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State v Binape [2004] PGNC 57; N2727 (12 November 2004)

N2727
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 261 of 2001

THE STATE

V.

JOSEPH TUNDE BINAPE
of
OMDARA VILLAGE, GUMINE, SIMBU PROVINCE
(‘prisoner’)

Waigani: Davani, .J
2004: 5, 12 November

SENTENCE – wilful murder – sorcery as a mitigating factor – relevant considerations – s. 299 of Criminal Code Act.

SENTENCE – wilful murder – payment of compensation, not a substitute for punishment – s. 2(1) of Criminal Law (Compensation) Act 1991.

Cases cited:
• Secretary for Law v. Ulao Amantasi and others [1975] PNGLR 134
• Goli Golu v the State [1979] PNGLR at 653
• Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510
• Ure Hane v the State [1984] PNGLR 105
• State v Margaret John (No. 2) [1996] PNGLR 298
• State v Rex Lialu [1988 – 89] PNGLR 499
•Tony Imuni Api v the State SC684 dated 29th August, 2001
• Aloises Peter Irobo Kovei v the State SC676 dated 14th November 2001
• Kepa Wanege v the State SC742 dated 1st April 2004
• State v. Jude Gena and four others N2649 dated on 24th September, 2004

Counsel:

J. Nidue for the State
M. Norum for the Accused

SENTENCE

(Trial)

12th November 2004

Davani .J: On 27th October, 2004, after a trial, this court found the prisoner guilty of the offence of wilful murder. The matter was adjourned to 5th November 2004 for the court to administer the allocatus and for submissions on sentence.

Submissions on mitigation

Before discussing the State’s submissions on sentence, I refer again to the evidence before the trial court in relation to the prisoner’s involvement, that whilst a lot of people were in a house mourning the death of a young man whose body was in a coffin located in that house, the deceased then walked into the room. This was when the prisoner pointed at the deceased and told the deceased that he was the sorcerer. Then, the prisoner inflicted the first blow on the deceased using an axe, hitting the deceased in the back. He then inflicted the second blow to the back of the deceased’s head. Immediately then, six men ran into the room and together with the prisoner, tied the deceased with ropes and hung him from the ceiling. This was when the prisoner gave the axe to one Ben Maere who swung the axe at the deceased’s forehead and cut him on the head. The six men and the prisoner then took the deceased down from the ceiling and took him to a dark place at the back of Ben Maere’s house where they then placed the deceased in a vehicle and drove off with it. The body was found two days later, in a partially decomposed state, at the end of the 7 Mile Jacksons aerodrome runway.

Mr Norum for the prisoner submitted that the offence is not the worst of its kind, that the prisoner is a first time offender, that he is the only breadwinner for his family, that he was provoked by the deceased’s presence when he walked into the house of mourning because he believed the deceased had committed sorcery and had killed the young boy who had died. Mr Norum also submitted that compensation of K11, 600.00 was paid by the prisoner’s relatives to the deceased’s relatives.

Mr Norum also submitted that the prisoner is married with two children aged 9 and 5 who are both adopted. At the time of the death, he was employed as a security guard at the Airways Hotel. He had been employed there from 1999 to the date of arrest and was residing at the 6 Mile settlement in Port Moresby. He was arrested on the 20th July, 2000 in Kundiawa in the Simbu Province and was then released on bail on 20th November, 2000. He was re-arrested on 24th June, 2004 when bail was forfeited and he was remanded in custody. He has now been in custody for 4 months and 12 days.

On allocatus, the prisoner continued to deny that he was involved in the killing. He told the court that the witnesses were not witnesses of truth. However, he apologized to the court, to the deceased’s families, to his family and said that only God knew who the killer was.

State’s submission

Counsel for the State re-emphasized that this was not a sorcery related killing. I accept that, not only because there is no evidence to that effect, but because the prisoner did not rely on defences arising out of acts of sorcery at trial. However, because it was raised as a mitigating factor, the court must consider it.

Ms Nidue referred the court to the case of Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510. A member of the Supreme Court panel, the then Chief Justice Kidu in his reasoning on why the trial courts sentence on a sorcery related killing was inadequate, addressed the following factors. These were;

1. Nature of offence;

2. Pre-intention;

3. Sophistication of prisoner;

4. Public deterrence.

I have also in these reasons, adopted these factors with a view to achieving a just end result.

