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State v Luke [2022] PGNC 573; N10068 (17 November 2022)

N10068

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1296 0F 2022

THE STATE

V

BERNARD LUKE
Prisoner

Kerema: Sambua, A J
2022: 10^th ,14^th&17^th November

CRIMINAL LAW – Guilty plea – Murder-aggravating factors outweigh the mitigating factors – sorcery related killing -sorcery is no longer a mitigating factor – 25 years considered an appropriate sentence.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
State v Timothy Sangai [2016] N6247
State v Todd v Mari [2011] N4306
State v Cyril Nohuta & 2 others [2016] N6464
Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 514
Kwaya Wako v. The State [1990] PNGLR 6
John Baipu v. The State (2005) SC796.
State v. HarmonyNaba (2013) N5308.
Manu Kovi v. The State (2005) SC789
State v John Banuk (No.2) [2014] N5757
State v Rex Lialu[1988-89] PNGLR 449
John Kalabus v State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38

DECISION ON SENTENCE

17^thNovember, 2022

1. SAMBUA, AJ: An indictment containing one count of murder laid pursuant to section 300(1)(a) of the Criminal Code Act, was presented against the prisoner Bernard Luke. He pleaded guilty and was convicted thereafter.
   

Brief Facts

2. The short facts giving rise to the charge were that between 7.00am and 7:30am on morning of the 15^thof June 2020, the deceased, Nigel Martin was cutting grass outside his house at Yamani village, Central Malalawa while waiting for his wife, Cletha Nigel for them to go to the garden. As his wife Cletha Nigel was walking towards her husband (deceased) who had his back to her, the prisoner Bernard Luke walked past her towards her late husband.
   
3. When the prisoner got closer to the deceased, he swung his bush knife at the deceased and struck the deceased on the left side of his head across his ear that caused the deceased to slump to a sitting position onto the ground and was reaching for his bush knife, but the prisoner cut him again on the neck almost decapitating his head. The deceased died as a result of severe bush knife trauma to his neck.
   
4. The State said that when the prisoner Bernard Luke cut the deceased with a bush knife on the head and neck that led to his death, the prisoner had an intention to cause the deceased grievous bodily harm thereby contravening section 300(1)(a) of the Criminal Code Act.
   

The law

5. The law creating the offence of murder and prescribing its penalty is s.300 of the Criminal Code. The relevant parts are in the following terms:
   

300. Murder

(1) Subject to the succeeding provisions of this code, a person who kills another under any of the following circumstances is guilty of murder: -

a) if the offender intends to do grievous bodily harm to the person killed or to some other person.

Penalty: Subject to s. 19, imprisonment for life.

6. The Supreme Court in Goli Golu v The State [1979] PNGLR 653 said:
   

“It is a general principle of sentencing that the maximum penalty should be reserved for the most serious instance of an offence, the worst possible case normally encountered in practice. This is an application of an even more basic principle, that there must be proportions between offence and sentence.”

7. The issue before this court is what would be the appropriate penalty in the circumstances of this case.
   

Personal Particulars

8. The prisoner Bernard Luke is 24 years old. He comes from Ivandu village Kerema District, Gulf Province. He is married with one child. He is Catholic by faith. He attended Kanabea Primary School and then went on to Kerema Secondary School but has not secured any formal employment. His pre - trial custody period was 2 years 11 months
   

Allocutus

9. In his statement in allocutus, the prisoner said this:
   

“Your Honor, in our country PNG we believe in custom, and we believe in our traditional ways, and we believe in sorcery too. I am sorry for what I have done. I am not supposed to commit this crime but because of his words and actions that I did it. I paid K21,000.00 compensation, i.e K20,000.00 in cash and a K1000.00 pig. Whilst I was in custody my land was taken with betelnut trees and mustard plants and my family is not there anymore. Therefore, I ask the Court for its mercy and gives me probation. That is all”.

Submissions by counsels

10. Mr Kaipu on behalf of the State submitted that this case falls within the higher end of category 3 in that an offensive weapon, a bush knife was used. Multiple injuries to vulnerable parts of the body were inflicted on the deceased’s body and it was pre-planned and a very vicious attack showing a very strong desire to cause grievous bodily harm. The sentencing range in category 3of the Manu Kovi guidelines is a sentence between 20 -30 years.
    
11. In his submission, he referred to a number of cases for purpose of comparation and they were:
    
    1. The State v Bakamini [2021] PGNC 275; N8983
       

His Honour, Kangwia, J convicted the offender following a guilty plea to one count of murder, contrary to s.300 (1) (a) of the Criminal Code. The facts were that the deceased was involved in an earlier scuffle in which the prisoner was injured and was settled with K50 compensation.

On 27 June 2020 while the deceased was walking on the road the prisoner approached and showed him a scar on his body and attacked the deceased with a knife.

The deceased warded off the attack with his bush knife and tried to run away however the prisoner caught up with him and stabbed him. The autopsy report identified two penetrating stab wounds to both sides of the chest suggested that the deceased died of haemothorax due to penetrating stab wounds.

The prisoner was sentenced to 20 years imprisonment. The time spent in pretrial custody was deducted and the balance to be served at Buimo CIS,

2. The State v Martin & ors [2008] PGNC 29; N3312, Kandakasi, J (Tabubil)

The offenders were convicted following a plea to one count of murder, contrary to s.300(1)(a) of the Criminal Code. It was a brutal and merciless killing of person believed to be sorcerer. It was mob attack of an unarmed old man by a group of young and strong men. The deceased was attacked with axe, sticks, and repeated punches and kicks causing instant death and the attack was without warning.

His Honour considered a sentence in the range of 17 to 30 years would be appropriate, Then taking into account the kind of sentences that have been imposed in sorcery related cases, most of which were discussed by the Supreme Court decisions in both the John Baipu and Thomas Irai cases and the sentences in those cases themselves, the court consider a sentence of 24 years against Sware Umere and Philip Umere, who were found to be the main actors in the killing of the deceased appropriate. Then for the rest except Nellon Tero by reason of his age, the court considered a sentence of 22 years as appropriate and imposed that sentence. Nellon Tero was sentenced to 16 years by reason of age.

12. In this case, he submitted that by law the highest penalty the court can impose for the offence of murder is life imprisonment. The next question is whether or not the present case warrants the imposition of the life imprisonment.
    
13. He submitted that, the mitigating factors in this case were that the prisoner is a first-time offender, he had no prior convictions, he pleaded guilty to the charge and it was a sorcery related killing.
    
14. In regard to the factors in aggravation, he submitted that there was a loss of life showing a complete disregard for the sanctity of life, it was a very vicious attack on the deceased cutting his left side head and as deceased slumped in a sitting position, he cut him again on his neck almost decapitating the head while he was already seriously wounded and was defenceless. Andan offensive and deadly weapon was used namely a bush knife. And it was a payback killing relating to a sorcery killing and it was a prevalent offence.
    
15. He submitted that according to the Manu Kovi sentencing guidelines for murder, this case falls within the third category and calls for a sentence of between 25 to 30 years imprisonment in hard labour as the most appropriate punishment. The sentence must have a deterrent effect on the offender personally and on potential offenders. This archaic mentality of sorcery and payback related killings has made its way into our modern towns and cities and is putting innocent lives of law-abiding citizens at risk. A fear that has never existed inour towns and cities previously.
    
16. Mr Kayokon behalf of the prisoner submitted that considering the circumstances surrounding this case, it could easily fall between category 2 and 3 in the Manu Kovi case and will attract a sentencing range of between 16 to 30 years however submitted further that the Supreme court in the case of Thress Kumbamong v The State (2008) SC1017 held that despite the tariffs set in Manu Kovi case, the sentencing discretion of the court remains very much unfettered.
    
17. In his submission, MrKayok also referred to a few cases for purpose of comparation and they were as follows:
    
    1. The State v Bob [2019] PGNC 455, N8234, the deceased attended a mediation in which he was accused of sorcery. Whilst the deceased was answering questions put to him, the offender and an accomplice who were armed with sharp knives rushed at him. The offender stabbed the deceased with a 30 cm long knife on the right side of his stomach. The accomplice also stabbed the deceased on the left side of this shoulder causing him to collapse and die instantly as a result of the stab wounds. The offender had intended to cause grievous bodily harm to the deceased and stabbed him and he died as a result. The court held that the case fell at the lower end scale of category 3 of the Manu Kovi case. The court also considered the aggravating factors which were that the offence was prevalent and serious, there was some pre-planning and the offender, and his co-accused used dangerous weapons, namely bus knives to cui the deceased and the attack was a vicious attack on an unsuspecting unarmed man. The victim sustained serious injuries and the offender, and his co-accused prevented others from assisting the deceased to get medical help until he bled to death. The mitigating factors were that he pleaded guilty and was a first-time offender. He paid compensation of K5300.00 and two live pigs and did not re-offend whilst on bail. His Honour Justice Kaumi sentenced the offender to 14 years imprisonment and deducted1 year pre-sentence custody period and suspended 4 years. Offender was to serve 9 years in custody.
       
