The State v Alois Toropo (No. 2)

• Jurisdiction: Papua New Guinea
• Judge: Toliken J.
• Judgment Date: 19 June 2015
• Citation: (2015) N6013
• Court: National Court
• Year: 2015
• Judgement Number: N6013

Full : CR 837 & 842 OF 2013; The State v Alois Toropo & Tombake Nare (No. 2) (2015) N6013

National Court: Toliken J.

Judgment Delivered: 19 June 2015

N6013

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 837 & 842 OF 2013

THE STATE

-V-

ALOIS TOROPO &

TOMBAKE NARE

(No. 2)

Mendi: Toliken J.

2015: 19th June

CRIMINAL LAW – Sentence – Murder – Sorcery related killing – A series of deaths attributed to sorcery - Use of magic bamboo to ascertain cause of death and identify alleged sorcerers – Magic bamboo procession enters deceased’s premises – Deceased attacked and slashed with bush knives – Suffers multiple injuries to arms and legs – Dies from injuries later in hospital – Criminal Code Ch. 262, s 300 (1) (a).

CRIMINAL LAW – Sentence – Belief in sorcery – Belief fortified by results of magic bamboo trial/procession – Prisoners acted on such belief - Belief in sorcery an extenuating factor – Mitigating and aggravating factors considered – Aggravating factors outweigh mitigating factors.

CRIMINAL LAW – Sentence – Punishment and deterrence - Objects of sentencing in sorcery related killings.

CRIMINAL LAW – Law Reform – Role of clairvoyants, visionaries, diviners, glasman or glasmeri play in sorcery killings – Need for such persons to be held accountable for the consequences of their actions - Need for law reform to create specific offence for such persons and criminalize their practices.

Cases Cited:

The State v Aiaka Karavea & Anor (1983) N 452 (M)

The State v Avana Latuve (No.2) (2013) N5406 (20 June 2013)

Avia Aihi v The State (No.3) [1982] PNGLR 92

The State vs. Baipa Martin & Ors (2008) N3312 (12 March 2008)

The State v Boat Yokum (2002) N2337 (4 December 2002)

The State v Eugene Bangagu; The State v Gladwin Balik Niaka (2014) N5581 (14 April 2014)

Goli Golu v The State [1979] PNGLR 653

Irai Thomas v The State (2007) SC 867

The State v Jackson (2006) N3237 (24 October 2006)

John Baipu v The State (2005) SC796

Manu Kovi v The State (2005) SC 789

The State v Mathias (2011) N4670 (9 September 2011)

The State v Sedoki Lota & Anor (2007) N3183 (1 October 2007)

The State v Siune [2006] PGNC 112 (21 December 2006

Steven Loke & Ors v The State (2008) SC 836

The State vs. Wilfred Opu Yamande N’danabet (2004) N2728 (9 November 2004)

Counsel:

S Luben, for the State

P Moses, for the accused persons

JUDGMENT ON SENTENCE

19th June, 2015

1. TOLIKEN J: Alois Toropo (Alois) and Tombake Nare (Tombake) on the 12th of June 2015, after trial, I found you both guilty of the murder of Kaiyabe Yoroka, on the 11th of April 2012 at Kumiane village, Pangia, Southern Highlands Province. Your lawyer Mr. Moses requested for a Pre-Sentence Report and the matter was adjourned to 16th June 2015 to allow for the Provincial Probation Officer to compile reports for you. I was able to hear from you and the lawyers on the question of punishment on the 16th and younow appear before me for sentence.

THE FACTS

2. The facts which I am going to sentence you are as I found in my judgment on verdict. (See my unpublished judgment in this matter dated 12th June 2015) Some time before the incident in question, about eight people from Kumiane had died under “unexplained” circumstance. The most recent of these, in the month of March 2012, was that of Elvis Toropo, the elder brother of Alois and cousin of Tombake. This evoked suspicion among the villagers.

3. The Kumiane Community suspected sorcery to be cause of those deaths. So some time before the 11th of April 2012 your leaders decided to seek the assistance of, and, did send for men from Erave to come over and ascertain the cause of those deaths and identify sorcerers through the use of a magic bamboo. I described those men in my judgment as diviners for want of a better description of these practitioners of the occult or supernatural. The deceased Kayabe Yoroka had been earlier suspected for the death of Elvis Toropo.

4. It was the first time for a magic bamboo procession/trial to be conducted in Kumiane and the villagers, including the two of you, were naturally curious. You admitted that you also wanted to know the cause of Elvis Toropo’s death. Leaders from neighbouring villages were invited to witness the event. These included the Chairman of Pangia Village Court Luke Norombo and his Peace Officer Martin Yoroka of Ugili village, Robert Paya of Talivigo and Simon of Molo.

5. The Erave men arrived in Kumiane on the 09th of April 2012. They commenced their “investigation” or “trial by divination” on the morning of the 10th of April around 7.00a.m. As the bamboo procession, led by the Erave men went around the village, villagers were advised to remain in their premises.

6. Two of the men from Erave held the bamboo on opposite ends and moved to where they were supposedly directed by the bamboo. Behind the bamboo and the Erave men, came the village leaders, followed by the young village men. The rest of the villagers including women brought up the rear. The procession ended at 3 o’clock in the afternoon when no sorcerers were identified. Both of you followed the bamboo procession on that first day.

7. The procession continued on the next day, the 11th April 2012, in the same order as was in the previous day. I found that the two of you again joined the procession on that day. I rejected your alibi evidence for reasons state in my judgment on verdict.

8. In morning of the 11th of April 2012, State witness Pora Yoroka (Pora), the brother of the deceased, a policeman based at the Pangia Police Station had walked to the village from Pangia Station after hearing that the bamboo trial would be conducted again that day. It took him about 30 minutes to get to Kumiane.

9. He arrived at his late brother’s residence at 8.30a.m. He was sitting with the deceased and other relatives, namely his wife Diana Pora, the deceased’s wife Kindeme Kaiyabe, their sister Korame Yoroka, daughter-in-law Joycelyn Noel, Jimsen Kayabe, Mali Wane and Stephen Wari in the deceased’s premises, when the bamboo procession first came up the road and went past them towards the direction of Pangia Station.

10. After a while the procession returned and stopped outside the deceased’s fence and the leaders asked if the Bamboo Team could come in. Smiling at them he waved them into the premises. Leaving the Erave Team with the bamboo outside, the crowd rushed into the premises. I accepted the evidence of the only State witness Pora Poroka that as soon as the crowd entered the deceased’s premise, you Alois went straight to the deceased and slashed him at the back of his left leg. You, Tombake followed suit and also cut the deceased on his leg. Others like Yari Yapi, Mark Nare, Ananas Yapi and Rex Yapi also attacked the deceased even though I was of the view that none of these people and others who were there except for Yari Yapi actually inflicted any injuries on the deceased. This was because only four wounds were mentioned in the Medical Report. After the deceased attacked the crowd set a kunai hut on fire and then burned down the deceased’s permanent house to ashes.

11. The Medical Report by Dr. Jan Jaworski revealed that the deceased sustained deep wounds to left thigh muscles and the right knee joint involving both upper parts of the lateral tibial chondyle bone and fibula head, the right extensor forearm involving the radius and left extensor forearm and deep flexor muscles involving both Radius bone and Ulna. I was of the view that the leg wounds appeared to be consistent with the wounds Pora said were inflicted on the deceased by the two of you.

THE OFFENCE

12. The maximum penalty for the offence of murder is life imprisonment. But this does not mean that I will sentence you to life imprisonment. Section 19 of the Code gives the Court the discretion to impose a lesser sentence if it deems it justified by the circumstances of a particular case. It is now also settled that the maximum penalty for any offence is reserved for the worst instances of a particular offence. Furthermore it is well established that the sentence in any particular case is to be determined by the particular circumstances of that case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)

13. It follows therefore that a sentencing court has to consider the circumstances of the offence, the circumstances of the offender and the purpose and object for which the sentence will seek to achieve, among other considerations. The sentencing court is also guided by sentences other judges of this court have imposed in similar cases and any guidelines that the Supreme Court may have laid down.

THE SENTENCING ISSUES

14. My task then is to decide (1) if your offence is a worst instance of murder that ought to attract the maximum penalty of life imprisonment, (2) if not what should be an appropriate sentence in the circumstances and (3) whether any part of your sentence should be suspended.

15. At the outset I must say that yours is not a case that falls in to the worst category of murder deserving of the minimum penalty of life imprisonment....