Nature of offence - Although there is evidence from the bar table that people from Gumine in South Simbu, are believers of sorcery, there is no evidence to that effect before me to then satisfy the requirements as set in Secretary for Law v. Ulao Amantasi and others [1975] PNGLR 134. In that case, the trial judge had to assess the accused’s "primitiveness" which the Supreme Court panel could not appreciate by the mere reading of the transcript. The trial judge had to consider the possible sociological effect that long sentences would have on men of a small tribe. In that case, the accused and 8 others killed a man believed to be a sorcerer because they believed he had caused the death of eleven people from that area. The killing was planned and the trial court found the accused to be of the most primitive type who lived in a community which had strong beliefs in the power of sorcery. The trial court found that when they killed, they were acting in the interest of preservation of their society, which numbered about one hundred people only. Compared to this case, the prisoner here is a leader of the settlement in which he lives in and has also been resident in Port Moresby for several years. He was also a security guard then and would have obviously appreciated the effects of the law on social order. He would not be said to be an unsophisticated villager as in Ulao Amontasi and others (supra) and in Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510. The circumstances in this case also do not bear any similarity to that of Uname Aumane (supra).

It is not disputed that the mourners believed the boy was killed by sorcery or sanguma. But, the only evidence to that effect is from the state witness Irai Mol who said in his evidence that the deceased had been killed by a ‘sanguma’. The accused’s presence at the place of mourning was not to mourn but was of a more sinister nature which has now been played out resulting in the deceased’s death.

The prisoner and his counterparts also attempted to conceal the body by dumping it at the end of the 7 Mile aerodrome. They knew that fear would keep the people away from them, that they could kill at their whim and still live to face another day.

Pre-intention – There is no evidence of a plan to kill the deceased by the prisoner and his six counterparts.. The only uncontested evidence is that the deceased was in the house of mourning when the prisoner and his counterparts attacked him. However, the prisoner’s comments at the place of mourning suggest there to be some unspoken desire for revenge. i.e when he told the people that the deceased was only sleeping and would soon wake and that the deceased was the sorcerer, which then set the stage for the brutal acts of axing and stringing up of the deceased.

Sophistication of person – At the time of the killing, the prisoner was a leader in the community he lived in. He had also been resident in Port Moresby for several years and was a security guard which confirms that he had some appreciation of law. He could not be said to be a person with no understanding of the effects of his actions.

Public deterrence – The courts sentence must be to deter the actions of others, that people should not take the law into their own hands or exact revenge on others.

Sentence.

Counsel for the prisoner referred the court to the case State v. Jude Gena and four others N2649 decided on 24th September, 2004 by the Chief Justice and submitted that this court must sentence at 20 years or less because the prisoner was provoked into killing relying on his belief that the deceased used sorcery to kill the young boy. In the Jude Gena (supra) case, there was evidence that the deceased, a reputable sorcerer, attended at the place of mourning to check on whether the deceased had died or not. The evidence was that this was an action of arrogance. There was evidence in that court that it was the widespread belief of the Rigo inland people that sorcery can kill and is widely practiced. The court in that case sentenced the prisoner to 20 years in hard labour. In this case there is no evidence that this was a sorcery related killing. The only evidence is State witness Iral Mol’s statement of the words uttered by the prisoner when the deceased walked into the place of mourning, the statement ‘this is the sorcerer, kill him’.

The nature of the killing itself is that the deceased was struck twice by an axe. He was then strung up to the ceiling after which several axe blows were inflicted on his body. These actions are not only barbaric but is that of people who have no sense of respect for a fellow human being, who do not appreciate life and who kill another human being with no hesitation. These persons have no place in a civilized society.

Clearly this is not a situation where the deceased had any chance to defend himself. He was ambushed in a very crowded room after which he was tied up like an animal and repeatedly axed. His body was later dragged out to a vehicle, driven away and dumped at the end of the 7 Mile aerodrome.

The court’s role is to ensure that justice must be done to those who have been affected. People in this country cannot continue to take the law into their own hands. In this case, the few residents of that settlement took the law into their own hands and killed the deceased in such a barbaric manner, it has now created a lot of dissension and strained relationships.

I have also heard that K11, 600.00 was paid as customary compensation by the prisoners relatives to the deceased’s’ relatives. That is not disputed by the State. However, compensation can never be a substitute for punishment but can be used as a mediating factor. (State v Rex Lialu [1988 – 89] PNGLR 499). S. 2 (1) of the Criminal Law (Compensation) Act 1991 is clear, that compensation is in addition to other punishments that may be imposed and is not a substitute or replacement for the prescribed punishments. S. 2 (1) of that act reads;

"Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishment imposed, order an offender to pay compensation in accordance with this Act." (my emphasis).

I assume the payment of compensation was to ease the tension between the different tribes involved. But only the offender is responsible for his actions. (State v Margaret John (No. 2) [1996] PNGLR 298). He must answer to the law.

I should also point out that even before sentence was handed down before submissions on sentence, the accused’s relatives threatened State witnesses. An affidavit is filed in court dated 3rd November, 2004 to that effect. The 8 people who threatened the State witness Irai Mol are named in that affidavit. I issued a warning to those in court that day that the court would not hesitate to issue Warrants of Arrest for the arrest of those named in the affidavit and the others who have been known to threaten State witnesses, if this behaviour continues.

This killing is very barbaric and cruel. The sentence of the court must demonstrate the seriousness of the crime and the fact that people must not act as judge, jury, policeman, and avenger. It only adds fuel to the fire.

In deciding on a sentence that fits this crime, I have had recourse to several cases. In Aloises Peter Irobo Kovei v the State SC676 dated 14th November 2001, the Supreme Court confirmed life sentence in a rape, abduction and murder case after it held that to be the worst type of killing. In that case, the appellant was found to be one of a gang of 8 to 10 men who repeatedly raped the deceased at various locations then cut her neck and threw her body in a drain. This extract taken from that case portrays the same sentiments expressed by this court earlier;

"The killing (of the young girl) was to prevent a discovery of their illegal acts of abduction and rape. The victim was abducted from a public place in full view of other people. There was therefore no hesitation and a sense of fear that they would be caught and dealt with according to law. By their conduct, they acted as if they were above the law and that there was nothing anybody could do against them..." (pg. 7)

In this case, the prisoner and his cohorts exhibited the same behaviour. They were above the law that day, they had no hesitation to kill and had no fear of the law or others.

In Tony Imuni Api v the State SC684 dated 29th August, 2001, the Supreme Court confirmed the trial courts decision of a life sentence where the trial court, after a trial, sentenced the appellant to life imprisonment after he was found to have killed a young boy. In that case, a 14 year old boy had his skull crushed in different places and that he had died in bizarre circumstances. The Supreme Court found that the prisoner "...had a blatant and complete disregard for the sanctity of a young life which was prematurely terminated...". (pg.7) Again, the prisoner in this case had a blatant and complete disregard for the sanctity of life. It was a frenzied killing, as in a blood lust.

In Kepa Wanege v the State SC742 dated 1st April 2004, the Supreme Court confirmed sentence of 20 years on a charge of murder. The evidence in the trial court was that the deceased had taken firewood from a disputed land after an argument with the appellant and his father. The appellant and his father then followed him and attacked him from behind. He did not know they had been following him. They cut him twice on his head and hit him all over his body with sticks. He died soon after. The Supreme Court held that the sentence of 20 years was very lenient given the seriousness of the offence. It also held that if the Public Prosecutor had cross-appealed or made submissions for increase in sentence, that the Supreme Court would readily increase the sentence to a term well beyond what the appellant had received. The Supreme Court also issued a warning that in future, it would exercise its powers under s. 23 (4) of the Supreme Court Act, regardless of whether there was a cross-appeal by the Public Prosecutor or submissions on increase of sentence by his officers. It tells me then that courts must exercise their powers to sentence to the maximum if necessary, if circumstances both legal and factual, warrant it. This is one such case where the court must appropriately sentence.

Again, the level of barbarism displayed by the accused and his cohorts demonstrates that they have no place in today’s civil society. They killed in front of a lot of people, strung up the deceased’s body in full public view, then proceeded to hide the body, with no fear and hesitation at all. The police photographs of the deceased’s body tendered into evidence by consent, showed that the body was still bound by the ropes – the ropes were around the upper part of his body up to his neck. The prisoner and others were above everybody that day and used the fear they exuded on the people as a means to pacify them. I have no hesitation in finding that this case falls within the worst case category. I also take note of the discussions in Goli Golu v the State [1979] PNGLR at 653 and Ure Hane v the State [1984] PNGLR 105 on who can fall within the ‘worst category’ situation. I also accept the other sentiments expressed in Ure Hane (supra) that the offender must be given a chance and in doing so, give him hope for his future and our own. Although the prisoner may not be the repeat violent criminal or habitual criminal, he has by his actions forfeited all rights to be entrusted to him to remain in a free society. I find, in exercising the sentencing powers available to me, that the nature of this offence is one that is of the worst type.

This court will sentence the prisoner to life imprisonment, in hard labour.

The police should also now arrest the other persons involved in this killing and have them prosecuted, with no further delays.

________________________________________________________

Lawyer for the prisoner : Public Solicitor
Lawyer for the State : Public Prosecutor