The State v Avana Latuve, Joel Lovi & Malo Bagesa (No 2) (2013) N5406

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 20 June 2013
• Court: National Court
• Citation: (2013) N5406
• Docket Number: CR 626 OF 2009
• Year: 2013
• Judgement Number: N5406

Full Title: CR 626 OF 2009; The State v Avana Latuve, Joel Lovi & Malo Bagesa (No 2) (2013) N5406

National Court: Toliken, AJ

Judgment Delivered: 20 June 2013

N5406

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 626 OF 2009

THE STATE

-V-

AVANA LATUVE, JOEL LOVI

& MALO BAGESA

(No 2)

Popondetta: Toliken, AJ.

2013: 15th April, 20th June

CRIMINAL LAW – Particular Offence – Wilful Murder – Trial - Deceased suspected of sorcery, reputed to have killed 34 people through sorcery – Deceased apprehended by Police – While in police custody deceased attacked by prisoner - Attack incited other villagers to attack and chase deceased out of village – Prisoner led villagers to chase deceased – Deceased killed by villagers a kilometre out of the village – Prisoner confessed to participating in the killing Criminal Code Act Ch. 262, s 299.

CRIMINAL LAW – Sentence –Mitigating factors - Prisoner first offender – Showed genuine remorse – Belief in sorcery a de facto provocation – Extenuating factor - No evidence of what prisoner actually did when he participated in killing – Aggravating factors - Prisoner instigated the attack and actively partook in the killing – Strong motive and intention to kill – Prisoner attacks deceased while deceased was in police custody – No respect for the law and authority of the police – Prevalence of sorcery related killings

CRIMINAL LAW – Appropriate sentence – Stiff punitive sentence for personal and general deterrence – Sentence of 20 years less time spent in pre-trial custody – Nil suspension - Pleas for suspended sentences in sorcery related killings not to be easily acceded to.

Cases cited:

The State v Jude Gena & 4 Ors (2004) N2649

Thomas v The State (2007) SC 867

The State v. Nickson Sambura & Anor (2002) N2219

The State v Kumbi Koti & Ors CR 94 of 1999 (Unreported and unpublished judgment dated 17th of November 2000)

State v. John Baiga, CR 733 of 2003(Unreported and unpublished judgment dated 09th & 23rd July 2003)

The State v Sedoki Lota & Anor (2007) N3183

Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510

The State v Boat Yokum (2002) N2337

Manu Kovi v The State (2005) SC 789

The State v. William Kapris

The State v Elison Tayamina CR 302 of 2010 (No.3) (unreported and unpublished judgment dated 10th may 2013)

The State v Avanah Latuve & ORS CR 626 (No.1) of 2009 unreported and unpublished judgment dated 15th April 2013

Counsel:

J W Tamate, for the State

D Mamu and E Yavisa, for the accused

JUDGMENT ON SENTENCE

20th June, 2013

1. TOLIKEN AJ: The prisoner Avana Latuve and his co-accused were charge with the wilful murder of one Danny Iruva on the 09th November 2008.

2. The co-accuseds were acquitted of the crime but a guilty verdict was returned for the prisoner on 15th of April 2013. I heard submissions on sentence in April but was unable to pass sentence as the circuit was about to close. I reserved my decision on sentence and I now deliver the judgment.

THE FACTS

3. For the purpose of sentence I adopt my findings of fact from my judgment on verdict. (The State v Avanah Latuve & ORS CR 626 (No.1) of 2009 unreported and unpublished judgment dated 15th April 2013).

4. On 09th day of January 2008, a detachment of three policemen and a soldier (Security Personnel), then based at the Kokoda Station during Oro Disaster Relief operations had gone to Kovelo Village in search of the deceased who was suspected of having an unlicensed firearm in his possession.

5. They picked up Community Based Constable Julius Kadova, Benson Kadova and Village Councillor Lance Lovi at Kovelo and proceeded to Hoi, the deceased’s hamlet. They located the deceased and searched his house but came up empty handed. They nonetheless apprehended the suspect and returned to the main village arriving there sometime between 11.00 a.m. and 12.00 p.m.

6. They left the deceased standing on the road and went to Benson Kadova’s house for refreshment. They had intended to address the villagers later. As the deceased was standing on the road the prisoner confronted him. He started assaulting and chasing the deceased with a long grass knife all the being encouraged along by his immediate family members.

7. Other villagers soon joined in. Fearing for his safety the deceased ran to where the Security Personnel were. Seeing what was happening the Security Personnel tried firing several warning shots but their weapons misfired. According to State witness Julius Kadova they tried six times to fire their gun but the gun misfired on all six attempts. Completely over-powered and helpless to protect the deceased or disperse the angry crowd, they called out to the deceased to run for the Kokoda Station for his safety.

8. The deceased turned and ran for the Station. The mob, led by the prisoner and which included men, women and children chased after him. They were armed with stones, knives and sticks. They caught up with him at a rubber plantation a little over a kilometre from the village. They killed him and returned to the village leaving the body on the road.

9. The Security Personnel, CBC Julius Kadoga and his brother Benson Kadoga followed the villagers but were unable to keep up with them. They, however, met them about a kilometre from the village as they were coming back after having killed the deceased. About 100meters from where the deceased was killed they met the prisoner who said to them “We already killed the man and we are going back to the village.”

10. I found that the prisoner instigated the whole incident and that he had the motive to do so. He admitted that he was angry with the accused – a reputed sorcerer - whom he blamed for the death of his brother Mado and 33 other people in the village. The ensuing involvement of other villagers was because of the prisoner’s initial confrontation and attack on the deceased.

11. Community Based Constable Julius Kadova who, together with another CBC was the first to arrive at the scene of the killing observed the deceased’s condition and ran to the Kokoda Station for assistance. He returned with the Health Extension Officer and the police.

12. The HEO took photographs of the scene and the deceased’s body lying dead on the crime scene. The colour photographs show in very clear detail the various wounds that were inflicted on the deceased’s body, its position on the road and stones that were obviously used to kill the deceased with.

13. The HEO Nasa Yagom examined the body on the scene and the body was taken away by relatives for burial. HEO Yagom later prepared a Report which he annexed to an affidavit dated 18/01 /2008. This was tendered by consent and marked Exhibit A for the State.

14. The principal findings of the Medical Report were as follows:

“... The examination reveals knife wounds on the right hand involving index finger extending to the metacarpal of the middle finger as well.

The deceased also sustained blunt wounds on the right lateral aspects of the base of the head parallel to the right ear thus having contact to the brain leading to head injury and instant death.

Conclusively, the deceased was alleged to have been murdered as a result of trauma to the base of the skull leading to death secondary to internal haemorrhage and head injury.”

15. Simply put the deceased died from head injuries caused by blunt objects to the base of the skull and from internal bleeding.

16. I found that the deceased was a reputed sorcerer and was widely suspected of having been responsible for the deaths of some thirty four (34) people in the village, the most recent of whom were the prisoner’s brother Mado Latuve and Joel Lovi’s sister (unnamed). In fact the villagers were still in mourning and were in their respective haus krai when this incident occurred. The villagers were very much angered by this.

17. I also found that apart from this the villagers were also angry with the deceased because he had obtained monies from them (some K8000 or K800?) in the pretext of hosting a funeral feast for the death of his child. He never held the feast.

18. The prisoner and his two co-accused (who have since been acquitted) were handed over to the police by the community one week and two days after the killing.

19. The prisoner admitted his involvement in the killing of the deceased in the Records of Interview which were tendered by consent (Exhibit C1 and C2, Exhibit D1 and D2 respectively). And even though he admitted that he was not pressured by the arresting officer, he claimed that he was coerced by the community and community leaders. I, however, found that this was not the case.

ALLOCUTUS

20. The prisoner apologized to God, the Court and Court officials and the lawyers and the community and the deceased’s family. He said that he has large family of 10 consisting of 6 brothers and 4 sisters. Of the six brothers he is the only one still alive. Two of his sisters are deceased. Of his two surviving sisters one has married out of their area and the...