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

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 01 October 2007
• Court: National Court
• Citation: (2007) N3183
• Docket Number: CR 1236 OF 2006
• Year: 2007
• Judgement Number: N3183

Full Title: CR 1236 OF 2006; The State v Sedoki Lota and Fred Abenko (2007) N3183

National Court: Sevua, J

Judgment Delivered: 1 October 2007

N3183

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1236 OF 2006

THE STATE

v.

SEDOKI LOTA

and

FRED ABENKO

Alotau: Sevua, J.

2006: 15 & 19 September

2007: 1 October

CRIMINAL LAW – Sentence – Wilful murder – Relevant considerations – Killing related to belief in sorcery – Whether belief in sorcery is a mitigating factor – And if so, should Court continue to use it as a bar to impose death penalty in serious wilful murder cases - Aggravated circumstances – Premeditated killing – Accused’s unlawfully entered deceased’s house - Deceased blindfolded – Hands tied – Neck decapitated– Execution type merciless killing – Facts warrant consideration of maximum penalty – Death penalty considered appropriate in the circumstances – Sentence of death imposed

Cases Cited

Kwayawako & 5 Ors v. The State [1990] PNGLR 6

The State v. Jude Gena & 4 Ors (2004), unreported, N.2649, 24th September 2004

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

The State v. Rex Lialu [1988-89] PNGLR 449

Legislation Cited

Constitution, s.35, s.49

Criminal Code, s.19, s.299, s.597

Sorcery Act, s.3, s.7

Counsel

P. Kaluwin, for the State

D. Kari, for the Prisoner

1 October, 2007

1. SEVUA, J : The two accuseds pleaded guilty to a charge that on 9 July 2005 at Sigaroi in Milne Bay Province, Papua New Guinea, they wilfully murdered once Marcia Kedarossi.

2. There were five other accuseds who were committed for the same crime however, at the time of the plea by these two accuseds, the Court was advised by Mr. Kari that the other accuseds would plead not guilty. They were not arraigned and their case was adjourned to the next sittings of the Court in Alotau for trial.

3. The brief facts were that on 9 July, 2005, the accuseds went from Nade village near Esa’ala Station in Ferguson Island, Milne Bay Province to Sigaroi hamlet. They then entered the house of Marcia Kedarossi where they tied both her hands and blindfolded her, then chopped her head off with a knife with the intention to kill her. The killing was in relation to allegations that the deceased was practising witchcraft or sorcery. Incidentally after the hearing, I became aware that Esa’ala Station is in Normanby Island and not Ferguson Island as stated by the State Prosecutor, Mr. Kaluwin

4. In allocutus the accuseds made brief statements as follows.

5. Sedoki Lota said, “I did not kill the woman without justification. There is a reason for it. She killed my father and mother that’s why I killed her. If she had not done that, I would not have killed her.”

6. Fred Abenko said, “I killed that woman because it was justified. She killed my father so I killed her.” When the Court asked how she killed the accused’s father, the accused said, “I know she was a witchcraft lady and she killed him. She killed my father through witchcraft.”

7. The prisoners’ counsel, Mr. Kari then briefly referred to the prisoners’ antecedents. Sedoki Lota is 22 years and married with children. His father is deceased. He resided at Salakahadi village in Esa’ala District. He reached Grade 2 only in school and since then has never been employed. He is a first offender. Fred Abenko is 20 years old and single. His parents are deceased and he resided in his village with his six siblings of which he is the eldest. He received no education and had never been employed.

8. Both prisoners were arrested on 20 October, 2005 and at the time of hearing; they had been in custody for 10 months, 3 weeks and 3 days.

9. Counsel submitted that the circumstances of this case were that both prisoners believed that the deceased was responsible for the death of their parents therefore they set out to kill her in revenge.

10. Mr. Kari submitted that the prisoners have pleaded guilty to a very serious crime with full admissions in their records of interviews; they co-operated with police and maintained that co-operation by their pleas of guilty in Court; they are first offenders, and the maximum penalty for this crime is death.

11. Counsel referred to Kwayawako & 5 Ors v. The State [1990] PNGLR 6; a case relating to killing over belief in sorcery where the prisoners were sentenced to terms of imprisonment between 12 to 15 years. On appeal, the Supreme Court reduced the sentences to 10 years. Counsel said that case was decided 16 years ago. He also referred to The State v. Jude Gena & 4 Ors. (2004), unreported, N.2649, 24th September 2004; which was a case where the prisoner pleaded not guilty to a charge of wilful murder of a reputed sorcerer and concealed the body of the deceased in a rubbish dump. He was convicted after a trial and sentenced to 20 years imprisonment.

12. Mr. Kari submitted that the Court should consider the prisoners’ plea of guilty in the present case; their belief in sorcery, and should not impose the maximum penalty, but a determinate term as in Jude Gena (supra).

13. The Court has duly considered these submissions in the light of the admissions made by the prisoners and I consider that it will be necessary to refer to the admissions of the prisoners in their records of interview to highlight the undisputed pertinent facts of this case which, in my opinion, are very serious.

14. The prisoners said that on 9 July 2005, one Martin Mega sent a message to them and the other co-accuseds at Salakahadi village to go down to Nade village and kill a sorceress who was suspected of killing nineteen people through sorcery. The consideration for that killing was K1,500.00 cash, 5 bagis (traditional arm band) and 2 mwalis (traditional shell money). The payments were offered by the said Martin Mega. The message was relayed by Mwasea Lopi, one of the co-accuseds who will plead not guilty to this charge. These two prisoners were the first persons Mwasea Lopi passed the message to, then later to the other co-accuseds. After everyone had been given the message, they left on a Friday for Nade village where on their way, they spent the night in the bushes. Then on the next day, they walked to the deceased’s village. They were all armed with bush knives and were led by Mwasea Lopi.

15. The two prisoners went to the deceased’s village while the others hid in the bushes. They then entered the deceased’s house while she slept. They woke her up and Fred Abenko tied both her hands behind her back and blindfolded her with a piece of laplap. Sedoki Lota then struck the deceased on the back of her head with his bush knife. He said he used the blunt edge of the bush knife. The reason they tied her hands and blindfolded her was that Martin Mega had told them to do that because if they did not and the deceased saw their faces, she would turn into a witch and kill them.

16. A Post Mortem of the deceased’s body was conducted by Dr. Greg Tokwabilula on the 10 July, 2005 at Udek village, Nade, and the findings were as follows:-

· Laceration to the scalp.

· Lower jaw (mandible) chopped of.

· A massive laceration on neck resulting in decapitation.

· Multiple lacerations and scratches on arms and trunk.

The cause of death was massive loss of blood.

17. From these facts, I am of the opinion that the blow with the bush knife by Sedoki Lota was of vicious force that it chopped off the lower jaw and severed the neck of the deceased. Even if I accept that the prisoner had used the blunt edge of the bush knife, I can infer that the blow was so vicious and of such deadly force that resulted in the decapitation of the neck. I do not consider that a softer blow or a non-vicious blow could result in decapitation. In any event, it does not matter whether the prisoner used the sharp edge or blunt edge of the knife. The major injury sustained by the use of the weapon had caused massive loss of blood consequently resulting in death.

18. I consider that the aggravated features of this case are the unlawful entry into the deceased’s residence; the tying of the deceased’s hands behind her back; blind folding her; and, the vicious blow with the bush knife resulting in decapitation. To my mind, this killing takes the case out from the ordinary killing in revenge for sorcery that a severe penalty should be considered. It is my view that these aggravating factors far outweigh the plea of guilty and other mitigating factors that a serious penalty must be considered.

19. This was a pre-planned attack on the deceased. The two accuseds and others had been commissioned to kill the deceased and such order came from Village Magistrate, one Martin Mega. There were cash and traditional wealth considerations involved in this killing as well. Martin Mega had promised to pay the murderers the sum of K1, 500.00 in cash; 5 bagis, and 2 mwalis. This amount to a contract killing, which one often reads about from the secret society of the Mafia.

This is not a killing which occurred on the spur of the moment, so to speak. It is not a case where the murderers met the deceased on the road or in the village and killed her. The killing was premeditated. The two murderers and others walked from their village to the deceased’s village and, on the way, they slept in the bush. They had time to call off their plan. They were armed with bush knives. The prisoners entered the deceased’s house while she was asleep. These are undisputed facts. In fact they came from the records of interviews by the prisoners. Their entry to the deceased’s house was unconstitutional and unlawful.

20. Therefore for purpose...