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State v Arnold [1997] PGNC 154; N1658 (21 November 1997)

Unreported National Court Decisions

N1658

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 676 OF 1997
THE STATE
-VS-
SIUNE ARNOLD

Kimbe

Batari AJ
13 November 1997
21 November 1997

CRIMINAL LAW - Sentence - Murder - Killing of suspected sorcerer - belief in sorcery established by evidence and inferences - Relevance as mitigating factor - Suspected sorcerer taken before funeral gathering - Beaten and strangulated - Nine years.

Cases Cited

Kwayawako v The State [1990] PNGLR, 6.

A/PP v Uname Aumane [1980] PNGLR, 510.

Secretary For Law v Ulao Amantasi [1975] PNGLR, 134

The accused was convicted of killing a suspected sorcerer. The following judgment was delivered on sentence.

Counsel

C. Sambua, for the State

R. Habuka, for the Accused

21 November 1997

BATARI AJ: The prisoner has been convicted of the murder of one Kawage Kua pursuant to s.300 of the Criminal Code Act. He will now be sentenced. The maximum penalty prescribed for this offence is life imprisonment.

The brief facts show that on 9 February, 1997 the prisoner had taken the deceased Kawage Kua forcefully to Kimbe Hospital with assistance from others so that the deceased would "give water" to his young sister. I infer the young girl was hospitalised following an illness and the presence of Kawage Kua at the hospital was to perform traditional healing on her. I infer also that the prisoner and his line believed Kawage Kua to be a sorcerer and that he was responsible for the girl's condition. She died on the evening of that day. On the early hours of 10 February, the next day the prisoner again brought Kawage Kua forcefully to his father's block at Kavui where the body of his sister was being mourned. Kawage Kua was brought before the gathering to sort out the cause of the girl's death and compensation payment. I think this was because he had been suspected as the sorcery killer. The prisoner said Kawage Kua admitted responsibility for the girl's death through sorcery in front of a huge crowd. Consequently he was subjected to vicious attack and suffered injuries from which he died.

The Medical Report concluded the deceased died from strangulation, as indicated by extensive superficial laceration encircling the neck. In the doctor's opinion, the injury was consistent with the back part of the body being laid against a solid surface like a tree, wall or ground while an object was pressed firmly onto and being pushed several times back and forth across the neck. The deceased also sustained lacerations to the back and crown of his head, regions of both ears, chest and posterior trunk and both thighs. He further suffered burn marks to his left arm afflicted by a hot object.

The facts present quite a bizarre instance of mob rule. Kawage Kua, a person who was under the Constitution innocent until proven guilty by a court of law was virtually arrested, detained, tried and executed, albeit unlawfully by his accusers.

The Constitution gives protection to every human life irrespective of gender, age, race or background. No-one, no-one whatever his cause might be has the right to kill another unlawfully. Except for the powers vested in the courts, no person or authority has the power to order a death sentence. It has been suggested a village court magistrate had urged the killing at the gathering in a believed sorcery powers of Kawage Kua which had caused the death of three other persons previously and they had been unable to pay compensation. The prisoner had sought this explanation on the attack and eventual death of Kawage Kua. I dismissed it as sufficiently improbable.

The deceased was brutally murdered. The evidence suggested he died a slow painful death. He was literally tortured to death. The prisoner and his line showed him no mercy when they assaulted him and inflicted those injuries I have out-lined. It is apparent a life had prematurely ended in a vicious and barbaric attack.

The prisoner is fortunate to have escaped the wilful murder charge. Nevertheless, the case still calls for strong punitive sentence to reflect the community's abhorrence of violent crimes of this nature.

The prisoner is aged 22 years and has no prior convictions. He was working in his father's oil palm block at the time of the offence. He remonstrated that his old and blind parents would suffer considerably if he were sent to gaol. His sister's schooling would also be affected as they all depended on him . He spoke also of a bank loan on the land which he was repaying . That is all true. However, his unfortunate family will sadly suffer for his wrong. He did not consider their welfare and circumstances when he either allowed or participated in causing Kawage Kua's death.

