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State v Yokum [2002] PGNC 24; N2337 (4 December 2002)

N2337

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 146 – 154 of 2001

THE STATE

v.

BOAT YOKUM, JOHN YOWA,
TAWAN YASALING,ARABAU KAKANANA, TOTONU KAKANANA, MINE BASANU,BAYUME ELLI, KARAO KAKANANA & BAGON YOKUM

LAE: INJIA, J.
2002: 4 DECEMBER

Criminal Law – Sentence – Murder – Sorcery killing – Killing "reputed sorcerer" believed to have caused the death of the deceased and 53 other people previously – Whole community’s decision to put an end to their suffering by terminating the deceased, carried out by prisoners – Punitive and deterrent sentencing theory emphasized – Rehabilitative theory of sentencing also emphasized – Sentences ranging from 10 years – 6 years imprisonment imposed with ½ of sentence suspended on conditions, including prisoners undergoing appropriate Intensive Christian Education.

Cases cited:
Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510.
Agoara Kelo and Karunai Uraki v. The State SC 198(1981).

Counsel:
J. Nidue for the State
A. Raymond for each prisoner

4 DECEMBER 2002

INJIA, J.: The nine prisoners were jointly indicted on one count of wilful murder of one Ikwinu Tangwagua (the deceased) under S.299 of the Criminal Code. All of them except Mine Basanu pleaded guilty to the charge. On 18 June 2002, I acquitted the accused Mine Basanu on the charge but found him guilty of murder under S.300(1)(a). And on 28 August, 2002, consistent with my finding in relation to Mine Basanu, I rejected the guilty plea of the other 8 prisoners on the charge of wilful murder but accepted their guilty plea to the lesser charge of murder under S.300(1)(a). I administered allocatus to all the prisoners at the same time. Each prisoner gave their unsworn statement from the dock. Further proceedings on sentence was then adjourned pending the preparation of a pre-sentence report by the Probation office in Lae. There are two such reports before me. After counsel made submissions on sentence, I reserved sentence which I hand down now.

The facts of the case as I found in the trial of Mine Basanu and those discerned from the court depositions in respect of the other eight prisoners are these. On 22 August 2000 at Kesaut village, Wantoat District in the Morobe Province, a meeting of villagers took place in the village to discuss the fate of the deceased whom the whole community believed was responsible for the death of the prisoner Mine Basanu’s younger brother, one Gessi, through sorcery. The whole community believed that the deceased was a reputed sorcerer who was responsible for the death of some 53 people in the village previously. The whole community resolved it was time to put an end to their suffering by eliminating the deceased and called upon willing and able members of the community to carry out the decision. The nine prisoners led by Mine Basanu answered their call. On the early morning of 23/8/00, between 5am – 6am, they got together, armed themselves with various weapons and set out to attack the deceased. They went and surrounded the house of the deceased when the deceased was asleep, dragged him out of the house, held him, and shot him with a gun and chopped him up with axes and bushknives and left him there to bleed to death. They then set his house on fire and left. The killing was reported to police and police apprehended these prisoners. They all admitted the killing to the police. They all told the police they responded to the whole community’s cries and decision to put an end to the problem created by this reputed sorcerer.

It is important to set out the role played by each prisoner in the killing.

1. Boat Yokum: He was armed with an axe. He was on guard outside the house for other sorcerers who might come to fight them whilst the others attacked the deceased.
2. John Yowa: He was armed with an axe. He also stood on guard whilst the others attacked the deceased.
3. Arabau Kakanana: He was armed with a knife and stood on guard or watch when the others attacked the deceased.
4. Bayuwe Eli: He was armed with a bushknife. He also stood on watch whilst the others attacked the deceased. He also cut the wall of the house.
5. Tawan Yasiling: He was armed with a bushknife. He knocked on the door of the deceased’s house and pulled him out and took him outside for the others to attack him. He and Bagon Yokum held the deceased for the others to cut him.
6. Bagon Yokum: He was armed with a bushknife. He dragged the deceased out of the house with Tawan Yasaling and both of them held him.
7. Totonu Kakanana: He was armed with an axe. He chopped the deceased’s right hand first.
8. Tarao Kakanana: He was armed with a bushknife. He cut off the deceased’s right hand which his "other brother (Totonu) had cut out first."
9. Mine Basanu: He was armed with a shotgun. He stood on the road junction and shot the deceased on his right knee to "paralyze him but he died after loosing a lot of blood."
   

At the outset, I say that notwithstanding the different roles played by each prisoner in actually inflicting the injuries sustained by the victim, they all shared the same intention to do grievous bodily harm, they acted in concert and in unison. This was clear even in court when they made the same remarks on allocatus and spoke in support of each other. And so, by virtue of S.7 of the Criminal Code, I will treat all of them as principal offenders for the purposes of sentence.

There is overwhelming evidence led at the trial and information supplied to the Court in various reports from various interested Church groups, community leaders, the two Pre-Sentence Reports prepared by the Probation office and information supplied by the accused themselves, that despite the introduction of government services in law, order and education; and the presence of Christian Mission influence in the area; for many many years, belief in sorcery and the powers of sorcery and the practice in sorcery still exists in that area. Repeated efforts by Church groups and government officers to discourage or eliminate this practice or belief system has been unsuccessful. People still fear the powers wielded by sorcerers. This was clearly evident when Local Councillor and Lutheran Church elder of the area of many years standing, Mr. Katoana gave evidence for the defence. He said he did not report to the police some 53 deaths caused by the deceased, many of which the deceased confessed openly, because he feared for his own life from acts of sorcery. Then there is abundance of information suggesting that the community sees nothing wrong with the killing and they want the prisoners to be released from prison so that they can return to the village and make peace in their own customary way. Notable of them is the son of the deceased Issac Ikwuin and the deceased’s uncle Mr. Jacob Ewak. Both of them in their Statutory Declarations admit that the deceased was a sorcerer, that they have no bad feelings against the prisoners and that they want them to be released so that they can make peace in the village. They say peace will only be restored if the prisoners are released. But they do not say how or what form the peace settlement will take. There was some vague suggestion from the prisoners’ counsel Mrs. Raymond, of compensation payment but there is no precise information on this. It seems from Mr. Katoana’s evidence that it will mainly involve some ceremonial peace-making activity such as the two sides "breaking sugar" "tanget" followed by a feast to signal the cessation of hostilities.

Most of the nine accused are young first offenders aged between 14 – 21 years old and single. John Yowa is the youngest and he is aged 15. The rest of them are aged between 16 – 21 years old. Totonu Kakanana is the oldest aged 30 years and married with a wife followed by Karao Kakanana aged 25 years who is single. All of them have had either primary or secondary school education. Only Mine Basanu is educated up to Grade 10 in 1998, the rest are educated at community school level between Grade 3 – 6. They all belong to the same Christian Church, the Lutheran Church. Apart from those distinguishing factors, there is little in terms of background to distinguish them. Notwithstanding their education, they are young, (apart from Totonu Kakanana) village men. Their behaviour is largely influenced by traditional belief systems and customs.

The maximum punishment for murder is life imprisonment. But the Court has a discretion under S.19 of the Criminal Code to impose a term of years in appropriate cases. 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.

In relation to the rehabilitation theory, I note the views expressed by members of the bench in Unama Aumane’s case that the Court should not place much emphasis on this theory because no punishment of a kind referred to in the Criminal Code can cure or correct their belief in sorcery. This is because sorcery killing is regarded as a payback killing, which is pure vengeance, and a punitive and deterrent sentence is necessary. However, with respect, in my view, I believe there does exist avenues under S.19, which all gives the Court the discretion to incorporate some avenues in its sentence, for rehabilitation of this kind of offenders, in an appropriate case. Such provisions would enable them to undergo some form of rehabilitative education or training which would make them change their belief about sorcery and the powers of sorcery. An appropriate form of education is Christian education. Speaking as a Christian myself, and I am sure most if not all of us in this Courtroom, and most if not all Christians in PNG would agree with me, that the belief in the powers of sorcery or witchcraft, or other forms of belief systems and practices having links to supernatural powers such as magic, vada, mura mura, sanguma and so on; and belief in the Christian triune God and his powers; cannot co-exist side by side in the same person’s belief system. As I put it bluntly to Councillor Katoana when he gave his evidence, if one identifies himself or herself as a Christian, then he or she cannot at the same time entertain and/or practice sorcery or the belief in the powers of sorcery. One belief system has to give away to the other. This I believe, and I am certain all Christians would agree, is one of the basic tenets of the Christian faith, that we as a Christian country so proudly identify ourselves with, under the Constitution. Belief in sorcery and the powers of sorcery in my view can be corrected, by appropriate Christian education. And there are teachings in the Holy Bible, which provide for the rejection of these kinds of beliefs.

I accept the view expressed in Aumane’s case that sorcery killing is a payback killing, which is pure vengeance, and that a punitive and deterrent sentence is necessary. This is particularly necessary where the community has strong beliefs in sorcery even after long years of government and Christian influence such as in the present case. I also accept the view expressed in that case that the Court should not be so pre-occupied with the interests of the offenders that the interest of the community is ignored or forgotten. And I intend to give effect to these principles by the sentence I impose in the present case. But in a case such as the present where there much evidence to suggest that the rehabilitation theory need to be emphasized, the Court should not waiver from that responsibility. For it is also in the interest of the community that a sentence which incorporates and emphasizes the rehabilitation theory should be given effect to; to ensure that Christian offenders return to their villages with a better understanding of the two different belief systems and having made a firm decision to turn away from the belief in sorcery and the powers of sorcery and witchcraft systems; which I believe generates, incites or encourages deep hatred among the people in the community, even among Christians, and promotes unlawful activities in the community. Christianity does not stand for or uphold these kind of ungodly activities.

In the present case, upon my request, after I received the first Pre-Sentence Report from the Probation office in Lae, I requested a further pre-sentence report on this aspect of Christian education, that is, as to the prisoners suitability to undergo some intensive Christian education, either at the prison or outside, to educate them about the deep contrast between these two different belief systems, and get them to make an informed choice about which belief system to accept (or reject) and follow. In the course of this exercise, I have ensured that the Christian education the offenders are being offered and choose to undergo and the Christian educator and the Church denomination, which sponsors the programme, which they choose, is purely voluntary. The Probation office has identified Pastor Haiti Gedisa of the AOG Church, Lae, who offers a course entitled "Intensive Christian Discipleship Training Course" at Buimo CIS. I understand this course can run for 6 months and take up to 1 year. I also asked Mr. Haiti to come to court and explain the course. He explained the course to me and produced some documentary materials and course programme for my information. I am grateful to Mr. Haiti and the Church that he represents for taking the initiative to offer this special course. I am satisfied that Mr. Haiti understands the kind of training or education the Court wants these people to undergo. Notwithstanding their different Christian denominational background, they have all chosen Pastor Haiti’s course. I am satisfied that each of the prisoners have made an informed choice in accepting Mr. Haiti’s Church education training. I am also satisfied that the course he is offering is relevant to the subject at hand. In these circumstances, I will accommodate this aspect in my sentence.

In determining the appropriate sentence in this case, I consider that the facts of this case and the mitigating and extenuating circumstances do not warrant the maximum sentence of life imprisonment. In determining the term of years, amongst other things, I will take into account the mitigating and extenuating circumstances of the offence and balance those against and the aggravating factors.

Firstly, in relation to the sentencing trend for sorcery related killing, there are several cases including Unama Aumane’s case but there is one case, the facts of which to some extent resemble the present case. That is the Supreme Court decision in the case of Agoara Kelo and Karunai Uraki v. The State SC198 (1981). In that case, the prisoner killed a reputed sorcerer who was suspected of killing 18 other people through sorcery previously. The Supreme Court on appeal against excessiveness of an eight year sentence imposed by the National Court, dismissed the appeal and confirmed the sentence.

Angoara Kero’s case was a wilful murder case which was decided in 1981, some 6 years after independence, when sorcery killings were common in certain parts of the country and government and Mission influence was not quite that strong. It is now more than 20 years since, and things have changed. Government influence and mission influence is much stronger nowadays. Consequently, sorcery killings also have been reduced in most parts of the country but there are still those societies such as the community where these prisoners come from where belief in powers of sorcery is still strong and killing of sorcerers still exist. I am not sure if a stronger punitive and deterrent sentence will stop the people’s belief in the powers of sorcery and witchcraft, but I am sure a stronger punitive and deterrent sentence may or can minimize or even eliminate this kind of killing.

Secondly, the mitigating and extenuating circumstances of the offence. All the offenders except Totonu Kakanana are young. They are all village men whose ways are largely influenced by traditional customs and lifestyle. They have a good family, education and Christian background. Except for Mine Basanu, they have all pleaded guilty to the charge of murder and saved the Court’s time and co-operated with the police and freely admitted the offence. In Mine Basanu’s case, the primary basis for his conviction is his confession to police as contained in the Record of Interview. Even though he denied the charge and a trial was conducted, I will give him due credit for his admissions. They all have no prior convictions and all are of previous good character. They all appeared before me and expressed genuine remorse. They each believed that what they did was in honour of their duty to the community, which afterall made the decision to terminate the deceased’s life.

Thirdly, the aggravating factors. Against the accused, the circumstances of the killing shows that this was as serious killing. The killing was pre-planned, there was a strong intention to cause grievous bodily harm to the deceased, the deceased was surrounded and attacked in a brutal manner without warning and without giving him a chance to explain his side of the story as if they had every right to take his life or that he was entitled to be extinguished from this earth for his alleged wrongdoing. And even after these accused have been taken to Court, they still maintain that they did this for the community because the community authorized it. This kind of behaviour is wrong and only a tough custodial sentence can punish this kind of criminal behaviour.

In determining the appropriate sentence for each accused, I need to balance all the above factors and impose a sentence, which fits the crime.

As to the issue of parity of sentence, I have decided to impose different sentences based on their plea, youth, and more importantly, the nature and extent of their participation in the killing. I list them in the order of seriousness:

1. Mine Basanu – Although he is aged 21 years old, his case was a trial. As the older brother of the deceased Gessi, he was the most offended by the deceased’s actions in causing the death of his brother, and no doubt led the charge. He is also the better educated of them all. He demonstrated his leadership in Court by speaking for the rest of them. He inflicted the most serious injuries with the only shotgun used in the killing.
2. Totonu Kakanana – He is aged 30 years old and the only person who is married. He chopped off the deceased’s right hand first. He was obviously the second person in command.
3. Karao Kakanana – He is aged 25 years old. He chopped the same right hand chopped by Totonu.
4. Tawan Yasaling & Bagon Yokum – They are young aged between 16 – 18 years old. They entered the house and dragged out the deceased and held him on both sides for others to attack him.
5. Boat Yokum, Arabau Kakanana and Bayuwe Eli – they are aged between 16 – 18 years old. They stood on guard whilst the others attacked the deceased.
6. John Yowa – He is aged 15, and the youngest of them all. He stood on guard. He obviously would have been pressured by the rest to join.
   

I now impose the following sentence. I sentence Mine Basanu to 10 years imprisonment IHL; Totonu Kakanana and Karao Kakanana to 9 years; Tawan Yasaling and Bagon Yokum to 8 years; Boat Yokum, Arabau Kakanana and Bayuwe Eli to 7 years and John Yowa to 6 years. I deduct the period of 2 years 3 months for pre-trial custody in respect of each prisoner’s sentence. I suspend ½ of the sentence of each prisoner on the following conditions –

1. Each prisoner shall undergo 6-12 months Intensive Christian Discipleship Education Training offered by Pastor Haiti of the AOG Church, Lae. Upon Completion of the education programme, a Certificate of completion shall be issued by Mr. Haiti. The CIS, Buimo and the Probation office in Lae in consultation with the Court, is to release the prisoners under the suspended sentence.
2. Upon release from prison, each prisoner shall attend every Sunday Service for 2 years in their own congregation in the village.
3. Each prisoner shall be of good behaviour for 2 years upon their release from custody.
   

This means that Mine Basanu shall serve 2 years 9 months, Totonu Kakanana and Karao Kakanana to serve 2 years and 3 months, Tawan Yasaling and Bagon Yokum 1 year and 9 months, Boat Yokum, Arabau Kakanana and Bayuwe Eli 1 year 3 months and John Yowa 9 months before they are released on their suspended sentences.
________________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for each accused : Public Solicitor