The State v Baika Martin, Sware Umere, Garuma Enkwi, Philip Umere, Nellon Tero and Moses Umere (2008) N3312

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 12 March 2008
• Court: National Court
• Citation: (2008) N3312
• Docket Number: CR NO. 1045, 1052, 1053, 1054, 1055 and 1056 of 2007
• Year: 2008
• Judgement Number: N3312

Full Title: CR NO. 1045, 1052, 1053, 1054, 1055 and 1056 of 2007; The State v Baika Martin, Sware Umere, Garuma Enkwi, Philip Umere, Nellon Tero and Moses Umere (2008) N3312

National Court: Kandakasi, J

Judgment Delivered: 12 March 2008

N3312

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1045, 1052, 1053, 1054, 1055 and 1056 of 2007

�

� THE STATE

-V-

BAIKA MARTIN, SWARE UMERE, GARUMA ENKWI, PHILIP UMERE, NELLON TERO and MOSES UMERE

Tabubil: Kandakasi, J.

2007: 4 October

2008: 5 & 12 March

� DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Murder – Brutal and merciless killing of person believed to be sorcerer – Mob attack of an unarmed old man by a group of young and strong men – Deceased attacked with axe, sticks, and repeated punches and kicks causing instant death – Attack without warning – Belief in sorcery no longer special mitigating factor but to be treated like any other mitigating factor - Guilty plea by first time offenders – Some offenders younger than others - Varying sentences of 24, 22 and 16 years less pre-trial and pre-sentence custody period imposed - Criminal Code Sections 300 (1)(a) and 19 – Sorcery Act Section 5.

Cases cited:

Papua New Guinea Cases

John Baipu v. The State(2005) SC 796

Thomas Irai v. The State SCR 08 of 2006 (Unreported and judgment delivered on 28/08/07)

Acting Public Prosecutor v Uaname Aumane [1980] PNGLR 510

Kwayawako & 5 ors v. The State [1990] PNG LR 6

Roger Jumbo v. The State [1998} PNGLR 197

The State v. Tobby Tani, N2063

The State v. Sambura(2002) N2219

The State v. Francis Kuta Amet & Ors CR1418 of 2002 & CR688 of 2003, unreported and unnumbered decision, (2004).

The State v. Maraka Jackson CR1433 of 2004, unreported and unnumbered, (2006).

Simon Kama v. The State (01/04/04) SC740

The State v. Laura (No. 2) 1988-89] PNGLR 98

Lawrence Simbe v. The State[1994] PNGLR 28

Rudy Yekat v. The State (2001) SC 665

Overseas Cases Cited:

Law v. Deed [1970] SASR 377

l Counsels:

J. Kesan, for the State.

P. Kapi, for the Prisoner.

12 March, 2008

1. KANDAKASI J: All of you pleaded guilty to a charge for murder of a person who you claim was a sorcerer and responsible for the death of Guruma Enkwi’s mother. You committed the offence contrary to s. 300 (1) (a) of the Criminal Code. After satisfying myself that there was basis for the charge and your guilty pleas, I received your address on sentence and adjourned for submissions on your sentence.

Main Issue

2. The Court has now received the submissions both in writing and orally on Wednesday last week. These submissions raised the main issue of what is an appropriate sentence for each of you in this case taking into account amongst others that, this is sorcery related killing.

Relevant Facts

3 The facts as put to you and emerging from the depositions that gave rise to the charge and your guilty pleas are these. Between 6:00 and 11:00 in the evening of 29 July 2006, you were at Garuma Enkwi’s residence at Tmingondok Village, Kiunga, Western Province. You were mourning the death of Garuma Enkwi’s mother. You believed that Sanibai Kwan, an old man killed her by sorcery as Garuma Enkwi’s mother said so before she died on 27 July 2006.

4 As you were mourning, the old man Sanibai Kwan walked in and you decided to attack him. Garuma Enkwi and Sware Umere started the attack on the old man. The evidence shows that, Garuma Enkwi, you used an axe against the deceased whilst Sware Umere, you used a sharp pointed knife. Sware Umere, you stabbed the old man on his left back shoulder area causing a large wound. You than kick and punched the old man and continuously pushed him into the kitchen area. There, the rest of you joined in by repeatedly kicking and punching the old man. Attempts to stop you by some of the other people who were there at the mourning failed, as you were intending on achieving your objective which was, to kill the deceased. In fact, some of the people who tried to stop you were fearful of their own lives. So they did not make any further attempts at stopping you.

5 During the cause of the attack, Philip Umere, you used a black palm stick to repeatedly hit the deceased causing serious injuries to the deceased left rib cage side and right elbow and the knee causing large and deep cuts and wounds. Sware Umere, after that, you tried to throw the old man out of the house down onto the ground. But the old man managed to hold on to a stud of the house at the door way. So you went onto stabbing the old man on both of his hands above the elbows. Then Philip Umere, you climbed up and kicked the old man down causing him to fall onto the ground. As he was on the ground, Philip Umere, you came down and beat the old man up with a black palm stick. By this time, the old man lost consciousness and was still on the ground. He did not recover his consciousness and eventually died at about 11:00 pm the same evening, shortly after he was taken away to the nearby house.

6 Medical evidence noted on examination of the dead corpse of the deceased that, he was in a pool of stale blood as a result of multiple traumatic injuries to his body generally commencing with his left aspect of his body. In particular, it noted, gross haematoma with hallow deviation possibly from crush injury to his left temporal head region. Again on his left side, there were superficial perforated knife wounds on the lower lateral aspects of the elbow joint. On the deceased right side, the medical examination noted several knife wounds to the shoulder and other areas. It also noted crushed injuries to the 8th, 9th, and 10th ribs. Additional injuries were noted on the deceased right hand and knee areas.

7 Whilst no post mortem was carried out, medical view was that, the “probable cause of the death was due to secondary internal bleeding into space from a pierced, crushed lung cavity associated with crushed left temporal region of the head.” You men therefore, brutally and mercilessly attacked the deceased who was an old man. You gave him no chance to survive but to die allegedly for killing Garuma Enkwi’s mother. The way in which you brought about his death was slow and painful.

Allocutus and Address on Sentence

8 In your address on sentence through Sware Umere, you all said, you are in the eyes of the Court now as first time offenders. It is true that you killed the deceased, Sanibai Kwan, who was an uncle to you. He had been to prison two times before for killing two persons by sorcery. This time, when he killed Garuma Enkwi’s mother, who you say is also your mother, you decided to kill Sanibai Kwan to stop him from further killing people with sorcery. You said sorry to God and that you were thinking of your respective parents who are left behind without anyone to care for them, some of you have also left your schooling and caring for rubbers for some of you. Garuma Enkwi says he is a sick man. You did not provide any evidence supporting any of your claims.

9 Your lawyer in his submissions added that, you have all been in custody since the day of your arrest which was on 4 August 2006. You all come from Tmingondok village, Kiunga in the North Fly District of this Province. Further, except for Nellon Tero, who has reached grade 12 formal education, you all have no formal education. All of you live in your village with your parents or respective families on subsistence farming. Finally, except for Garuma Enkwi who is married with no children, all of you are single.

10 In addition to the above, your lawyer added that Baika Martin, you are about 22 years old. You are the first born in a family of 4 children. Sware Umere, you are your co-accused Philip and Moses Umere’s brother. You are about 26 years old. You are the first born in a family of 5 children. Guruma Enkwi, you are the son of the person you and your co-accused believed the deceased killed through sorcery. You are about 30 years old and are married with no children. You are the 2nd born in a family of 3 children. Philip Umere, you are your co-accused Moses and Sware Umere’s brother. You are about 22 years old. You are the 2nd born in a family of 5 children. Nellon Tero, you are the youngest amongst all of you. You are 17 years old and the second born in a family of 2 children. Finally, Moses Umere, you are Sware and Philip’s brother and the next youngest person amongst you men. You are about 20 years old and the 3rd born in a family of 5 children.

11 Your lawyer then went on to urge the Court to take into account your ready admissions in your respective records of interview with the police, that you have all pleaded guilty to a serious charge, that you have expressed remorse, that you are all first time offenders and that, this is a sorcery related killing. At the same time, your lawyer correctly acknowledges that, the offence you committed carries the maximum penalty of life imprisonment under s. 300 of the Code subject to s. 19 also of the Code, which empowers the courts to impose a lesser sentence. Further, your lawyer referred to the Court correctly to a...