The evidence show this killing was sorcery related. There were sufficient facts from which I could infer existence of a belief in sorcery by the prisoner and his line. I also conclude that believe was genuine. When such findings are open on the evidence, the prisoner is entitled to customary belief in the power of sorcery as a mitigating factor on sentence.

In the case of Kwayawako v The State [1990] PNGLR, 6 the Supreme Court at p. 8 stated:-

"It is true that over the years the National Court and the Supreme Court have treated killings of reputed sorcerers as a special class of homicides for the purposes of sentencing. The courts have also assumed as a matter of undisputed fact the widespread belief, throughout the country, in the power of sorcery."

And at p. 9, the Court continued:-

"It is strange therefore, that both counsel in the trial before the learned Deputy Chief Justice agreed that belief in the power of sorcery should not be taken into account in sentencing. The Courts have assumed that customary belief in the power of sorcery was a relevant consideration in sentence. In Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, for instance, the Chief Justice said (at 513) in relation to the conclusions of the trial judge appealed from, that:

"His Honour then, it seems to me, went into great lengths about the effect of sorcery or belief in it in the minds of believers. I agree, with respect, that in many communities in Papua New Guinea, belief in sorcery and its powers is very strong and we cannot brush it aside. My own people believe it and great fear is caused by such belief.

His Honour, with the greatest respect, over emphasised the belief in sorcery".

Andrew J said (at 528):

".....I find that I am in agreement with the learned trial judge when he says that it is the genuine belief by the accused that the victim was a sorceress and was responsible for numerous deaths which makes the task of sentencing in these circumstance so difficult."

Andrew J continued (at 529):

"There is no doubt that the respondents genuinely believed that the deceased was a sorceress. They all come from the isolated area of Hewa behind Porgera in the Enga Province. These are and have always been strong mitigating factors...."

In Secretary for Law v Ulao Amantasi [1975] PNGLR 134, Prentice SPJ said (at 136-137):

"It seems that in all Papua New Guinea societies the killing of an acknowledged sorcerer who has repeatedly been responsible for or has boasted of causing deaths, has been regarded as a benefit to society (unlike the payback which rebounds not on the offender personally but with cruel uncertainty, possibly on some innocent member of his line). The punishment of sorcerer killers has always been comparatively light. The judges imposing it have no doubt been conscious they were administering an imposed law which in this aspect receives little or no approbation from primitive villagers, comparable to the belief which many of them would receive from the elimination by that law of the payback."

The authorities I have referred are in your favour only because I am satisfied that there were sufficient inference to be drawn from the evidence that you had genuine belief the deceased was a sorcerer. You are all from the same province of Chimbu. There is no doubt sorcery and belief in sorcery is widespread in Papua New Guinea. In this province too, my people belief in and greatly fear forbidden sorcery like 'Sanguma' as was referred to in this case. I think your case involved the same forbidden sorcery. I am satisfied that you have the benefit of sorcery killing as a mitigating factor.

Murder cases in the last two (2) years have ranged from two (2) years with suspension on Probation orders up to seventeen (17) years. Sentences of twenty (20) years, up to thirty (30) years and life imprisonment have also been imposed. It is I think fair to say, most sentences are however between six (6) years and fifteen (15) years.

I bear in mind that sorcery killings have in the past been treated as a special category of killing for which a sentence on the ligher side would be appropriate. The facts of this case indicated public torture and execution of the deceased. There was no evidence the deceased was a reputed sorcerer, although there was evidence the deceased was a suspected sorcerer and I think he was coerced into admission before he was assaulted. People must not think they can kill anyone upon perilous suspicions of being a sorcerer or that it is alright to detain, try and executed suspected or reputed sorcerers in public. Prevalence of murder killings generally, nation-wide also in my view call for increased penalties for murder. A sentence of nine (9) years in a sorcery related murder killing is in my view justified. Because the accused did not plead guilty, he is not entitled to any reduction from what might be the appropriate sentence.

I sentence the prisoner to nine (9) years imprisonment with hard labour. I deduct the pre-trial custody period of nine (9) months and one (1) week. He will serve the balance of eight (8) years, two (2) months and three (3) weeks.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Habuka Lawyers