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State v Varuruai [2022] PGNC 256; N9682 (26 May 2022)

N9682

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 253, 255 & 257 OF 2021

THE STATE

V

BEN VARURUAI, MATHEW PIDILE JUNIOUR AND PIDIK ARULO

Kokopo & Kerevat: Tusais AJ
2022: 10^th, 13^th, 26^th May

CRIMINAL LAW – Sentence –Wilful Murder section 299 Criminal Code Act- Victim died of knife wounds – Sorcery accusation related killing – Vicious attack on deceased inside his own house at night-time – Very serious aggravating factors render mitigating factors insignificant – Need for deterrence – Long custodial sentence appropriate in the circumstances.

Cases Cited

Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v the State [1979] PNGLR 653
Manu Koivi (2005) SC789
Rex Lialu v The State [1990] PNGLR 487
Steven Loke Ume v State (2006) SC836
Ure Hane vs The State [1984] PNGLR 105

Counsel

Mr Rangan, for the State
Mr Paisat, for all the Accused

DECISION ON SENTENCE

26^th May, 2022

1. TUSAIS, AJ: On 5^th May 2022, the three accused were convicted after a trial on charges of wilful murder contrary to section 299 of the Criminal Code. This is the court’s decision on sentence.
   

Facts

2. On a Sunday 12^th July 2020, between 3 and 4 o’clock in the morning, the 6 co-accused persons and others, carried bush-knives and walked to the home of the Late Francis Mamu and his family, situated at Tunvirua block, Kabaira village, near George Brown Theological College on the North Coast Road of East New Britain.
   
3. They went to a building that Late Francis Mamu was sleeping in. The men suspected him of practicing sorcery. They broke the door of the house, went inside and cut Francis Mamu with bush-knives, intending to kill him. Late Francis Mamu lost a lot of blood due to various cuts on his body, and as a result he died inside the house.

State alleged that the six co-accused persons aided and abetted each other, s. 7 of the Criminal Code Act.

4. There were several severe knife wounds found on the body of the deceased. The examining doctor found the following external injuries.
   

“There is a deep cut on the left side of he neck measuring 12cm x 5cm x 6cm and the trachea severed. There is a deep cut to the head and the skull fractured. There is a deep cut to the left arm measuring 9cmx4cmx3cm and a fractured humerus. The left forearm completely severed. There is a deep wound to the right shoulder measuring 14cm x5cmx3cm.there are multiple deep cuts to the back.”

5. The issue is for the court to decide what sentence to impose. The prescribed maximum sentence for the crime of murder under section 299 is now life imprisonment after the recent amendments number 10 of 2022. The new penalty is that an offender ...
   

“shall be liable to be sentenced to life imprisonment without parole”

6. Maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind. The Supreme Court in the cases Avia Aihi vs the State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 restate this principle of law.
   
7. In considering the appropriate penalty to impose in this case, I take into account the submissions made by both counsels on sentence and the prisoner’s statements in Allocutus. I refer to each of the offenders antecedents. There was very little information given about each of the prisoners by Mr Paisat. The court was not given information about personal antecedents like age, education, employment status etc.
   

ANTECEDENTS – BEN VARURUAI

8. He is unemployed and resides at Tunvirua block. He attended Tinganagalip primary school. He is a member of the United church. He is still single and has no prior convictions. The prisoner appears to be somewhere between 25 and 30 years. He is a first time offender. In allocutus the prisoner said the following.
   

“I respect this court. It has found me guilty. I say sorry to the Court. I am also saying sorry to the Constitution To the victim. Say sorry to the victim’s families. I am also saying to father God. I am seeking this court’s mercy. That’s all.”

ANTECEDENTS – MATHEW PIDILE JUNIOR

9. Mr Paisat informed the court that the offender had been residing at Tunvirua for 5 years until his arrest for this trouble. He is a catholic and is married with a 5 year old child. I also estimate the prisoner to be aged between 25 and 30 years. He is a first-time offender. In allocutus the prisoner said the following.
   

“I respect the Court. Court has found me guilty. I also respect Father God. I also respect the mother law. I am saying sorry to the victim and victim’s relatives. I wish to be placed in Probation. That is all.”

ANTECEDENTS – PIDIK ARULO

10. The prisoner is married with 5 children. He is a catholic by faith. He is married with 5 children and had been living at Tunvirua for 30 years. He completed primary education at Vunariu Primary school. He is a first time offender. The prisoner looks older than his two co offenders and may be aged between 30 and 40 years. In allocutus the prisoner said the following.
    

