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State v Jovu [2022] PGNC 544; N10067 (31 March 2022)

N10067

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 182 & 197 OF 2022, CR NO 189 OF 2021, CR NO 194 OF 2021, CR NO 216 OF 2021, CR NO 37 OF 2020, CR NO 187 OF 2021 & CR NO 215 OF 2021

THE STATE

V

CAMERON JOVU,
MIKE JOFO,
CLANTY OROTU,
SMITH ARIKO,
BRENDON ESIKO,
ANDREW SARIKO &
JESSIE AKUMA

Popondetta: Sambua AJ
2022: 11^th, 28^th, 30^th & 31^st March

CRIMINAL LAW – wilful murder section 299(1) criminal code – not guilty plea – found guilty after a trial – aggravating factors outweigh mitigating factors uses of weapons – killing was vicious – no regard and respect for human life - took law into their own hands- long punitive and custodial penalties considered appropriate in the circumstances of this case.
CRIMINAL LAW – murder section 300(1) (a) criminal code – guilty plea – aggravating factors outweigh mitigating factors - use of weapons – killing was vicious – no regard and respect for human life - took law into their own hands- long punitive and custodial penalties considered appropriate in the circumstances of this case.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
Avia Aihi v. The State (No. 3) [1982] PNGLR 92
Manu Kovi vs The State [2006] SC789
The State vs Avana Latuwe (2013) N5406
State vs Aiya (2013) N5198
Thresa Kumbamong vs the State [2008] SC1017
Steven Loke Ume & Others vs the State [2006] SC836
John Baipu vs The State [2005] SC796
Thomas Irai vs The State [2007] SC867
State v Alphonse Polpolio & Jeffery Baru (2006) CR 701 & 865 of 2006
The State v William Lare [2020] PGNC 271, N8597
The State v Boas Kapai, James Mangeko, Livaj Ausomb & Lester Livai [2010] N4209
The State v Peter Gilgil Angora CR.1680 of 2006 unreported/ unnumbered judgment.
The State v Wilson Okore CR.584 of 2006; Unreported judgement
John Kalabus v State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
State v Sedoki Lota & Fred Ambenko (2007) N3183
The State v Gad Yakapus [2021] N8954
State v Nohuta [2016] PGNC 268; N6464
State v John Banuk (No.2) (2014) N5757

Legislation
Juvenile Justice Act

Text
Criminal Law and Practice in PNG – 3^rd Edition

Counsel
Mr E Yavisa and Mr S Kuruwalo, for all Accuseds/Applicants
Mr R Luman and Mr S. Kuku, for the State/Respondent

DECISION ON SENTENCE

29^th March, 2022

1. SAMBUA, AJ: An indictment containing two (2) counts of wilful murder pursuant to section 299(1) of the Criminal Code was present by the State against the 5 prisoners, Cameron Jovu, Mike Jofo, Clanty Orotu, Smith Ariko, and Brendon Esiko together with eleven (11) others. They pleaded not guilty to the charge on arraignment and a trial was convened, the five (5) prisoners were found guilty and convicted for wilful murder under section 299(1) of the Criminal Code while eleven (11) others were found not guilty and were acquitted of both counts after the trial.
   
2. The prisoner Cameron Jovu was found guilty and convicted on both counts of wilful murder under section 299(1) of the Criminal Code.
   
3. The prisoners Mike Jofo and Clanty Orotu were found guilty and convicted for the willful murder of Bartholomew Umbu on count 1 on the indictment however were found not guilty and acquitted for the wilful murder of Siko Umbu on count 2 on the indictment.
   
4. The prisoners Smith Ariko and Brendon Esiko were found not guilty and acquitted on the charge of wilful murder of Bartholomew Umbu on count 1 on the indictment however were found guilty and convicted for the wilful murder of Siko Umbu on count 2 on the indictment.
   
5. The prisoners Andrew Sariko and Jessie Akuma initially through plea bargaining pleaded guilty to two counts of murder under section 300(1) (a) of the Criminal Code. However, after perusal of the committal deposition that were tendered in court by the State as evidence against each of them, I confirmed their guilty plea on one count each and vacated the plea on the other count.
   
6. For the prisoner Andrew Sariko, his guilty plea on count 1 was confirmed and was convicted for the murder of Bartholomew Umbu however his guilty plea on count 2 for the murder of Siko Umbu was vacated and substituted with a not guilty plea. Thereafter, the State offered no evidence on count 2 and after a no case submission by defence, he was found not guilty and acquitted on count 2 for the murder of Siko Umbu.
   
7. For the prisoner Jessie Akuma, his guilty plea to count 1 for the murder of Bartholomew Umbu, was vacated and substituted with a not guilty plea. The State offered no evidence and after the defence made a No Case to Answer Application, he was found not guilty and acquitted on count 1 for the murder of Bartholomew Umbu. His guilty plea to count 2 was confirmed and was accordingly convicted for the murder of Siko Umbu.

History of the case

8. The State alleged that between 6.00am to 8.00am on the morning of the 13^th day of November 2019 at Ambene village, the prisoners, Cameron Jovu, Mike Jofo, Clanty Orotu, Smith Ariko, Brandon Esiko, Andrew Sariko and Jesse Akuma and others went to the two deceaseds, Bartholomew Umbu and Siko Umbu's residence and attacked them with weapons on suspicion of practicing sorcery. The deceased Bartholomew Umbu was the father while the deceased Siko Umbu was Bartholomew Umbu’s son
   
9. The two deceaseds managed to escape earlier attack at their small Perefi village and walked down to the main Ambene village to report the matter to the ward councillor. However, upon arriving at the councillor’s house, they were surrounded by the prisoners and others who were armed with weapons, such as homemade guns, bush knives, grass knives, hunting spears, stones etc.
   
10. The attack began after their leader called out and gave orders "boys move". The prisoners and their group immediately went into two groups chased and attacked the two deceased at different locations and at different times.
    
11. The prisoners, Mike Jofo, Andrew Sariko, Clanty Orotu and John Jofo attacked the deceased, Bartholomew Umbu by spearing him with a crowbar (iron) spear, by cutting him with bush knives and grass knives resulting in his death after he had been shot by Cameron Jovu with a homemade gun.
    
12. The prisoners Smith Ariko, Branden Esiko, Jessy Akuma, Cameron Jovu, chased the deceased Siko Umbu and when they caught up with him, they cut him with bush knives, grass knives, axe(s) etc, causing serious bodily injuries to him which eventually led to his death.
    
13. Siko Umbu’s dead body was then dragged on the ground to the village playing field where they chopped off the deceased hands and penis and tried to shove his penis into his anus.
    

Allocutus

14. All prisoners in their respective statements in allocutus said sorry to God for breaking his ten commandments and they also said sorry to the two deceased and their families for spoiling their lives.
    
15. Only the prisoner Mike Jofo sought mercy of the court for the court to be lenient on him and for the court to impose a sentence less the maximum of life imprisonment on him.
    

MEDICAL EVIDENCE

16. The Health Extension officer (HEO) Mr Donald Salapwi who conduct an external postmortem on the two deceased persons concluded at paragraph 9 of his Affidavit that both deceased died of heavy blood loss due to multiple wounds and lacerations which led into the condition of haemorrhage shock.
    

The Photographs

17. The photographs depict pictures of two badly mutilated dead bodies of Bartholomew Umbu and his son Siko Umbu
    

Personal Particulars

18. The prisoner Cameron Jovu is 27 years old and is from Ambene village in Ward 12 of Kokoda Local Level Government in Sohe Electorate of Oro Province. He is single and comes from a family of seven siblings, and he is the first born. His parents are both dead. He is an Anglican Priest in his Ward 12 Community. He did his Grade 10 at Bareji High School in 2010. He and his family own cocoa, betelnut, and Oil Palm plantations.
    
19. The prisoner Mike Jofo is 42 years old and is from Ambene village in Ward 12 of Kokoda Local Level Government in Sohe Electorate of Oro Province. He is married with eight children who are ages between two to ten years old. Six of the children are attending elementary and primary schools respectively. He comes from a family of 5 siblings, and he is the fourth born. His father is dead and mother is alive and aging. He did his Grade 6 at Ilimo Primary School long time ago. He attends Anglican Church. He and his family own few hectares of cocoa, betelnut, and Oil Palm plantations.
    

The prisoner Clanty Orotu is 27 years old and is from Ambene village in Ward 12 of Kokoda Local Level Government in the Sohe Electorate of Oro Province. He is single and comes from a family of six siblings and he is the third born. His parents are alive and aging. He did his Grade 9 at Kokoda High School few years back. He attends the Anglican Church. He and his family own a few hectares of cocoa, betelnut, and Oil Palm plantations.

21. The prisoner Smith Ariko is 29 years old and is from Ambene village in Ward 12 of Kokoda Local Level Government in Sohe Electorate of Oro Province. He is single and comes from a family of eight siblings and he is the first born. His father is deceased, and mother is alive and aging. He did his Grade 3 at Gorari Primary School few years back. He attends Anglican Church. He and his family own a few hectares of betelnut and Oil Palm plantations.
    
22. The prisoner Brandon Esiko is a juvenile, he was 14 years old at the time of the commission of the offence, and he is now 16 years old. He was a student doing Grade 5 at Ilimo Primary School when arrested. He is from Ambene village in Ward 12 of Kokoda Local Level Government in Sohe Electorate of Oro Province. He comes from a family of six siblings, and he is the fourth born. His parents are alive and aging. He attends Anglican Church. He and his family own a few hectares of cocoa, betelnut and Oil Palm plantations.
    
23. The prisoner Andrew Sariko is 32 years old and is from Ambene village in Ward 12 of Kokoda Local Level Government in Sohe Electorate of Oro Province. He is single and comes from a family of six siblings, and he is the first born. His mother is alive and aging, his father Norman Sariko is deceased (subject of this case). He attends Anglican Church. He did his Grade 12 at Martyrs Secondary School in 2007. His family and he own cocoa and betelnut plantations.
    
24. The prisoner Jessie Akuma is 27 years old and is from Ambene village in Ward 12 of Kokoda Local Level Government in Sohe Electorate of Oro Province. He is single and comes from a family of eight siblings, and he is the third born. His parents are alive and old. He did his Grade 9 at Kokoda Primary School few years ago. He attends Anglican Church. He and his family own a few hectares of cocoa and betelnut plantations.
    

Address on Sentence

25. Mr Yavisa on behalf of the prisoners submitted that while the prisoners may be liable to be sentenced to life imprisonment, it is trite law that the maximum penalty for any offence is reserved for the worst instance of offending. It is also trite law that an offender must serve a sentence that is proportionate to his crime and his personal circumstances: Goli Golu v The State [19791 PNGLR 653, Ure Hane v The State [1984] PNGLR 105, Avia Aihi v. The State (No. 3) [1982] PNGLR 92.
    
26. In determining an appropriate sentence, the first issue is whether the maximum sentence is warranted. To be fair on the prisoners, it would be proper at this stage to consider their cases separately, bearing in mind their respective degrees of participation in the commission of the crime.
    
27. He submitted that in Ure Hane vs The State, the Supreme Court held that "when considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, in so far as the law allows categorise those "worse type "cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty, not the offender. Therefore, submitted that the court should take into consideration the degree of culpability and participation of the prisoners in the killing of the two deceased which he described as not in the worst type category.
    
28. He submitted that in this case the evidence was that Cameron Jovu fired his homemade gun and shot Bartholomew Umbu on his right-side belly. And there was also evidence that he told another person to remove a volleyball post and placed Siko Umbu's head on it and hit Siko Umbu three times on his chest.
    
29. On behalf of the prisoner Clanty Orotu, he submitted that the evidence was that he called out to the boys who were attacking Bartholomew Umbu while he was lying down on the ground and ordering them to cut him.
    
30. Mr Yavisa submitted on behalf of Mike Jofo, there was evidence that he shot Bartholomew Umbu with a half inch diameter crowbar spear (iron rod spear) on his right leg below the knee.
    
31. On behalf of Smith Ariko, he submitted that there was evidence that he held a homemade gun at that time and fired at the deceased Siko Umbu but it did not discharge any projectile.
    
32. And in respect to Brandon Esiko, he submitted that there was evidence that Brandon Esiko was at all times with the group that chased attacked Siko Umbo who held stones and threw one at Siko Umbu that hit Siko Umbu on his thigh.
    
33. Furthermore, in his submission, he made reference to a statement by His Honour Toliken J in the case of State v Baina Benny [2018] N9243 where his Honour stated that “viewing the circumstances of the case objectively, it does appear at first glance to qualify for the imposition of the life imprisonment. There is pre-meditation involved, the killing was done in cold blood, and there was total disregard for the sanctity of life. But the court must nevertheless impose appropriate sentences benefiting the prisoner's degree of culpability and participation in the killing of the deceased".
    
34. Therefore, he submitted that the culpability and the participation of each prisoner will be reflected in the evidence which does not fall within the worst category of offending and that it does not attract the maximum penalty of life imprisonment.
    
35. The next issue to determine is the appropriate term of sentence to be imposed. He submitted that this case falls under category 1 and 2 of the Manu Kovi v the State [2006] SC 789 case which should attract a term of sentence between 15 to 20 years for Category 1, and 20 to 30 years for Category 2. However, the Manu Kovi case is a guide only and is subject to Section 19 of the Criminal Code. The Courts have unfettered discretion in sentencing.
    
36. In his submission, he referred to a case law authority to assist the court in reaching appropriate sentences for the prisoners and referred to the case of The State v Avana Latuwe (2013) N5406 which was a trial on wilful murder charge. The prisoner was sentenced to 20 years' imprisonment. The deceased was also a reputed sorcerer. He was chased and attacked by the whole village who eventually stoned him to death. The attack was instigated by the prisoner and even though there was no evidence showing what he actually did to the deceased, the court found that he took the leading role in the death of the deceased and that he had a very strong intention to kill among other aggravating factors.
    
37. The next case he referred to was the case of State v Aiya (2013) N5198. In that case the offender was found guilty after a trial for the wilful murder of a suspected sorcerer. The facts of the case were that he was in company of two other persons armed with guns, bush knives and axe. They went to the deceased house and found her in the presence of several other persons and slashed her with bush knives. Before they attacked her the offender singled out the deceased and told her that she was a sorceress and that they had come to kill her. The prisoner then pulled out his bush knife and cut her on her hand as she lifted her hand to deflect the blow. One of his accomplices then went in and cut her on the neck, and as blood was gushing out from the deceased the other accomplice went and cut her on the head. Even though a first-time offender, the offender was sentenced to 30 years' imprisonment.
    
38. In comparison with the above cases, for Cameron Jovu he submitted for a term of sentence between 20 and 25 years for each count. In his submission, he also asked the court to consider his age in determining an appropriate sentence and asked the court in exercising its discretion in the circumstances of this case by considering his culpability and participation in the killing of the two deceased.
    
39. In respect to prisoners Clanty Orotu, Mike Jofo and Smith Ariko, he also submitted for a term of sentence between 20 and 25 years for the count he was found guilty and convicted of. He asked the court in exercising its sentencing discretion in the circumstances of this case to consider his culpability and participation in the killing of the two deceased persons.
    
40. And for the prisoner Brandon Esiko, he asked the court to consider his age as he was 14 years old at the time of the commission of the offence. He is now 16 years old and therefore asked the court to apply the Juvenile Justice Act in sentencing him. Section 75 to 76 provides for the factors to be considered when sentencing juveniles. One factor to consider is the degree of participation and the other is the sentence shall not result in a punishment greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances. He therefore asked the court to exercise its discretion under Section 19 of the Criminal Code Act and sentence Brandon Esiko under Category 1 of the Manu Kovi case.
    
41. Although he had submitted for term of sentences under the Manu Kovi guidelines, these guidelines have restricted the courts from exercising the sentencing discretion vested in them freely as they should and made reference to the case of Theresa Kumbamong v the State [2008] SCI 017 and therefore asked this court to go below the sentencing guidelines in the Manu Kovi case, so that the sentence can reflect on the culpability and participation of each prisoner.
    
42. He submitted further that the court in determining the appropriate sentence, the following factors, include a loss of two lives, dangerous weapons were used, the two deceased persons sustained multiple knife, grass knife and spear wounds, and prevalence of the offence. He also asked the court to consider the fact that the deceaseds were known sorcerers in their community. Their traditional belief and custom, practices and beliefs which influenced the prisoners to act in the way they did and referred to the case of Steven Loke Ume & Others v the State [2006] SC836 includes the situations where extenuating circumstances are considered, and one includes traditional beliefs and customs.

Acting on a belief in sorcery can only operate as a factor in mitigation of the offender's sentence, just like all other mitigating factors that the courts often take into account before passing sentence, provided the offender establishes the basis for holding and acting on such a belief. John Baipu v The State [2005] SC796, Irai Thomas v The State [2007] SC867.

43. Considering these factors and all the cases law authorities he had referred to, he submitted for a term of years subject to the unfettered discretion of the court under section 19 of the Criminal Code and added that sentencing is not an exact science. It is a discretionary process and discretion must be exercised according to the recognized principles of law and referred to a decision by Canning J in State v Alphonse Polpolio & Jeffery Baru (2006) CR 701 & 865 of 2006. On the basis of the foregoing, he submitted for a sentence of between 20 years to 25 years for the prisoners subject to Section 19 of the Criminal Code, and less time spent in custody
    
44. Mr Kuku on behalf of the State submitted that the issue before the court is what would be the appropriate penalty to be imposed on the prisoners.
    
45. He submitted that Section 299 (1) of the Criminal Code created and prescribed the maximum penalty of death for the offence of Wilful Murder however, it has recently been amended and the maximum penalty now is life imprisonment. The sentence prescribed is subject to the Court's sentencing discretion under section 19 of the Code. As such that provision generally allows a Court to impose a sentence other than the prescribed maximum sentence in appropriate cases.
    
46. He also submitted that in light of that discretion, it is trite law that the maximum sentence prescribed in any offence is for the worse or the most serious category of the offence under consideration. In the case of wilful murder, the Supreme Court made it clear in Goli Golu v. the State [1979] PNGLR 653 and numerous other judgments such as the one in Ure Hane v. the State [19841 PNGLR 105 and Avia Aihi v. the State (No 3).
    
47. And then referred to the case of Manu Kovi vs the State in which the Supreme Court set out a guideline on sentencing in homicide cases.

For the Charge of Murder

For the charge of wilful murder

In his submission Mr Kuku also referred to number of case law authorities for purposes of comparison. The cases he referred to were:

Wilful Murder

1. The State v William Lare [2020] PGNC 271, N8597-Justice Anis- (Wilful Murder). In that case there were thirteen co-accuseds who on the 20^th of January 2016 between 4am to 5 am attacked the Sulka people at Mak village, Sinivit LLG, Pomio District, killing two deceased, namely Benard Mursing and Ereman Kle. The prisoners were armed with bush knives, grass knives, stones, axes etc. They attacked the two deceaseds and chopped them up to death using the weapons.
   

One prisoner Nathan Thomas was given 50 years, as he confessed that he was armed and followed the group who attacked and killed the two deceaseds. The other prisoner, Nerius Kuang Junior was given 26 years for his participation was considered hence the sentence. The other prisoners were given Life imprisonment.

2. The State v Boas Kapai, James Mangeko, Livaj Ausomb & Lester Livai [2010] N4209-AJ Sagu. The four prisoners ambushed and surrounded the deceased, armed with guns and dangerous weapons. Upon his arrival the accused Boas gunned him down and escaped. The prisoner(s) Boas Kapai was sentenced to Life imprisonment, James Mangeko was sentenced to 20 years, Livai Ausomb was sentenced to 20 years and Lester Livai was sentenced to 25 years

Murder

3. The State v Peter Gilgil Angora CR.1680 of 2006 unreported and unnumbered by Late Justice Kirriwom-(Murder). The prisoner and his accomplices in retaliation of the death, cut, stabbed, slashed and hit deceased with bush knives and axes on his face, neck and chest resulting in the deceased’s death. The deceased died of blood loss from the multiple wounds inflicted all over his body. The prisoner was sentenced to life imprisonment.
   
4. The State v Wilson Okore CR.584 of 2006; Unreported judgement by His Honour the Late Justice Kirriwom. The prisoner pleaded guilty to murder of the deceased who was suspected of practicing sorcery. The prisoner ambushed the deceased while he was trying to have his bath in the rain. The prisoner killed the deceased with a bush knife. He was sentenced to 50 years in hard labour.
   

48. Mr Kuku further submitted that each case must be determined on its own facts and circumstances. This case is deemed to be a worst type of case which should attract the maximum which is Life Imprisonment. It can be concluded that this case is a mob attack on two unarmed father and son who were accused of sorcery. The prisoners had a motive to retaliate and kill the two deceased persons.
    
49. The evidence against the seven prisoners was overwhelming and must attract a high punitive sentence to cause deterrence to future offenders that such actions are not accepted. Imposing strict sentences will cause a ripple effect in sending a stern message to people in our societies that killing or taking lives is forbidden and only the creator has the power to do so.
    

Furthermore, he submitted that killing over suspicion of sorcery without proof is deemed "ridiculous" as it is based on assumption and not facts. Due to the prevalence of such offences and the need for both general and specific deterrence, it was the State’s humble submission that the penalty of life imprisonment should be imposed on the seven prisoners however subjected to the court’s discretion on sentencing under section 19 of the Criminal Code.

Consideration of Appropriate Sentence

51. I am very grateful and appreciative to both counsels to have handed up their respective written submissions which has greatly assisted me in arriving at the sentences I am about to impose on the prisoners.
    
52. The prisoner Cameron Jovu was found guilty and convicted on two counts of wilful murder under section 299(1) of the Criminal Code
    
53. The prisoners Mike Jofo and Clanty Orotu were each found guilty and convicted on one count of wilful murder under section 299(1) of the Criminal Code for the wilful murder of the deceased Bartholomew Umbu on count 1 on the indictment.
    

The prisoners Smith Ariko and Brendon Esiko were each found guilty and convicted on one count of wilful murder under section 299(1) of the Criminal Code for the wilful murder of Siko Umbu on count 2 on the indictment.

54. The prisoner Andrew Sariko plead guilty and was convicted on one count of murder under section 300(1) of the Criminal Code for the murder of Bartholomew Umbu while the prisoner Jessie Akuma pleaded guilty and was convicted on one count of murder under section 300(1) (a) of the Criminal Code for the murder of Siko Umbu.
    
55. The crime of wilful murder under section 299(1) and the crime of murder under section 300(1) (a) of the Criminal Code carry maximum penalties of life imprisonment each however courts can impose sentences other than the maximum penalty by authority of section 19 of the Criminal Code.
    
56. The Supreme Court in Goli Golu v The State [1979] PNGLR 653 and John Kalabus v State [1988] PNGLR 193 stated that the maximum penalty should be reserved for the worst type of cases.
    
57. The Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38, held that each case must be determined on its own peculiar facts and circumstances.
    

The Sentencing Trend for wilful murder and murder cases

58. In the case of State v Sedoki Lota & Fred Ambenko (2007) N3183, a decision by His Honour Sevua J (as he then was) whereby the Prisoners beheaded a woman on an order of a Village Court Magistrate on the belief that she caused the death of their parents, were sentenced to death after pleading guilty to wilful murder. On appeal against the death sentence the Supreme Court substituted it with life imprisonment.
    
59. In the case of the State v Gad Yakapus [2021] N8954, a decision by His Honour Kangwia J whereby the prisoner with another attacked the deceased with a bush knife and homemade staple gun. The Prisoner walked straight to the deceased and while calling the deceased a sorcerer, swung his bush knife at the deceased and cut him twice on the head and neck which resulted in brain matter spilling. He pleaded guilty to wilful murder and was sentenced to 25 years. A 4 years' term was suspended leaving 21 years to serve. Pre-Trial Custody was deducted from the 21 years' term and the Prisoner served the balance.
    
60. In Irai Thomas v State [2007] SC867 (28 August 2007) a decision of the Supreme Court in Mt. Hagen by Their Honours Kandakasi, Lenalia and David, JJ relating to Claims of sorcery. The Supreme Court said that Sorcery is not a fact but only a belief and there is danger that offenders claim belief in sorcery to avoid full consequences of their offence and acting on belief of sorcery is repugnant to general principles of humanity and may be unconstitutional.
    
61. Therefore, it is inappropriate to readily treat a claim of belief in sorcery as a mitigating factor, except in cases where the offenders acted on the spur of the moment without preplanning and execution may get their cases mitigated. It was an appeal against sentence on a charge of wilful murder. The appellant was a leader and part of a group alleging the deceased caused appellant’s father’s death through sorcery, kicked and punched the deceased and eventually struck him hard on the forehead causing split in skull and brain damage causing instant death. The Appellant acted against people trying to stop him and was a first-time offender who pleaded guilty. The Supreme Court said that the sentence of 18 years imposed by National Court was too low and increased the sentence to 22 years imprisonment in hard labour.
    
62. In the case of John Baipu v The State [2005] SC796 (1 July 2005), a Supreme Court decision in Mt Hagen by Their Honours Sevua, Sawong & Lay JJ whereby 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.
    
63. The depositions also contained reference to village councillor 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 that case. The sentencing judge mentioned those facts in his reasons for arriving at the sentence. In that case it was held that the weight to be placed on sorcery as a mitigating factor in sentencing for murder depends on the circumstances of each case. It should not be assumed a belief in sorcery will be a significant mitigating factor in every case. In that case the Appellant had placed the sorcery complaint in the hands of Village Court officials more than a year before. Then he cut his 70-year-old uncle with a bush knife and left him to bleed to death in breach of an undertaking not to attack the sorcery suspects. It was not a case in which great weight should be placed on the mitigating effect of a belief in sorcery. A sentence of 25 years in hard labour was substituted for life imprisonment.
    
64. In the case of State v Peter Gilgil Angora CR.1680 of 2006 unreported and unnumbered by Late Justice Kirriwom-(Murder), the prisoner and his accomplices in retaliation of the death, cut, stabbed, slashed and hit the chest of the deceased with bush knives and axe which resulted in the deceased’s death. The deceased died of blood loss from the multiple wounds inflicted all over his body. The prisoner was sentenced to life imprisonment.
    
65. In State v Wilson Okore CR.584 of 2006 an unreported judgement by His Honour. The late Justice Kirriwom, the prisoner pleaded guilty to murder of the deceased who was suspected of practicing sorcery. The prisoner ambushed the deceased while he was trying to have his bath in the rain. The prisoner killed the deceased with a bush knife. He was sentenced to 50 years in hard labour.
    
66. In the case of State v Nohuta [2016] PGNC 268; N6464 (2 September 2016), a decision by His Honour Auka, AJ (as he then was) here in Popondetta, a sorcery related killing case. In that case the three prisoners were found guilty of murder under s.300 (1) (a) of the Criminal Code Act after a trial. The evidence was that the three (3) prisoners together with another attacked the deceased with bush knives. The deceased was chased from his garden house by the three (3) prisoners and their other relatives and caught up with him near a fishpond 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. At that time, the deceased was all alone and defenceless when the three (3) prisoners and others attacked him using their own bush knives. The three (3) prisoners used their own knives and actually participated in cutting the deceased all over his body. His Honour Auka, AJ (as he then was) found that the attack upon the deceased was vicious and that he died as a result of the injuries sustained during the attack which was confirmed by the Post-Mortem report as a result of Blood Loss from Multiple wounds and Lacerations. The court imposed a term of 23 years for each prisoner which was reduced by time spent in custody awaiting trial and sentence. They shall serve the reduced terms.
    
67. In the same case of State v Nohuta, His Honour Auka, AJ said:
    

“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 Prosecutor 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 Baipu 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....

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 sorcerer and killing one of their relatives through sorcery arrived. They chased him and when they caught up with him they attacked 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 men who without proof and without any regard for the deceased well-being and life, attacked him, taking his life in the 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 these 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”.

67. I adopt the sentiments expressed by His Honour Auka, AJ (as he then was) in State v Nohuta which are equally applicable to the circumstances of this case. The two deceaseds were attacked and killed by the prisoners on mere suspicion of sorcery. They have no proof of the two deceaseds performing sorcery on Norman Sariko and causing his death.

68. In this case the attack was a calculated and a planned killing by the prisoners and their relatives, who suspected the two deceased persons, the father and son as sorcerers. There was use of weapons such as home-made guns, bush knives, grass knives, iron spears and stones. The attack was vicious and that there was a strong desire to do grievous bodily harm as stated in category 3 of the Manu Kovi guidelines. It certainly comes close to falling into category 4 as it was a brutal killing of two innocent and harmless persons. There was no proof that the deceaseds were sorcerers. The prisoners acted on mere suspicion and belief to carry out their execution of the two deceased persons.

69. The injuries described by the HEO Donald Salapwi in Paragraph 9 of his affidavit whereby he concluded that both deceased died of heavy blood loss due to multiple wounds and lacerations which led into the condition of haemorrhage shock which caused their deaths. His description of the injuries was corroborated by the photographs depicting pictures of two badly mutilated dead bodies of Bartholomew Umbu and Siko Umbu.

70. This was a brutal, barbaric and horrific killing. The two deceaseds were tortured by the prisoners and their relatives. One could imagine the pain, and the agony the two deceased were in before their respective deaths. The people who did it, in this case the prisoners with their relatives had no respect and regard for sanctity of human life.

71. Papua New Guinea has been independent for 45 years now with more educated people unlike the period prior to independence when there were very few educated Papua New Guineans. Most were uneducated however were living a simple life in a more civilized way. Disputes were settled in a more civilized way than it is today.

72. In this day and age, there are institutions and agencies established by the Government to resolve disputes however are not being fully utilised. Instead, parties resort to violence like in this case. The prisoners should have taken the matter to police or the village court instead of resorting to violence in the manner they did. All the prisoners have at least had some form and level of education and Christian missionary influence. In my view, they were aware of Government institutions and agencies that deal with such disputes. However, they acted like uneducated, uncivilised and unchristian bunch of criminals.

73. In the case of State v John Banuk (No.2) [2014] N5757 (18 August 2014), a Kokopo decision by Lenalia, J (as he then was) stated:

“26. Unlawful taking of another person's life by vicious means is very serious and as such offenders must be appropriately punished depending on whatever mitigations and aggravations that might be considered relevant in each case. The basic principle in homicide cases is that the sanctity and value of a human life is very precious and values more than any wealth the world can offer and as such, it must be given prominence and ought to be protected at all costs by the Courts. That is why the Parliament fixed the maximum penalty of life imprisonment for the offence of manslaughter.

44. Crimes of violence and related killings of innocent people are too prevalent throughout the country and as such deterrent sentences must be considered to deter offenders committing such offences. All communities in this country are experiencing a high level of violent crimes affecting our country's quest for peace and harmonious progression of solving disputes in more responsible, diplomatic and amicable manner as provided for by the law.

a life has been lost forever. No money, remorse or compensation will assist to resurrect the victim's life”.

74. The sentiments expressed by his Honour LenaliaJ is equally applicable to this case and adopt it in this judgement. People who go about killing people on suspicion of sorcery with no proof should be severely punished with long custodial sentences as expressed by the Supreme court in the case of Thomas Irai v the State [2007] SC867 (28 August 2007).

75. In this case the prisoners have at least, some form and level of education and Christian missionary influence. They are all members of the Anglican Church of Papua New Guinea. The prisoner Cameron Jovo is a Priest for their local Ward 12 area of the Kokoda Local Level Government. They should have known better how to deal with the situation in a more Christian, civilised and humane way instead of taking the law into their own hands by resorting to violence in the manner they did. Their actions were unchristian, uncivilised and inhumane which will attract long punitive custodial sentences

The Sentence
76. In this case after taking into consideration all relevant factors on sentencing, in my view the aggravating factors in the instant case far outweigh the mitigation factors and also after considering the sentences imposed in the cases alluded to above, the sentences I impose are as follows:

Cameron Jovu- for 1^st Count of wilful murder – 40 years IHL

for 2^nd Count of wilful murder – 40 years IHL

Both sentences are to be served concurrently

MIKE JOFO - 1 count of wilful murder - 40-years IHL

CLANTY OROTU - 1 count of wilful murder 40 years IHL
SMITH ARIKO - 1 count of wilful murder 40 years IHL

BRENDON ESIKO – 1 count of wilful murder - 20 years IHL

Under Section 75 to 76 of the Juvenile Justice Act, it provides for the factors to be considered when sentencing juveniles. One factor to consider is the degree of participation and the other is the sentence shall not result in a punishment greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances. The evidence is that he was actively involved in the attack and the killing of the two deceased but was seen holding and using stones. For that reason, I considered the sentence of 20 years IHL.

ANDREW SARIKO for 1 count of murder- 30 years IHL

JESSIE AKUMA for 1 count of murder - 30 years IHL

Order. Pre- trial custody period to be deducted from their respective head sentences and they are to serve the balance.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoners