John Baipu v The State (2005) SC796

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Sawong J, Lay J
• Judgment Date: 01 July 2005
• Citation: (2005) SC796
• Docket Number: SCR71 of 2003
• Court: Supreme Court
• Year: 2005
• Judgement Number: SC796

Full Title: SCR71 of 2003; John Baipu v The State (2005) SC796

Supreme Court: Sevua J, Sawong J, Lay J

Judgment Delivered: 1 July 2005

1 CRIMINAL LAW—application for review—Constitution s155(2)(b)—appeal from decision on sentence—delay explained—some substantial injustice manifest.

2 CRIMINAL LAW—sentencing—matters not to be considered—separate offence not charged—offence not forming part of offence for which person to be sentenced has been convicted.

3 CRIMINAL LAW—murder—sentencing—sorcery as a mitigating factor—weight to be given.

4 CRIMINAL LAW—murder—sentencing—retaliation for sorcery deaths—prisoner taking matters into his own hands when matter before Village Court officials—breach of undertaking not to attack suspects—particular offence—25 years IHL substituted for life imprisonment.

5 Avia Aihi v The State (No 1) [1981] PNGLR 81, SCR No 2 of 1981; Re S19(1)(f) Criminal Code [1982] PNGLR 150, R v Ebulya [1964] PNGLR 200, Simili Kara v The State [1984] PNGLR 254, R v Dales [1995] QCA 329, Public Prosecutor v Vangu'u Ame [1983] PNGLR 424, Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, Kwayawako v The State [1990] PNGLR 6, Roger Jumbo v The State [1998] PNGLR 197, The State v Tobby Tani (1994) N2063, R v Gabai Vagi [1973] PNGLR 30, Public Prosecutor v Tom Ake [1978] PNGLR 469, Law v Deed [1970] SASR 374, Koniel Alar and Hosea Biu v The State [1979] PNGLR 300, Imiyo Wamela v The State [1982] PNGLR 269, Albert Toti Yohannes v The State (1998) SC577, Agoara Kebo and Karunai Uraki v The State (1981) SC198, The State v Aiaka Karavea (1984) N452(M), The State v Sambura (2002) N2219, The State v Samson Sisi (2002) CR 1486 of 2002, The State v Jude Gena (2004) N2649, The State v Wilfred Opu Yamande N'danabet (2004) N2728, The State v Urari Siviri (2004) N2747, The State v Francis Kuta Amet (2004) CR1418 of 2002 and CR688 of 2003, Kumbi Koti, Peter Kowoi and Mokepe Maingo v The State (2001) (Unreported and Unnumbered Supreme Court judgment dated 22 February 2001), The State v John Baipu (2003) N2451 referred to

Facts

The Appellant filed an appeal 20 days late and applied for review pursuant to s155(2)(b) of the Constitution. The Appellant was convicted of murder on a plea of guilty and sentenced to life imprisonment. The Appellant's pregnant wife and his father had died in 2001 and the Appellant suspected sorcery. He asked the Village Court officials to investigate and the Appellant gave an undertaking not to attack the suspects. A number of people were ordered to pay compensation although no responsibility was found or apportioned. The compensation was never paid. Then on 9 October 2002 the Appellant met and attacked his 70 year uncle, who was one of the suspects. He cut his arms and legs with a bush knife and left him to bleed to death. The depositions also contained references to village councilors reporting that the Appellant and his village boys had rounded up a number of suspects on another occasion and tortured them and killed one, in a separate incident to the circumstances of this case. The sentencing judge mentioned those facts in his reasons for arriving at the sentence.

Held

Leave to review pursuant to s155(2)(b) of the Constitution would be granted because the delay in filing the appeal was satisfactorily explained and it appeared arguable that some substantial injustice was manifest;

It is not permissible for a sentencing judge to take into account allegations of separate offences of which the prisoner being sentenced has not been convicted, and the facts of which do not form part of the facts and circumstances of the offence for which the prisoner is being sentenced. In doing so the trial judge fell into error and the Supreme Court ought to intervene;

The weight to be placed on sorcery as a mitigating factor in sentencing for murder depends on the circumstances of each case. It should not be assumed a belief in sorcery will be a significant mitigating factor in every case.

In this case the Appellant had placed the sorcery complaint in the hands of Village Court officials more than a year before. Then he had cut his 70 year old uncle with a bush knife and left him to bleed to death in breach of an undertaking not to attack the sorcery suspects. It was not a case in which great weight should be placed on the mitigating effect of a belief in sorcery.

A sentence of 25 years IHL substituted for life imprisonment.

_______________________________

By the Court: The Appellant applies for leave to review pursuant to s155(2)(b) of the Constitution and appeals from the severity of sentence imposed upon him on 30 July 2003. He pleaded guilty to the charge that on 9 October 2002 he murdered one Hahu Hafinibu. He was sentenced to life imprisonment.

The facts of the case were that the Appellant's pregnant wife and father died in 2001 and the Appellant suspected that sorcery was involved. The Appellant reported the matter to the Village Court Chairman. There were some investigations in to the allegations of sorcery and although no fault was found some people were ordered to pay compensation, which was never paid. On 9 October 2002 at Pimaka Village in Southern Highlands Province the Appellant met Hahu Hafinibu, his uncle, a man of about 70 years of age, one of the sorcery suspects. The Appellant chopped Hahu on his arms and legs with a bush knife. Hahu died from loss of blood.

The Appellant's notice of appeal says that:

Life imprisonment is too long

The Court did not weigh the case properly and did not put sufficient weight on the guilty plea and other grounds;

The Court did not take sufficient note of the fact that the Appellant did not intend to kill the deceased, just cause him pain;

The deceased himself said he killed the Appellant's pregnant wife and father with poison and said he would pay compensation.

The Notice of Appeal was filed on 30 September 2003, some 60 days after sentence and 20 days after the time limited of 40 days for filing a Notice of Appeal.

As held in Avia Aihi v The State (No 1) [1981] PNGLR 81 leave to review pursuant to s155(2)(b) of the Constitution when the appeal is out of time is only granted "in exceptional circumstances where some substantial injustice is manifest or the case is of special gravity." Considerations for the Court in deciding whether or not to grant leave include whether there is an adequate reason for failing to lodge the appeal in time and the merits of the case to be argued.

The explanations for the delay in lodging the appeal were the Appellant's low level of education and delay in finding someone who was able to help him with his appeal and postal delays in getting the Notice of Appeal to Port Moresby. We noted that the Notice of Appeal was dated 21 August 2003, which was well within the appeal period. The letter from OIC Baisu Correctional facility to the Deputy Registrar of the Supreme Court is also dated 21 August 2003 and stamped received by the Supreme Court Registry on 30 September 2003. And so we accepted that the delay in lodgment of the Notice of Appeal was out of the control of the Appellant and an acceptable explanation; because it was either a delay by CIS in placing the letter in the post or a delay in the postal delivery.

For the reasons set out below we considered that it was arguable that some substantial injustice was manifest and leave was granted during the hearing.

The facts put to the Appellant on the allocutus and to which he pleaded guilty were as follows:

"The government says that at some time between May and June 2001 your wife and father died. You claimed their deaths were caused by sorcery. And then you suspected a number of people to have been responsible for the death of your wife and father. And among those people who may have caused your wife and father's death was a man named Hahu Hafinibu. He was your uncle. The matter was brought before the village court for mediation and then it was put off for a number of reasons. At one time those whom you thought were responsible for the death of your father and your wife were ordered to pay compensation to you but those people never paid compensation. And then sometime later you and some of your village boys rounded up those people who were ordered to pay compensation, you tied them up and beat them up badly.

Then on 9 October 2002 at Pimaka village in the Southern Highlands Province, you met the man by the name Hahu Hafinibu and you chopped him on his arms and legs with a bush knife and that resulted in him losing a lot of blood from which he died. The government says that when you cut Hahu Hafinibu you wanted to cause him...