“I want to say sorry to this Court. Court has found me guilty. I also say sorry to God and to the Constitution and also to this Court. I am asking this Court for its mercy”

11. I consider the following mitigating factors to be in favour of the offenders.
    
    1. No prior convictions.
       

2. Two of the prisoners, Ben Varuruai and Mathew Pidile are young offenders. are young offenders.
   

100. All three of them expressed remorse during allocutus and said sorry to the victim.
     

12. Aggravating Factors are as follows.
    
    1. Loss of life.
    2. Attack was vicious. Multiple injuries were inflicted on an old man inside his own house while he was resting. There was clear intention to cause harm.
    100. Serious injuries were inflicted on the victim.
    4. Offence committed under the influence of alcohol.
    5. This was the killing of a person on account of accusation of sorcery. Parliament recognised the prevalence of this type of unjustified killing in PNG and passed a law amending the Criminal Code section 299A. The maximum sentence originally was death but is now life imprisonment with parole allowed only after 30 years. I reject Mr Paisat’s submission that the offender’s suspicion or belief that the victim was a sorcerer is a mitigating and extenuating factor. Instead, I treat this factor as a very serious aggravating factor.
    6. Murder and unlawful killing is becoming very prevalent in East New Britain. What was once a very peaceful and model Province in Papua New Guinea has now become a violent and lawless place.
       

13. Both Counsels referred to and cited the often quoted case authority of Manu Koivi v State (2005) SC789. As I said in the case of State v Binas Wapi (2022) N9445, those factors in Manu Kovi relating to categories of seriousness in willful murder are now redundant since the recent abolishing of the death penalty as the maximum sentence for willful murder.

14. Defence lawyer submitted that the case was not serious case of wilful murder because it was not a planned killing but a spur of the moment act fuelled by alcohol. He argued also that there was defacto provocation because the victim was a sorcerer and his killing was justified in PNG cultural context. Mr Paisat submitted that in all those circumstances a sentence of 10 to 15 years was sufficient for deterrence.

15. The State prosecutor submitted that this particular killing fell into the third category in the case of State v Manu Koivi (2005) SC789 and so 20 to 30 year sentence is appropriate.

16. I find that the aggravating factors outweigh the mitigating factors in this case. I do not however consider this case to be the worst of its type. Although all unlawful killings are serious because of the loss of life courts must have regard to the facts of each particular case for purposes of sentence, Lawrence Simbe v The State [1994] PNLR 38.

17. Mathew Pidile Junior asked for probation or good behaviour bond. Iam of the view that wholly suspended sentences in homicide cases are only handed out in very exceptional cases. The early case of Public Prosecutor v Panikuiaka [1979] PNGLR536 is the authority for this principle. The Supreme Court confirmed a sentence to the rising of the court on a woman who had fully intended to kill herself after killing her child because of extreme mistreatment by her husband.

18. More recently in the case of State -v- Soni [2019] N7776 Gora AJ, (as he then was), the prisoner pleaded guilty to charge of murder, s.300(1)(a) CCA. He had thrown a knife spear at the deceased penetrating his heard. He was of an advanced age and so sought a suspended sentence and probation orders. Customary reconciliation and compensation was made and considered as mitigating factors. While waiting trial the offender had actively looked after the family of the deceased. He had already paid a large sum in compensation and was scheduled to pay even more at a given date. He was sentenced to 14 years imprisonment ILL. The pre-trial custody period was deducted and the balance was wholly suspended on probation conditions.

19. None of those things happened in this case. There are therefore no exceptional circumstances to justify suspension of sentence on condition.

20. I will treat all prisoners equally for purposes of sentence. These types of mostly unjustified killing of both men and women on suspicion that they are sorcerers has become a huge problem in PNG. Something needs to be done to deter further acts of violence and killings of innocent victims based on speculation, rumours deliberately spread by malicious enemies of the victim or by so called glassman and glassmeris. In a recent sorcery accusation related killing Acting Justice Sambua imposed 40 year sentences on several prisoners in Popondetta. I have sighted a copy of that decision delivered on 29^th March 2022, in the case of State v Mike Jofo and 5 Others (2022) CR 182 of 2021 and note that the facts in that case are far worse than in this case. There were two victims. They were pursued and attacked when they took cover before a village councilor. After they were killed their penis was cut and placed into their mouth.

21. In all the circumstances I impose 30 years to serve in hard labour on all 3 prisoners. I deduct time spent in remand. Prisoners are to serve the balance in hard labour at Kerevat jail.

Sentenced accordingly.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Paisat Lawyers: Lawyer for the Accuseds