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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR71 OF 2003
JOHN BAIPU
Appellant
AND
THE STATE
Respondent
MT HAGEN
SEVUA, SAWONG & LAY JJ
2005: 28th June, 1st July
CRIMINAL LAW - application for review - Constitution s155(2)(b) - appeal from decision on sentence - delay explained - some substantial injustice manifest.
CRIMINAL LAW - sentencing - matters not to be considered - separate offence not charged - offence not forming part of offence for which person to be sentenced has been convicted.
CRIMINAL LAW - murder - sentencing - sorcery as a mitigating factor - weight to be given.
CRIMINAL LAW - murder - sentencing - retaliation for sorcery deaths - prisoner taking matters into his own hands when matter before Village Court officials - breach of undertaking not to attack suspects - particular offence - 25 years IHL substituted for life imprisonment.
Facts:
The Appellant filed an appeal 20 days late and applied for review pursuant to s155(2)(b) of the Constitution. The Appellant was convicted of murder on a plea of guilty and sentenced to life imprisonment. The Appellant’s pregnant wife and his father had died in 2001 and the Appellant suspected sorcery. He asked the Village Court officials to investigate and the Appellant gave an undertaking not to attack the suspects. A number of people were ordered to pay compensation although no responsibility was found or apportioned. The compensation was never paid. Then on 9th October 2002 the Appellant met and attacked his 70 year uncle, who was one of the suspects. He cut his arms and legs with a bush knife and left him to bleed to death. The depositions also contained references to village councilors reporting that the Appellant and his village boys had rounded up a number of suspects on another occasion and tortured them and killed one, in a separate incident to the circumstances of this case. The sentencing judge mentioned those facts in his reasons for arriving at the sentence.
Held:
Cases Cited:
Avia Aihi v The State [1981] PNGLR 81;
SCR No 2 of 1981 Re s19(1)(f) Criminal Code [1982] PNGLR 150;
R v Ebulya [1964] PNGLR 200;
Simili Kara v State [1984] PNGLR 254;
R v Dales [1995] QCA 329;
The Public Prosecutor v Vang’u Ame [1983] PNGLR 424;
Acting Public Prosecutor v Uaname Aumane [1980] PNGLR 510;
Kwayawako & 5 Others v The State [1990] PNGLR 6;
Roger Jumbo v State [1998] PNGLR 197;
The State v Tobby Tani N2063;
R v Gabai Vagi [1973] PNGLR 30;
Public Prosecutor v Tom Ake [1978] PNGLR 469;
Law v Deed [1970] SASR 377;
Koniel Alar and Hosea Biu v State [1979] PNGLR 300;
Imiyo Wamela v State [1982] PNGLR 269;
Albert Toti Johannes v The State SC577;
Agoara Gebo and Karunai Uraki v The State SC198;
The State v Aiaka Karavea N452M;
The State v Sambura N2219;
The State v Samson Sisi and Peter Sixpen CR1486 of 202 5th December 2002, unreported unnumbered judgement of Sawong J;
The State v Jude Gede N2649;
The State v Wilfred Opa Yamande n’danabet N2728;
The State v Urari Siviri N2747;
CR1418 of 2002 & CR688 of 2003 The State & Francis Kuta Amet & Ors, unreported unnumbered judgement of Sawong J 26th March
2004;
Kumbi Koti, Peter Kowoi and Mokepe Maingo v The State unreported judgement of the Supreme Court dated 22nd February 2001.
Counsel:
Mr. B. Aipe for the Appellant
Mr. Umpake for the Respondent
BY THE COURT: The Appellant applies for leave to review pursuant to s155(2)(b) of the Constitution and appeals from the severity of sentence imposed upon him on 30th July 2003. He pleaded guilty to the charge that on 9th October 2002 he murdered one Hahu Hafinibu. He was sentenced to life imprisonment.
