State v Paheki [2018] PGNC 123; N7218 (23 March 2018)

N7218

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 568 OF 2016
THE STATE

V
GEORGE PAHEKI

Popondetta: Liosi J
2018: 08^th, 09^th & 23^rd March

CRIMINAL LAW – Attempted Murder – S.304 Criminal Code – Conviction after trial – Prisoner under influence of alcohol – Chopped victim’s left arm off at the wrist – Sentencing principles discussed

Case Cited:
Goli Golu v. The State (1979) PNGLR 653
Peter Naibiri & Ors v. The State SC137
The State v. Bulu Yasangara PGNC; N5478
The State v. Jacob Puti (2013) N5196
The State v. Frank Johnston, Murray William & Moses William (2004) N2586
The State v. Misin Kinapa N3814" title="View LawCiteRecord" class="autolink_findcases">(2009) PGNC; N3814
The State v. Poni PGNC 62; N6245
The State v. Toungiria PGNC 203; N6104
The State v. Peter Jack PGNC 254; N6449
The State v. Martin Euene PGNC 408; N6720
The State v. Rex Lialu (1988-89) PNGLR 449
The State v. Michael Kamban Mani (unreported judgment) N2246
The State v. Paul Yepei (No.2) [2004] PGNC 202; N2571
The State v. Ennie Mathew & Others (No.2) N2563
Ure Hane v. The State (1984) PNGLR 105

Counsel:

Mr. D. Kuvi & Mr. P. Tusais, for the State
Mr. E. Yovisa, for the Prisoner

DECISION ON SENTENCE

23^rd March, 2018

1. LIOSI J: The prisoner was found guilty on the charge of Attempted Murder after pleading not guilty.
   
2. Under Section 304 of the Criminal Code a person found guilty of attempted murder subject to Section 19 can be imprisoned for life.
   
3. It is however trite law in this jurisdiction that the maximum penalty is reserved for the worst type offence. See cases of Goli Golu and Ure Hane (supra).
   

4. My task now is to determine an appropriate penalty for you. That is whether I should impose the maximum penalty or a lesser sentence befitting the circumstances of your case.

5. To assist me I consider various matters including your personal particulars, allocatus, submissions by the lawyers, circumstances under which you committed the offence, mitigating and aggravating factors and comparable judgments.

Allocatus

6. On allocatus you said and I quote:

“First, I want to say sorry to God for breaking his 10 commandments. Secondly, I say sorry to mama law of this country. Thirdly, I say sorry to the victim and his family. Fourthly, I say sorry to my family. Fifthly, I say sorry to this court and court officials. I am a first time offender in this crime. There are 4 of us in the family. I am the second born in the family. First born is already married and got a family. I am a student. I am still schooling. I am still looking after my mother by making garden and building houses. My father deserted us with our mother in 2013 and remarried. He doesn’t look after us. I look after everybody living in the village. I make garden and they get strength from me. Our father no longer looks after us. Up until 2016 I saw him and so I fought with him. I was supposed to do grade 9 in 2015 at Embogo High School but was caught by the law. I am thinking of my future and two siblings. I ask the court to have mercy on me and put me on good behaviour bond.”

7. Your lawyer submits, you are 23 years old and come from Mumunipe Village, Higaturu Local Level Government in Oro Province. You are single and you live a subsistence and hunting life. You have betelnut, coffee and cocoa plantations. You were doing your grade 9 in 2015 when you left school due to been charged for this offence. You come from a family of 4 siblings of which you are the second born. Your first brother is married and is living away in other village with his wife. You are currently looking after your mother, brother and sisters as your father is remarried and living with his new wife.

8. The offence for which you are convicted carries a maximum penalty of life imprisonment. This is however reserved for the worst type offences. Golu Goli and Ure Hane v. The State (supra).

9. In determining an appropriate sentence, the first issue is whether the maximum penalty is warranted. In this case, you cut the victims hand just below the wrist. Clearly it is not the worst case of attempted murder which can automatically attract the maximum. The issue therefore is one of appropriate sentence.

10. Sentencing is a discretionary process and must be exercised according to the recognised principles of law. See the State v. Alphonse Polpolio and Jeffrey Bauru Cr. 701 & 865 of 2006, Cannings J.

11. Your lawyer submits, the aggravating factors would obviously include the victim’s lifelong disability and prevalence of the offence. On the other hand he says you showed remorse and apologised, you are a first time offender with no priors and you are a youthful offender.

12. He cites two cases of the State v. Jacob Puti (2013) N5196 and the State v. Misin Kinipa N3814. In the case of State v. Jacob Puti [2013] N5196, the court stated that the maximum penalty for the offence of attempted murder is life year imprisonment subject to section 19 of the Criminal Code Act. Section19 gives discretion to 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 the case of the State v. Misin Kinapa [2009] N3814, the prisoner with two others dragged the victim out of a PMV bus along Porgera road. The prisoner attacked the victim with a bush knife. The victim tried to defend himself by putting his right hand up to block the knife. The knife sliced through the right hand, above but close to the right wrist. On medical examination the hand was amputated. The victim was also struck on the back of the head and on the back of the neck with bush knives by the other two members of the trio. The injuries on the back now present a near circular bald patch of about 3 cm in diameter. The prisoner in this case was found guilty after trial and was sentenced to 10 years imprisonment.
13. Your lawyer submits a sentencing range between 6-8 years would be appropriate. He submits part or whole of the sentence can be suspended on conditions.

