The State v Wilfred Opu Yamande N'danabet of M'bawya, Kotidanga, Gulf Province ('Prisoner') (2004) N2728

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 09 November 2004
• Court: National Court
• Citation: (2004) N2728
• Year: 2004
• Judgement Number: N2728

Full Title: The State v Wilfred Opu Yamande N'danabet of M'bawya, Kotidanga, Gulf Province ('Prisoner') (2004) N2728

National Court: Davani J

Judgment Delivered: 9 November 2004

N2728

IN THE NATIONAL COURT OF

JUSTICE AT WAIGANI

PAPUA NEW GUINEA

CR 463 of 2004

THE STATE

V.

WILFRED OPU YAMANDE N’DANABET

of

M’BAWYA, KOTIDANGA, GULF PROVINCE

(‘Prisoner’)

Waigani: Davani, .J

2004: 4, 9 November

Sentence – wilful murder – guilty plea – belief in sorcery a mitigating factor – s. 299 of Criminal Code Act.

Practice and procedure – wilful murder – guilty plea – sorcery related killing – there must be evidence on belief in sorcery.

Cases cited

State v. Siune Arnold N1658 [1997]

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

Goli Golu v. the State [1979] PNGLR 653

Avia Aihi v the State [1982] PNGLR 92

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

State v. Osborn Kwayawako and 5 others [1988] PNGLR 174

State v. Nickson Sambura and Trophimus Sambura N2219 dated 18th April 2002

State v. Jude Gena and 4 Others, N2649 dated 24th September 2004

P. Luman for the State

M. Norum for the Accused

SENTENCE

(Plea)

9th November 2004

Davani .J: Wilfred Opu Yamande N’Danabet (the prisoner’) pleaded guilty to one count of wilful murder, that he did on 9th November, 2002, at Wingi village in the Gulf province, kill one Sonny Notiaio (‘deceased’).

In the record of interview with the police conducted on 12th December, 2002, the prisoner told the police that on 9th November, 2002, he killed his brother-in-law, the deceased. He said he did this because the deceased had told his cousins to kill him because they claimed the prisoner’s grandfather killed their daughter. They said that they wanted to take revenge on any of the prisoner’s family members. The prisoner said he used a knife to stab the deceased once on the back and once on the neck, which was the reason why he wanted to kill somebody called Vincent Pomero but because Vincent Pomero was not around, he killed his brother-in-law.

On allocatus, the prisoner apologized to the court and to his family and the deceased and his family. He said the deceased, a sorcerer, was out to kill him and was talking about it. He said he went out to kill the sorcerer before the sorcerer killed him because his brother was also killed by the same sorcerer. He said that if he did not kill the sorcerer, that he would, like his dead brother, be killed by this sorcerer.

Apart from his guilty plea and remorse, the prisoner is 18 years old. He was aged 16 when he was arrested. He is a first time offender and cooperated with the police by immediately admitting the offence.

Counsel for the prisoner cited to the court the cases Goli Golu v. the State [1979] PNGLR 653; Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v. the State [1984] PNGLR 105. He submitted that relying on those case, the court should reserve the death penalty, for the worst cases. Is this a worst case?

This is a sorcery related killing. The evidence on sorcery is the prisoner’s statement in his record of interview with the Police conducted on 12th December 2002, question and answer no. 18. The police asked “Why did you kill him.” He answered “He is my brother-in-law. He supported my cousin brothers to kill me. They alleged that my grandfather killed their daughter. On (for) these reasons, they wanted to retaliate by taking revenge on any family member of mine. I was then so wild, that I killed him”. The other statements before me on the court file are that of Balewane Donihi, statement dated 3.12.02. But it does not speak of a belief in sorcery. In the State v. Jude Gena and 4 Others, N2649 decided on 24th September 2004, Kapi CJ sentenced the prisoners to 20 years where, after a trial, he found them guilty of the wilful murder of a reputed sorcerer. Evidence was called from people residing in villages from the area where the sorcerer comes from to find out what their belief in sorcery was. Their evidence confirmed that the practice of sorcery was widespread in their area.

The Sorcery Act does not recognize the power of sorcery but it recognizes the belief which determines behaviour of people. In this case, the accused, a witness, believed strongly that the person who died would kill him by sorcery if he did not kill them. In the Jude Gena (supra) case, the court held that the ‘the Sorcery Act does not recognize the power of sorcery. However the courts have held that belief in sorcery may be taken into account as a relevant factor in sentence as it controls the thinking and actions of those who believe.’ (pg. 5).

Mr Luman for the State cited several cases, that of State v. Osborn Kwayawako and 5 others [1988] PNGLR 174; State v. Siune Arnold N1658 [1997] by Acting Justice Batari, in submitting that although belief in sorcery led to the killings of those suspected, people should not take the law into their own hands by terminating the lives of others.

Did the prisoner take the law into his own hands? The prisoner’s lawyer submitted in mitigation that the prisoner killed because he believed the deceased was a sorcerer. He proposed a term of 15 to 20 years as being appropriate sentence.

Apart from State v. Jude Gena (supra), there are other cases decided by the National Court which courts have found sorcery to be a mitigating factor in similar circumstances. I refer to the State v. Nickson Sambura and Trophimus Sambura N2219 dated 18th April 2002, judgment by Jalina .J. In that case, the prisoner and...