The facts of the case were that the Appellant’s pregnant wife and father died in 2001 and the Appellant suspected that sorcery was involved. The Appellant reported the matter to the Village Court Chairman. There were some investigations in to the allegations of sorcery and although no fault was found some people were ordered to pay compensation, which was never paid. On 9th October 2002 at Pimaka Village in Southern Highlands Province the Appellant met Hahu Hafinibu, his uncle, a man of about 70 years of age, one of the sorcery suspects. The Appellant chopped Hahu on his arms and legs with a bush knife. Hahu died from loss of blood.
The Appellant’s notice of appeal says that:
The Notice of Appeal was filed on 30th September 2003, some 60 days after sentence and 20 days after the time limited of 40 days for filing a Notice of Appeal.
As held in Avia Aihi v The State[1] leave to review pursuant to s155(2)(b) of the Constitution when the appeal is out of time is only granted "in exceptional circumstances where some substantial injustice is manifest or the case is of special gravity." Considerations for the Court in deciding whether or not to grant leave include whether there is an adequate reason for failing to lodge the appeal in time and the merits of the case to be argued.
The explanations for the delay in lodging the appeal were the Appellant’s low level of education and delay in finding someone who was able to help him with his appeal and postal delays in getting the Notice of Appeal to Port Moresby. We noted that the Notice of Appeal was dated 21st August 2003, which was well within the appeal period. The letter from OIC Baisu Correctional facility to the Deputy Registrar of the Supreme Court is also dated 21st August 2003 and stamped received by the Supreme Court Registry on 30th September 2003. And so we accepted that the delay in lodgment of the Notice of Appeal was out of the control of the Appellant and an acceptable explanation; because it was either a delay by CIS in placing the letter in the post or a delay in the postal delivery.
For the reasons set out below we considered that it was arguable that some substantial injustice was manifest and leave was granted during the hearing.
The facts put to the Appellant on the allocutus and to which he pleaded guilty were as follows:
"The government says that at some time between May and June 2001 your wife and father died. You claimed their deaths were caused by sorcery. And then you suspected a number of people to have been responsible for the death of your wife and father. And among those people who may have caused your wife and father’s death was a man named Hahu Hafinibu. He was your uncle. The matter was brought before the village court for mediation and then it was put off for a number of reasons. At one time those whom you thought were responsible for the death of your father and your wife were ordered to pay compensation to you but those people never paid compensation. And then sometime later you and some of your village boys rounded up those people who were ordered to pay compensation, you tied them up and beat them up badly.
Then on 9 October 2002 at Pimaka village in the Southern Highlands Province, you met the man by the name Hahu Hafinibu and you chopped him on his arms and legs with a bush knife and that resulted in him losing a lot of blood from which he died. The government says that when you cut Hahu Hafinibu you wanted to cause him serious injury but he died."
The indictment read:
"JOHN BAIPU of Fiwage Village Mendi SHP is charged that on the 9th day of October 2002 at Fiwage Villge SHP in Papua New Guinea he murdered one HAHU HAFINIBU an adult male person."
Two principle issues were raised on the appeal, whether the trial judge was entitled to take into account on sentence, allegations of other crimes with which the Appellant was not charged, and secondly whether life imprisonment was an excessive sentence for murder where there was an element of belief in sorcery involved. The State conceded that a term of years was probably more appropriate than life imprisonment.
Taking uncharged Offences Into Account
At p2 line 15 of the Appeal Book the transcript reads:
His Honour: What are you going to do with the other deaths that the depositions reveal that – was brought about at the hands of the accused?
Mr. Waine: This is something which I believe the police in Mendi are attending to. I believe there has always been some settlement in the village level but - - -
His Honour: That is not something you should be concerned about. The only thing is that – I mean that aspect has not been put to the – although I note in the depositions that village court magistrates talk about or mention the prisoner having tortured resulting in death of the others. Their death has not been put to the prisoner during the record of interview which would quite mean that it might be a matter that would require a separate committal."
Then at page 27 of the Appeal Book in the transcript of his Honour’s oral reasons for sentence the following is recorded:
"From the evidence that the prisoner has tortured people even to the extent of one of them losing his life in addition to the deceased who was the prisoner’s real uncle, it seems to me that the prisoner is dangerous to society and is someone who does not respect human life. He is someone who would not hesitate to kill even a close relative so he needs to be deterred with a long period of imprisonment."
And then at page 33 line 20 and page 34 line 20 of the Appeal Book from his Honour’s written reasons for sentence[2] the following appears:
"The prisoner has tortured suspected sorcerers to such an extent that one died. That is apart from the deceased in the present case. This was done without any proof at all and again without any respect for the law by reason of the matter being already in the hands of Village Court magistrates and mediators."
"From the evidence that the prisoner has tortured people even to the extent of one of them losing his life in addition to the deceased who was the Prisoner’s real uncle, it seems to me that the prisoner is dangerous to society and is someone who does not respect human life. He is someone who would not hesitate to kill even a close relative so he needs to be deterred with a long period of imprisonment."
When a plea is taken, as is provided by s557 of the Criminal Code the plea is to the offence charged in the indictment and not to the short facts put to the accused as an explanation of the charge; and when:
"...the court indicates that it finally accepts the plea as safe to act upon, as a full, free and clear and informed admission of all of the facts essential to establish the elements of the offences charged" [3]
"...it has "the same effect as if it had been actually pleaded", that is it operates as an admission by the accused of the elements of the offence charged."[4]
The whole purpose of s557 is to protect the accused from being tried without being informed of the charge against him: Simili Kara v State[5]. It follows that the plea cannot be an admission of matters contained in the short facts which have nothing to do with the elements of the offence charged.
A very useful guide to matters which may or may not be taken into account by a sentencing judge can be found in the case of R v Dales in the Queensland Court of Appeal [6] which we adopt and apply in this case. After a very lengthy and detailed consideration of the cases from both the common law and code jurisdictions of Australia, and England their Honours said:
"Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes:
1. Subject to the qualifications which follow:
(a) a sentencing judge should take account of all the circumstances of the
offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;
(b) common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at p. 593, R. v. T. at p. 455); and
(c) an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.
2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:
(a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;
(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or
(c) a "circumstance of aggravation" (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed
3. An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to raise the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., "context" or the "relationship" between the victim and offender, or to establish, for example, the offender's "past conduct", "character", "reputation", or that the offence was not an "isolated incident", etc.To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences. A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted.
This question arises most frequently in sexual cases involving family members, and, in Queensland at least, there is now provision for a charge of maintaining a sexual relationship with a child under 16 years (s. 229B), so that the prosecution can conveniently proceed for a series of offences if it wishes to do so.
We should add that, in our view, it would be intrinsically unfair to charge a person with a single offence and then adduce evidence of other offences in a proceeding in which his or her primary concern to defend the offence charged before the jury might conflict with his or her need to meet the possibility that, if he or she is convicted of the offence charged, the judge may "convict" him or her of the other offences and treat him or her more harshly, or less leniently."
The last paragraph of that extract of the judgement is of course underscored in the case of a charge of murder because the accused could not be charged with another charge on the same indictment[7]. Nor can any other offence be taken into account on sentence pursuant to the procedure in s603 of the Criminal Code on a charge of murder, which is clear from the opening words of that provision. These are additional reasons why it must be wrong on sentence of an offence punishable by death or life imprisonment to take into account in any way any other separate offence of which the prisoner has not been convicted and which does not form part of the offence with which the prisoner was charged.
It is clear from the transcript that his Honour took into account and was influenced by allegations of separate offences of torture and murder with which the appellant was not charged or convicted and which did not form part of the offence before him, when fixing the sentence.
In The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424 at 425, Kidu CJ said:
"An appellate court does not interfere in a case of exercise of discretion by a trial court unless it can be shown that the latter has made an error of law or fact. Such an error may be identifiable but if not identifiable the sentence may be shown to be, on the face of it, manifestly excessive or inadequate: See Norris v The State [1979] PNGLR 605; Mauwe Antape v The State [1981] PNGLR 68."
We conclude that his Honour fell into error of law by taking into account the allegations of torture and murder and that this error has affected the sentence imposed on the Appellant and this court ought to interfere.
Sorcery as a Mitigating Factor
A believe in the power of sorcery is a mitigating factor on sentence where that belief was submitted as being the cause for the offence.[8] Where the belief is raised in submissions and confirmed by the record of interview the court is duty bound to allow the defendant to properly present it to the court to be taken into account in the defendants favour.[9] It has been the practice of the Court to take the version of events most favourable to the accused, in the absence of evidence from the State to the contrary[10] provided it is not utterly unreal. But the "most favourable version" doctrine cannot be applied if the prisoner on his plea and on his allocutus makes no challenge to any of the facts sworn to in the evidence: Public Prosecutor v Tom Ake[11]. For the purposes of applying this principle the allocutus includes statements made by defence counsel from the bar table: Law v Deed[12].
Where the defendant only puts sorcery forward as a possible explanation for his conduct and there is another equally plausible explanation, it is open to the trial judge to reject the sorcery explanation.[13] But if a belief in sorcery is put forward as the motivating factor and it is not beyond the bounds of reasonable possibility the court ought not to reject sorcery as a mitigating factor without giving the defendant the opportunity to establish his belief on oath together with such witnesses as he may wish to call.[14]
"Counsel should not lightly assume from the absence of protest on the part of the State that everything said from the bar table on behalf of the offender will be persuasive. If leniency is sought for a murderer on the ground that the person murdered is believed to have practiced sorcery, the sentencing judge ought to know on some proper evidentiary basis about the grounds for such belief and the extent of such belief in the community to which the offender belongs. A self - appointed executioner may be motivated by belief that what he is doing is just or for the protection of himself and possibly others: there may be other less worthy motives. The recognition that there is a widespread belief in sorcery in Papua New Guinea is not necessarily of any great assistance in a particular case."[15]
However we are of the view that all the aspects of social change in Papua New Guinea which have permeated to even remote parts of the country means that it can no longer be assumed that a belief in sorcery will be treated as a significant mitigating factor in every case. The degree to which a belief in sorcery will mitigate sentence will depend upon the facts of each case. Actions taken on the spur of the moment motivated by fear and self preservation and which have parallels to but perhaps do not amount to provocation as contemplated by s16 of the Sorcery Act are likely to increase the degree of mitigation. But such factors as educational level of the defendant, a place of residence with the availability of village councillors, village courts, police, churches, other educational influences such as radio and television, and other aspects of good order and government which give the defendant alternate remedies to self help and the knowledge that it is unacceptable, may be factors which reduce the mitigating effect of the belief in sorcery. Not because the belief in the effectiveness of sorcery may be diminished, but because the belief that taking the law into the defendant’s own hands as the only effective means of dealing with the problem should and ought to be diminished. And the more these factors of social change are present in a defendant’s society the less a mitigating factor belief in sorcery should be. The result being that sentences for serious offences involving a belief in sorcery will tend over time to come closer to sentences for the same offence where no belief in sorcery is a factor. These are not new views; similar views were expressed by Chief Justice Sir Buri Kidu in the case of The State v Aiaka Karavea[16] and other judges in the more recent cases cited below.
Ten years ago 10 to 12 years imprisonment was considered an appropriate sentence for murder motivated by a belief in sorcery. More recent sentences take account of the spread of the educational influences referred to above and there has been a general trend to increase such sentences. In State v Sambura[17] where the deceased suspected sorcerer was shot on his way to church and the deceased was named by only one person as a sorcerer with no community consensus, on a plea of guilty to willful murder the gunman was sentenced to 20 years and his assistant to 18 years. In The State v Samson Sisi & Peter Sixpen[18] the two prisoners shot the deceased with spears then hacked off his head with a bush knife because they believed the deceased had caused several deaths in the village, on a plea of guilty a sentence of 20 years was imposed. In The State v Jude Gede[19] the 5 prisoners murdered the deceased, a suspected sorcerer, when he appeared at a mourning ceremony for his suspected victim. This raised a suspicion that the deceased had come to check that his sorcery had been effective. On a trial these Port Moresby residents were each sentenced to 20 years. In The State v Wilfred Opa Yamande n’danabet[20] on a guilty plea for willful murder where sorcery was a dominant influence in the prisoner’s life, a sentence of 20 years was imposed. In The State v Urari Siviri[21] where the prisoner killed the deceased after his dying wife named the deceased on her death bed as the person responsible by sorcery for her death, after a trial a sentence of 18 years was imposed. In The State v Francis Kuta Amet & Ors[22] a 29 year old pleaded guilty to two counts of willful murder of persons believed to be sorcerers and was sentenced to a cumulative 28 years. His co - accused in one of the murders, aged 19 and 22 years were sentenced to 15 years and 16 years. That case refers to the case of Kumbi Koti, Peter Yowoi and Mokepe Maingo v The State where on a plea of guilty to wilful murder of a suspected sorcerer each of the three accused had their sentence of 20 years confirmed.[23]
In this case, apart from the reference to the torture and murder matters irrelevant to this offence, we agree with the trial judges observations in relation to the other mitigating and aggravating factors, the guilty plea, the expression of remorse, and against those the fact that having placed the matter in the hands of the village councilors and Village Court officers, the Appellant then took the law into his own hands over 12 months after the alleged deaths by sorcery in breach of an undertaking not to attack the suspects. The deceased was a relative of the Appellant, and the manner of death, being cut by a bush knife and left to bleed to death. And also very relevant the spread of all of the educational influences which should have led the Appellant to have some respect for the law and its processes. This is a case in which the weight to be given to mitigation for the belief in sorcery is not great.
In all the circumstances of the case we consider the proper sentence to be one of 25 years in hard labour.
ORDERS:
Lawyers for the Appellant : Public Solicitor
Lawyers for the Respondent : Public Prosecutor
[1] [1981] PNGLR 81
[2] N2451 30th July 2003
[3] SCR No 2 of 1981 Re s 19(1)(f) Criminal Code [1982] PNGLR 150 Kidu CJ Kearney DCJ, Greville - Smith, Kapi & Pratt JJ per Kearney DCJ at p. 156.
[4] R v Ebulya [1964] PNGLR 200 Mann CJ, Ollerenshaw, Smithers and Minogue JJ per Smithers J at p. 271.
[5] [1984] PNGLR 254 Kidu CJ, Bredmeyer and Amet, JJ.
[6] (supra note 2) [1995] QCA 329 Fitzgerald P., Byrne and White JJ.
[7] Criminal Code s531
[8] Acting Public Prosecutor v Uaname Aumane [1980] PNGLR 510; Kwayawako & 5 ors v The State [1990] PNGLR 6 Amet Los and Hinchliffe J; Roger Jumbo v The State [1998] PNGLR 197 Amet CJ and Salika J
[9] Roger Jumbo v The State (supra)
[10] N2063 The State v Tobby Tani, Injia AJ; R v Gabai Vagi [1973] PNGLR 30 Raine J
[11] [1978] PNGLR at 469 para 4, Prentice CJ, Pritchard and Greville - Smith JJ
[12] Law v Deed [1970] SASR 377 - 378, Bray CJ cited with approval in Koniel Alar and Hosea Biu v State [1979] PNGLR 300 at 307 and Imiyo Wamela v State [1982] PNGLR 269 at 280 Kidu CJ, Andrew J and Pratt J.
[13] SC577 Albert Toti Johannes v The State (28/9/98) Amet CJ, Salika and Sakora JJ
[14] Roger Jumbo v State (supra)
[15] SC198 Agoara Gebo and Karunai Uraki v The State , Kidu CJ, Kapi & Miles JJ per Miles J
[16] N452M (20/9/1984)
[17] N2219 (18/4/2002) Jalina J
[18] CR1486 of 2002 5th December 2002, Sawong J (unreported & unnumbered)
[19] N2649 (2004) Kapi CJ
[20] N2728 (2004) Davani J
[21] N2747 (30/8/04) Batari J
[22] CR1418 of 2002 & CR688 of 2003 , 26th March 2004, Sawong J (unreported and unnumbered)
[23] Unreported Judgment of the Supreme Court dated 22nd February 2001
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