sentencing pattern for this type of murder then and now. In the period between those two cases and Kwayawako's case in 1990, the sentence for this type of wilful murder killing had not gone up. Even murder cases as in Boat's case in 2000 still remain in the lower to mid range for murder sentences. Sorcery killings however continue to come before the courts in greater proportions in some areas and in my view, the time is right for the courts to impose higher sentences for sorcery related killings.
It is in the interest of the State that those who offend against the laws of this country are punished with personal and general deterrence sentences and I propose to impose a sentence that serves both aspects of sentencing. On the other hand, I take into account the particular circumstances of this prisoner. Bearing in mind that this is a contested case and the offence carries the ultimate penalty of death, taking into account all that I have said, the appropriate sentence is imprisonment for 18 years. The prisoner has served nearly 1 year and 11months in custody. That period is deducted and his sentence will be sixteen years and one month imprisonment in hard labour.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.