The State v Albert Apo (2019) N7827
| Jurisdiction | Papua New Guinea |
| Judge | Geita J |
| Judgment Date | 16 February 2019 |
| Citation | (2019) N7827 |
| Docket Number | CR 1323 OF 2018 |
| Court | National Court |
| Year | 2019 |
| Judgement Number | N7827 |
Full Title: CR 1323 OF 2018; The State v Albert Apo (2019) N7827
National Court: Geita J
Judgment Delivered: 16 February 2019
N7827
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1323 OF 2018
THE STATE
V
ALBERT APO
Vanimo: Geita J
2019: 12, 16 February
CRIMINAL LAW – Sentence – Guilty Plea - Wilful Murder -
CRIMINAL LAW – Sentence – Guilty Plea - Wilful Murder - Section 299 (1) Criminal Code – Use of dangerous weapon – pre-planned- vicious and cowardly.
CRIMINAL LAW – Sentence – Guilty Plea – Sentenced to 22 years in hard labour – Probation not considered appropriate under the circumstances.
Cases Cited:
Kwayawaka v The State [1990] PNGLR 6
Manu Kovi v The State [2005] PGSC 34; SC789
Roger Jumbo and Aidan Awatan (1997) SC516
Saperus Yalikabut v The State [2006] SC890
State v Saku Uki Aiya (2013) N5198
State v Elison Tayamina (2013) N5288
State v Kerri Miva
State v Sedoki Lota & Ors (2007) N3183
State v Urari Siviri [2004] PNGLR 12
The Acting Public Prosecutor v Umane Aumane [1980] PNGLR 510
The State v Goli Golu [1979] PNGLR 653
The State v John Kalabus [1988] PNGLR 193
The State v Jude Gena and 4 Ors (2004) N2649
Thomas v The State (2007) SC 867
Ure Hane v The State [1984] PNGLR 105
Counsel:
Ms. Therese Aihi, for the State
Mr. Kennedy Masket, for the Accused
Note: This is the refined and edited version of the sentence which was delivered ex tempore.
JUDGMENT ON SENTENCE
16th February, 2019
1. GEITA J: The accused was indictment with one count of wilful murder of Felix Farawin on 15 June 2018 at Paipai village, Amanab, Sandaun Province, pursuant to Section 299 (1) Criminal Code, Chapter Number 262. On arraignment he pleaded guilty.
2. The offence comes under s.299 Wilful Murder Criminal Code:
S. 299 Wilful Murder
(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death.”
Brief Facts
3. The brief facts as agreed to by the Prosecution and Defence on the depositions for the plea of guilty are these. On 15 June 2018 at about 8 am in the morning the deceased was at home with his grandchildren when the accused approached him, armed with a bush knife and cut him on his neck. He further cut him again twice on his arm as he lay bleeding. The deceased died from his wounds. The State alleged that the accused intended to kill the deceased when he cut the deceased on his neck. The accused committed the crime on allegations of sorcery performed by the deceased resulting in his wife’s death earlier on.
Criminal History (Antecedents)
4. Nil
Allocutus
5. During allocutus the accused said he was sorry for causing the trouble and admitted causing it. He said sorry to the victim’s family and to his family. He asked for leniency and to be put on probation. I thank you hearing my case and said I am wrong.
Mitigating Factors:
6. Guilty plea, first time offender, remorseful, early admissions in ROI, co-operated with police.
Aggravating Factors
7. Use of offensive weapon, pre-planning, life lost, multiple wounds.
Extenuation Factors
8. The victim was suspected of killing his pregnant wife with sorcery.
Pre-sentence Report
9. The accused aged 38 years is married with four children. He is a villager with some work experiences as a telephone linesman job with Telekom in Vanimo. He relies on income from his clan’s timber royalty monies. Due to distance the Probation Officers were not able to get the views of the victim or the community. The report does contain some elements of fear of sorcery and retaliation. After all this death was caused by allegations of secrecy: Sorcery performed by the victim on the accused’s wife resulting in her death. He appears to have a good standing in his community according to his father in law. His suitability for probation was not recommended by the probation office due to the serious nature of the crime. Again I must thank Ms. Marilyn Binjari for a job well done in preparing this pre-sentence report.
Defence Submissions
10. Counsel of Defence submitted that this case be determined on its own peculiar facts. He further submitted that this was not the worst case of wilful murder and that the maximum death penalty not be imposed: (Goli Golu v The State [1979] PNGLR 653.). He argued that as the mitigating factors were evened out the prisoner be sentenced to between 10 and 15 years in his prepared submissions. However in his oral address he seem to have settled for 20 to 30 years in category 2 of Manu Kovi which he cited. (Manu Kovi v The State (2005) SC789)
11. Mr. Masket referred me to four cases. Two of which I consider were not relevant to the case on hand. The remaining two include Thomas v The State SC 867 of 2007 and The State v Jude Gena and 4 Ors N2649. In the Thomas case the appellant pleaded guilty to a wilful murder charge and was sentenced to 18 years. His appeal was however dismissed and his sentence increased to 22 years by the Supreme Court due to inadequacy of sentence. The appellant killed the deceased whom he suspected of using sorcery in the death of his father. Jude Gena and his brothers were sentenced to 20 years in a wilful murder case in which sorcery was suspected. The Court noted that the belief in sorcery was prevalent in that community but fell short of imposing the maximum death penalty.
12. Notwithstanding the two case precedents and the sentence imposed Mr Masket submitted that a sentence of between 10 to 15 years be consider in this case.
State Submissions
13. Ms Aihi conceded with defence submissions on matters relating to mitigation including some element of de facto provocation. As to aggravating factors she submitted that the crime committed was serious in that a life was lost, multiple wounds inflicted, the killing done in the presence of the deceased’s grandchildren. Furthermore the factor of prevalence need to be considered in this case.
14. Ms Aihi submitted that the facts of this case fall under category 2 for wilful murder in Manu Kovi guidelines. (supra). She submitted that the attack was pre-planned and vicious, a weapon was used and there was a strong desire to kill which was done in cold blood and in a cowardly manner. I agree with State submissions and the manner in which the attack was described. In support of her submissions the following cases were referred to the Court to assist in its deliberations of an appropriate sentence for the accused.
State v Sedoki & Ors N3183. |
The prisoner was sentenced to death on 1 Oct 07 (The State v Sedoki Lota & Fred Abenko (2007) N3183). The prisoner’s application to the Supreme Court for review of his conviction and sentence, SC Rev No 15 of 2015, has not yet been heard. |
State v Elison Tayamina N5288 |
Sentence – Wilful murder – Brutal attack on elderly female victim – Reputed sorceress – Multiple stab wounds – Vicious brutal attack on harmless and defenceless old woman - Juvenile offender – Belief in sorcery a mitigating factor – Prevalence of this type of killings – No respect for sanctity of life and rule of law – Denial of charge not an aggravating factor - Need for punitive and deterrent sentence – Age of prisoner taken into account – Existing sentencing guidelines considered - Sentence of 20 years - Criminal Code Act Ch. 262, s 299 N5288 |
State v Kerri Miva |
Sentence – Guilty after trial – Wilful murder – Group attack – Killed deceased inside her house – In the presence of family members – Armed with homemade guns, bush knives and axe – deceased died instantly – Attack was vicious, brutal and senseless – Suspected deceased of witchcraft – Sentenced to 30 years imprisonment. |
State v Saku Uki Aiya (2013) N5198 |
Sentence – Guilty after trial – Wilful murder – Criminal Code, s. 299 (1) – Group attack – Killed deceased inside her house – In the presence of family members –Attack was vicious, brutal and senseless – Suspected deceased of witchcraft – Sentenced to 30 years imprisonment – Time in custody deducted. |
State v Urari Siviri PNGLR 10 |
Guilty plea, W/Murder, Sorcery related, victim beheaded with skull fracture. Sentence 18 years, Sorcery killing - Belief in sorcery. |
15. Ms. Aihi submitted that from the comparable cases cited above sentences of a low 18 years to a high 30 years were imposed by the Courts in wilful murder cases. She submitted that in light of the accused’s mitigating and extenuating circumstances a head sentence of 25 years be considered by the Court.
APPLICATION TO THIS CASE
16. Your case is not uncommon. It is sad that in most parts of PNG including your community in Amanab sorcery related killings appear to be the accepted form of retaliation against alleged sorcerers. You admitted in your allocutus of killing the victim in retaliation of what you believed to be sorcery...
To continue reading
Request your trial