N5196 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 338 OF 2011

THE STATE

-V-

JACOB PUTI

Porgera: Gauli AJ
2013: 5, 9, 10, 12 April

CRIMINAL LAW – Sentence – Plea of guilty – Attempted murder – Criminal Code, section 304 (a) – Armed with an offensive weapon – Swung a bush knife aimed at the neck – Victim raised her left hand to prevent herself – Severed left hand – Fractured a bone – No provocation – No reason for the attack – First time offender – Showed remorse – Sentenced to 7 years – Less time in custody. 

Cases Cited: 

R v. Kiki Kau'pau (1970) N567
Peter Naibiri v. The State (1978) SC137
Manu Kovi v. The State (2005) SC789
The State v. Owake Nomane (Unreported Judgement; CR. 1442 of 2006
The State v. Misin Kinapa (2009) N3814
The State v. Jack Magal (Unreported Judgement; CR. 2224 of 2008
The State v. Walis Langap (Unreported Judgement; CR. 279 of 2009
Thomas Yakumbi v. The State (2006) SCR 33
Thress Kumbamong v. The State (2008) SC 1017
The State v. Rex Lialu [1988-89] PNGLR 449
Simon Kama v. The State (2004) SC 740
The State v. Kenneth Penias [1994] PNGLR 4

Counsel

D. Mark, for the State
R. Bellie, for the Accused

SENTENCE

1.	GAULI AJ: The accused Jacob Puti of Lai village, Tari/Pori District of the Southern Highlands Province, pleaded guilty to one count of attempted murder, charged under Section 304 (a) of the Criminal Code. His early guilty plea no doubt has saved the Court's time. 

BRIEF FACTS

2.	On the 18th of November 2010 about 3.00pm, Jacob Puti confronted a female by the name of Peswan Yapar between Pulapi No. 1 village and the Stock Pile No. 71 at the Porgera Mine site in Porgera, Enga Province of Papua New Guinea. The accused Jacob Puti was armed with a bush knife. He swung the bush knife aimed at the victim's neck. The victim raised her left arm to protect herself, resulting in her left hand been cut and a bone fractured. During the struggle, the victim bit the accused's left finger and she shouted for help and the accused ran away. The victim was taken to the Mine Site Clinic and later referred to Suyan General Hospital in Porgera where she was admitted and received medical attention. Her medical report was not made available as she has not paid her medical fees of K500.00 

APPLICABLE LAW

3.	The accused is charged under section 304 (a) of the Criminal Code. This provision states in these terms: 
 
304 Attempted murder, etc 

 A person who –

(a)	 attempts unlawfully to kill another person; or 
(b)	 with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

 is guilty of a crime.

 Penalty: Subject to Section 19, imprisonment for life (emphasizes are mine).

PRIOR CONVICTIONS

4.	The accused is a first time offender.

ALLOCUTUS:

5.	In his allocutus the accused said: "I am sorry that I committed this offence. I ask the Court to have leniency on me. That is all." 
 
ANTECEDENT REPORT:

6.	Refer to the Pre Sentence Report below. 

PRE SENTENCE REPORT

7.	The Probations Officer provided a Pre Sentence Report of the prisoner on request by the defence counsel and it states that: 

Jacob Puti is 18 years old from Lai village of Tari / Pori in the Southern Highland Province. He comes from a family of 3 boys and he is the second born in the family. He is single. He has being living at Kulapi in Porgera with his parents for 15 years until the time of the commission of this crime. Both parents are alive. He has no formal education, he dropped off from a lower primary education and he has no form of employment. He has no record of illness. The accused has being in custody for 2 years 5 months since his arrest. 

Accused paid K300.00 as compensation to the victim to pay for her medical expenses. The victim could not be located for her response. 

Recommendation

The Probation Officer recommended that the accused is a suitable candidate for probation on the grounds that – 

1.	He is a youthful offender and has a long way to go in social behaviour.
2.	He has spent 2 years 5 months in custody awaiting his trial.
3.	He showed remorse to the State, victim and the community.
4.	He is the first time offender. 
5.	He admitted the offence in Court without wasting Court's time.
6.	He paid K300.00 compensation before been apprehended by police. 
7.	The Probation Officer does not recommend compensation as the victim is not around.
8.	That the prisoner be placed on good behaviour bond with conditions:

1)	To attend SDA Church regularly.
2)	Refrain from having illegal drugs or any form of intoxicated alcoholic drinks during the probation period. 

