The State v Joseph Tunde Binape of Omdara Village, Gumine, Simbu Province ('Prisoner') (2004) N2727

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 12 November 2004
• Court: National Court
• Citation: (2004) N2727
• Year: 2004
• Judgement Number: N2727

Full Title: The State v Joseph Tunde Binape of Omdara Village, Gumine, Simbu Province ('Prisoner') (2004) N2727

National Court: Davani J

Judgment Delivered: 12 November 2004

N2727

IN THE NATIONAL COURT OF

JUSTICE AT WAIGANI

PAPUA NEW GUINEA

CR 261 of 2001

THE STATE

V.

JOSEPH TUNDE BINAPE

of

OMDARA VILLAGE, GUMINE, SIMBU PROVINCE

(‘prisoner’)

Waigani: Davani, .J

2004: 5, 12 November

Sentence – wilful murder – sorcery as a mitigating factor – relevant considerations – s. 299 of Criminal Code Act.

Sentence – wilful murder – payment of compensation, not a substitute for punishment – s. 2(1) of Criminal Law (Compensation) Act 1991.

Cases cited

Secretary for Law v. Ulao Amantasi and others [1975] PNGLR 134

Goli Golu v the State [1979] PNGLR at 653

Acting Public Prosecutor v. Uname Aumane [1980] PNG 510

Ure Hane v the State [1984] PNGLR 105

State v Margaret John (No. 2) [1996] PNGLR 298

State v Rex Lialu [1988 – 89] PNGLR 499

Tony Imuni Api v the State SC684 dated 29th August, 2001

Aloises Peter Irobo Kovei v the State SC676 dated 14th November 2001

Kepa Wanege v the State SC742 dated 1st April 2004

State v. Jude Gena and four others N2649 dated on 24th September, 2004

J. Nidue for the State

M. Norum for the Accused

SENTENCE

(Trial)

12th November 2004

Davani .J: On 27th October, 2004, after a trial, this court found the prisoner guilty of the offence of wilful murder. The matter was adjourned to 5th November 2004 for the court to administer the allocatus and for submissions on sentence.

Submissions on mitigation

Before discussing the State’s submissions on sentence, I refer again to the evidence before the trial court in relation to the prisoner’s involvement, that whilst a lot of people were in a house mourning the death of a young man whose body was in a coffin located in that house, the deceased then walked into the room. This was when the prisoner pointed at the deceased and told the deceased that he was the sorcerer. Then, the prisoner inflicted the first blow on the deceased using an axe, hitting the deceased in the back. He then inflicted the second blow to the back of the deceased’s head. Immediately then, six men ran into the room and together with the prisoner, tied the deceased with ropes and hung him from the ceiling. This was when the prisoner gave the axe to one Ben Maere who swung the axe at the deceased’s forehead and cut him on the head. The six men and the prisoner then took the deceased down from the ceiling and took him to a dark place at the back of Ben Maere’s house where they then placed the deceased in a vehicle and drove off with it. The body was found two days later, in a partially decomposed state, at the end of the 7 Mile Jacksons aerodrome runway.

Mr Norum for the prisoner submitted that the offence is not the worst of its kind, that the prisoner is a first time offender, that he is the only breadwinner for his family, that he was provoked by the deceased’s presence when he walked into the house of mourning because he believed the deceased had committed sorcery and had killed the young boy who had died. Mr Norum also submitted that compensation of K11, 600.00 was paid by the prisoner’s relatives to the deceased’s relatives.

Mr Norum also submitted that the prisoner is married with two children aged 9 and 5 who are both adopted. At the time of the death, he was employed as a security guard at the Airways Hotel. He had been employed there from 1999 to the date of arrest and was residing at the 6 Mile settlement in Port Moresby. He was arrested on the 20th July, 2000 in Kundiawa in the Simbu Province and was then released on bail on 20th November, 2000. He was re-arrested on 24th June, 2004 when bail was forfeited and he was remanded in custody. He has now been in custody for 4 months and 12 days.

On allocatus, the prisoner continued to deny that he was involved in the killing. He told the court that the witnesses were not witnesses of truth. However, he apologized to the court, to the deceased’s families, to his family and said that only God knew who the killer was.

State’s submission

Counsel for the State re-emphasized that this was not a sorcery related killing. I accept that, not only because there is no evidence to that effect, but because the prisoner did not rely on defences arising out of acts of sorcery at trial. However, because it was raised as a mitigating factor, the court must consider it.

Ms Nidue referred the court to the case of Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510. A member of the Supreme Court panel, the then Chief Justice Kidu in his reasoning on why the trial courts sentence on a sorcery related killing was inadequate, addressed the following factors. These were;

1. Nature of offence;

2. Pre-intention;

3. Sophistication of prisoner;

4. Public deterrence.

I have also in these reasons, adopted these factors with a view to achieving a just end result.

Nature of offence - Although there is evidence from the bar table that people from Gumine in South Simbu, are believers of sorcery, there is no evidence to that effect before me to then satisfy the requirements as set in Secretary for Law v. Ulao Amantasi and others [1975] PNGLR 134. In that case, the trial judge had to assess the accused’s “primitiveness” which the Supreme Court panel could not appreciate by the mere reading of the transcript. The trial judge had to consider the possible sociological effect that long sentences would have on men of a small tribe. In that case, the accused and 8 others killed a man believed to be a sorcerer because they believed he had caused the death of eleven people from that area. The killing was planned and the trial court found the accused to be of the most primitive type who lived in a community which had strong beliefs in the power of sorcery. The trial court found that when they killed, they were acting in the interest of preservation of their society, which numbered about one hundred people only. Compared to this case, the prisoner here is a leader of the settlement in which he lives in and has also been resident in Port Moresby for several years. He was also a security guard then and would have obviously appreciated the effects of the law on social order. He would not be said to be an unsophisticated villager as in Ulao Amontasi and others (supra) and in Acting Public Prosecutor v. Uname Aumane [1980] PNG 510. The circumstances in this case also do not bear any similarity to that of Uname Aumane (supra).

It is not disputed that the mourners believed the boy was killed by sorcery or sanguma. But, the only evidence to that effect is from the state witness Irai Mol who said in his evidence that the deceased had been killed by a ‘sanguma’. The accused’s presence at the place of mourning was not to mourn but was of a more sinister nature which has now been played out resulting in the deceased’s death.

The prisoner and his counterparts also attempted to conceal the body by dumping it at the end of the 7 Mile aerodrome. They knew that fear would keep the people away from them, that they could kill at their whim and still live to face another day.

Pre-intention – There is no evidence of a plan to kill the deceased by the prisoner and his six counterparts.. The only uncontested evidence is that the deceased was in the house of mourning when the prisoner and his counterparts attacked him. However, the prisoner’s comments at the place of mourning suggest there to be some unspoken desire for revenge. i.e when he told the people that the deceased was only sleeping and would soon wake and that the deceased was the sorcerer, which then set the stage for the brutal acts of axing and stringing up of the deceased.

Sophistication of person – At the time of the killing, the prisoner was a leader in the community he lived in. He had also been resident in Port Moresby for several years and was a security guard which confirms that he had some appreciation of law. He could not be said to be a person with no understanding of the effects of his actions.

Public deterrence – The courts sentence must be to deter the actions of others, that people should not take the law into their own hands or exact revenge on others.

Sentence.

Counsel for the prisoner referred the court to the case State v. Jude Gena and four others N2649 decided on 24th September, 2004 by the Chief Justice and submitted that this court must sentence at 20 years or less because the prisoner was provoked into killing relying on his belief that the deceased used sorcery to kill the young boy. In the Jude...