The State v Boat Yokum, John Yowa, Tawan Yasaling, Arabau Kakanana, Totonu Kakanana, Mine Basanu, Bayume Elli, Karao Kakanana and Bagon Yokum (2002) N2337

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 04 December 2002
• Court: National Court
• Citation: (2002) N2337
• Year: 2002
• Judgement Number: N2337

Full Title: The State v Boat Yokum, John Yowa, Tawan Yasaling, Arabau Kakanana, Totonu Kakanana, Mine Basanu, Bayume Elli, Karao Kakanana and Bagon Yokum (2002) N2337

National Court: Injia J

Judgment Delivered: 4 December 2002

1 Criminal Law—Sentence—Murder—Sorcery killing—Killing "reputed sorcerer" believed to have caused the death of the deceased and 53 other people previously—Whole community's decision to put an end to their suffering by terminating the deceased, carried out by prisoners—Punitive and deterrent sentencing theory emphasized—Rehabilitative theory of sentencing also emphasized—Sentences ranging from 10 years—6 years imprisonment imposed with half of sentence suspended on conditions, including prisoners undergoing appropriate Intensive Christian Education.

2 Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510 and Agoara Kebo and Karunai Uraki v The State (1981) SC198 referred to

___________________________

N2337

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 146 – 154 of 2001

THE STATE

v.

BOAT YOKUM, JOHN YOWA,

TAWAN YASALING,ARABAU KAKANANA, TOTONU KAKANANA, MINE BASANU,BAYUME ELLI, KARAO KAKANANA & BAGON YOKUM

LAE : INJIA, J.

2002 : 4 DECEMBER

Criminal Law – Sentence – Murder – Sorcery killing – Killing “reputed sorcerer” believed to

have caused the death of the deceased and 53 other people previously – Whole community’s
decision to put an end to their suffering by terminating the deceased, carried out by prisoners
– Punitive and deterrent sentencing theory emphasized – Rehabilitative theory of sentencing
also emphasized – Sentences ranging from 10 years – 6 years imprisonment imposed with ½
of sentence suspended on conditions, including prisoners undergoing appropriate Intensive
Christian Education.

Cases cited in the judgment

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

Agoara Kelo and Karunai Uraki v. The State SC 198(1981).

J. Nidue for the State

A. Raymond for each prisoner

4 DECEMBER 2002

INJIA, J.: The nine prisoners were jointly indicted on one count of willful murder of one Ikwinu Tangwagua (the deceased) under S.299 of the Criminal Code. All of them except Mine Basanu pleaded guilty to the charge. On 18 June 2002, I acquitted the accused Mine Basanu on the charge but found him guilty of murder under S.300(1)(a). And on 28 August, 2002, consistent with my finding in relation to Mine Basanu, I rejected the guilty plea of the other 8 prisoners on the charge of willful murder but accepted their guilty plea to the lesser charge of murder under S.300(1)(a). I administered allocatus to all the prisoners at the same time. Each prisoner gave their unsworn statement from the dock. Further proceedings on sentence was then adjourned pending the preparation of a pre-sentence report by the Probation office in Lae. There are two such reports before me. After counsel made submissions on sentence, I reserved sentence which I hand down now.

The facts of the case as I found in the trial of Mine Basanu and those discerned from the court depositions in respect of the other eight prisoners are these. On 22 August 2000 at Kesaut village, Wantoat District in the Morobe Province, a meeting of villagers took place in the village to discuss the fate of the deceased whom the whole community believed was responsible for the death of the prisoner Mine Basanu’s younger brother, one Gessi, through sorcery. The whole community believed that the deceased was a reputed sorcerer who was responsible for the death of some 53 people in the village previously. The whole community resolved it was time to put an end to their suffering by eliminating the deceased and called upon willing and able members of the community to carry out the decision. The nine prisoners led by Mine Basanu answered their call. On the early morning of 23/8/00, between 5am – 6am, they got together, armed themselves with various weapons and set out to attack the deceased. They went and surrounded the house of the deceased when the deceased was asleep, dragged him out of the house, held him, and shot him with a gun and chopped him up with axes and bushknives and left him there to bleed to death. They then set his house on fire and left. The killing was reported to police and police apprehended these prisoners. They all admitted the killing to the police. They all told the police they responded to the whole community’s cries and decision to put an end to the problem created by this reputed sorcerer.

It is important to set out the role played by each prisoner in the killing.

1. Boat Yokum : He was armed with an axe. He was on guard outside the house for other

sorcerers who might come to fight them whilst the others attacked the deceased.

2. John Yowa : He was armed with an axe. He also stood on guard whilst the others

attacked the deceased.

3. Arabau Kakanana: He was armed with a knife and stood on guard or watch when the

others attacked the deceased.

4. Bayuwe Eli : He was armed with a bushknife. He also stood on watch whilst the others

attacked the deceased. He also cut the wall of the house.

5. Tawan Yasiling: He was armed with a bushknife. He knocked on the door of the

deceased’s house and pulled him out and took him outside for the others

to attack him. He and Bagon Yokum held the deceased for the others to

cut him.

6. Bagon Yokum : He was armed with a bushknife. He dragged the deceased out of the

house with Tawan Yasaling and both of them held him.

7. Totonu Kakanana : He was armed with an axe. He chopped the deceased’s right hand

first.

8. Tarao Kakanana : He was armed with a bushknife. He cut off the deceased’s right hand

which his “other brother (Totonu) had cut out first.”

9. Mine Basanu : He was armed with a shotgun. He stood on the road junction and shot the

deceased on his right knee to “paralyze him but he died after loosing a

lot of blood.”

At the outset, I say that notwithstanding the different roles played by each prisoner in actually inflicting the injuries sustained by the victim, they all shared the same intention to do grievous bodily harm, they acted in concert and in unisome. This was clear even in court when they made the same remarks on allocatus and spoke in support of each other. And so, by virtue of S.7 of the Criminal Code, I will treat all of them as principal offenders for the purposes of sentence.

There is overwhelming evidence led at the trial and information supplied to the Court in various reports from various interested Church groups, community leaders, the two Pre-Sentence Reports prepared by the Probation office and information supplied by the accused themselves, that despite the introduction of government services in law, order and education; and the presence of Christian Mission influence in the area; for many many years, belief in sorcery and the powers of sorcery and the practice in sorcery still exists in that area. Repeated efforts by Church groups and government officers to discourage or eliminate this practice or belief system has been unsuccessful. People still fear the powers wielded by sorcerers. This was clearly evident when Local Councillor and Lutheran Church elder of the area of many years standing, Mr. Katoana gave evidence for the defence. He said he did not report to the police some 53 deaths caused by the deceased, many of which the deceased confessed openly, because he feared for his own life from acts of sorcery. Then there is abundance of information suggesting that the community sees nothing wrong with the killing and they want the prisoners to be released from prison so that they can return to the village and make peace in their own customary way. Notable of them is the son of the deceased Issac Ikwuin and the deceased’s uncle Mr. Jacob Ewak. Both of them in their Statutory Declarations admit that the deceased was a sorcerer, that they have no bad feelings against the prisoners and that they want them to be released so that they can make peace in the village. They say peace will only be restored if the prisoners are released. But they do not say how or what form the peace settlement will take. There was some vague suggestion from the prisoners’ counsel Mrs. Raymond, of compensation payment but there is no precise information on this. It seems from Mr. Katoana’s evidence that it will mainly involve some ceremonial peace-making activity such as the two sides “breaking sugar” “tanget” followed by a feast to signal the cessation of hostilities.

Most of the nine accused are young first offenders aged between 14 – 21 years old and...