SUBMISSIONS 

8.	The Public Prosecutor made his oral submission on the 9th of April 2013. He referred the Court to two cases, R v. Kiki Kau'pau (1970) N567 and Peter Naibiri v. The State (1978) SC 137. In these cases the Supreme Court said that the offence of attempted murder involves intention to kill therefore it is more serious than that of murder or manslaughter. But each case be determined on their own merits. 

9.	Public Prosecutor further referred to the case of Manu Kovi v. The State (2005) SC789 which categorizes the range of sentences for wilful murder, murder and manslaughter. There have been number of cases where sentences imposed were lesser than the maximum. The Prosecutor referred to a case of The State v. Owake Nomane (Unreported Judgement; CR. 1442 of 2006). In that case the accused struck the mother of a boy with a stick on her nose and when she fell, she broke her right foot. The accused was sentenced to two (2) years with conditions. Prosecutor submitted that the present case falls within Category 2 of Manu Kovi (above) which attracts sentence between 2 – 8 years. 

10.	Prosecutor submitted that if the Court decides on suspension of the sentence, the Court should consider payment of compensation under Criminal Law Compensation Act. The accused is from Tari in the Southern Highland Province therefore compensation may not be appropriate as compensation payment involves participation by relatives. 

11.	The defence counsel made his submissions on the 10/04/13. His submission is mostly based on the Pre Sentence Report of the Probation Officer's. He submitted that a sentence between 3 years to 6 years should be appropriate. He referred to two of my decisions on sentence in The State v. Landeki Openekali & Ors (Unreported judgement; CR. 840 & 479 of 2011; 
dated 27/07/12 ) where I imposed 6 years sentence but wholly suspended. And in The State v. James Puki (Unreported judgement; Cr. 555 of 2011; dated 02/03/2012), a term of 10 years was imposed. These cases involve group attack on the victim, therefore they are different. In the present case the accused acted alone and he paid compensation to the relatives. The report by the Probation Officer is favourable to the prisoner therefore an imprisonment term of between 3 years to 6 years should be appropriate. 

DECISION OF THE COURT

12.	The maximum penalty for the offence of attempted murder is life year imprisonment but subject to section 19 of the Criminal Code, which gives the court to impose lesser term of sentence than the maximum sentence. There is no sentencing guidelines provided for the offence of attempted murder. But over the years, the Judges of the National Court have been imposing sentences ranging between two years to ten years depending on the circumstances and the merits of each case. In cases that involved group attack resulting in multiple injuries, or attack by a single offender resulting in multiple and or permanent injury to a victim, the sentence imposed ranged between 8 years to 12 years. In few cases were firearms were used, sentences from 25 years or life year imprisonment have been imposed. 

13.	Some of the cases on attempted murder were sentences imposed includes the following: The State v. Misin Kinapa (2009) N3814, the accused and two others pulled out the victim from a vehicle in which they were all travelling together, and attacked him with bush knives. He sustained several injuries including his right wrist been completely severed off. The accused was sentenced to 10 years. In The State v. James Puki (above), I imposed a sentence of 10 years where the victim was attacked at his home in the middle of the night by the accused who was with a group of men using bush knives, in which he received severe wounds to his body. 

14.	In The State v. Landeki Openkali & Ors (above), I imposed a sentence of 6 years and after deducting their pre trial custodial periods, I wholly suspended the balance of their sentences for the reasons that although the accused were involved in the attack, none of them inflicted injuries on the victim. The person who inflicted the injury was still at large. That case differs to the present case. 

15.	In The State v. Jack Magal (Unreported National Judgement, CR. 2224/08), a sentence of 9 years was imposed where the accused attacked the victim with a bush knife and inflicted multiple injury to the hand and back. In The State v. Walis Langap (Unreported Judgement, CR. 279/09), a sentence of 9 years was imposed where the accused cut the victim on the face twice causing the left eye impaired he could not use the left side of the mouth. And in Thomas Yakumbi v. The State (2006) SCR 33 of 2006, the Supreme Court confirmed the sentence of 20 years for attempted murder where the appellant attacked the victim using sticks and knife inflicting injury to the leg, head and arms where skull was fractured exposing brain tissues. 
 
16.	I consider that a sentence of two years imposed in The State v. Owake Nomane (above), but suspended, is not relevant to the present case, for the reason that the weapon used in that case was a stick whereas in the present case a bush knife was used, which is an offensive weapon. The use of a bush knife is more aggravating than a wooden stick. 

17.	In the case of Manu Kovi v. The State (2005) SC 789, the Supreme Court set out the sentencing guidelines for wilful murder, murder and manslaughter cases. But the later Supreme Court decision in Thress Kumbamong v. The State (2008) SC 1017, criticised the prescribed minimum and maximum sentencing ranges in Manu Kovi (above), in that "they are unnecessary and illegal curtailment or fettering and or restriction of the discretion vested in a trial judge". I would follow the decision of the Supreme Court in Thress Kumbamong (above) as it provides more flexibility to a sentencing authority in deciding on an appropriate sentence to be imposed than being restricted by the sentencing guidelines in Manu Kovi (supra). 
 
18.	The offence of attempted murder is a very serious offence because there is an element of intention to kill. When a blow is aimed at any vital part of the body of a person, that is likely to cause death, although there is no afore thought to kill, it must be inferred that there is an intention to kill, despite the offender been charged under Subsection (a) and not under Subsection (b) of Section 304 of the Criminal Code. In the case of The State v. Rex Lialu [1988-89] PNGLR 449, the Supreme Court said that the crime of attempted murder is very serious that its sentence may be appropriately beyond those imposed in manslaughter because of the intention to kill in the cases of attempted murder.
 
19.	The Supreme Court in Simon Kama v. The State (2004) SC740 at page 22, has this to say: 

".... we suggest that following an establishment of guilt of an accused, either on plea or after a trial, the court approach sentence with a serious consideration of the maximum penalty first. Then allow the offender to make out the case for a lesser sentence. An offender could easily do that by pointing out factors in his mitigation with appropriate evidence where evidence is required. Once the offender is able to do that, only then should the court consider the factors for and against imposition of the maximum penalty." 

20.	The decision of the Supreme Court in Simon Kama v The State (above) is the best approach in sentencing. In the present case, the accused was the lone attacker on the victim. He used an offensive weapon namely a bush knife. He swung the bush knife once aimed at the victim's neck, which is a vital part of the body. But he inflicted an injury to the victim's left arm when she raised her hand to protect herself from been chopped on the neck. Had the victim not raised her left arm, she would definitely be chopped on her neck and that could have resulted in death. The accused had no reason or motive for the attack. There was no provocation from the victim either in a legal or none legal sense. The attack was completely unnecessary and unlawful. These are the features of aggravating presented here. In cases of attempted murder where it is unprovoked and the attack is on an innocent person, I consider that an appropriate sentence to be eight (8) years imprisonment. 
 
21.	However I do take into account of the mitigating features that are in favour of the accused. He entered and early guilty plea that saves Court's time. He has no prior convictions. He showed remorse. He attacked the victim once and he ran away when the victim called out for help. He is a youthful offender. And he paid some compensation. Taking into account of his mitigating factors, I would reduce the sentence by one (1) year to seven years imprisonment. 

22.	It is a mandatory requirement under Section 3 (2) of the Criminal Justice (Sentences) Act 1986, that time in custody to be deducted. And I deduct 2 years 5 months for time spent in custody. That leaves a balance of 4 years 7 months. 

23.	I do take into consideration of the recommendation by the Probation Officer for sentence to be suspended and the accused be placed on probation supervision. I reiterate again that where an offence of attempted murder is committed without provocation and with no reasonable cause, probation is not appropriate. The sentence must have a deterrence effect on both the offender himself and any future like-minded offenders. 

24.	The Court will not tolerate such inhuman acts towards women and girls by men. Women and young girls are becoming victims of unnecessary attacks by men folks these days. Women need to be protected by the court. Women and girls must walk around in their communities freely and without fear or harassment by men. Women are human beings like men. They have the same and equal rights as men do as provided under the Constitution of Papua New Guinea. They have the right to live and be treated fairly and be given the same respect as men: see The State v. Kenneth Penias [1994] PNGLR 48. 

25.	Having said what I stated above, I refuse to order probation. The prisoner must serve out the balance of the sentence of 4 years 7 months in prison at Baisu Correctional Institution in the Western Highlands Province. 

 SENTENCE

26. Jacob Puti, this Court convicts you and sentence you as follows: 

Length of sentence imposed - 7 Years IHL.
Pre Trial custody deducted - 2 years 5 months. 
Amount of sentence suspended - None. 
Time to be served in prison at Baisu CIS - 4 Years 7 Months 

Sentenced accordingly.
_______________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused