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State v Mathias [2011] PGNC 228; N4670 (9 September 2011)

N4670

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOs. 846 & 847 OF 2008

THE STATE

V

MALACHI MATHIAS
&
JOHN GIAMALU

Lae: Gabi, J
2011: 9th September

CRIMINAL LAW – Sentence – Criminal Code s300 – murder – killing of alleged sorcerers where no threat to offenders – types of sorcery killing – sentences of 18 years and 16 years IHL

Facts:

After a trial the offenders were found guilty of murdering three (3) persons suspected of sorcery by assisting in the beating and torturing of the deceased. The deceased were dragged out of a police station and a policeman's house. One of the deceased was a ward councillor. The three (3) offenders were part of a group of about forty (40) people who took part in the murders and are the only offenders from the group who have been brought to justice.

Held;

1. Removing a deceased from the safety of a police station to attack him is an aggravating factor, at [20];
   
2. Attacking politicians, community representatives or leaders is an aggravating factor, at [20];
   
3. There are three categories of sorcery killing:
   
   1. Because a close family member or friend has died;
   2. The offender believes the sorcerer will kill him in the near future;
   100. Where the offender has a general belief that the victim is a sorcerer, although there is no threat to the offender, this is a more serious category, at [21];
        

4. Malachi Mathias sentenced to eighteen (18) years imprisonment in hard labour on each count and John Giamalu to sixteen (16) years imprisonment in hard labour on each count, at [37].

Cases Cited:

Acting Public Prosecutor vs. Uname Aumane & Others [1980] PNGLR 510
Avia Aihi vs. The State (No. 3) [1982] PNGLR 92
Gimble vs. The State [1988-89] PNGLR 271
Irai Thomas vs. The State (2007) SC867
John Baipu vs. The State (2005) SC796
Kwayawako vs. The State [1990] PNGLR 6
Paulus Mandatitop & Another vs. The State [1978] PNGLR 126
Public Prosecutor vs. Apava Keru and Aia Morio [1985] PNGLR 78
Roger Jumbo vs. The State [1988] PNGLR 197
Secretary for Law vs. Ulao Amantasi [1975] PNGLR 134
The State vs. Aiaka Karavea & Anor (1983) N452
The State vs. Aiaka Karavea (1984) N452 (M)
The State vs. Baipu Martin & Ors (2008) N3312
The State vs. Boat Yokum & Ors (2002) N2337
The State vs. Gena & 4 Others (2004) N2649
The State vs. John Kanua Siune & Kenneth Kunda Siune [2006] PGNC 112
The State vs. Maraka Jackson (2006) N3237
The State vs. Nick Sambra & Another (2002) N2219
The State vs. Sedoki Lota and Fred Abenko (2007) N3183
The State vs. Siune Arnola (1997) N1658
The State vs. Urari Siviri (2004) N2747
The State vs. Wilfred Opu Yamande N'danabet (2004) N2728

Counsel:

N. Lipai, for the State
R. Yayabu, for the prisoner

SENTENCE

9th September, 2011

1. GABI, J: Introduction: Malachi Mathias and John Giamalu, the prisoners, have been found guilty of murder of Chris Wandap, Dominic Wandap and Sani Wandap contrary to section 300 of the Criminal Code. This offence attracts a maximum penalty of life imprisonment.

Facts

2. It is alleged that members of Wandap family practiced sorcery or witchcraft and were accused of causing a number of deaths in Zenag village. The State conceded right from the beginning of the trial that the killings of Chris Wandap, Dominic Wandap and Sani Wandap were sorcery related.

3. At about 7.00 am on Friday 23rd November 2007, the deceased persons together with Gou Wandap and Vincent Bawe sent their mother Sabina Wandap on a Public Motor Vehicle (PMV) to Lae. On their return to the village, they noticed youths and village leaders, numbering approximately forty, gathering near the Police Station. The youths and village leaders were painted in black charcoal as if they were on the war path. Sensing trouble the deceased persons together with Gou Wandap and Vincent Bawe sought refuge at the Police Station. Chris Wandap and Sani Wandap went to the Police Station while Dominic Wandap, Gou Wandap and Vincent Bawe went to Sergeant Lahana's house, which is approximately 75 meters from the Police Station.

4. The prisoners were amongst the group of people that were gathered near the Police Station. The group then dashed into the Police Station and after overpowering the Policemen on duty, dragged Chris Wandap and Sani Wandap out of the Police Station and started assaulting them. Later on they went to Sergeant Lahana's house, forced open the door and dragged out Dominic Wandap and Gou Wandap and started to beat them outside the Police Station. Vincent Bawe, who managed to hide in one of the bed rooms, was able to escape the punishment. This indicates to me that the anger and attack was directed at the members of Wandap family and no other.

5. The prisoners and their accomplices continued to torture and beat the deceased persons and Gou Wandap from the Police Station all the way to Zenag village. At the village, they questioned them about their sorcery material and power and when the deceased persons and Gou Wandap denied their involvement in sorcery the beatings and torture continued and became more intense. The beatings and torture continued into the night and in the early hours of Saturday 24th November 2007 they attempted to escape. Gou Wandap was able to escape while the deceased persons were caught. They were then beaten and tortured and dragged away to the village cemetery where they were alleged to have been murdered and buried at an unidentified location. It appears that it was a slow death. The deceased persons were literally tortured to death.

Antecedent Report

6. The antecedent report shows that the prisoners have no prior convictions.

Allocutus

7. The prisoners were given the opportunity to address the Court on sentence. Both said they accept the guilty verdict but denied any involvement in the killings. They asked for mercy, leniency and light sentences. Malachi Mathias is the only one who expressed remorse and said the killings were done by the community.

Pre – Sentence Report

8. A pre-sentence report was compiled and presented to me.

9. Malachi Mathias is twenty-nine (29) years of age and married with three (3) children. Both of his parents are alive and there are five (5) of them in the family. He has grade 8 education and obtained a certificate in motor mechanic from Bulolo Vocational Centre. He was a PMV driver before his arrest and detention. He is in good health.

10. John Giamalu is sixty (60) years of age and married with four (4) children; they are all adults now and have moved out and live on their own. He has grade 6 education and obtained a certificate in building and joinery from Finschhafen Vocational School in 1977. He is a member of Four Square Church and is asthmatic.

11. Mathias Lucas, the father of Malachi Mathias, was asked about the killings as well. He admitted that nearly everyone from Zenag village were involved and implicated in the killings.

12. Tarasa Wandap and his relatives, Joseph Baroa, Jimmy Amua and Koita Titovia, were also interviewed during the preparation of the pre-sentence report. They expressed their anger and frustrations in that the suspects, whose names have been given to Bulolo Police, continue to roam free and are at large in Zenag village and no attempts appear to have been made by Police to have them arrested and brought before the courts.

Sentence

13. In this case, the prisoners are the only persons, out of about forty (40) people that took part in the brutal killings of the three (3) Wandap brothers, who have been arrested and charged for this heinous crime. It is said that the rest of the offenders are known to Police and are moving freely in the community but no attempts have been made to bring them before the Courts to be dealt with according to law. If this is the best the Police Force of this country can do, then it is a very disturbing and sad state of affairs. It certainly sends a wrong signal to the public that alleged sorcerers can be brutally killed and Police will turn a blind eye to it. This has the potential to lead to the relatives of the deceased persons to take the law into their own hands. In view of the nature and the seriousness of the matter, it is strongly recommended that the Public Prosecutor refers this matter to the Police Commissioner for further deliberations and/or action. In sentencing the prisoners, I remind myself not to make them a scapegoat for a crime committed by numerous others, including Policemen, who might never be brought to justice.

Sorcery to be established

14. To rely on sorcery, evidence must be called to establish the belief and there must be reasonable basis for the belief (see The State vs. Gena & 4 Others (2004) N2649; Public Prosecutor vs. Apava Keru and Aia Moroi [1985] PNGLR 78). In this case, it was conceded right from the beginning that the motive for the killings was their belief in sorcery. I am satisfied on the evidence before me that the prisoners had a genuine belief in sorcery and they believed that the deceased persons were sorcerers.

