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State v Kakiwi [2018] PGNC 273; N7385 (24 July 2018)

N7385

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 4, 5, 8, 10, 11, 13-22, 24-27, 29-32, 34-37, 39-41,
43-46, 48-50, 52-54, 56-61, 63, 65-67, 69-75, 77, 78, 80,
81, 83, 85-89, 91-93, 96-98, 100-110, 112-123, 612 & 1044 OF 2015

THE STATE

V

DONI KAKIWI, JACK TUKO, JOHN WAKU,

KANDE KOKI, KINDA YAMESE, LOUIE PETER,

MARTIN USI, MAX DAVID, MAXSON KOPORE,

MERA KIKI, OUA BINARU, PIU GWARO,

SIRRE ITOWO, TAI WAKKE & WANDOKO SOMANDA

OF SERENGO VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

BAKUN MOA, DENMARK KUTS, EDDIE INGEMA,

ENOS AWARE, GIBSON MASILI, IMEX GAOSA,

ISONO KAU, JACOB SISI, JAMES ONIRIO,

JEFFERY RONNY, JOE NICK, KIRORI GERUNGO,

KIRISO WAKE, KOKI KEWA, KUMA TOUKINI,

KUNDOKE PIYE, LOUIMACK AMANI, MAX UTO,

MENANGO KENGKE, MOMORIKE SEPE, NICK ISAHARA, NOGURO SUA, OKAPA MIMO, OSCAR USI,

PETRUS KOMA, POPPE DUMA, PUE KUPI,

ROBERT BURINGA, SIMON TOWERA, SIMON DUMA,

SIMON MANEWO, TAMSI VIO, TANUWAMA KEPA,

WAKS AWANDA, WAMBUNA TOSI, WANIX DOWENA,

WESLEY KAISOM, WINSON DOS, YAWENDA BENSON

& YUWOI KOKI

OF GOMUMU VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE
AND

AKINU DOWENA, EPPON MATA, JACK MOPI,

JOHN TULI, LAKI MIRAKA, LUCAS PETRUS,

MARCUS KISANGA, MARTIN JOHN, NDOUSI PORURU,

ONIRIO BOMA, PAUL PERAU, POURO BINARU,

REUBEN DAOMBON, SEPI YAMBA YAMESE, STEVEN DAVID, TEUWI BIAO, TIMITY JOE, TONY YURO,

ORAIYO URAIA MAX, WIKO MURU & YUO GOM

OF GOIRO VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

DONSI KUMBI, ISAAC HUYANGO, KEAO TIRA,

KOKI MARI, KONI TESIO, LOUIE IROA,

OPS GINU, ROBERT ARRE, SAI MEKU,

TIPE OUSI, YAMAKS NONOPA & YAMANGA KIREI

OF NININGO VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

AKEPE TUKO, ENOCH BUARA, JOHNSON KAFEMO,

KAMINDE PIYOMI, NASA TOKO, NASAKE WIKO

& ONI TITUKUN

OF NUMBAYA VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

AND

TUKI GOWI & THOMPSON MUNGO

OF SARANGA VILLAGE, RAI COAST DISTRICT,

MADANG PROVINCE

Madang: Cannings J
2018: 19, 20 June, 6, 19, 20, 24 July

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction of seven counts of wilful murder after trial – armed offenders marched in a group to a village – seven persons killed – consideration of death penalty.

This is a judgment on sentence for 97 offenders who were each convicted of seven counts of wilful murder after trial. They marched in a group to a village, motivated by concerns about a number of deaths in the area attributed to sorcery. Some suspected sorcerers had taken up residence in that village. On the way to the village some members of the group attacked and killed a bystander. The group proceeded to raid the village and destroyed property including houses and food gardens. Members of the group attacked and killed six village residents: one 20-year-old man, three elderly men and two young boys. Eight of the 97 offenders were found to have directly committed the crime of wilful murder of at least one of the deceased. All of the 97 offenders were convicted of the seven counts of wilful murder under both Section 7 (for aiding and assisting those who directly committed the offences) and Section 8 (for committing offences while prosecuting an unlawful purpose) of the Criminal Code. Their personal circumstances were similar.

Held:

(1) The starting point for sentencing for this sort of wilful murder (worst case scenario, mitigating factors rendered insignificant by gravity of offences, brutal killings, killing of children and elderly persons, multiple killings) is the death sentence.

(2) Mitigating factors: no prior convictions; some compensation paid to relatives of the deceased; some attempt at reconciliation; cooperation (in most cases) with Police and the Court and the justice system; expression of remorse.

(3) Aggravating factors: use of lethal weapons, barbaric killings, killing of defenceless persons.

(4) It was appropriate to sentence the offenders in two categories: (a) the eight offenders found to have directly committed the crime of wilful murder of at least one of the deceased, were sentenced to death; (b) the other 89 offenders were sentenced to life imprisonment.

Cases cited:

The following cases are cited in the judgment:

Alois Erebebe & Taros Togote v The State (2011) SC1135
Alois Erebebe & Taros Togote v The State (2013) SC1228
Botchia Hagena, Peter Taul & Tobung Paraide v The State (2017) SC1659
Gimble v The State [1988-89] PNGLR 271
Ignatius Pomoloh v The State (2007) SC834
Irai Thomas v The State (2007) SC867
John Baipu v The State (2005) SC796
Manu Kovi v The State (2005) SC789
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836
The State v Alphonse Hapot (No 1) (2015) N6455
The State v Alphonse Hapot (No 2) (2016) N6452
The State v Ben Simakot Simbu (No 1) (2004) N2573
The State v Ben Simakot Simbu (No 2) (2004) N2546
The State v Doni Kakiwi & 96 Others (2018) N7067
The State v Eric Naks Lako & Keith Lasi Aira (2016) N6182
The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381
The State v Kenny Wesley (2011) N4609
The State v Kepak Langa (No 1) (2003) N2461
The State v Kepak Langa (No 2) (2003) N2462
The State v Mark Poroli (2004) N2655
The State v Sedoki Lota & Fred Abenko (2007) N3183

SENTENCE

This was a judgment on sentence for 97 offenders each convicted of seven counts of wilful murder.

Counsel:

F K Popeu & D Ambuk, for the State
J Morog & D Ephraim, for the offenders

24^th July, 2018
1. CANNINGS J: This is a judgment on sentence for 97 offenders who were each convicted of seven counts of wilful murder after trial. On the morning of Monday 14 April 2014 they marched in a group to Sakiko village, near Ramu town, Madang Province, motivated by concerns about a number of deaths in the area attributed to sorcery.

2. Some suspected sorcerers had taken up residence at Sakiko. On the way to the village some members of the group attacked and killed a bystander, Sike Wamne, a 35-year-old Jiwaka man who was walking to work at Ramu Sugar.

3. The group proceeded to raid the village and destroyed property including houses and food gardens. Some members of the group attacked and killed six village residents: one 20-year-old man, three elderly men and two young boys. Those killed were:

• 20-year-old Nick Uria (the deceased the subject of count 2);
  
• 70-year-old Yambung Nawoya (the deceased the subject of count 3);
  
• 73-year-old Beramo Tipupu (the deceased the subject of count 4);
  
• 70-year-old Baupa Dangingayo (the deceased the subject of count 5);
  
• 3-year-old Nathan Aki (the deceased the subject of count 6);
  
• 5-year-old Anao Gunumi (the deceased the subject of count 7).
  

4. Eight of the 97 offenders were found to have directly committed the crime of wilful murder of at least one of the deceased. All 97 offenders were convicted of the seven counts of wilful murder under both Section 7 (for aiding and assisting those who directly committed the offences) and Section 8 (for commission of crimes committed while prosecuting an unlawful purpose) of the Criminal Code.
Further details of the circumstances of the offence are in the judgment on verdict, The State v Doni Kakiwi & 96 Others (2018) N7067.

5. Nine of the 97 offenders escaped from custody after conviction and before sentence. They gave up their right under Section 37(5) of the Constitution to be present at their trial. They are sentenced in their absence.

ANTECEDENTS

6. Each offender has no prior convictions.

ALLOCUTUS

7. Each of the 88 offenders present at the sentencing hearing made a statement by way of allocutus. Each apologised for what happened, to God, to the Court and/or to their community. Each expressed remorse. Some said it was not their intention to see people killed; they just followed the group. Most sought the mercy of the court and asked for a non-custodial sentence. Many explained their personal circumstances and background, stressing that they had a family to care for and expressing great concern for the welfare and education of their children. Most expressed a willingness and desire to reconcile with the relatives of the deceased, pointing out that substantial compensation has already been paid, and more concerted efforts will be made, if and when they are released from custody, to bring peace back into their community.

PRE-SENTENCE REPORTS

8. The Madang branch of the Community Based Corrections office prepared a pre-sentence report for each of the 88 offenders present at the sentencing hearing. Most offenders fall within the age range of 18 to 35 years. Most have limited education and are subsistence farmers. They are from various villages within the Naho-Rawa Local-level Government constituency. Their local member of Parliament, Member for Rai Coast Open, Hon Peter Sapia MP, has explained the deep suspicion amongst many in the local community about activities of sorcerers and how these concerns peaked in early 2014, leading to the Sakiko incident.

9. Peace, surrender and reconciliation meetings and ceremonies, including a major event in Madang on 28 May 2018 conducted in the presence of Mr Sapia, have brought the conflicting parties together. The offenders themselves participated in some of these ceremonies in the period from May 2016 to March 2017 when they were on bail. Compensation has been paid in the sum of K56,000.00 to the relatives of the deceased, Sike Wamne. A further K36,000.00 compensation has been paid to the relatives of the deceased Sakiko residents.

10. The indication in the pre-sentence reports of concerted efforts being made to bring peace back to the community was complemented by sworn testimony at the sentencing hearing by Pastor Aware Koya of the Evangelical Lutheran Church. The Pastor’s evidence included video recordings, viewed in the courtroom, of elaborate events that took place at various villages in 2016.

11. Relatives of the deceased Sakiko residents were interviewed. Their attitude to the offenders has been summarised in the pre-sentence reports:

• 20-year-old Nick Uria (the deceased the subject of count 2): his parents regard their late son as a vulnerable child who could not fight back, but they killed him – they have received no compensation and want justice to take its course;
  
• 70-year-old Yambung Nawoya (the deceased the subject of count 3): his son wants the court to impose the maximum penalty on the offenders;
  
• 73-year-old Beramo Tipupu (the deceased the subject of count 4): his relatives want the court to impose the maximum penalty on the offenders;
  
• 70-year-old Baupa Dangingayo (the deceased the subject of count 5); his relatives demand compensation for the innocent old man’s death – if compensation is not paid, the problems will only escalate;
  
• 3-year-old Nathan Aki (the deceased the subject of count 6): his father states that there has been no reconciliation or compensation, so non-custodial sentencing options should no longer be explored;
  
• 5-year-old Anao Gunumi (the deceased the subject of count 7): his father states that there has been no reconciliation or compensation, so justice must be done for his innocent child who was vulnerable, weak and could not fight back.
  

12. The impression gained from the pre-sentence reports is that concerted attempts have been made towards peace and reconciliation. But the process is incomplete. The prevailing sentiment amongst the relatives of the deceased is that the offenders should be punished severely for what they did.

SUBMISSIONS FOR THE OFFENDERS

13. Mr Morog submitted on behalf of the offenders that despite the horrific nature of the killings, the Court must consider the special circumstances in which the offences were committed. The events took place because of a genuine belief in sorcery. These were not payback killings. The offenders formed a group called the Hausman as it was the consensus amongst a number of villages that drastic action had to be taken to weed out the scourge of sorcery. Too many innocent lives had been lost. So they did what they did.

14. It was submitted that there are many mitigating factors, which apply to all offenders:

• no prior convictions
• unsophisticated villagers
• families to care for
• heavy reliance by themselves and therefore their families on food-gardening and coffee as a cash crop
• cooperated with Police from the time of their apprehension on the morning of the incident
• compliance with bail conditions
• showed respect for the law
• demonstrated remorse for their actions
• cooperated with their community leaders and Pastors in the surrender and reconciliation process.
  

15. The position of the defence is that the offenders ought to be sentenced in two categories: those found to have directly committed an offence, and those not found to have been directly involved in commission of an offence. Those in the first category should receive a sentence of no more than 25 years imprisonment for each offence. Those in the second category should receive no more than 20 years imprisonment for the offence. The one transaction rule should apply as all offences were committed within a single incident in the space of a few hours. The sentences should be made concurrent.

SUBMISSIONS FOR THE STATE

16. Mr Popeu submitted on behalf of the State that though the offenders might have formed themselves into a group and raided the village and gone on a rampage because of a genuine belief in sorcery, that cannot detract from the fact that seven innocent and vulnerable victims, including three old men and two young boys, were mercilessly killed. There was no evidence that any of the seven victims was suspected of being a sorcerer. The only ‘sins’ of the victims was their inability to escape, because of their age (in the case of the three old men and the two young boys) or their being out-numbered (the 35-year-old victim, Sike Wamne, and the 20-year-old victim, Nick Uria).

17. The State’s position is that the eight offenders found to have directly committed one or more offence of wilful murder should receive the maximum sentence of death in respect of each of the seven offences of which they have been convicted, including those offences for which they have been convicted under Sections 7 and 8 of the Criminal Code.

18. For the other offenders not found to have directly committed any offence, they should be sentenced to death in respect of each of counts 2 to 7 (ie other than for the death of Sike Wamne) and to life imprisonment in respect of count 1.

19. The State’s position was that none of the sentences should be regarded as concurrent.

DECISION MAKING PROCESS

20. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for similar offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should any part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

21. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided ... a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A PROPER STARTING POINT?

22. I will apply the sentencing guidelines for wilful murder given by the Supreme Court in the two leading cases: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.

The Kovi guidelines

23. In Kovi the Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

SENTENCING GUIDELINES FOR WILFUL MURDER FROM KOVI

The Ume guidelines

24. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.

Applying the guidelines

25. Under the Kovi guidelines, this case falls within the worst case scenario: mitigating factors rendered insignificant by gravity of offences, brutal killings.
It is a category 4 case. The starting point is a death sentence.

26. Under the Ume guidelines, the death sentence is also the starting point as two of the eight scenarios apply: (1) killing of a child, a young or old person, or a person under some disability needing protection (two children and three elderly men were amongst the victims), and (6) killing of two or more persons in a single act or series of acts (seven persons were killed in a series of acts).

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

27. As the State is seeking the death sentence and such a sentence is an appropriate starting point, it is instructive to consider the cases decided in recent years that have resulted in death sentences. The table below, which summarises the relevant cases, is adapted from the judgment in Re Human Rights of Prisoners Sentenced to Death (2017) N6939.

TABLE 1: PRISONERS PRESENTLY UNDER SENTENCE OF DEATH
IN PAPUA NEW GUINEA

STEP 4: WHAT IS THE HEAD SENTENCE?
28. Though each offender has been convicted of the same seven offences, this is not an appropriate case for the same sentence to be passed on each offender. There is a view, reflected in cases such as Gimble v The State [1988-89] PNGLR 271 that if a group of offenders is convicted of the same offence each member of the group should get the same sentence irrespective of his degree of involvement. That is not a hard-and-fast rule. I prefer the approach taken in cases such as Ignatius Pomoloh v The State (2007) SC834: each offender must have their sentence determined by their particular individual circumstances, and this means making an assessment of their degree of participation in the crime. I uphold the defence submission that the offenders ought to be sentenced in two categories:

(a) those found to have directly committed an offence, and

(b) those not found to have been directly involved in commission of any offence.

(a) Offenders convicted of directly committing one or more offences

29. There are eight in this category, identified in the judgment on verdict as follows.

OFFENDERS FOUND TO HAVE DIRECTLY COMMITTED WILFUL MURDER

30. Despite the horrific nature of the killings, I endorse the defence counsel’s submission that there are mitigating factors that must be taken into account. Those I consider relevant are:

• no prior convictions
• unsophisticated villagers
• families to care for
• heavy reliance by themselves and therefore their families on food-gardening and coffee as a cash crop
• cooperated with Police from the time of their apprehension on the morning of the incident
• compliance with bail conditions
• showed respect for the law
• demonstrated remorse for their actions
• cooperated with their community leaders and Pastors in the surrender and reconciliation process.
  

31. The factor I consider irrelevant and inapplicable is the genuine belief of the offenders in sorcery. The reality of that belief is not questioned. The weight to be attached to it depends on the facts of each case (John Baipu v The State (2005) SC796, Irai Thomas v The State (2007) SC867). It clearly motivated the offenders to form the Hausman group and march to Sakiko, armed, with the intention of killing and attacking sorcerers, in order to cleanse the community.

32. However, there was no evidence that the offenders chose any of the victims because of the belief that the victims were sorcerers. How could the belief in sorcery justify or mitigate the heinous murder of Sike Wamne, an innocent man on his way to work? How could it mitigate or explain the senseless, horrible killings of three-year-old Nathan Aki or five-year-old Anao Gunumi, who were taken from their mothers’ arms and killed instantly? Even in the case of the three elderly men, there was no evidence that any of them was targeted because he was a suspected sorcerer. There was no proven connection between the belief in sorcery and what actually happened. So the genuine belief in sorcery is not a mitigating factor. It cannot be regarded as an extenuating circumstance to lessen the gravity of the crimes.

33. When the facts of this case are compared with the facts in the cases described above in which death sentences have been imposed (including some in which the rights to appeal or review have been exhausted), it cannot be said this case is less serious: the number of deaths, the brutality involved, the vulnerability and age of the victims make this fall into the worst case category.

34. I consider that the mitigating factors are not sufficiently weighty to make it proper to sentence any of these eight offenders, at least in relation to any offence of wilful murder of which he has been found to have directly committed, other than at the starting point: a death sentence.

35. For those offences of which they have not been found guilty of directly committing, the lesser penalty of life imprisonment should apply.

36. As to whether the sentences should be cumulative or concurrent, I apply the principles on sentencing offenders who have committed multiple offenders developed by the Supreme Court in Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88:

• where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;
  
• where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative;
  
• when a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate – if it is not, it must vary one or more sentences to get a just total.
  

37. Though in some respects, as urged by the defence counsel, the offences were committed in the course of a single event or incident, I reject the argument that the one transaction rule applies. There were seven different victims. The sentences must be regarded as cumulative. I have considered the totality principle. It has no bearing on the final outcome. Each of the following offenders is sentenced to death:

1. Bakun Moa
2. Enos Aware
3. Imex Gaosa
4. Jeffery Ronny
5. Noguro Sua
6. Simon Duma
7. Simon Towera
8. Winson Dos
   

(b) Offenders not found to have been directly involved in commission of any offence

38. There are 89 offenders in this category. They have all been found guilty, like those in category (a), of seven counts of wilful murder under Sections 7 and 8 of the Criminal Code. There are valid mitigating factors (identified above) which warrant a sentence other than the death sentence. However, I reject the defence counsel’s argument that the mitigating factors warrant a sentence in a term of years. The State proved at the trial that all of them were active members of the group. There was no evidence that any of them did not participate in what happened. It was a massacre in which they were all involved. They must be sentenced accordingly. These offenders are sentenced to life imprisonment for each offence. The one-transaction rule does not apply. The sentences must be treated as cumulative. The totality principle does not warrant anything less.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

39. This is a matter of discretion under Section 3(2) of the Criminal Justice (Sentences) Act. It is an important part of the sentencing process to decide whether an offender should have the pre-sentence period in custody (ie the remand period) deducted from the head sentence. It remains important in the present case for an official record to be made in the judgment on sentence of each offender’s pre-sentence period in custody, for two reasons. First, the sentences might be altered by virtue of a Supreme Court appeal or review or by an exercise of the power of mercy under Subdivision VI.4.D (the power of mercy) of the Constitution. If any sentence is altered, the question of the pre-sentence period in custody may arise. Secondly, it might be relevant to determination of the date of eligibility for parole, especially in the case of those prisoners serving a life sentence. The Parole Act provides that a detainee who has been sentenced to life imprisonment is eligible for parole after having served not less than ten years imprisonment.

40. I exercise the discretion in the following way. As for the nine offenders who have escaped from custody they will get no concession on account of their pre-sentence period in custody. They are:

1. Johnson Kafemo
2. Kaminde Piyomi
3. Nasa Toko
4. Ndousi Poruru
5. Nick Isahara
6. Noguro Sua
7. Oni Titukun
8. Reuben Daombon
9. Wiko Muru
   

41. Their pre-sentence period in custody is nil.

42. As for the 88 offenders who have not escaped from custody full account will be taken of their pre-sentence period in custody, which is three years, two months.

STEP 6: SHOULD ANY PART OF THE HEAD SENTENCE BE SUSPENDED?

43. There is insufficient evidence before the Court to warrant the suspension of any part of the sentences. The process of compensation and reconciliation is not complete. The general attitude of the relatives of the deceased is not conducive to suspension of the sentences.

SENTENCES

44. The offenders, each having been convicted of seven counts of wilful murder under Section 299(1) of the Criminal Code, are sentenced, with no period of suspension applicable in any case, but with the pre-sentence period in custody shown in each case which may be relevant for calculation of dates of eligibility for parole or other lawful purposes, as follows:

Sentenced accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the offenders