14. In response, the state has submitted that the following cases be considered to assist in formulating the sentence:

• In The State v. Frank Johnston, Murray William & Moses William (2004) N2586, the prisoners attempted to kill the victim by using weapons after suspecting him of breaking into and stealing properties from one of their house. On a charge of attempted murder under s304 of the Criminal Code they were all convicted. The prisoners were found to have used knives and a slingshot, with the slingshot causing permanent damage to the victim’s eye. They were sentenced to 17, 19 and 20 years respectively, in line with the roles they played in the offence. At the time of their sentencing they were youthful offenders but the court noted on the other hand that offences of violence were particularly high in the Oro Province, and throughout the country.
  
• In The State v. Misin Kinipa (2009) N3814, the prisoner was found guilty of attempted murder, after a trial. He was part of a group of men who had dragged the victim from a PMV and attacked him using axes and bush knives. The victims right hand close his wrist was completely severed. A sentence of 10 years less pre-trial custody was imposed.
  
• In The State v. Jacob Puti (2013) N5196, the prisoner pleaded guilty to attempted murder. It was found that he swung a bush knife at the victim’s neck attempting to chop it off. The victim raised her hand in time to save herself. Unfortunately, the knife struck her arm, completely severing it. A sentence of 7 years was imposed. The accused was a youthful offender and paid K300 in compensation.
  

15. The State submits the circumstances of this case do not place it in the worst category scenario but is serious because of the following aggravating factors: This included the use of a bushknife, loss of lower left arm and prevalence of the offence in Oro Province.

16. The cases of Misin Kinapa and Jacob Puti are similar in that the victims both suffered permanent loss of their hands. Frank Johnston & Ors is also similar in that the victim also suffered loss of another body part, an eye and was committed in Oro. This case above shows that youthful offenders are still perpetrating violent crimes. This is yet another case of alcohol fuelled behaviour with youths going on drinking spree and committing offences. The state submits sentence of 8-12 years is appropriate.

17. I have considered what you said on your allocatus, submissions of both lawyers and the comparable cases that have been cited by counsels.

18. There are two competing schools of thought which are normally discussed when dealing with sentencing offenders in attempted murder cases, murder and manslaughter. One school of thought is that attempted murder cases are far more serious than murder and manslaughter cases as the former involves an intention to kill although the victim normally survives. See Peter Naibiri & Ors v. The State SC137. The State v. Rex Lialu (1988-89) PNGLR 449. Another school of thought in contrast is that murder and manslaughter cases should be more serious as the person is actually killed although there is no intention to kill. The State v. Bulu Yasangara N5478.

19. In the case of the State v. Michael Kamban Mani unreported judgment N2246, the Court held that where an offence affects provisions of service to the community, it calls for a stern punishment. This was also echoed in Joe Foe Leslie Leslie v. The State. The protection of a Police officer should also extend to cover protection of all other persons providing a vital service to the community. Where the offender is in a position of responsibility ie: member of disciplined force, the case gets more serious than the others. The State v. Paul Yepei (No.2) and the State v. Ennie Mathew & Others (No.2) N2563.

Your Case

20. So what should be the appropriate sentence for you? Firstly, I note from your allocatus that the initial problem started because of what your father did. That is that, he deserted you and your mother and 3 other siblings and that’s why you argued with him which subsequently led to your confrontation with the victim. I note you are a youthful offender with no prior convictions. You say you are sorry but the fact that you were found guilty after a trial waters down your apology and renders the apology meaningless.

21. With respect to the cases cited, I have had recourse to two of the cited cases as they are similar to your case. These are the cases of Jack Puti N5196 (supra) and Misin Kinapa (supra). In both these cases, the prisoners severed the limbs at the wrist. In Jack Puti’s case, the prisoner was sentenced to 7 years imprisonment in hard labour. In the case of Misin Kinapa, the prisoner with two others dragged the victim out of a PMV bus along Porgera road. The prisoner attacked the victim with a bush knife. The victim tried to defend himself by putting his right hand up to block the knife. The knife sliced through the right hand, above but close to the right wrist. On medical examination the hand was amputated. The victim was also struck on the back of the head and on the back of the neck with bush knives by the other two members of the trio. The injuries on the back now present a near circular bald patch of about 3 cm in diameter. The prisoner in this case was found guilty after a trial and was sentenced to 10 years imprisonment.

I find that the circumstances of aggravation in both above cases are more serious than your case. I therefore distinguish your case from the above two (2) cases on that basis.

22. Nevertheless, this was a brutal attack. The fact that the victim survived is the only reason why you were not charged for wilful murder. Whatever sentence I impose on you if you think it is a long time then you should bear in mind that the victim has lost his left hand for the rest of his life.
You have pleaded for mercy and asked for a good behaviour bond after explaining the situation that your mother and siblings will be in, if you are imprisoned. Unfortunately, these are things you should have considered before getting drunk and getting yourself in trouble with the law.

23. Taking into considerations all the submissions, I sentence you to imprisonment in hard labour for 8 years. I deduct the term of 1 year and 6 months for pretrial custody period leaving a balance of 6 years and 6 months to serve.

24. The formal orders of the court are;

1. You are sentenced to 8 years imprisonment in hard labour.
2. Pretrial custody period of 1 year and 6 months is deducted.
3. You will serve 6 years and 6 months imprisonment in hard labour.
   

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused