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State v Nohuta [2016] PGNC 268; N6464 (2 September 2016)

N6464

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 652, 653 & 654 OF 2015

THE STATE

V

CYRIL NOHUTA, GILFORD EGHAU AND JEROLD EGAHU

Popondetta: Auka, AJ
2016: 29^th August, 1^st & 2^nd September

CRIMINAL LAW - Murder – Sentence after finding of guilty – Criminal Code, s.300 (300) (1) (a) Chapter No. 262

CRIMINAL LAW – Principle of sentencing – Sorcery related killings – Tariff of Sentencing in other Murder cases – Sentence of 23 years appropriate.

Case Cited:
Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 514
Clive Givero & 4 others v. The State SC Appeal decided on 29.06.2000
Irai Thomas v. The State (2007) SC 867
John Baika v. The State (2005) SC 796
Kwayawako v. The State [1990] PNGLR 6
Manu Kovi v. The State (2005) SC 789
Peter Napiri v. The State SC 137
The State v. John Kunua Sinue and Keith Sinue CR 384 & 385 of 2003
The State v. Harmony Naba (2013) N5308

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Prisoner

DECISION ON SENTENCE

2^nd September, 2016
1. AUKA AJ: On 29^th September, 2016 I handed down the Verdict in this matter where I found the following;

-Cyril Nhuta, Gilford Egahu and Jerold Egahu guilty of the offence of murder.

2. The three prisoners were found guilty of Murder under s.300 (1) (a) of the Criminal Code Act that they on 27^th September, 2014 at Eroro Village, Popondetta Oro Province, murdered Augustus Ovio.
Based on the evidence, I found that all 3 prisoners together with another attacked the deceased with bushknives. The deceased was chased from his garden house by the 3 prisoners and their other relative and caught up with him near a fish pond and they all acted in concert and cut the deceased with bush knives all over his body and caused extensive and serious injuries. The attack was, violent and vicious.

3. The Autopsy Report from the Popondetta General Hospital dated 26^th January, 2015 and signed by Surgeon Doctor Opum Petrus, summarised 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 and;
5. Left parital open skull fracture.
   

The doctor reported that injuries suffered by the deceased were extensive and serious, denoting the violent manner in which the deceased was attacked.

4. I found after review of the evidence that the deceased was all alone and defenceless when the 3 accused and another attacked him using their own bush knives. The 3 prisoners used their own knives and actually participated in cutting the deceased all over his body.

5. I found that the attack upon the deceased was vicious and that he died as a result of the injuries sustained during the attack. His cause of death as confirmed by the Post-Mortem report, was as a result of Blood Loss from Multiple wounds and Lacerations.

6. On their statements on Allocatus, this is what each of them said;

(a) For the prisoner Cyril Nohuta he said the following;

1. That he is a first time offender;
2. That he is concern about his education;
3. That his mother is a sick woman;
4. That he has 2 hectares of bettlenut plantation;
5. That his mother is unable to walk around freely while himself and his father are in prison.
   

(b) For Jerold Egahu, he said sorry to God Almighty and say sorry to the Constitution of the Country. He said he is a first time offender. His father and mother are still alive. He said his father is a asthmatic patient. He said there are 8 of them in the family, 5 girls and 3 boys. He has a big portion of land. He said he is married with 5 children, 3 are at school. He said his family had paid K6,000.00 in cash, 4 live pigs and other food staff as compensation. He said this court has found him guilty and ask the court to have mercy on him. He asked the court to consider all these factors and punish him accordingly. He said he can serve the term and go back to his village and look after his family.

(c) For accused Gilford he said sorry to God Almighty. He also said sorry to the Constitution of the Country. He said sorry to the court officials. He said he is a first time offender. He said he has a big portion of land and has a cocoa block and 3 betelnut plantations. His parents are still alive and his father is a asthmatic patient. He said he is the only one who takes care of them. He said he also take care of his grandmother. He said he is married and his wife gave birth to their first child whilst he is in custody. He has asked the court to have mercy on him. He asked the court to consider all these matters and give him a reasonable punishment so he can serve the punishment and go back to the village and look after his family.

6. Mr. Yavisa of Counsel for the accused submitted the following personal particulars on behalf of the accused.
   
   • (a) For accused Cyril Nohuta – Mr. Yavisa submitted that:
     
     1. He is 18 years old from Tangahambo Village, Oro Province
     2. He attends Anglican Church;
     3. Prior to the commission of the offence, he lived with his parents at the village;
     4. His father Henry Nohuta is the 4^th person with the 3 accused who killed the deceased and he is serving 20 years term after he pleaded guilty to the same charge of murder.
     5. That he was a student attending literacy course with Anglican Run Programme at Tipopusu Village at the time of the commission of the offence.
     6. There are 7 of them in the family and all are adults.
        

(b) For prison Jerold Egahu, Mr. Yavisa submitted that;

1. He is 33 years old from Sirir Village, Oro Province;
2. He is married with 5 children, all his children are attending Primary School and Elementary School respectively;
3. He attends Anglican Church;
4. He lives a subsistence farmer’s life. He owns livestock and a betelnut plantation;
5. His parents are still alive and are of old age;
6. His father is an asthmatic patient.
   

(b) For prisoner Gilford Egahu, Mr. Yavisa submitted that;

1. He is 32 years old form Siriri Village, Oro Province;
2. He is married with one (1) infant child;
3. He attends Anglican Church;
4. He received no formal education;
5. His parents are still alive and his father is an Asthmatic patient;
6. There are 8 in the family and are all adults and married expect the last born.
7. That out of all his brothers and sisters he is the only one looking after the parents and grandmother;
8. He owns a betelnut plantation.
   

8. Mr. Yavisa on sentence submitted the following matters on behalf of the accuseds;

1. That the 3 accused have conceded that they participated in the killing of the deceased. However he submitted that the person who initiated and led them in the killing is Henry Nohuta who pleaded guilty to the same charge and was sentenced to 20 years and currently serving his term;
2. That dangerous weapons namely bush knives were used.
3. The accused have conceded that it was a vicious killing;
4. The accused have conceded that the offences is a prevalent offence;
5. That accused have conceded that multiple wounds were inflicted on the deceased body;
6. He however asked the court to consider that the 3 accused are youthful offenders at that time;
7. They are first time offenders and have no prior conviction;
8. There was provocation in a non-legal sense in that the deceased, killed Henry Nohut’s son through sorcery and that made them upset and killed him.
9. Mr. Yavis said that although the 3 accused have not said sorry to the deceased and his family, the actions by their family in paying K6,000.00 in cash, 4 pigs value at K1,000.00 each and garden food and customary item indicates their remorse.
10. Mr. Yavisa submitted and urged the court to impose a term between 17 and 40 years.
11. Mr. Yavisa referred the court to the National Court case of Irai Thomas v. The State (2007) SC 867 to assist in the sentencing process. That case involved a single offender. It was a sorcery related killing. He pleaded guilty in the National Court and was sentenced to 18 years. On Appeal the Supreme Court increased the sentence to 22 years. In that case the Accused struck the deceased with a bush knife on her head. The deceased skull split and her brain was damaged resulting in her instant death.
    

9. The killing of persons suspected to be sorcerers is in my view very prevalent in the country. Sorcery related killings have been regarded as special cases because of customary and traditional beliefs connected with it because of the traditional beliefs, the court have over the years imposed fairly lenient sentences. The courts have now deviated from the lenient approach to such killings and that approach is no longer appropriate in the sentencing process.
The cases like Acting Public Proscutor v. Uname Aumane [1980] PNGLR 514 and Kwaya Wako v. The State [1990] PNGLR 6 were few of the cases that authorised the courts to treat sorcery related killing in a special manner because of the traditional beliefs in sorcery.
As I said, that leniency approach is no longer an appropriate sentencing practise. This is what the Supreme Court said in the case of John Baika v. The State (2005) SC 796.
And in the case of 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 and circumstances of each case.

10. Nowadays 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 case of the State v. Harmony Naba (2013) N5308.
In that case, the prisoner pleaded guilty to Murder under s.300 (1)(a) of the Code. This is a case where 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 were that about 2 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. The prisoner was sentenced to 18 years, after considerations of the Categories in Manu Kovi v. The State (2005) SC 789.

11. Ms. Gore of counsel for the State submitted that a sentence between 20 and 30 years is appropriate because of the following aggravating factors which I also consider as aggravating and consider them in sentencing:

1. That all three accused acted in concert as a mob and attacked the deceased who was alone and defenceless;
2. It was a merciless cold blooded killing done in the presence and full view of the wife and the daughter of the deceased;
3. That dangerous weapon namely bush knifes were used;
4. That the deceased was cut on most vulnerable part of his body;
5. That precious life for the wife and her children have been lost forever. It won’t be replaced.
6. They have been found guilty after a long trial. Unlike their co-accused Henry Nohuta who pleaded guilty and received a 20 years imprisonment term. At the trial the wife of the deceased and the daughter had to come to court and as eye witness with sheding tears give evidence;
7. The offence of murder is a prevalent offence’
   

12. The deceased is a grown man, married with children. He was in his garden house having a peaceful time with his family when the 3 accused and another person suspected him as a sorcery and killing one of their relatives through sorcery arrived. They chased him and when they caught up with him they attached him.
They were all armed with bush knives when they attacked him. There was intention to cause bodily harm to the deceased.

13. The general trend for adult and young men of Papua New Guinea in villages and towns in this day and age is simply to condemn and carry out execution on victim who are suspected of sorcery without prove.

14. This case is a classic example of a group of young man who without proof and without any regard for the deceased well-being and life, attacked him, taking his life in process. That in my view is a total, reckless indifference to human life.

15. These prisoners have displayed careless and cruel attitude, I can only comprehend the deceased’s experience as unimaginable. Therefore, I can conclude that their pleas for mercy are overshadowed by their exhibitions of heartless cruelty.
Their request to this court to consider the welfare of their parents, families and children for reduction of sentence are mere excuses and I consider them with great caution. They should have thought of their sisters, mothers, grandparents, wives and children before they went off to kill the deceased.

16. This case is one of the many hundreds of cases that come through this courts where the courts have held that sentence that is imposed must be one fitting the crime and must also deter other would be offenders.

17. The Supreme Court has laid down the Sentencing guidelines which I set out below, as taken from MANU KOVI V. THE STATE (2005) SC789. These are;

1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence between 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors;
2. In a Contested or uncontested case, with mitigating and aggravating factors such as no strong intention to do grievous bodily harm, weapon used, some pre-planning, some element of viciousness, a sentence of 16 to 20 years imprisonment;
3. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence such as pre-planned, vicious attack, strong intention to do grievous bodily harm, weapons used, a sentence of 20 to 30 years be imposed.
4. In a contested or uncontested case, the maximum of life Imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapon etc”
   

18. There are two cases that I also refer to assist me in considering the appropriate sentence. The cases are;

1. State v. John Kunua Sinue and Keith Sinue CR 384 OF 2003, CR 385 OF 2003 (2006);

This is a Kimbe case decided by Cannings J. In this case, the accused were sentenced to 25 years after a trial, whereafter a mob attack, the victim was bashed to death.

2. Clive Givero & 4 others in the State, Supreme Court Appeal decided on 29^th June, 2000. A sentence of 20 years was upheld after the accused were sentenced for having attacked the deceased, with others, with sticks and stones where the deceased died of massive internal bleeding.
   

19. I find that this case falls within the third category of Manu Kovi’s case (supra), because of the ferocious, vicious and thoughtless attack upon the deceased.

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.
Based on the above and the fact that they were found guilty after trial I find that a sentence of 23 years is appropriate. This is 3 years more than their co-accused who pleaded guilty and sentenced to 20 years.

21. As to submission on youthfulness, Mr. Yavisa has not put any authority before me to convince me that youth is a factor that should see reduction in sentence.

In Peter Napiri v. The State SC 137, the Supreme Court held that accused person aged 17 to 19 assume adult responsibilities when they commit serious offences. Therefore they should be treated accordingly, example, like adults.

22. This court imposes a term of 23 years for each prisoner which shall be reduced by the time spent in custody awaiting trial and sentence. They shall serve the reduce terms.

This is the decision of the Court on Sentence.

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