The State v Isak Wapsi (2009) N3695

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 July 2009
• Citation: (2009) N3695
• Docket Number: CR NO 1203 of 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3695

Full Title: CR NO 1203 of 2008; The State v Isak Wapsi (2009) N3695

National Court: Cannings J

Judgment Delivered: 24 July 2009

N3695

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1203 OF 2008

THE STATE

V

ISAK WAPSI

Madang: Cannings J

2009: 8 April, 8, 15, 24 July

SENTENCE

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – guilty plea – young man killed a man by cutting his legs with a bushknife, severing one leg – sentencing guidelines for wilful murder – when appropriate to impose death penalty – circumstances in which belief in sorcery can be considered as mitigating factor – proof of belief – weight to be attached to belief in sorcery – sentence of 25 years.

A young man pleaded guilty to the wilful murder of a man in the village who he claimed was a sorcerer. The deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg.

Held:

(1) The starting point for sentencing for this sort of killing, a planned and vicious attack with a lethal weapon with both mitigating and aggravating factors, is 20 to 30 years imprisonment.

(2) Mitigating factors are: the offender acted alone, not in a mob; he was motivated by a genuine belief in sorcery; he co-operated with the police and made very early admissions of guilt; he is a first time offender; he pleaded guilty; he is a relatively unsophisticated villager.

(3) Aggravating factors are: this was a vicious and barbaric killing; the offender directly killed the deceased; the offender has shown little remorse; the circumstances of the incident show that there was a strong desire to kill; there has been no peace or reconciliation with the deceased’s relatives and no payment of compensation.

(4) A sentence of 25 years imprisonment was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Irai Thomas v The State (2007) SC867

John Baipu v The State (2005) SC796

Manu Kovi v The State (2005) SC789

Saperus Yalibakut v The State (2006) SC890

Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836

The State v Sedoki Lota and Fred Abenko (2007) N3183

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

N Goodenough, for the State

K Nanei, for the offender

24 July, 2009

1. CANNINGS J: This is a decision on sentence for a young man, Isak Wapsi, who pleaded guilty to the wilful murder of a fellow villager, Philip Asoka. The offence was committed at Kukum village in the lower Ramu area of the Bogia District, Madang Province, between 6.00 and 7.00 pm on Sunday 27 April 2008.

2. The deceased was working at a fermentery in the village. The offender approached him and without warning or provocation cut his legs with a bushknife, severing the right leg and inflicting significant damage to the other leg. The deceased died of severe blood loss on the way to the health centre.

3. The offender was arrested soon after the incident. He immediately admitted to the police what he had done and said he killed the deceased as he was a sorcerer.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to address the court. He said:

I thank the Judge and the Court for the time spent on my case. We are now at the end of my case. I apologise for the wrong that I committed. There was a reason why I did what I did: the deceased threatened to kill me. This is my first time to appear before the National Court. Please consider me for a short term sentence.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

7. Two matters are relevant here. The first is not contested by the prosecution and will be taken into account as a mitigating factor. The offender co-operated fully with the police. He was arrested on Monday 28 April then was subjected to a formal interview at Bogia police station on Tuesday 29 April. He made admissions, acknowledged his guilt and said that he intended to kill the deceased.

8. The second matter is more contentious. The offender said in his police interview that the deceased was a sorcerer and that many people in the village knew him to be a sorcerer and feared him. Further, the deceased had threatened to kill him, so the offender made the decision to kill the deceased before he was himself killed. He largely repeated these assertions in his allocutus. The State submits that in an appropriate case a genuine belief in sorcery can be taken into account as a mitigating factor but this was not such a case as there is insufficient evidence of that belief. I reject that submission. I acknowledge that there is a danger in courts too readily accepting sorcery as an offender’s motivation for killing. But here, the claim was made very early in the police investigation, corroborated by the pre-sentence report and repeated in the allocutus. I see no reason, given that the offender has pleaded guilty, to doubt the genuineness of the belief. I accept that the offence was motivated by a genuine belief in sorcery and that this should be a mitigating factor for sentencing purposes. However, it is no longer a “special” mitigating factor. The weight to be attached to it depends on the facts of the case (John Baipu v The State (2005) SC796; Irai Thomas v The State (2007) SC867). This was not a case where the offender’s belief caused him to act on the spur of the moment, so that tends to lessen the mitigating effect of the belief. On the other hand the offender is a relatively unsophisticated villager so it is easier to appreciate why he decided to take the law into his own hands. To sum up, his belief in sorcery is accepted as genuine and will be taken into account as a medium-level mitigating factor.

PRE-SENTENCE REPORT

9. Isak Wapsi is 26 years old and single. His parents are alive but elderly. He was raised in the village. He has had no formal education or employment. He is the fifth born in a family of seven. All family members are supportive of him and appear to share his belief in sorcery. They believe that there is a sorcery network operating in their area. He is well regarded in his local area and the Church of Christ Pastor at Kukum village speaks highly of him and seeks leniency on his behalf. There is apparently a preparedness to assist with compensation for the deceased’s relatives. The Deputy Chairman of the local Village Court says that K5,000.00 in cash and a live pig and other goods could be arranged.

10. The deceased’s relatives (including his son, who was interviewed) say that the offender’s people have made no attempt to reconcile or meet compensation demands (in the order of K200,000.00). They do not want the offender shown any leniency. If he is treated leniently, the tension between them and the deceased’s relatives will not subside.

11. The report contains no recommendation for probation. It suggests that if the offender were given a suspended sentence and the compensation demands of the deceased’s relatives were not met, there would be a risk of a payback killing.

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Nanei submitted that this was not a ‘worst case’ of wilful murder and did not warrant the death penalty. There are a number of mitigating factors, he submitted, that bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, so the starting point should be in the range of 20 to 30 years imprisonment. The offender’s strong belief in sorcery provided motivation for the offence. The offender’s actions were akin to someone acting in self-defence, as he had been threatened by the deceased and genuinely felt he had to kill the deceased to defend himself. His early guilty plea has saved the State considerable resources and expense and has also relieved the deceased’s relatives of the trauma that would have been associated with a trial. The mitigating factors warrant a sentence of 15 to 20 years imprisonment, Mr Nanei submitted.

SUBMISSIONS BY THE STATE

13. Mr Goodenough, for the State, agreed that this case did not fall within the worst case category of wilful murder and did not press for the death penalty. He submitted that there was insufficient evidence of a genuine belief in sorcery – a submission which I have rejected – and submitted that if such a belief were taken into account it should only be regarded as a mild mitigating factor. To argue that the offender acted in self-defence is not a tenable proposition, Mr Goodenough submitted. However, he agreed with the defence counsel’s description of the case falling within category 2 of the Manu Kovi guidelines and suggested that the mitigating factors warrant a sentence at the lower end of the available range.

DECISION MAKING PROCESS

14. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what should...