The State v Maraka Jackson (2006) N3237

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 October 2006
• Citation: (2006) N3237
• Docket Number: CR NO. 1433 of 2004
• Court: National Court
• Year: 2006
• Judgement Number: N3237

Full Title: CR NO. 1433 of 2004; The State v Maraka Jackson (2006) N3237

National Court: Kandakasi, J

Judgment Delivered: 24 October 2006

N3237

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1433 of 2004

THE STATE

-V-

MARAKA JACKSON

Kerema: Kandakasi, J.

2006: 5th and 24th October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Murder – Brutal and merciless killing during day light in witness of others – Deceased a village court magistrate – Attack without warning - Prisoner planning and executing murder of deceased believed to be practicing sorcery to kill brother and soon himself – The Custom of believe in sorcery – Killings on believe in sorcery repugnant to general principles of humanity and not a good custom to retain – Sorcery Act and believe in sorcery as a factor in mitigation ought to be revisited – Guilty plea by first time offender – Sentence of 24 years less time spent in custody imposed - Criminal Code Sections 300 (1)(a) and 19 – Sorcery Act Section 5.

Cases cited:

Manu Kovi v. The State (31/05/05) SC 789.

Ure Hane v. The State [1984] PNGLR 105.

Goli Golu v. The State [1979] PNGLR 653.

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

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

Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR 78.

Kwayawako v. The State [1990] PNGLR 6.

The State v Jude Gena and Four Others (24/09/04) N2649.

The State v. Aiaka Karavea & Anor. (1983) N452(M).

Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR78 at 80

Roger Jumbo and Aidan Awatan (26/03/97) SC516.

Agoara Kelo & Anor. v The State (1981) SC 198.

The State v. Boat Yokum & Ors. (04/12/02) N2337.

The State v. Urari Siviri (30/08/04) N2747.

The State v. Joseph Tunde (12/11/04) N2727.

The State v. Saweno Visare & Ragu Maioi CR 1455 of 2005 delivered on 15th June 2006. The State v. Jerry Gebai & Bagari Duge CR 1065 of 2005, delivered on 16th June 2006.

Peter Naibiri and Kutoi Soti Apia v. The State (25/10/78) SC137.

Joe Foe Leslie Leslie v. The State (07/08/98) SC560.

The State v. Ian Bob Wali (11/06/04) N2580.

The State v Makis Lunge Kraningi (26/09/05) N2934.

Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (01/04/04) SC741.

The State v. Thomas Waim [1995] PNGLR 187.

Bokum Umba v. The State, (02/04/76) SC92.

The State v. Richard Amuna Koupa [1987] PNGLR 208.

The State v. Kevin Anis & Martin Ningigan (07/04/03) N2360.

The State v. Wesley Nobudi & Ors (19/12/02) N2310.

Paulus Manadatititip & Anor. v. The State [1978] PNGLR 128.

State v. Peter Yawoma (19/01/01) N2032.

Counsels:

Mr. D. Mark, for the State.

Mr. P. Kapi, for the Prisoner.

24 October, 2006

1. KANDAKASI J: On the 5th of this instant, the State presented an indictment against you, charging you with one count of murder contrary to Section 300 (1) (a) of the Criminal Code. You pleaded guilty to the charge, following which I administered your allocutus and received submissions from both your lawyer and that of the State as to an appropriate punishment for you. I then reserved a decision on your punishment. This is now the decision of the Court.

The Facts

2. The facts giving rise to the charge and your guilty plea are these. During the early morning between 6:00 to 6:30 am on Saturday 12 June 2004, you and Iaia Ea walked from Uaripi Village to another village, Petoe, both here in the Gulf Province. Petoe is about 5 to 6 kilometres away from Uaripi. You went to Petoe with the intention of killing Maura Purari, now deceased, then a village court magistrate allegedly for killing your brothers by sorcery and to stop him from killing you also. You and your friend were both armed with a long bush knife each. When you got to the deceased’s house, you found that he had not woken up yet so you waited for him to do so.

3. Eventually, the deceased came out of his house. He was then talking to his daughter in-law who was just handing over her son, a Morris to his grandfather, the deceased. At that point, you got out from your hiding and started to cut the deceased on his neck area twice. You neither gave any warning nor said anything to alert the deceased and those with him at the time. You took everyone by shock and surprise. The deceased’s daughter in-law was shocked and surprised with what you did, she managed to get to her son and took him out of the deceased and ran for help. Meanwhile, the deceased fell to the ground and you and Iaia Ea fled from the scene in different directions.

4. When the deceased daughter in-law returned to the scene with help, you had already fled and that the deceased had already passed away. He was lying on the ground motionless bleeding heavily from the cuts you inflicted upon him. The deceased’s relatives took him to the hospital at Kerema only to be told that he was already dead. The hospital carried out a post mortem and established the cause of his death as “[a]cute [b]lood loss from severed major blood vessels by incissional wounds.” Medical examination revealed that the deceased sustained “[t]wo large lacerations exposing severed left jugular vein and carotid artery below the left ear and left neck.” The wounds measured 7cm x 1cm x 1cm and 6cm x 1cm x 1cm respectively.

5. Meanwhile, the relatives of the deceased reported the murder to the police here in Kerema and informed them that you were at a house in Kerema Bay Village and that they should catch you before anything could happen to you. Police acted on that information and a Senior Detective Constable, Gideon Edward and another policeman arrested you at the Kerema Bay Village. You were then locked up in the Kerema Police Station. The police then conducted a record of interview with you in relation to the killing and you admitted to killing the deceased for his acts of sorcery and to avoid him killing you with sorcery as well.

Allocutus and Submissions

6. In your address on sentence, you apologized to the Court and the people. You said you are the eldest in your family. Your family has now been made refugees because of your actions. The deceased’s side have destroyed your family’s home and gardens and now have nowhere to go. Then you went into a detailed recital per a written document tendered into evidence of various acts of sorcery by the deceased against your family. You went on to say you had no intention to kill the deceased. That seemed to contradict what you said in your record of interview and the facts put to you in your arraignment and I raised this issue with your counsel. Your lawyer said by saying you had no intention to kill, you were not raising any legal defence and urged me to ignore that statement and proceed on the basis of your guilty plea to the charge and the suggestion that you had intended to kill the deceased based on your believe that the deceased killed your brothers and was going to kill you too by sorcery.

7. Then in his submissions, your lawyer urged the Court to note that you are 25 years old and come from the Uaripi Village of this Province. You are single and that both of your parents are alive. You have two brothers and 2 sisters. You have reached grade 7 formal educational level and stopped there due to no school fees. You have no formal employment. By way of religion, you are a member of the United Church. You cooperated with the police since your arrest and have been in custody since your apprehension.

8. Your lawyer also submitted that before the Court proceeds to consider an appropriate sentence for you, he urged the Court to note and take into account your family background as outlined above. He also urged the Court to take into account the fact that you pleaded guilty to a serious charge. That saved the State the time and money it could have outlaid to secure your conviction through a trial. He further urged the Court to take into account the fact that you are a first time offender, meaning that you have not been in trouble with the law before and that this is your first ever offence. Furthermore, your lawyer urged the Court to take into account the fact that you killed the deceased because of your belief that the deceased killed your brothers with sorcery and that he was also going to kill you with sorcery too. Finally, your lawyer urged the Court to note that the deceased’s relatives destroyed your family’s property.

9. At the same time, your lawyer correctly acknowledged that you committed a very serious offence, prescribed by s. 300 of the Code, which carries a maximum penalty of life imprisonment. However, he urged the Court to note that, the Supreme and the National Courts have imposed sentences below that. He then referred the Court to the Supreme Court decision in Manu Kovi v. The State,

1 (31/05/05) SC 789, per Injia, DCJ., Lenalia & Lay JJ

1 which had followed on from the previous decisions of the Supreme Court as in Ure Hane v. The State

2 [1984] PNGLR...