The State v Sina Dakol

• Jurisdiction: Papua New Guinea
• Judge: Kaumi AJ
• Judgment Date: 10 September 2018
• Citation: (2018) N7444
• Court: National Court
• Year: 2018
• Judgement Number: N7444

Full : CR 171, 172, 173 & 174 of 2018; The State v Sina Dakol, Jonathan Maves, Yagum Alung & Bobby Dakol (2018) N7444

National Court: Kaumi AJ

Judgment Delivered: 10 September 2018

N7444

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 171, 172, 173 & 174 of 2018

THE STATE

V

SINA DAKOL, JONATHAN MAVES, YAGUM ALUNG & BOBBY DAKOL

Lae: Kaumi AJ

2018: 13 July

8, 13, 14, 24 August

7 & 10 September

CRIMINAL LAW – Sentence-Criminal Code Act 1974- Section 300 subsection (1) (a) Murder -Sorcery related killing-Group of men slashed reputed sorcerer to death-Multiple wounds to head, throat, chest and arm-victim bled to death.

CRIMINAL LAW- Sentence- Sorcery only a belief not a fact-Belief in sorcery-Belief reinforced by community–Close relatives died- Deceased reputed sorcerer suspected- Prisoners acted on such belief-Evidence of such belief provided- Facts of case indicate decrease in degree of mitigation of belief in sorcery.

CRIMINAL LAW- Mitigating and Aggravating Factors-Belief in sorcery not a special mitigating factor-Plea of Guilt- First Offenders-Prevalent Offence- Genuine Expression of Remorse–Prevalent Offence

CRIMINAL LAW- Should All or Part of the Sentence be suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report

CRIMINAL LAW- Usual purposes of criminal sentencing of Deterrence and Retribution take precedent over Rehabilitation-Not worst type of offence-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Facts

The offenders pleaded guilty to one count of murder of a reputed sorcerer. The matter was for sentence.

Held:

[1] Sorcery is only a belief and not a fact. Acting Public Prosecutor vs. Uname Aumane & Others [1980] PNGLR 510.

[2] Acting on a belief in sorcery can only operate as a factor in mitigation of the offenders sentence, just like all other mitigating factors that the Courts often take into account before passing sentence provided the offender establishes the basis for holding and acting on such a belief: John Baipu v The State [2005] SC796 and Irai Thomas v The State [2007] SC867.

[3] The Supreme Court in the case of John Baipu v. The State (supra) correctly qualified the belief in sorcery and its degree in mitigating a sentence by accommodating the advent of the effects of modernization throughout the length and breadth of this country.

[4] Not because the belief in the effectiveness of the sorcery may diminished, but because the belief that taking the law into the defendant’s own hands as the only effective means of dealing with the problem should and ought to be diminished. And the more these factors of social change are present in a defendant’s society the less a mitigating factor belief in sorcery should be: John Baipu v The State [2005] SC796

Cases Cited:

Golu v The State [1979] PNGLR 653

Acting Public Prosecutor vs. Uname Aumane & Others [1980] PNGLR 510

State v Arnold [1997] PGNC 154; N1658 (21 November 1997) unreported

The Acting Public Prosecutor v Don Hale (27/08/98) SC 564

The State v Boat Yokum and Eight Others [2002] N2337 Injia. J (as he then was)

The State v Nick Sambra & Another [2002] N2219

The State v Francis Kuta Amet & Ors CR 1418 of 2002 & CR 688 of 2003, unreported

John Baipu v The State SCR 71 of 2003 unreported and unnumbered judgement (2005)

The State v Irox Winston [2003] N2347 Kandakasi. J

Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730 (3 October 2003)

The State v Urari Siviri [2004] N2747

The State v Wilfred Opu Yamande N’danabet [2004] N2728 (9 November 2004)

John Baipu v The State [2005] SC796

Kovi v The State [2005] SC789

Yaul v The State [2005] PGSC 29; SC803 (4 November 2005)

Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006

The State v Raka Benson [2006] PGNC 68 CR 447, 445

The State v Maraka Jackson [2006] N3237 (24 October 2006)

The State v John Kanua Suine & Kenneth Kunda Suine [2006] N112 (12 December 2006).

Irai Thomas v The State [2007] SC867

Saperus Yalibakut v. The State [2008] SC890

Thress Kumbamong v The State [2008] SC 1017 (Salika DCJ, Kandakasi and Yagi JJ)

The State v Baipa Martin & Ors [2008] N3312 (12 March 2008)

The State v Malachi Mathias & John Giamalu [2011] PGNC 228; N4670 (9 September 2011)

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

The State v Gladwin Balik Niaka [2014] N5581 (14 April 2014).

Legislation Cited

Constitution of Papua New Guinea

Criminal Code 1974

Criminal Justice (Sentencing) Act 1986

Counsel

Ms. Langtry, for the State

Mr. Tsipet, for the offender

SENTENCE

10th September, 2018

1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a group of men who pleaded guilty to one count of murder on 13 July 2018 contrary to Section 300 (1) (a) and State invoked Section 7 (1)(c) and Section 8 (c) of the Criminal Code Act Chapter 262.

ISSUE

2. The relevant issue is what the appropriate sentence is in this case.

FACTS

3. The State alleged that all four accused namely Sina Dakol, Bobby Dakol, Yagum Akung and Jonathan Maves, suspected the deceased, Galang Waiseuk, of practicing witchcraft and they blamed him for the death of one of their brothers.

4. At around 5am on the 15th day of August 2017, all four accused armed themselves with bush knives. They went to the house of the deceased at Popdubi village and surrounded it. They waited until 6am when there was light and observed the movements of the deceased. They thought he performed a ritual because when the deceased came down from his house he stood on the ground and threw one of his hands up into the air. He then went all over his area and performed the same action of throwing his hand up into the air. Afterwards the deceased went up to the house. When the deceased came out again, he went and sat at his haus win and talked with his wife and two children. On seeing him talking with his wife and children, Yagum Alung rushed at him and cut him with a bush knife on the neck and the back of the head. The deceased got up to run away but Yagum Alung grabbed his hand and restrained him. Yagum Alung then tried to chop the deceased’s leg but his trousers prevented the knife from cutting him and the deceased fell to the ground. As he was lying on the ground, Yagum Alung swung his bush knife at the deceased and cut him on the throat. Sina Dakol then chopped him with a bush knife on his stomach and Bobby Dakol chopped him on his arm. Jonathan Maves also slashed the deceased on his chest and stomach.

5. After chopping the deceased, the four accused left him lying on the ground and went back to their village.

6. The deceased suffered the following injuries and died:

(a) 10cm in length wound on the throat; and

(b) 30cm open cut across the chest; and

(c) 7cm in length cut across the right arm; and

(d) A cut on the back of the head.

7. The State therefore said that when the accused chopped the deceased with the bush knife they caused his death and at the time intended to cause him grievous bodily harm and thereby contravened section 300 (1) (a) of the Criminal Code Act.

ANTECEDENT

8. Their respective Antecedent Reports provided to the Court by the State states that they have no prior convictions.

ALLOCATUS

9. When I administered allocatus to the offenders i.e. allowing them the opportunity to say what matters they would like the court to take into account when contemplating what kind of punishment to give them, the following is a paraphrased summary of their responses:

(a) Sina Dakol-

“I’m sorry in the eyes of God, and Court and lawyers and public in court. In custody where I was, there is plenty of us, TB is rampant and spreading in custody. I am a student and I ask for Court’s mercy, and give me Good Behaviour Bond. Thank you.”

(b) Bobby Dakol-

“What happened is what we are saying to this Court that it is true. What we have done is gone already and we know that I am wrong. I say sorry in the eyes of God, Court, lawyers and public in Court and I am sorry to the complainant and what I’ve done has spoiled their living. I am a student and at the village. I have a new cocoa garden. In custody it’s overcrowded and TB is spreading. I ask for the Court’s good knowledge and mercy of the Court, if the Court can give me Good Behaviour Bond or Court Fine. Thank you.”

(c) Yagum Alung-

“The problem I have already committed. On top of sorcery /witchcraft was done. It’s through the influence and the well-being of the community this trouble happened. I say sorry to eyes of God for what I’ve done, sorry to the Court, lawyers and public witnessing today in Court. I say sorry to the deceased Galang Waiseuk who lost a lot of blood and died. I say sorry to his wife, his children and all his relatives. I honour this high Court of this country, your...