N11225

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 697 OF 2024

THE STATE

V

JAMES MON
of
KUMALU  VILLAGE NO.1 BULOLO
MOROBE PROVINCE

BULOLO/LAE: POLUME-KIELE J
5, 10 JUNE, 5 AUGUST, 2, 30  SEPTEMBER, 4, 7, 14, 15, 24 DECEMBER 2024; 7, 14 FEBRUARY, 4, 12  MARCH 2025

CRIMINAL LAW - Plea of guilty - Sentence –502E (1) (a) (b) (c) (d) of the Criminal Code (Amendment) Act No. 14 of 2022- Relevant considerations

Brief facts

On 30  August 2023, a week after the murder of one Lorna Seheque Nicko (on 23 August 2023), the prisoner, a Community Leader from Kumalu No. 2) in a Community gathering accused the deceased, Lorna Seheque Nicko of practicing sorcery as her normal duties. He accused her of killing and destroying the lives of many people of Mumeng. He said that her demise is the result of her practicing sorcery. Therefore the villagers took revenge and killed her.

Cases cited:
SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418
Avia Aihi v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Thress Kumbamong v The State (2008) SC1017
State v Karavea [1983] N452
State v Damanin (No. 2) [2020] N8420
The State vs. Sedoki Lota and Fred Abenko (2007) N3183
The State v Mesuno &Ors (2012) N4702
The State v Wilfred Opu Yamande N'danabet (2004) N2728
The State v Baika Martin &Ors ((2008) N3312
Irai Thomas v The State (2007) SC867
Baipu v The State [2005] PGSC 19; SC796
State v Jackson [2006] PGNC 154; N3237
State v Mohavila [2006] PGNC 106; N3385
Michael v The State [2004] SC737

Counsel
Ms S Joseph for the State
Mr. J John for the prisoner

SENTENCE

1.	POLUME-KIELE J: On 4 October 2024, the accused was indicted for one count of accusation of sorcery contrary to Section contravene s 502E (1) (a) (b) (c) (d) of the Criminal Code (Amendment) Act No. 14 of 2022. The accused pleaded not guilty to the charge and the matter was listed for trial on 15 October. 

2.	The State further invokes s 7 (1) (a) (b) (c ) (d) and s 8 of the Criminal Code.

3.	On 15 October 2024, the accused upon arraignment, changed his plea of not guilty to guilty. 

The charge

4.	Section 520E states:

“520E.	Accusation of Sorcery”

(1)	A person who accuses or threatens to accuse another person of- 

(a)	Being or having been a sorcerer; or
(b)	Performing or having performed an act of sorcery; or
(c)	Having been concerned in or partly an act of sorcery, 
is guilty of a crime

Penalty:	A term of imprisonment not exceeding 10 years or a fine not exceeding K10,000.00, or both.

Issue

5.	The issue for determination by the Court is what is an appropriate sentence to impose on the prisoner.

Committal Court Disposition

6.	The State relied on documentary evidence which the State then sought leave to tender into court, a flash containing images and recording of the prisoner addressing the members of the Kumalu No. 2 Village relating to the murder of one, Lorna Seheque Nicko, on 23 August 2023 (Exhibit “1”) 

7.	The State also tendered into court; a copy of the record of interview dated 12 December 2023 and marked as (Exhibit “2”). The record of interview was conducted by Constable Patmou and corroborated by Constable Korede. The interview was conducted at the CIS, Buimo.

8.	Upon reading the Committal Court dispositions and the record of interview and being satisfied that the evidence contained in the dispositions although did support the charge, the guilty was accepted. I then entered a conviction against the prisoner on the charge of accusation of sorcery under s 520E (1) (a) of the Criminal Code (Amendment) Act No. 14 of 2022. 

Antecedent Report

9.	The antecedent report tendered into evidence by the State disclosed that the prisoner is an adult male, aged 42 years old. He is a village leader, educated up to Grade 12.  The prisoner has no prior convictions and is a first-time offender. 

Allocutus

10.	In administering the allocutus, the prisoner was asked if he had anything to say on the issue of penalty. He replied, “Yes”. He was then given the opportunity to speak. He said that he is sorry for what happened. Say to the family of the deceased. He said that as a community leader he went to talk a out the matter so that it cam e sorted out. Leaders to ring peace. He also asked for leniency.

Pre-Sentence Report

11.	However, his lawyer did ask for a Pre-Sentence Report to be provided for deliberation on penalty. , Mr. John requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report to be complied on the prisoner and have it filed for purposes of assisting this Court determine the issue of penalty. 

12.	This process is a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation. To facilitate this process, the Probation Officer, (Bulolo) was ordered to prepare and file a Pre-Sentence Report for this purpose. He was directed to have this Report prepared and be filed  by 23 October 2023.

13.	The Pre-Sentence Report was received from the CBC Office, Bulolo on 6 November 2023 and is available to the Court. I have perused the Report, and the overall assessments contained in the report appears favourable to the prisoner.  It indicated that he lives in his with his parents and is very supportive of them. He has a young family and is a good person. 

14.	The community members interviewed were very supportive of the prisoner and stated that he is financially secured and supports his family members through work. As to the speech made on the date in question, the community leader said that what he said came out all wrong. It was not meant to be like that. The members interviewed also stated that they will provide support to the prisoner should he be placed on probationary orders.

15.	 The prisoner has admitted that he was wrong and that he asked for leniency and to be placed on probationary orders but failed to make suggestion as to what probationary supervisory orders would be likely to make and supervise.

Mitigating Factors

16.	The mitigating factors in your favour include your early guilty plea, which greatly assisted this Court in achieving this early outcome. In addition, this Court also noted that you are a first-time offender, your co-operation with the police and explanation as to how you committed the offence in the Record of Interview and the views expressed in the pre-sentence report. 

Aggravating Factors

17.	The aggravating factors against you are, being a leader had publicly accused someone of practicing sorcery without any evidence. 

Sentencing principles

18.	It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of case, under consideration, (SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] 92, Ure Hane v The State [1984] PNGLR 105, Goli Golu v The State [1979] PNGLR 653.  In addition, it is also well settled that each case must be treated on its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.Furthermore, the Courts have unfettered sentencing discretion under s 19 of the Criminal Code Act and are not necessarily bound by the maximum and minimum tariffs suggested by Supreme Courts (Thress Kumbamong v The State (2008) SC 1017. 

19.	In this present case, a serious crime has been committed. It has occurred within the confines of a community in a village setting. The killing occurred on 23 August 2023 following assertions made by a person who was acting or purporting to be a glasman or glasmeri under s 520A of the Criminal Code Act. 

20.	The charges laid against the prisoner involved his participation in an offence which occurred or surrounds his belief in sorcery. In this case, his belief that the deceased, Lorna Seheque Nicko was the source of the deaths of a lot of people within the community in Mumeng. This belief was more or less fortified by the purported findings of the ‘purported glas meri”  who went around Kumalu No. 2 Village proclaiming to be a prayer warrior” using a Rosary and removing stones and plants of sorts  from around and under the village houses which resulted in the demise of Lorna Seheque Nicko. 

21.	Several documents were relied upon by the State in their submission on sentence. These documents include a flash drive containing a recording of the prisoner addressing a crowd who had gathered at a village in Kumalu No. 2. During that address the prisoner did make statements to the crowd about the deceased. He also stated that the death that occurred in the Village was because of what the deceased had done, the villagers took revenge on her. This is because the villagers suspected the deceased of being a sorcerer and killing people within the area. 

22.	Further, in his responses which is contained in the Police Record of Interview, which was tendered into evidence, the prisoner has admitted to the charges laid against him under s 520E (1) (a) (b) of the Criminal Code, this admission corroborates the charge of contrary to s 520E (1) (a) (b)  of the Criminal Code (Amendment) Act No. 14 of 2022. 

23.	In terms of references to existing case law, I am also informed by Counsel for the State that this is the first time that a case relating to accusation of sorcery under to s 520E (1) (a) (b) of the Criminal Code (Amendment) Act No. 14 of 2022 has come before the Court. Therefore, there is no existing case law in which the Court would be guided by. 

24.	Thus, in considering what would be an appropriate penalty to impose on you, I must firstly, take note that in passing the law on accusation of sorcery under to s 520E (1) (a) (b) of the Criminal Code (Amendment) Act No. 14 of 2022., the Papua New Guinea (PNG) Parliament intended to make accusation of sorcery, an offence. Hence, any person accuses or threatens to accuse another person of being or having been a sorcerer, or performing or having performed an act of sorcery or having been concerned in or party to an act of sorcery is guilty of a crime. Parliament also prescribes a penalty for such offending, in regard to a person, the penalty in this case being or imprisonment for a term not exceeding 10 years a fine K10,000.00 or both. Similarly, Parliament also has authorized the Court through the  Criminal Code to impose such penalty upon sufficient evidence being called and upon being satisfied that such evidence warrants the imposition of the maximum penalty prescribed under s 520E (1) (a) (b)  of the Criminal Code (Amendment) Act No. 14 of 2022. I note however, that s 19 of the Criminal Code is still available to the Court to impose a lesser penalty.

25.	 The evidence in this case shows that the community believe in Christianity. The purported glasmeri, in carrying out her activities is using the Rosary and praying and removing stones and plants and etc from the home of people who she says are practicing sorcery. She claims to be a “prayer warrior” I am certain that they are also mindful of the verses in the Bible or that one of the 10 Commandments. Moreso, the 6 Commandments which says that “Thou shall not kill”. 

26.	Furthermore, the written law (Criminal Code) states that killing another person without lawful justification is a crime punishable under the Criminal Code. It is therefore my view that these factors operate against the prisoner when he is standing up in front of a crowd and proclaiming that the deceased is a sorcerer and consequently, her death is a result of her own doing. The villagers took revenge on her for practicing sorcery. 

27.	Further and in addition, another factor which also operates against the prisoner in his belief in sorcery is that under our Constitution, it provides for and guarantees every man, woman and child in this country, whether he is from the remote rural community or urban city, whether he is uneducated, or  educated or from whatever background of our diverse and cultural heritage, each and every one of us has the right to live . The right to live is an important right for everybody. Sorcerers included. And this alleged sorcerer, Lorna Seheque Nicko even if she in fact was, nevertheless she was entitled to have her life and was entitled under the law to be tried by the courts of law: see State v Karavea [1983] N452 

28.	The Criminal Code (Amendment) Act No. 14 of 2022, enacted by the Parliament is meant to address this aspect of our beliefs in sorcery. The intention of Parliament in enacting these amendments are twofold. The first is to punish persons who practice evil sorcery; that is people who make sorcery to kill or make other people sick and the second is to ensure that people did not take the law into their own hands, but to take sorcerers or those who they believe or are reputed to be sorcerers before the courts of this country and be tried according to the law: State v Karavea (supra)

29.	This is the reason why you are now before the Court. People of this country must not encouraged the practice of sorcery. Being a leader and especially in areas like Mumeng and in Kumalu No. 2; it is most likely that the ordinary villager will accept your words and or assertions as true and they will act upon your encouragement to take the law into their own hands. 

30.	It is most unfair to the family of the deceased who was killed without a trial. She is not here to defend herself or say whether it is true that she is a sorcerer. What was done to her and what you said about her is an unfair thing. What if it is merely an assertion or a guess and that an innocent woman has been killed. Thus, it is better that people are encouraged to take such people to court for proper trials to take place and for proper proof to be made against them before they are punished instead of what amounts to summary executions in the village; because that is exactly what happened in this case. The deceased was executed because people believed that she was a sorcerer.

31.	In PNG, and everywhere else, no person has the power to take somebody else’s life. In fact, the law in this country has only three offences which carry the death penalty - only three. One is what we call treason (that is killing the Head of State etc.) (s.37 of the Code). The other two are piracy and attempted piracy with violence (ss.81 & 82 of the Code): see State v Karavea (supra)

32.	There exist significant aggravating factors against you as submitted by Ms. Joseph for the State. First, sorcery related killings are becoming very prevalent. The last few years have seen a marked increase of reported cases on summary executions of sorcerers or reputed sorcerers. 

33.	Across the country sorcery killings continue unabated with increasing levels of violence, mutilation and torture of suspects. Parliament has reacted to this and amended the Criminal Code Act (Amendment No. 14 of 2022) which created a new offence under s 520E, Division VII.4. This provision provides for prosecution of persons accusing A person who accuses or threatens to accuse another person of being or having been a sorcerer; or Performing or having performed an act of sorcery; or having been concerned in or partly an act of sorcery is guilty of a crime. A crime which you have pleaded guilty to. Thus the task of this Court is to determine whether the maximum penalty prescribed under the law be imposed upon you. 

34.	In assessing the evidence presented before the Court, this Court has arrived at the conclusion that your actions and utterance on the day of the alleged offending is unwarranted, unbecoming of a villager leader who failed to uphold the rule of law. It is your role to encourage your people to ensure that the people within the community to obey the law, and report any breaches of the law whether this be a dispute over land, stealing, armed robbery, allegations of rape, any domestic violence to the police; and or accusations of sorcery and to allow the police to conduct their investigation and to bring those suspected of these illegal activities before the law and courts to be dealt with accordingly. People should not be encouraged to take the law into their own hands. It is wrong under the law.

35.	Accusation of sorcery is difficult to prove. Members of community will always harbour the believe that mere assertion that the deceased was a sorcerer responsible by that means for the death of everyone within the community is a serious crime under s 520E of the Criminal Code (Amendment) Act, No. 14 of 2022. 

36.	Here, the law states that the belief must be affirmed by evidence for the Court to arrive at a determination. In this case, Mr. John for the defence has submitted that the prisoner was only speaking to the community on the incident. Thus, it was incumbent on the State to disprove with material, otherwise without which the sentence must take account of that fact to sentence. The benefit must go in favour of the prisoner. 

37.	Contrary to the submission of counsel, in your case, you have admitted to utterance words accusing the deceased of practicing sorcery and therefore the community took revenge. This statement was made in public is a matter within the peculiar, confined knowledge of the defence, the prisoner. It is a matter not within the knowledge of the State to negative, as in the case of medical evidence that it can readily call up to prove or disprove. 

38.	Whilst it is clear that s 37 (4) (a) of the Constitution provides that the prisoner is innocent and the burden is always on the State to prove, “but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; . In this case, there is no expert on sorcery and how it is used to kill people so that it is at the discretion of the State to call to disprove or prove sorcery as the case maybe. 

39.	Therefore, the obligation rests on the defence to adduce evidence to prove sorcery. In the absence of such evidence, the killing would fall within the various provisions of the criminal code dealing with homicide cases. 

40.	The courts should exercise the wide discretion vested in them in the way they see fit as long as they take into account all of the relevant factors and the particular circumstances in which the offence under consideration was committed and the sentence they eventually arrive at, sufficiently reflects the factors taken into account and the particular circumstances in which the offence under consideration was committed: see Kumbamong v State (supra)

41.	 Regarding sentence, again the requirements in the case of Simbe v The State (supra) would apply. However, beliefs in sorcery is very serious. It is unprecedent and is clearly in defiance with the rule of law. Recent deaths following accusations of sorcery has increased in Papua New Guinea: State v Damanin (No. 2) [2020] N8420

42.	The country is approaching its 50th anniversary of attaining Independence. It is also proclaiming to be a Christian country, and we would like to hope to achieve that concept of Christianity and thus it is incumbent on each and every one to let go of our beliefs in sorcery, because it should have no place or hold on our individual day to day livelihood and beliefs. Furthermore, we are obliged to live our lives within the perimeters of the Constitution which provides for the protection and enforcement of our basic rights under Sections 32 to 56; and in addition, including our social obligations to each other as prescribed under the Five (5) National Goals and Directive Principles enshrined in our Constitution. Finally, there is also the sixth commandment of the ten (10) commandments that GOD gave and that is “Thou shall not kill”

43.	Clearly because of sorcery which is still part of our beliefs, someone had been accused of practicing sorcery and her life is lost. 

44.	The prisoner is no exception he is fairly educated, community leader and ought to have known about the laws of our country and also the Commandments in the Bible. “Thous shall not kill” 

45.	Given these factors, the court should not bend backwards and condone accusation of sorcery. Accusation of sorcery has brought about all kinds of violence against those suspected or accused of practicing sorcery. It also leads to the member of communities or person taking the law into their own hands and committing serious crime of violence. See The State v Sedoki Lota and Fred Abenko (2007)N3183, The State v Mesuno &Ors (2012) N4702, The State v Wilfred Opu Yamande N'danabet (2004) N2728, The State v Baika Martin &Ors ((2008) N3312,  Irai Thomas v The State (2007) SC867, Baipu v The State [2005] PGSC 19; SC796 (1 July 2005) and State v Jackson [2006] PGNC 154; N3237 (24 October 2006); State v Mohavila [2006] PGNC 106; N3385 (25 October 2006); State v Damanin (No. 2) [2020] PGNC 210; N8420 (14 July 2020) 

46.	It is important that the protection of the law under s 37 of the Constitution must be enforced. Every person is innocent until proven guilty by a Court of competent jurisdiction. The Court must also deliver justice fairly and the rule of law must prevail in all circumstances. 

47.	This is also envisioned by our legislature, the Parliament when it enacted and introduced the amendment to the Criminal Code to cater for such offences. This is because Parliament considered that accusing some one of practicing sorcery which leads to their demise is repugnant to the fabric of a decent Christian country like ours.  The community looks to the Courts for justice and for the protection of its interest. The Courts must therefore be responsive to the needs of the communities: see Michael v The State [2004] PGSC 37; SC737 (1 April 2004).

48.	Given the seriousness of the offence and the clear intention of our legislature and having heard from counsel on penalty, I am of the view that a serious offence has been committed which calls for an appropriate penalty to be imposed. The penalty prescribed is a term of imprisonment not exceeding 10 years or a fine not exceeding K10,000.00 or both. Here the Court can elect to impose either only one or both penalties.

49.	Ms Joseph for the State suggests that a term of imprisonment of ranging from 5 to 7 years imprisonment in custody is appropriate penalty to be imposed.

50.	Mr John on the other hand suggested that a fine of K5,000.00 be imposed on the prisoner as he has already spent time in custody and that his K2,000.00 bail money be refunded so that he can rebuild his life.

51.	As a passing comment, I find the submission of counsel for the defence a bit ironic in the sense that the same cannot be said of the deceased and her family. What kind of redress would the deceased get or how would the family of the deceased be given a chance to rebuild their life after all this? 

52.	In conclusion, having convicted you, James Mon for one count of Accusation of Sorcery under s “520E(1) (a) (b) of the Criminal Code (Amendment) Act No. 14 of 2022, I sentence you as follows: 

(i)	Length of sentence imposed: 			5 years. 	
(ii)	Pre-sentence period deducted:			4 months 28 days.	
(iii)	Balance of term of sentence to be served:	4 years 7 months 2 days.
(iv)	Amount of term of sentence suspended:	2 years
(v)	Time to be served in custody:		2 years 7 months 2 days. 

Sentenced accordingly.
________________________________________________________________
Lawyer for the State: Public Prosecutor						
Lawyer for the prisoner: Public Solicitor