The State v Joel Damanin (No 2) and CR No 425 of 2015; The State v Cecil Kingsford (No 2) (2020) N8420

• Jurisdiction: Papua New Guinea
• Judge: Toliken J
• Judgment Date: 14 July 2020
• Court: National Court
• Citation: (2020) N8420
• Docket Number: CR No 424 of 2015
• Year: 2020
• Judgement Number: N8420

Full Title: CR No 424 of 2015; The State v Joel Damanin (No 2) and CR No 425 of 2015; The State v Cecil Kingsford (No 2) (2020) N8420

National Court: Toliken J

Judgment Delivered: 14 July 2020

N8420

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 424 OF 2015

THE STATE

V

JOEL DAMANIN

(No 2)

CR NO. 425 OF 2015

THE STATE

V

CECIL KINGSFORD

(No 2)

Alotau: Toliken J

2020: 14th July

CRIMINAL LAW – Sentence – Wilful Murder on account of accusation of sorcery– Whether death penalty mandatory – Death penalty not mandatory – Court’s discretion under Section 19 (1)(aa) of Criminal Code not removed by Legislature – Criminal Code, ss.19, 229A.

SENTENCE – Wilful murder on account of accusation of sorcery – Sentence after trial – Deceased spears prisoner on thighs and tries to escape – Cut on leg by co-prisoner – Crawls away to escape - Prisoner spears deceased on the back and neck and smashes rock on head –Whether death penalty appropriate – Not appropriate – Aggravating and mitigating factors and extenuating circumstances taken into account – Appropriate sentence – 25 years less time in pre-trial/sentence detention – Nil suspension.

SENTENCE – Alternative count of murder on co-prisoner – Sentence after trial – Co-prisoner cuts deceased on leg and leaves scene – Takes no further part in killing of deceased – Mitigating and Aggravating factors and degree of participation considered – Appropriate sentence – 20 years less time in pre-trial/sentence detention – Nil suspension.

Cases Cited:

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

Andrew Uramani & Ors v The State [1996] PNGLR 287

Enforcement of Basic Rights under Section 57 of the Constitution of the Independent State of Papua New Guinea; In re (2017) N6939

Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC 705

GoliGolu v The State [1979] PNGLR 653

Gimble v The State [1988-89] PNGLR 271

Irai Thomas v The State (2007) SC867

John Baipu v The State (2005) SC796

Joseph Nimagi& 2 Ors v State (2004) SC 741

Kesino Apo v The State [1988] PNGLR 182

Luke Koit Bawas & Roger Gawi Kiandu; SC Reservation No. 1 of 2017 (unnumbered and unreported judgment dated 12th December 2017).

Loke Ume v. The State (2006) SC 836

Manu Kovi v The State (2005) SC 789

Sanawi v State (2010) SC1076

Sedoki Lota v The State; SCRA 31 of 2007 (unnumbered and unreported judgment dated 20 September 2018)

Ure Hane v The State [1984] PNGLR 105

Reservation (Pursuant to Section 21 of the Supreme Act), In The Matter of National Court Proceedings CR No. 1663 & 1675 of 2016 Between The State v The State v Sagalol (2018) N7353

The State v Nohuta(2016) N6464

The State v Toropo (No.2) (2015) N6013

The State v Gladwin BalikNiaka (2014) N5581

The State v AvanaLatuve (No.2) (2013) N5406

The State v Aiya (2013) N5198

The State v Mesuno&Ors (2012) N4702

The State v Baika Martin &Ors ((2008) N3312

The State v Waninara (No.3) (2007) N3280

The State vs. Sedoki Lota and Fred Abenko (2007)N3183

The State v John KanuaSiune& Kenneth KundaSiune (2006) N5014

The State v Maraka Jackson (2006) N3237

The State v Wilfred OpuYamandeN'danabet (2004) N2728

The State v Boat Yokun and eight Others [2002] N2337

The State v Joseph Nimagi and 2 Others[2002] N2312,

The State v Baina Benny & 4 Ors; CR NO. 150 – 153 Of 2015, CR NO. 885 of 2015 (unnumbered and unreported judgment dated 19th September 2018)

The State v Joel Damanin; CR No. 424 of 2015;

The State v Cecil Kingsford; CR No. 425 of 2015 (unreported and unnumbered judgment dated 11th September 2018) for judgment on verdict)

Wingkeok Pitaneoc and Boiyo Kaninga (2004) N2514

Overseas Cases:

Dawson and Gaudron, JJ in Mario Postiglione v The Queen[1997] HCA 26; (1997) 189 CLR 295

Counsel:

A. Kupmain, for the State

P. Palek, for the Prisoners

JUDGMENT ON SENTENCE

14th July 2020

1. TOLIKEN J: The prisoners Joel Damanin and Cecil Kingsford were each and severally indicted for one count of wilful murder on account of accusation of sorcery pursuant to Section 299A of the Criminal Code Ch. 262. After trial I found Cecil Kingsford guilty and convicted him accordingly. For Joel Damanin I, however, returned an alternative verdict of murder instead in contravention of Section 300(1)(a) of the Code. This is my sentence.

FACTS

2. The brief facts for the purpose of sentencing are as follows: The deceased, Norman Buka, was a reputed sorcerer and was alleged to have caused the illness and the deaths of several people at Nawandowan village, Rabaraba, Alotau District, Milne Bay Province. The latest accusation was that he was responsible for the illness of Joel Damanin’s wife, and of being seen around Damanin’s house on three consecutive nights prior to his killing. Both accused are related to the deceased and were concerned about the deceased’s alleged activities. On the morning of 08th October 2013, Cecil Kingsford went up to the deceased’s hamlet at Bondiri and confronted the deceased over these allegations.

3. The deceased, however, attacked him, spearing him on his thighs with a spear and missed him with another. The deceased then ran back into his house and locked himself in. He then cut a hole in the wall to escape and as he stepped out of the hole, Joel Damanin, who arrived at the scene to see what was happening, cut his leg with a bush knife and then immediately left the scene.

4. The deceased crawled away from the house to escape into the nearby bushes. Cecil Kingsford followed him and speared him twice with two spears on the chest and neck. He then picked up a rock and smashed it on the deceased head. The deceased died as a result. (See The State v Joel Damanin; CR No. 424 of 2015; The State v Cecil Kingsford; CR No. 425 of 2015 (unreported and unnumbered judgment dated 11th September 2018) for judgment on verdict))

THE OFFENCE

5. The offence of wilful murder of a person on account of accusation of sorcery, for which I have convicted Cecil, is a new offence, introduced in to the Code by Criminal Code (Amendment) Act 2013, No.6, Section 1 of which provides :

SECTION 299A. WILLFUL MURDER OF A PERSON ON ACCOUNT OF ACCUSATION OF SORCERY.\

(1) Any person who intentionally kills another person on account of accusation that the person is practicing sorcery, is guilty of wilful murder and shall be sentenced to death.

(2) For purposes of Subsection (1), "sorcery" includes (without being exhaustive and exclusive) what is known, in various languages and parts of the country, as witchcraft, magic, enchantment, puripuri, muramuradikana, vada, meamea, sanguma, or malira, whether or not connected with or related to the supernatural.

6. The offence of murder on the other hand is provided by Section 300 of the Code. Subsection (1)(a) relevantly provides:

300. MURDER.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

…

Penalty: Subject to Section 19, imprisonment for life.

SENTENCING ISSUES

7. The issues for my determination in respect of the prisoners’ offences are:

Are these worst cases that ought to attract the maximum penalties of death and life imprisonment respectively? If it not what should be an appropriate sentence in each case?

8. To be fair on the prisoners, I will consider their cases separately, bearing in mind of course their respective degrees of participation in the commission of the crime.

GENERAL SENTENCING PRINCIPLES

9. While the prisoners may be liable to be sentenced to death or life imprisonment as the case may be, it is trite that the maximum penalty – for any offence – is reserved for the worst instances of offending. It is also trite that an offender must be served a sentence that is proportionate to his crime according to its seriousness, the circumstances under which he committed the crime and his personal circumstances. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)

10. Furthermore, while Gimble v The State [1988-89] PNGLR 271, stands for the principle that co-offenders ought to receive the same sentences so that equal justice is served, hence, the principle of parity, circumstances including the respective offender’s degree of participation and culpability in the crime may well justify disparity. The Statement by Dawson and Gaudron, JJ in Mario Postiglione v The Queen[1997] HCA 26; (1997) 189 CLR 295, at 301 – 302stands for this principle. They said -

"The parity principle … is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different...