State v Moni [2006] PGNC 109; CR 293-297 of 2004 (19 December 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOs 293-297 0F 2004

THE STATE

V

STEVEN MONI, JAMES BAKI, FREDDY GOREA,
FRANCIS KUVI AND ALOIS RAKA

Kimbe: Cannings J
2006: 5, 19 October
19 December

SENTENCE

CRIMINAL LAW – doing grievous bodily harm, with intent; Criminal Code, Section 315 – unlawful wounding; Criminal Code, Section 322 – multiple offenders – two victims – two offences – sentences on pleas of guilty – whether offenders had different degrees of involvement or different personal circumstances warranting different sentences – whether sentences cumulative or concurrent – application of totality principle – whether any part of any sentence should be suspended.

Five men pleaded guilty to attacking two other men, using bushknives and other weapons. One of them had an arm chopped off in the incident, though not by the offenders before the court.

Held:

(1) When sentencing co-offenders it is proper to take account of their different degrees of involvement in commission of the offence.

(2) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(3) After going through that process the offenders were sentenced to the following terms of imprisonment: (a) Steven Moni – 5 years; (b) James Baki – 3 years, 3 months; (c) Freddy Gorea – 4 years, 6 months; (d) Francis Kuvi – 4 years, 6 months; Alois Raka – 3 years, 3 months.

The prison terms were made subject to the proviso that if the total sum of compensation of K5,000.00 is paid to the first victim (whose arm was chopped off) and K1,000.00 is paid to the second victim (who suffered lacerations), the offenders will be at liberty to make an application to the National Court for early release.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC894
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v Jeffery Lamis CR 1929/2005, 20.04.06
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05
Tom Longman Yaul v The State (2005) SC803

PLEAS

Five men pleaded guilty to two offences arising from an incident in which two other men were seriously injured; and the following reasons for their sentences were given.

Counsel

F. Popeu, for the State
O. Oiveka, for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentences for five men who pleaded guilty to two offences each, committed at Ganeboku, West New Britain Province, in October 2003.

2. The offences are:

• Count 1: doing grievous bodily harm, with intent to do so, contrary to Sections 315(b) and (d) (acts intended to cause grievous bodily harm or prevent apprehension) of the Criminal Code.
  
• Count 2: unlawful wounding, contrary to Section 322(1)(a) (wounding and similar acts) of the Criminal Code.
  

3. The victims are:

• Alex Vava (count 1), who suffered multiple knife wounds and a broken hand and had an arm chopped off in the incident; and
  
• Justin Rava (count 2), who suffered a knife wound to his left arm.
  

CONVICTION

4. The offenders pleaded guilty to the following facts:

• On 8 October 2003 the principal victim, Alex Vava, had an argument with his wife, a relative of the offenders, over non-payment by her of compensation she had been ordered by the Village Court to pay him.
  
• The next day Alex was on his way to Kambili village, passing by the River Matanarutou. One of the offenders, Francis Kuvi, was at the river.
  
• The other four were at Ganeboku village and were informed that Alex and others were going to attack Francis.
  
• Those four armed themselves with bushknives and a homemade gun and, accompanied by an accomplice, Steven Tele, confronted Alex and his companions near the river. Two of Alex’s friends ran away; leaving Alex and victim No 2, Justin Rava, alone.
  
• The offenders and Steven Tele set upon Alex and Justin.
  
• Steven cut off Alex’s arm and the offenders used their knives to cut Alex on various parts of his body.
  
• They cut Justin on his left forearm.
  
• The two victims then ran away.
  
• The offenders and Steven Tele were aiding and abetting each other. They intended to do grievous bodily harm to Alex.
  
• They wounded Justin without lawful justification or excuse.
  

ANTECEDENTS

5. None of the offenders has prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of their responses follows:

Steven Moni: I say sorry to the victims – I ask for mercy – both my parents are deceased – I am married with three children – my life has become very difficult since this incident – I don’t live in the village because of the trouble – we have already paid K2,000.00 compensation, which is the amount payable in WNB following a death.

James Baki: I apologise for what we have done – my mother is very sick, she goes to hospital a lot and I look after her – I am worried about my education – my graduation is coming soon – I am going to Lucas Waka Primary School.

Freddy Gorea: I say sorry for what I have done – I ask for mercy – consider me for GBB please – I am not living in my village because of this trouble – I have a family and we are all suffering – we have already paid K2,000.00, which is a lot of compensation, even though Alex did not die – we ask the court to send us back to the village so we can sort out these problems.

Francis Kuvi: I apologise for what we did to Alex – I have an oil palm block and coconuts – but I have been living away for three years – life is very hard – ask for mercy and GBB – Alex wants K5,000.00 compensation, which is too much, even for a death – the best punishment is to put us on GBB and send us back to the village.

Alois Raka: I say sorry for what we have done to Alex and Justin – I am the only male in the family and my mother is very old – no papa – I have two blocks of oil palm – ask for mercy and GBB.

OTHER MATTERS OF FACT

7. As the offenders have pleaded guilty, they are entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). This provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• Some of the offenders heard that Alex was armed and had threatened to shoot them.
  
• Steven, James, Freddy and Alois were trying to save Francis who was considered to be under threat.
  
• Each offender made admissions to the police and co-operated fully.
  

Allocutus

• All expressed remorse.
  

Matters raised by defence counsel

• They have all suffered. There were reprisals after the incident. Their houses were ransacked and burned down. Their friend, Steven Tele, was shot dead in a police raid. They have been unable to live in their village since the incident.
  

PRE-SENTENCE REPORTS

8. To help me make a decision on the appropriate sentence I requested and received pre-sentence reports and means assessment reports in relation to the offenders. The reports were prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the reports follows.

1. Steven Moni

24-year-old male, married with 3 children.

Background – he is from Ganeboku village, but now lives at Kabili village – his house burned down by police – both parents alive – fourth born in a family of nine children – unable to harvest coconut and oil palm from block at Ganeboku due to fighting.

His father, Andrew Ipa, paid K2,000.00 bel kol to Alex’s father in 2004.

Educated at Moramora.

Alex is married to his sister Roslyn.

Good community support.

Possibly a good candidate for probation supervision.

Has no source of income and would only be able to pay K1,000.00.

2. James Baki

18-year-old male, single.

Background – he is from Ganeboku village – his house burned down by enemies – both parents alive – oldest in a family of five.

K2,000.00 bel kol paid to Alex’s father in 2004.

His father is John Pake.

Doing Grade 8 at Lukas Waka Primary School; education has been affected by threats and fighting in his area.

Good community support.

A good candidate for probation supervision.

He is a single youth wholly dependent on his parents for financial support – would need at least two years to pay compensation.

3. Freddy Gorea

33-year-old male, married with four children.

Background – he is from Ganeboku village, but now lives at wife’s village, Minda – his house burned down by police and enemies – first-born in a family of eight – unable to make use of cash crops at Ganeboku.

His father is John Ipa.

Educated to Grade 8 at Kimbe Secondary School.

Good community support.

A good candidate for probation supervision.

He has no regular source of income and would only be able to pay K1,000.00 compensation.

4. Francis Kuvi

23-year-old male, married with 2 children.

Background – he is from Ganeboku village, but now lives at Sarakolok with in-laws from Sepik – his house burned down by police – sixth born in a family of eight – cash crops at Ganeboku abandoned.

Francis’s father, Andrew Ipa, paid K2,000.00 bel kol to Alex’s father in 2004.

Educated at Moramora Technical School – welding certificate – 1999.

Alex is married to his sister Roslyn.

Good community support.

Maybe a good candidate for probation supervision.

Has no regular source of income and cannot pay compensation unless he is able to go back to the village and work his block.

5. Alois Raka

19-year-old male, single

Background – he is from Ganeboku village, still lives in the village – permanent house burned down by police and enemies – father (from Western Highlands Province) is deceased; mother (from Ganeboku) alive – Steven Tele, his brother, involved in the offence, was shot dead by police in 2003 – Alois is the only boy left in the original family of five – his three sisters are married and have moved out of the village.

Educated at Moramora grade 9 in 2002 – education interrupted in 2003 due to tribal fighting.

Good community support.

Possibly a good candidate for probation supervision.

Is earning some money from sale of oil palm and would be able to pay K1,000.00 compensation if given a year to do so.

9. The principal victim, Alex Vava, was interviewed. He has suffered greatly. He no longer has his left arm and cannot work his oil palm block. He feels hopeless and cannot do much to enjoy life. He wants each of the offenders to pay him K5,000.00 compensation.

10. Alex’s father, Victor Tuka, was also interviewed. He says the problem has been settled by the local Peace and Good Order Committee. The offenders and their families can come back near the village as long as they stay on their oil palm blocks. Victor says that the K2,000.00 he received was not compensation. It was bel kol only, to allow peace to prevail.

11. The second victim, Justin Rava, was also interviewed. He said Steven Moni was the offender who injured him. He wants Steven to pay him K2,000.00 compensation.

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Oiveka highlighted that all of the offenders had pleaded guilty and expressed remorse. Though the principal victim, Alex Vava, suffered a shocking injury, Mr Oiveka emphasised that none of the five offenders presently before the court inflicted that injury. They have already paid some compensation. It was a family dispute that got out of control. The best way to resolve it is to give each of them a sentence that will allow them to rebuild their lives, go back to their land and earn some money that can be used to pay more compensation to the victims. James Baki and Alois Raka are young offenders and should get shorter sentences, Mr Oiveka submitted.

SUBMISSIONS BY THE STATE

13. Mr Popeu, for the State, submitted that it seems that all of the offenders will have trouble paying the amount of compensation the principal victim expects – K5,000.00 from each of them. So the best thing is that they all go to jail. It is not true to say that they have already paid compensation. The K2,000.00 was bel kol tasol. It was only paid to keep the peace. It is not compensation.

DECISION MAKING PROCESS

14. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
  
• step 2: what is a proper starting point for each offence?
  
• step 3: what other sentences have been imposed recently for equivalent offences?
  
• step 4: what is the head sentence for each offender, for each offence?
  
• step 5: should the sentences be served concurrently or cumulatively?
  
• step 6: what is the effect of the totality principle?
  
• step 7: should the pre-sentence periods in custody be deducted from each head sentence?
  
• step 8: should all or part of each sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

15. Count 1 – the attack on the principal victim, Alex Vava – is based on Section 315 (acts intended to cause grievous bodily harm or prevent apprehension) of the Criminal Code, which states:

A person who, with intent—

(a) to maim, disfigure, or disable any person; or

(b) to do some grievous bodily harm to any person; or

(c) to resist or prevent the lawful arrest or detention of any person,

does any of the following things is guilty of a crime:—

(d) unlawfully wounding or doing a grievous bodily harm to a person; or

(e) unlawfully attempting to strike a person with a projectile; or

(f) unlawfully causing an explosive substance to explode; or

(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person; or

(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person; or

(i) puts a corrosive fluid or destructive or explosive substance in any place; or

(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.

Penalty: Subject to Section 19, imprisonment for life.

16. Count 2 – the attack on the other victim, Justin Rava – is based on Section 322(1) (wounding and similar acts) of the Criminal Code, which states:

A person who—

(a) unlawfully wounds another person; or

(b) unlawfully, and with intent to injure or annoy any person,

causes any poison or other noxious thing to be administered to, or to be taken by, any person,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

17. The maximum penalty is therefore life imprisonment for count 1 and three years imprisonment for count 2. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

18. I have been unable to locate a suitable precedent, so I will use the mid-point of 18 months as the starting point for count 2. As to count 1, it is significant that the offenders have been convicted under Section 315, a very serious offence carrying a maximum penalty of life imprisonment. It is useful to have regard to the penalty regime for these and similar offences under Division V.4 (offences endangering life or health) of the Criminal Code. They are set out in the following table.

TABLE 1: PENALTY REGIME UNDER DIVISION V.4
(OFFENCES ENDANGERING LIFE OR HEALTH)
OF THE CRIMINAL CODE

No	Section	Offence	Maximum sentence
1	314	Disabling or stupefying in order to commit indictable offence.	Life imprisonment
2	315	Acts intended to cause grievous bodily harm or prevent apprehension.	Life imprisonment
3	316	Taking or selling dangerous goods on aircraft.	7 years
4	317	Endangering safety of persons travelling by aircraft.	Life imprisonment
5	318	Preventing escape from wreck.	Life imprisonment
6	319	Grievous bodily harm.	7 years
7	320	Attempting to injure by explosive substances.	14 years
8	321	Maliciously administering poison with intent to harm.	14 years
9	322	Wounding and similar acts.	3 years
10	323	Failure to supply necessaries.	3 years
11	324	Endangering life or health of apprentices or servants.	3 years
12	325	Endangering life of children by exposure.	3 years
13	326	Setting man-traps.	3 years
14	327	Negligent acts causing harm.	2 years
15	328	Dangerous driving of motor vehicle – causing death or grievous bodily harm.	5 years
16	331	Sending or taking unseaworthy ships to sea.	14 years
17	332	Endangering steamships by tampering with machinery.	3 years
18	333	Evading laws as to equipment of ships and shipping dangerous goods.	3 years
19	334	Landing explosives.	3 years

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

19. Before I fix a sentence, I will consider sentences I have imposed in 2005 and 2006 in West New Britain for offences under Division V.4 (offences endangering life or health) of the Criminal Code.

TABLE 2: NATIONAL COURT SENTENCES
FOR OFFENCES ENDANGERING LIFE OR HEALTH,
DIVISION V.4 CRIMINAL CODE,
CANNINGS J, 2005-2006

No	Case	Offence	Details	Sentence
1	The State v Ria Bernard CR 374/2005, 20.05.05	Sec 319 – GBH 2 counts	Guilty plea – 29-year-old offender was under the influence of alcohol – cut his brother with a bushknife – then cut his father when he came to his brother’s aid – life threatening injuries.	4 years each count; total 8 years, cumulative sentence
2	The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05	Sec 319 – GBH	Guilty plea – victim and both co-offenders had been drinking – argument between one of the offenders and victim – degree of participation or type of weapons used – bushknife and a tree branch – victim stabbed in abdomen, suffers permanent injury.	6 years, 4 years
3	The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06	Sec 319 – GBH	Guilty plea – offender believed that two people were sorcerers and made his mother sick – he held the victims captive then assaulted them – he injured one of them badly, slashing him with a bushknife, injuring his leg and cutting off one finger – victim stabbed in abdomen, suffers permanent injury.	3 years, 1 year
4	The State v Jeffery Lamis CR 1929/2005, 20.04.06	Sec 322 –wounding	Guilty plea – domestic setting – argument between father and mother – son assaults father – no weapons used.	18 months

STEP 3: WHAT IS THE HEAD SENTENCE FOR EACH OFFENDER, FOR EACH OFFENCE?

20. I am sentencing multiple offenders (five) for multiple offences (two). I must therefore arrive at 5 x 2 = 10 notional sentences before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

21. There are a number of considerations to take into account in deciding on the head sentence for each offence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be in a lower range. The more aggravating factors present, the more likely the head sentence will be a heavy one.

22. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

23. When sentencing co-offenders it is proper to take account of their different degrees of involvement in commission of the offence (Ignatius Pomaloh v The State (2006) SC894, Supreme Court, Jalina J, Mogish J, Cannings J).

24. Count 1 – the attack on Alex Vava – is the most serious offence, so I will apply the relevant considerations in detail to the first offender, Steven Moni, and indicate a head sentence for him for that offence. Then I will indicate a head sentence for each of the other offenders. I will then consider count 2 – the attack on Justin Rava. As the sentencing range for it is small (zero to three years imprisonment), I do not have to apply the considerations in much detail.

Count 1: attack on Alex Vava, whose arm was chopped off

Steven Moni

1. Did the attack on the victim consist of just a single blow? No – victim was attacked repeatedly.

2. Was just one person involved in the attack? No – there were at least six attackers.

3. Was there some other cause of bodily harm, ie did the injury not result directly from the attack committed by the offender? Yes, the most serious injury the victim suffered – chopping off his arm – was not inflicted by the offender. It was Steven Tele, now deceased, who chopped off the victim’s arm.

4. Was the victim injured by only a fist? No – he was the victim of a knife attack.

5. Did the offender not set out to hurt anyone? No – he was involved in an attack in which he and his co-offenders were armed and the victim was outnumbered.

6. Did the victim or any other person provoke the offender in ‘the non-legal sense’, eg did the victim abuse or assault the offender? Neutral – though Alex had had an argument with his wife, who was related to the offenders, he had not done her any physical harm; and Alex did not directly threaten or abuse the offenders.

7. Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No.

8. Can the attack on the victim be classed as ‘not vicious’? No – this was an extremely vicious attack, which has left the victim maimed for life.

9. Did the offender give himself up after the incident? No.

10. Did the offender cooperate with the police in their investigations? Yes.

11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? Yes. There has been an attempt at mediation and payment of K2,000.00 bel kol money.

12. Has the offender pleaded guilty? Yes.

13. Has the offender genuinely expressed remorse? Yes.

14. Is this his first offence? Yes.

15. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No, he cannot be regarded as a youthful offender.

16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, he has suffered from reprisal attacks and been driven out of his village by the victim’s relatives. He has been denied access to his primary source of livelihood, the cash crops he grows on his block. His family has suffered too. It could be argued that this is a natural consequence of what he did. That may be so but it was not an inevitable consequence. It seems that the offender has paid a penalty already due to other people taking the law into their own hands. This does not excuse what he did but it is a mitigating factor for sentencing purposes. Another mitigating factor I take into account is that the offender has, since being granted bail, been a very regular attender of National Court callovers and has, according to the court’s records, complied diligently with is bail conditions.

25. To recap, mitigating factors are:

• No 3 – he was not the one who chopped off the victim’s arm;
• No 10 – co-operated with police;
• No 11 – bel kol paid;
• No 12 – pleaded guilty;
• No 13 – expressed remorse;
• No 14 – first time offender;
• No 16 – has paid a penalty already due to reprisal attacks and he has complied with bail conditions.
  

26. Aggravating factors are:

• No 1 – victim attacked repeatedly;
• No 2 – others were involved;
• No 4 – use of bushknives;
• No 5 – intention to do serious harm;
• No 7 – victim had no pre-existing handicap;
• No 8 – vicious assault;
• No 9 – did not give himself up;
• No 15 – not a youthful offender.
  

27. No 6 (de facto provocation) is a neutral factor.

28. After weighing all these factors and bearing in mind that there are eight mitigating factors compared to seven aggravating factors and that the maximum sentence is life imprisonment the head sentence should be within the lower range. I will impose a sentence of eight years imprisonment.

James Baki

29. He is a young offender, aged only 15 at the time of the offence. He deserves a lower sentence. I will impose a sentence of six years imprisonment.

Freddy Gorea

30. His degree of involvement was similar to that of Steven Moni. His personal circumstances are also similar. He will get the same sentence: eight years.

Francis Kuvi

31. His degree of involvement was similar to that of Steven Moni. His age and personal circumstances are also similar. He will get the same sentence: eight years.

Alois Raka

32. Like James Baki, he was younger than the others. He was aged 16 at the time of the offence. He will get the same sentence as James Baki: six years.

Count 2: attack on Justin Rava, who suffered lacerations to his arm

Steven Moni

33. The maximum sentence for this offence is three years. Steven was the principal offender. He should get the strongest penalty. He appears not to have made any attempts to compensate or reconcile with the victim. I impose a sentence of two years.

James Baki

34. James deserves a lesser sentence than Steven Moni as he was not the principal offender and he, James, was a young offender. I impose a sentence of six months.

Freddy Gorea

35. He deserves a lesser sentence than Steven Moni because he was not the principal offender. I impose a sentence of one year.

Francis Kuvi

36. He deserves the same sentence as Freddy Gorea: one year.

Alois Raka

37. He deserves the same sentence as James Baki: six months.

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

38. As each offender is facing more than one sentence, I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together).

39. I summarised the principles to apply in this situation in The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919:

• First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
  
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
  
• Thirdly, apply the "totality principle". When the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.
  

40. The one transaction rule does not apply in this case. Though there was one incident, resulting from one chain of events, there were two different victims. The two sentences must be served cumulatively, subject to application of the totality principle. That is:

• Steven Moni: 8 years (GBH, with intent) + 2 years (unlawful wounding) = 10 years.
  
• James Baki: 6 years (GBH, with intent) + 6 months (unlawful wounding) = 6 years, 6 months.
  
• Freddy Gorea: 8 years (GBH, with intent) + 1 year (unlawful wounding) = 9 years.
  
• Francis Kuvi: 8 years (GBH, with intent) + 1 year (unlawful wounding) = 9 years.
  
• Alois Raka: 6 years (GBH, with intent) + 6 months (unlawful wounding) = 6 years, 6 months.
  

STEP 7: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

41. I now look at that the total sentence that each offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is ‘over the top’ or manifestly excessive.

42. On the other hand, the court must not be seen to be going soft on people who attempt to solve domestic issues by swinging bushknives at others, particularly in this part of the country where this sort of crime is prevalent. It is a gutless way for a person to attempt to show his manhood. Ultimately, however, I consider that sentencing these young men, whose lives have already been severely affected by what happened, to nine or ten years in prison, would be excessive.

43. I will therefore reduce the total sentence for the two crimes for each offender, as follows:

• Steven Moni = 4 years (GBH, with intent) + 1 year (unlawful wounding) = 5 years.
  
• James Baki = 3 years (GBH, with intent) + 3 months (unlawful wounding) = 3 years, 3 months.
  
• Freddy Gorea = 4 years (GBH, with intent) + 6 months (unlawful wounding) = 4 years, 6 months.
  
• Francis Kuvi = 4 years (GBH, with intent) + 6 months (unlawful wounding) = 4 years, 6 months.
  
• Alois Raka = 3 years (GBH, with intent) + 3 months (unlawful wounding) = 3 years, 3 months.
  

STEP 7: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?

44. Each offender has already spent time in custody (in remand or wet kot) in connection with this offence.

45. It is proper that each period be deducted from the respective total sentences. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence periods in custody, as shown in the table below.

TABLE 3: CALCULATION OF FINAL SENTENCES

Calculation	1st offender: Steven Moni	2nd offender: James Baki	3rd offender: Freddy Gorea	4th offender: Francis Kuvi	5th offender: Alois Raka
Length of sentence imposed	5 years	3 years, 3 months	4 years, 6 months	4 years, 6 months	3 years, 3 months
Pre-sentence period to be deducted	3 weeks	2 months, 2 weeks	3 weeks	2 months, 2 weeks	2 months, 2 weeks
Resultant length of sentence to be served	4 years, 11 months, 1 week	3 years, 2 weeks	4 years, 5 months, 1 week	4 years, 3 months, 2 weeks	3 years, 2 weeks

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

46. Mr Oiveka has strongly argued that the offenders should get non-custodial sentences so they can get their lives back together, go back to their land, earn money from cash crops and pay more compensation to the victims.

47. That would be a viable option if there had been full reconciliation between the offenders and the victims, but that is not the case. Bad blood still exists. The offenders have had three years to sort out the problem. They are the wrongdoers. It was up to them and their families to take the lead in reconciliation and compensation. So I will not suspend the sentences.

48. However, I will indicate that if the total sum of K5,000.00 compensation is paid to Alex Vava and K1,000.00 compensation is paid to Justin Rava, on behalf of the offenders, the offenders will be at liberty to make an application to the National Court for early release from prison. The court would need to be satisfied that the offenders have a good behavioural record in prison, that there is a plan for reconciliation and peace with the victims and their families and that a community work program is in place.

49. In Tom Longman Yaul v The State (2005) SC803 the Supreme Court expressed reservations about the utility of imposing prison sentences that may be converted to suspended sentences on payment of compensation. The reasoning was that prisoners will find it hard to compensate their victims if they are stuck in jail. This may be so but each case must be judged on its merits and in this case I think it is a proper thing to do.

SENTENCE

50. Steven Moni, James Baki, Freddy Gorea, Francis Kuvi and Alois Raka, having been convicted of the crimes of doing grievous bodily harm with intent and unlawful wounding, are sentenced – subject to an application to, and order by, the National Court for early release in the event that a total sum of K5,000.00 compensation is paid to Alex Vava and a total sum of K1,000.00 compensation is paid to Justin Rava – as follows:

Calculation	1st offender: Steven Moni	2nd offender: James Baki	3rd offender: Freddy Gore	4th offender: Francis Kuvi	5th offender: Alois Raka
Length of sentence imposed	5 years	3 years, 3 months	4 years, 6 months	4 years, 6 months	3 years, 3 months
Pre-sentence period to be deducted	3 weeks	2 months, 2 weeks	3 weeks	2 months, 2 weeks	2 months, 2 weeks
Resultant length of sentence to be served	4 years, 11 months, 1 week	3 years, 2 weeks	4 years, 5 months, 1 week	4 years, 3 months, 2 weeks	3 years, 2 weeks
Amount of sentence suspended	Nil	Nil	Nil	Nil	Nil
Total sentence to be served subject to conditions	4 years, 11 months, 1 week	3 years, 2 weeks	4 years, 5 months, 1 week	4 years, 3 months, 2 weeks	3 years, 2 weeks

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused