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State v Nohuta [2016] PGNC 98; N6304 (9 May 2016)

N6304

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 651 OF 2015

BETWEEN:

THE STATE

AND:
HENRY NOHUTA

Popondetta: Davani .J

2016: 7^th, 9^th May

Counsel:

Mr D. Kuvi, for the State
Mr F. Kirriwom and E.Yavisa, for the Prisoner

SENTENCE

9th May, 2016

1. DAVANI.J: On 7^th May, 2016, the State presented an indictment alleging that on 27^th September, 2014, at Erevo Village, Higaturu LLG, Oro Province, HENRY NOHUTA (the “Offender”), of the same village, killed Augustus Oivo (the “Deceased”), by cutting him with a knife. He is charged with 1 count of murder under s.300 (1) (a) of the Criminal Code. This provision reads;
“S. 300. Murder

(1) (a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

....

Penalty: Subject to section 19, imprisonment for life.”

2. On arraignment, the Offender pleaded guilty to the charge.

3. The maximum penalty for this offence is life imprisonment, subject of course to the courts sentencing discretion under s. 19 of the Criminal Code.

Facts

4. The facts the Offender pleaded guilty to are that before the 27^th September, 2014, the Offenders son was very ill. On 27^th September, 2014, as he was on his death bed and about to die, he called the Deceased’s name and said that it was the Deceased who had caused his illness through sorcery.

5. On hearing this, the Offender armed himself and together with his sons, went looking for the Deceased to kill him. When they found him, they chased him down a slope to a creek. It was there that the Offender then cut the Deceased on his back causing a large laceration. The others joined in and continued to cut the Deceased all over his body. The Deceased died instantly as a result of the multiple knife wounds he sustained from the knife attack upon him.

Allocatus

6. The offender was very apologetic and remorseful. He said words to this effect, some of which I will set out hereunder.

“I say sorry to God, sorry to the State and sorry to the sorcerer. I say sorry to my family, the community and everybody here.

This wrong is my first time. I am now 65 years old.

This man killed my last father and he died. Second was me. I had a swollen stomach for 3 months....

My family gave his family K6000.00. They also gave his family lots of food.3 pigs were killed. The police witnessed this event.

...

I am sorry to the court. Sorry your honour, I did this wrong. Give me probation.”

Mitigating features

7. Basically, the mitigating features of this case are;

• The Offender’s guilty plea;
• The Offender cooperated with the police in that he did admit to having committed the offence when the police interviewed him;
• His display of remorse in court;
• He is a first time offender.

8. Counsel for the offender submits that a special mitigating feature that the court must take into account is that, there was provocation in the non legal sense. I discuss this further below.

Aggravating features

9. These are;

• a loss of life;
• a group attack;
• a weapon was used;
• multiple blows were inflicted upon the victim.

Analysis of submissions and the law

10. I have heard that the Offender is aged 65 years; he is married and has 10 children. Two of his children are now deceased. He does not have any formal education and as at the date of the offence, he was a villager and a subsistence farmer.

11. In this case, the Offender attacked the Deceased in the manner he did because he believed very strongly that the deceased had made him sick earlier and thereafter, cured him. He also believed very strongly that the Deceased had just killed his son by sorcery. In fact, he told that the court that upon hearing his son tell him that he was sick because the Deceased had made magic on him, he promptly left his son, picked up a knife and with vengeance on his mind, went looking for the Deceased to kill him. When he did find the Deceased, he, together with his sons, chased the Deceased, caught him, and then proceeded to cut him.

12. The Coroner’s report from the Popondetta General Hospital dated 26.1.15, and signed by surgeon Dr Opum Petrus, summarises the injuries sustained by the Deceased as;

1. left chest open wound with fractured 11^th and 12^th ribs;
2. left lung laceration from the same wound;
3. fracture of the 4^th and 5^th lumbar spine and spinal cord transaction;
4. multiple lacerations and abrasions;
5. left parital open skull fracture;
   

13. The injuries suffered by the Deceased are quite extensive and serious, denoting the violent manner in which he was attacked.

14. The killing of persons suspected to be sorcerers, both male and female, is very prevalent in this country. Since Acting Public Prosecutor v Uname Aumane [1980] PNGLR 514 and Kwayawako v The State [1990] PNGLR 6, sorcery related killings have been placed in a special category, because of the cultural implications associated with it. Comparatively light sentences were imposed then. But putting sorcery related killings into a special category and imposing relatively low sentences is now no longer an appropriate sentencing practises. See John Baika v The State (2005) SC 796.

15. In Irai Thomas v The State (2007) SC 867, the Supreme Court said 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. See also State v Sedoka Lota and Fred Abenko (2007) N3183.

16. Since then, the courts have taken the stance that sentencing in sorcery related killings must be deterrent in nature and must be treated as an ordinary homicide. This was done in The State v Harmony Naba (2013) N5308. In that case, the prisoner pleaded guilty to murder under s.300 (1) (a) of the criminal code. The facts were that the prisoner was walking on the road with others when the deceased walked past. The prisoner then suddenly attacked him with a bush knife. His explanation for his actions was that about two years before the killing, the deceased had taken his sister at a very young age and married her. And she died soon after. The prisoner blamed the deceased for her death saying he killed her through sorcery.

17. The prisoner was sentenced to 18 years, after consideration of the categories in Manu Kovi v The State (2005) SC 789.

18. Both counsel for the State and Defence counsel submitted that a sentence of 20 years is appropriate because the circumstances of this case fall within the third category of Manu Kovi v The State (2005) SC 789. However, the case of Simon Kama v The State (2004) SC 740, decided a year before Manu Kovi, had already set sentencing guidelines. The closest category in Simon Kama which this case falls under is the second category, which places a sentence between 17 to 30 years, where the prisoner, on a murder case, had entered a guilty plea with aggravating factors, other than the use of firearms and the commission of another serious offence.

19. The manner in which the Deceased was killed denotes that the Offender was intent on maiming, disfiguring or even killing the victim. The original charge of wilful murder was reduced to murder after the Offender agreed to make a plea. Which means sentence must be at the mid or upper end of the sentencing range of 17 to 30 years, as was done in Harmony Naba 3 years ago.

20. I have taken into account all the mitigating factors and have weighed them against the aggravating factors. The aggravating factors far outweigh the mitigating factors. I note that compensation was paid but that does not go towards reduction of sentence. I find that a sentence of 20 years is appropriate.

21. The sentence of 20 years will be reduced by the time spent on custody on remand of 1 year, 7 months and 2 weeks.

Public Prosecutor : Lawyer for the State.

Public Solicitor : Lawyer for the Offender.