15. Sorcery killings are generally brutal killings carried out in the most vicious and barbaric manner. While there is no statistics before me, there is general agreement that sorcery killing is becoming prevalent in the country. The prevalence of the offence requires a deterrent sentence (see Paulus Mandatitop & Another vs. The State [1978] PNGLR 126). It is hoped that deterrent sentences will lead to the reduction or better still the eventual elimination of sorcery killings. I hold the view that the belief in sorcery should not overshadow the seriousness of sorcery killings, which have attracted relatively light sentences in the past. Sorcery killing is nothing more than taking the law into one's own hands. It is a form of payback killing (see The Acting Public Prosecutor vs. Uname Aumane & Others [1980] PNGLR 514). A sentencing judge must be careful not to send a wrong signal to the public that it is alright to kill sorcerers by imposing relatively light sentences. I agree with his Honour Injia, J (as he then was) in The State vs. Boat Yokum & Ors. (2002) N2337, where he said:

"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 vs. 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".

Sorcery killing is a special mitigating factor

16. The law in relation to sorcery and belief in sorcery, whether for good or ill, is a peculiarly Papua New Guinean law. It was an attempt to respond to and deal with this cultural phenomenon, which is prevalent universally in the country. A belief in the power of sorcery is a mitigating factor on sentence (see The Acting Public Prosecutor vs. Uname Aumane & Others (supra); Kwayawako vs. The State [1990] PNGLR 6; Roger Jumbo vs. The State [1998] PNGLR 197). Sorcery killings have long been established as falling into "special" category deserving special considerations on sentence. The sentences imposed have been comparatively light (see: The State vs. Siune Arnola (1997) N1658; Secretary for Law vs. Ulao Amantasi [1975] PNGLR 134; Public Prosecutor vs. Apava Keru and Aia Moroi (supra)). In Kwayawako vs. The State (supra), the Supreme Court stated at p. 8:

"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."

17. In John Baipu vs. The State (2005) SC796, the Supreme Court (Sevua, Sawong & Lay JJ) said that putting sorcery related killings into a "special" category and imposing a relatively low sentence was no longer an appropriate sentencing practice. Again in Irai Thomas vs. The State (2007) SC867, the Supreme Court (Kandakasi, Lenalia & David JJ) stated that the belief in sorcery is no longer a "special" mitigating factor and the weight to be attached to it depends on the facts of the case. In a number of his decisions, Kandakasi J has expressed the view that belief in sorcery should not be treated as a "special" mitigating factor but to treat it like any other mitigating factor (see: The State vs. Maraka Jackson (2006) N3237; The State vs. Baipu Martin & Ors (2008) N3312).

18. A similar sentiment was expressed by Sevua J in The State vs. Sekodi Lota and Fred Abenko (2007) N3183. He said:

"But killing someone is against the law and the Courts have a responsibility in demonstrating through the penalties they impose that the prevalence of a crime like this must be a public deterrence and retribution. The punishment must also show that the law does not approve of killing of sorcerers, no matter how much people believe in sorcery. In my view the Courts cannot continue to be indifferent in considering punishments for killing in belief in sorcery as opposed to the serious nature of such killings. I believe it is time that the Courts stopped saying that because a killing is related to the belief in sorcery, it should not attract the maximum penalty. I do not say that the belief in sorcery is not a mitigating factor, because it is. However I do not think that it should be accepted as a bar to serious punishment for the crime of wilful murder such as this case, so callous and unimaginable as it were."

19. In view of the rise in sorcery related killings in the country and the attempts by the Courts to reduce or eradicate it, the change in the attitude of the Courts, particularly the Supreme Court, is timely. However, we must not lose sight of the fact that matters such as the level of education, place of residence, influence of Christianity and access to government services and modern amenities like radios and TV etc on the lives of people vary from place to place and must be properly considered in sentencing.