    2. The State v. Paise [2015] PGNC 27; N5911 (Geita J), the prisoner pleaded guilty to murder. The prisoner cut his brother’s head with his bush knife five times and hid his body in the nearby river. He also cut off the deceased' fingers and later attempted to sell it to another person saying it has power. He was arrested and admitted the killing. The prisoner killed his brother on suspicion of him practicing sorcery. The court considered the mitigating factors that, the prisoner had no prior conviction; was a villager; co-operated with police and village elders during the investigations; and was a first-time offender. The court also considered the aggravating factors that there was use of dangerous weapon namely a bush knife in the attack and multiple wounds were inflicted, the offence was aprevalence, and it was a cold-blooded killing. The court imposed a sentence in the upper range of sentences in category 2 of Manu Kovi case. The court imposed a head sentence of 20 years and deducted one-year pre-trial custody period and suspended three years from the head sentence of 20 years. The prisoner was sentenced to 16 years.
       
    3. The State v Dakol [2018] PGNC 364, N7444, (Kaumi, AJ) the 4 offenders pleaded guilty to one count of murder of a reputed sorcerer. The 4 offenders suspected the deceased of practicing witchcraft, and they blamed him for the death of one of their brothers. All four-accused armed themselves with bush knives. They went to the house of the deceased and surrounded it. They waited until 6.00 am when there was light and observed the movements of the deceased who was throwing his hand up in air all around the house and they suspected him of doing some rituals. They all rushed in and attacked the deceased and chopped him up. They were each sentenced according to their degree of participation. The court held that the case fell under category 3 of the Manu Kovi case and stated that the proper starting point was 21 years. The court imposed a sentence of 20 years. The pre-sentence period was deducted, and 2 years was suspended. The prisoners were to serve 16 years.
       
    4. The State v Wilfred Opu Yamande N'danabet (2004) N2728, the Record of Interview showed that the belief in sorcery was the cause of the accused killing the deceased believing he would be killed next. Prisoner was sentenced to 20 years, less pre-trial custody period.
       
18. Mr Kayok also submitted that, it is clear from the circumstances of this case and the case authorities he referred to, the sentencing range for murder cases relating to sorcery on a guilty plea, fell within category 2 and 3 of the Manu Kovi case which would attract a sentence between 16 to 30 years and therefore submitted that an appropriate starting point in this case was18 years imprisonment term.
    
19. He also submitted that the prisoner has been in custody since the 16^th of June 2020, which would bring the total period of his detention to about two (2) years, five (5) months asked the Court to exercise its discretion under the Criminal Justice (Sentences) Act 1986 and deduct this period from the head sentence.
    
20. Furthermore, he submitted that the court should take all these factors into consideration, as well as the sentencing trends in the authorities referred to in his submissions and submitted that the Manu Kovi sentencing guideline can only be used as a guide only. The circumstance peculiar to this case must be taken into consideration and that this court impose a lesser penalty than the sentences in category 2 and 3 of the Manu Kovi case and the sentence imposed must be partly suspended.
    

The Sentence

21. This is yet another sorcery related killing whereby a life has been viciously taken away with no regard for the sanctity of human life. The life that was given by the Creator and only the Creator can take it away
    
22. I am very grateful for both counsels’ assistance in providing written submissions with relevant case law authorities. However, there is one case both counsels did not refer to in their respective written submission.
    
23. I am referring to the case of State v Nohuta [2016] PGNC 268; N6464 (2 September 2016). It was a decision by Auka, AJ (as he then was) in Popondetta. It was a sorcery related killing case. I am of the view that it is relevant and applicable to the circumstance of this case
    
24. In that case, three prisoners were found guilty of Murder under s.300 (1) (a) of the Criminal Code that they on 27^th September 2014 at Erorovillage, Popondetta Oro Province, murdered Augustus Ovio. Based on the evidence, he found that all 3 prisoners together with another attacked the deceased with bush knives. The deceased was chased from his garden house by the 3 prisoners and their other relative 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, caused extensive and serious injuries. The attack was, violent and vicious.
    
25. The doctor reported that the injuries suffered by the deceased were extensive and serious, denoting the violent manner in which the deceased was attacked.
    
26. In that case, His Honour Auka, AJ (as he then was) expressed these sentiments:

“I found after the 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 participated in cutting the deceased all over his body.

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.

The killing of persons suspected to be sorcerers is in my view is very prevalent in the country. Sorcery related killings have been regarded as special cases because of customary and traditional beliefs connected with it. And 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) SC796.

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.

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) SC789.

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 attacked him. They were all armed with bush knives when they attacked him. There was intention to cause bodily harm to the deceased.

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 victims who are suspected of sorcery without proof.

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

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.”

27. As I have alluded to above the sentiments expressed by Auka, AJ (as he then was) in the above case are relevant and equally applicable to the circumstances of this case and I adopt it as part of this judgement.
    
28. This case is one of the many hundreds of cases that come through the courts where the courts have held that sentences that are imposed must be one fitting the crime and must also deter other would-be offenders.
    
29. In his statement in allocates, the prisoner made the following statement:
    

“Your Honor, in our country PNG we believe in custom, and we believe in our customary ways, and we believe in sorcery too. I am sorry for what I have done. I am not supposed to commit this crime but because of his words and actions that I did it. I paid K21,000.00 compensation, i.e K20,000.00 in cash and a K1000.00 pig. Whilst I was in custody my land was taken with betelnut trees and mustard plants and my family is not there anymore. Therefore, I ask the Court for its mercy and gives me probation. That is all”.

30. Papua New Guinea became an independent nation in 1975 and 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 very simple life in a more civilized way. Disputes were settled in a more civilized way than it is today.
    
31. 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. This is a classic example of people taking the law into their own hands instead of allowing the law to take its course.
    
32. The prisoner brutally and viciously attacked and killed the deceased in front of his wife. And now he comes to this court and tells the court that he is concerned about his family. He did not think about it when he ventured out to kill the deceased in retaliation of the death of his sister’s daughter whom he suspected that the deceased caused her death though sorcery. He killed the deceased in front of his wife. Hence, his concern for his family and for Probation will not be entertained and is rejected.
    
33. 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.

34. The sentiments expressed by His Honour Lenalia, J (as he then was) in the above-mentioned case is relevant and applicable to this case. The prisoner in this case deserves to be punished for killing the deceased on mere suspicion of sorcery without proof that it was the deceased who caused the death of his sister’s daughter.
    
35. The sanctity and value of a human life is very precious and ought to be protected at all costs by the Courts. The 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. Hence, a sentence in this case would be a long punitive and deterrent one.
    
36. In this case, the prisoner acted alone unlike in the cases referred by counsels in their respective submissions which involved group attacks. Be as it may, in my view it was a vicious attack on an unsuspecting victim who was caught unaware of the danger and his eventual demise. The prisoner ought to be severely punished for his unlawful action.
    
37. I am of the view that this case falls into the third category of Manu Kovi’s case (supra)because of the ferocious, vicious and thoughtless attack upon the deceased.
    
38. I have taken into account all relevant factors on sentence including the mitigating factors and have weighed them against the aggravating factors. In this case, I am of the view that the aggravating factors far outweigh the mitigating factors. I note that compensation was paid but that will in no way go towards the reduction of the sentence. Compensation in my view, will go towards restoring peace and harmony between the opposing parties and the community as a whole.
    
39. In the case of State v Rex Lialu [1988-89] PNGLR 449, His Honour Amet, J (as he then was) stated:

“ I want also to say something about customary compensation payments, their effect and the perceived intentions behind their payment. It is an honourable exercise and exchange to restore peace and harmony between the relatives of the parties involved. It is also taken into account as mitigation if the victim and/or the relatives consider it just, where death has or has not resulted. But it can never replace the punishment of the law of the land which stipulates the conduct to be against the law. The punishment will be balanced, taking into account this as well as the other principles earlier discussed and antecedent particulars.

.... compensation, however large or small, cannot exonerate the offender from criminal liability. Nor do I think that sentence will or should be reduced relative to the size of the compensation, such that it can be thought that the larger the compensation the greater the reduction in sentence should be. This cannot be the effect of compensation. If it is a genuine method of restoring peace and harmony by custom or tradition and whatever form and size it takes, it should not now be extended to obtain total exculpation of the offender. The natural flow-on effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment.”

40. The above statement by Amet, J, in the case of State v Rex Lialu [1988-89] PNGLR 449, is relevant and applicable to this case and I adopt it in this judgment. Compensation will not be or act as a substitute or reduce the punishment prescribed by a Criminal Law. Section 300(1) (a) of the Criminal Code prescribe the maximum penalty for a crime of murder is imprisonment for life. But that is subject to section 19 of the Criminal Code which gives a wide discretion to the sentencing judge to impose a sentence other than the maximum penalty prescribed by the offending section. Goli Golu v The State [1979] PNGLR 653 and John Kalabus v State [1988] PNGLR 193.
    
41. The Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38, held that each case is to be determined on its own peculiar facts and circumstances.
    
42. In applying the principle in the case of LawrenceSimbe v the State (supra), I consider that a sentence of twenty - five (25) years is appropriate in the circumstances of this case.
    
43. The prisoner has been in custody since the 16^th of June 2020, which would bring the total period of his detention to about two (2) years, five (5) months. Hence, in the exercise of my sentencing discretion under the Criminal Justice (Sentences) Act, I will deduct the period he had spent in custody awaiting the hearing of his case from the head sentence. The prisoner will serve the balance of 23 years and 7 months in prison.
    

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner