The State v Kaul Niruk & Kubak Nurvue (2012) N4821

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J.
• Judgment Date: 03 October 2012
• Court: National Court
• Citation: (2012) N4821
• Docket Number: CR. NO. 801 of 2011
• Year: 2012
• Judgement Number: N4821

Full Title: CR. NO. 801 of 2011; The State v Kaul Niruk & Kubak Nurvue (2012) N4821

National Court: Lenalia, J.

Judgment Delivered: 3 October 2012

N4821

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 801 OF 2011

THE STATE

V

KAUL NIRUK & KUBAK NURVUE

Kokopo: Lenalia, J.

2012: 25th September & 3rd October.

CRIMINAL LAW – Murder – Sentence after finding of guilty – Factors for consideration – Sentence – Criminal Code s.300(1)(b)(ii).

CRIMINAL LAW – Murder – Sorcery related killing – Sentence – Sentencing principles – Not a worse type case – Sentence of 12 years appropriate.

Cases cited

Goli Golu v The State [1979] PNGLR 653

Acting Public Prosecutor v Uname Auname [1980] PNGLR 510

Ure Hane v The State [1984] PNGLR 105

Kwayawako & 5 Others v The State [1990] PNGLR 6

Lawrence Simbe v The State [1994] PNGLR 38

The State v Boat Yokum & 6 Others (2002) N2337

Max Java v The State (2002) SC701

The State v Urari Siviri (2002) N2747

Manu Kovi v The State (2005) SC 789

Counsel

Mrs. S. Cherake, for State

Ms. J. Ainui, for the two Accused

SENTENCE

3rd October, 2012

1. LENALIA J: The two prisoners were found guilty of one count of murder pursuant to s.300(1)(b)(ii) of the Criminal Code. The offence was committed at Vunairoto village on the North Coast area of this Province on the afternoon of 29th June 2011. This offence is punishable by life imprisonment subject to s.19 of the Code.

Addresses on Sentence

2. After the two accused were found guilty, (see judgment on verdict dated 25th September 2012) they were asked if they wanted to tell the court anything before their lawyer address the court on sentence. On the part of the first accused he said sorry to the court and the relatives of the victim. He said, they did not mean to kill the deceased but they assaulted him because, they suspected him of poisoning his brother.

3. The second accused said much the same thing. He said sorry to the relatives of the victim and to the court. This prisoner had got one conviction by the District Court in Rabaul for assault. He was sent to jail for 8 months. The defence did not dispute such conviction on the part of the second prisoner.

4. The evidence established a case of sorcery related killing. When counsels addressed the court on sentence, the defence counsel briefly stated the law in relation to the offence committed by the two accused. Ms. Ainui submitted that the Court should take into account the fact that, the two accused did not really mean to kill the victim as they were angered by the victim’s action that allegedly poisoned their brother late Retio who is now deceased. She asked the Court to consider the fact that, this was a sorcery killing involving an element of “provocation in the non legal sense”. Counsel submitted for a sentence lower than category 2 in Manu Kovi-v-The State (2005) SC 789.

5. Mrs. Cherake submitted in reply that the court has to consider the fact that a life was lost and the court must consider sanctity of life as an important factor on consideration of an appropriate penalty. Counsel quoted cases on sorcery killing and asked the court to consider an appropriate penalty. Counsel cited the case of The State-v-John Kanua & Anor, Cr.Nos.384 & 385 of 2003. In that case the offenders were sentenced to 25 years for the offence of murder under s.300 of the Criminal Code. It was held in that case that the starting point for vicious attack mob killing motivated by belief in sorcery should be 20 – 30 years imprisonment. That case is no authority as it is a National Court decision.

6. She referred to a number of cases relating to sorcery killing including that of Manu Kovi-v-The State (2005) SC 789 for the principles set by the Supreme Court on the tariffs of sentences for homicide cases. I will refer to some of these cases later.

LAW

7. The crime of murder under s.300 of the Criminal Code is punishable by life imprisonment. This is demonstrated by the wording of the section charged and the circumstances under which the crime of murder can be committed. The Section states:

“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; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or”.

……..

“Penalty: Subject to Section 19, imprisonment for life.”

8. As submitted rightly by counsels, this Court has discretion to either impose life imprisonment on the two prisoners or instead sentence them to a term of years. Agiru Aieni and 12 Others-v-Paul Tohian [1978] PNGLR 37. On that case, Wilson, J; after stating the principles said, to apply the principle of sentencing properly, the court ought to inquire into how seriously the particular accused was involved in the offence, then the extent to which the accused was culpable. There is only one person who was not arrested for this offence.

9. The above principle is significant in this case to decide what part the two accused played in the killing of the sorcerer. It seems from the evidence that, the two prisoners acted by using a bush-knife and spades. The extent of their culpability was direct confrontation with the victim. The two accused were the main actors of this offence and according to the evidence, they acted directly and confronted the deceased and assaulted him right in front of the public who gathered for the burial. They are culpable for the crime they committed.

10. It appeared from all evidence the people around the area where the offence took place still have a very strong belief in sorcery and sorcery killing. It is a widespread belief very common throughout Papua New Guinea that sorcerers can actually cause the death of other people. The extent of that belief was well summarized in The State-v-Aiaka Karavea & Anor. (1983) N452 (M) where former late Kidu CJ said:

“There is no doubt that in this country the belief in sorcery is widespread and nobody really has to prove to the court that it exists. Belief in sorcery exists amongst some of the most backward of our people up in the mountains of every province and also in the urban areas, including Port Moresby. Very well-educated people believe that sorcery exists and that there is power in people who practice evil sorcery to cause the death of other persons.”

11. Sorcery related killings are in general committed under different circumstances. The killing of a reputed sorcerer whom people generally believe that he was a sorcerer and that he was responsible for causing an unspecified number of deaths in the village and where people believe that he was responsible for the last death as was in the case of The State-v-Kwayawako [1988] PNGLR 174. I am of the view that that line of cases may be treated differently from a case where there is mere suspicion by villagers that such person was a sorcerer. On the instant case, it is not clear nor has it been proven in evidence if the victim was at all a sorcerer.

12. Whether Noah Kukubak was in fact a sorcerer and whether he had killed many people in the village cannot be established as he was never given the opportunity to prove his case in any court of law as required by s.37 (3) of the Constitution. He is not here today to do that. He is now dead. However one thing is clear about the allegations against the deceased and that is that, the two accused and their relative who has not been charged believed that the deceased had caused the death of late Retio, the brother of the two accused.

13. The Supreme Court cases of Acting Public Prosecutor-v-Uname Auname [1980] PNGLR.510 and Public Prosecutor-v-Apava Keru and Aia Moroi [1985] PNGLR.78 establish that sorcery related killings fall into a special category deserving special considerations on sentence. In the later case, the Supreme Court said at pages 80-81:

“If the killing had been of a reputed sorcerer then a sentence of six years would have been appropriate on the leading sentencing authority of Acting Public Prosecutor v Uname Auname {1980] PNGLR 510. That case puts the wilful murder of a reputed sorcerer in a special category of its own – meriting a sentence of around six years. All other kinds of wilful murder normally attract a sentence years or more up to the maximum of life imprisonment.”

14. The court understands where Mrs. Cherake was coming from when she addressed on the court on aggravations when she said, the fact that, the killing was sorcery related ought to be properly considered by this court because of the principle that sanctity of life must be up-held and given paramount consideration. I share the same view about the outcome which might have a negative impact on sentencing on sorcery killing related case. I share the view that the allegations about sorcery should not overshadow the seriousness of the killing in the instant case and if the court was to be too lenient on sentence would send a wrong signal to the public that, the killing of...