20. I note two features which aggravate these killings. First, the deceased persons sought refuge in the Police Station and Sgt Lahana's house, which is about 75 meters from the Police Station. They felt that those places were safe places to go to. A person should feel safe in the custody of the Police (see Avia Aihi vs. The State (No.3) [1982] PNGLR 92; The State vs. Aiaka Karavea & Anor (1983) N452). The prisoners and their accomplices went into the Police Station and Sgt Lahana's house and dragged out the deceased persons and started to beat them in full view of the public. This shows a complete disregard for the rule of law. They were the law unto themselves. Second, Chris Wandap was a Ward Councilor and a member of the Local Level Government. He was a representative of the people and a community leader. I believe that people who attack or kill politicians, community representatives or leaders should be dealt with severely.

Range of sentence

21. There are different types of sorcery killings. First, the prisoner kills because a family member, a close relative or a close friend has died (The State vs. Aiaka Karavea (1984) N452 (M); The State vs. Siune Arnola (1997) N1658; The State vs. Nick Sambra & Another (2002) N2219; The State vs. Urari Siviri (2004) N2747; The State vs. Gena & Ors (2004) N2649; John Baipu vs. The State (2005) SC796; The State vs. John Kanua Siune & Kenneth Kunda Siune [2006] PGNC 112; Irai Thomas vs. The State (2007) SC867; The State vs. Baipa Martin & Ors (2008) N3312; The State vs. Sedoki Lota and Fred Abenko (2007) N3183). Second, the prisoner kills not only because a family member, a relative or a close friend has died but also that he is believed or rumoured to be killed soon or in the near future through sorcery. He kills to stop being killed (The State vs. Wilfred Opu Yamande N'danabet (2004) N2728; The State vs. Maraka Jackson (2006) N3237). Third, the prisoner kills because of his belief in sorcery generally without any real threat to him, his family, relatives or friends. I consider this type of killing to be more serious as there is no threat to the prisoner. This case falls into that category.

22. In The State vs. Aiaka Karavea (supra), the sister of the prisoners died while giving birth. While she was dying, she told the prisoners that the deceased was the cause of her illness. The prisoners believed that the sister and some of their relatives have been killed by the deceased through sorcery. The prisoners planned the killing and the younger of the two (2) brothers who located the deceased first executed him. The prisoners were sentenced to twelve (12) years and six (6) years imprisonment respectively.

23. In The State vs. Siune Arnola (supra), the prisoner killed the deceased because he believed that the deceased was responsible for the death of his sister through sorcery. A sentence of nine (9) years was imposed.

24. In The State vs. Nick Sambra & Another (supra), the prisoners planned to kill the deceased because they believed he caused the death of their father and a number of unexplained deaths in their area through sorcery. There was no proof that the deceased was the sorcerer but someone in the area said he was and the prisoners believed it. The deceased was shot while on his way to Church. The prisoners were sentenced to twenty (20) years and eighteen (18) years respectively.

25. In The State vs. Urari Siviri (supra), the wife told her husband before her death that the deceased was responsible for her illness. The husband believed what his wife told him and believed that his wife died through sorcery. When the wife died, a public meeting was held in the village where it was agreed that the deceased be eliminated as well. Following the meeting, the prisoner, his two (2) sons and other young men in the village dragged the deceased to the pastor's house tied her to a tree and beat her to death in the presence of others in the village. The prisoner was sentenced to eighteen (18) years.

26. In The State vs. Gena & 4 Others (supra) the killing happened spontaneously when the deceased visited the residence of the prisoners who were mourning the death of a relative alleged to have been killed by the deceased sorcerer. They got rid of the body by dumping his body at Baruni dump, which was deliberately done to prevent detection and suspicion. A sentence of twenty (20) years was imposed on all the prisoners.

27. In John Baipu vs. The State (2005) SC796, the prisoner was convicted on a guilty plea and sentenced to life imprisonment. He believed that his pregnant wife and father were killed through sorcery. He had placed a complaint of sorcery in the hands of Village Court officials more than a year before he committed the offence. Then he cut his seventy (70) year-old uncle with a bush knife and left him to bleed to death contrary to an undertaking he had given not to attack the sorcery suspects. It was not a case in which great weight could be placed on the mitigating effect of the belief in sorcery. Upon review by the Supreme Court, the sentence was reduced to twenty-five (25) years in hard labour.

28. In The State vs. John Kanua Siune & Kenneth Kunda Siune (supra), the prisoners were convicted after a trial of murdering a man they suspected had killed a friend of theirs by sorcery. It was a mob attack. The victim was bashed to death. A sentence of twenty-five (25) years was imposed on each prisoner.

29. In Irai Thomas vs. The State (2007) SC867, the appellant was convicted of wilful murder of a person he suspected of killing his father by sorcery. He was sentenced to eighteen (18) years imprisonment by the National Court but on appeal the sentence was increased to twenty-two (22) years. The victim was an elderly woman. The Court noted that the prisoner killed the deceased even though there was no basis for the claim that she had killed the prisoner's father.

30. In The State vs. Baipa Martin & Ors (supra), a mother of one of the prisoners was believed to have been killed through sorcery by the deceased. While the prisoners were mourning her death, the deceased walked into the house. The prisoners set upon him with axes, bush knives and a piece of black palm stick and brutally and mercilessly killed him in the full view of a lot of people. The prisoners were sentenced to 16, 22 and 24 years respectively.

31. In The State vs. Sedoki Lota and Fred Abenko (supra), the prisoners, who believed that their parents were killed by the deceased through sorcery, pleaded guilty to wilful murder of the deceased sorcerer. They were sentenced to death. They entered the deceased's house, tied both her hands, blindfolded her, and then chopped off her head with a knife. The trial judge accepted that the belief in sorcery could be a mitigating factor but stressed that the circumstances of the killing were so callous and unimaginable, it was a premeditated execution-style killing in which the culpability of the offenders was so grave that it warranted the death penalty.

32. In The State vs. Wilfred Opu Yamande N'danabet (supra), there was evidence of belief in sorcery in the Record of Interview. The prisoner believed that the deceased, who was his brother in law, killed his brother by sorcery. The prisoner alleged that the deceased told others that he would kill the prisoner by sorcery. He had to kill the deceased before the deceased killed him. The court found that the prisoner killed because of his belief in sorcery. The prisoner used a knife to stab the deceased on the back and the neck. He was sentenced to twenty (20) years imprisonment.

33. In The State vs. Maraka Jackson (supra), the prisoner killed a Village Court Magistrate, who he believed caused the deaths of his brothers through sorcery and that he was going to kill him next. He killed the deceased to stop him from killing him. A sentence of twenty-four (24) years was imposed.

34. It is clear from the above cases that over the years there have been an increase in sentences in sorcery related killings. This is due to the prevalence of sorcery related killings and the attitude of the Courts that belief in sorcery is a mitigating factor; not a "special" mitigating factor deserving special considerations on sentence.

35. In this case, the prisoners, who are first cousins, actively took part in the assault of the deceased persons. On 23rd November 2007, the prisoners were in the group that assaulted Gou Wandap and the deceased persons from the Police Station to the village and continued the beatings into the night. They were not in the group that led the deceased persons away before the Police arrived in the village at about 9.00 am on the morning of 24th November 2007. However, they were again seen in the evening, between the hours of 7.00 pm and 9.00 pm, at 2-Mile Settlement in Lae together with a lot of people, including a Policeman Simon Yana, looking for Gou Wandap, his mother Sabina Wandap and his sister Oren Wandap. They went to Lae in a vehicle driven by Malachi Mathias.

36. There is no doubt in my mind that the prisoners played a significant role in the beatings and torture of the deceased persons. They were also in the group that went to Lae looking for Gou Wandap, his mother and sister. The prisoners must bear their share of the burden. The general rule is that all active participants in the crime should be sentenced on the same basis. In Gimble vs. The State [1988-89] PNGLR 271 at 273, the Supreme Court said:

"the Court does not normally stop to consider whether a particular prisoner actually held up the victim or held the gun, or the iron bar or was a watchman outside, or was the driver of the getaway vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

37. For all the above reasons, I sentence Malachi Mathias to eighteen (18) years imprisonment in hard labour on each count and John Giamalu to sixteen (16) years imprisonment in hard labour on each count. The sentences are to be served concurrently. The pre trial periods in custody shall be deducted from the head sentences.

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