State v Sanamia [2018] PGNC 141; N7241 (9 May 2018)

N7241

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 911, 912, 913, 914 OF 2016

THE STATE

V

PETER SANAMIA & JUNIOR SANAMIA & ANGELBERTH RAVA
& CHRIS GALAWE

Kimbe: Miviri AJ
2018: 23, 27 April & 8, 9 May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Murder S304 CCA – Trial – group attack ––intent to kill expressed –– S7 & 8 aiding abetting –guilty of attempted murder–parity of sentence –– role in offence –– PSR MAR compensation intent –– deterrent and punitive sentence.

Facts
Four accused fought the victim, two held him and dumped him to the ground. Father came with a bush knife intending to cut on head, victim raised left hand in defence cut twice. Son came and cut him on his right hand.

Held
Intent to murder
Life threatening injuries
Aiding abetting common intent
No parity of sentence
Equal participation
No difference in role in offence.
19 years IHL

Cases:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 (2 July 1981)

State v Hagei [2005] PGNC 60; N2913 (21 September 2005

The State v Avia Aihi (No 3) [1982] PNGLR 92 (5^th March 1982).

The State v Angelberth Rava CR No. 517 of 2014

The State v Frank Johnston Murray William and Moses William N2586 (2004)

The State v Gimble [1988-89] PNGLR 271

The State v Leslie [1998] PGSC 22; SC 560 (7 August 1998)

The State v Manu Kovi [2005] PGSC 34; SC789 (31 May 2005

The State v Nimagi [2004] PGSC 31; SC741 (1 April 2004)

The State v Peter Naibiri and Kutoi Soti Apia [1978] PGSC 1; SC137 [1978]

The State v Porewa Wani [1979] PNGLR 593 (30 November 1979)

The State v Sanawi [2010] PGSC 31; SC 1076 (29 September 2010)

The State v Yokum [2002] PGNC 24; N2337 (4 December 2002)

Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986).
Counsel:

A Bray, for the State
R Bailie, for the Defendant

SENTENCE

9^th May, 2018

1. MIVIRI AJ: This is the sentence of a father, his son and two other relatives who were convicted of attempted murder on the 23^rd March 2018 after trial adjourned to allow pre-sentence and means assessment reports to be furnished to court. The sentence is after due consideration of both reports for all prisoners.
   

Charge

2. Peter Sanamia, Junior Sanamia, and Angelberth Rava, and Chris Galawe all are liable to be sentenced to a maximum of life year’s imprisonment for the conviction of attempted murder pursuant to Section 304 of the Criminal Code. It is trite that the maximum is prescribed for the worst which isn’t the case here therefore a term of years is appropriate: Avia Aihi v The State (No 3) [1982] PNGLR 92 (5^th March 1982). It is my view that attempted murder is preparatory overt of intent to kill with serious grievous life threatening injuries that emanate or culminate as here. And this view is not in isolation nor is it the first time because the Supreme Court in Peter Naibiri and Kutoi Soti Apia v The State [1978] PGSC 1; SC137 [1978] said: ‘The crime of attempted murder, insofar as it involves the specific (though unsuccessful) intent to kill-may be regarded as potentially more serious than that of murder and than many cases of manslaughter, which involve intents to do less serious things, but produce, without intending-death.” No man is whole without hands or any other body part fully functional for the same. The human being is complete with all parts of the body intact. That is the after effects of attempted murder upon the victim who will suffer for the rest of his natural life without his hands or full use of it as is the case here.
   

Facts

3. On the 15^th August 2015 at Tamare village, Talasea Peter Sanamia called out, fight him and kill him to his boys who were the three co prisoners amongst others. They heeded and pursued the victim Malu Aris. They caught up and jointly assaulted him. Angelberth Rava and Chris Galawe tackled and threw him to the ground, where Peter Sanamia came with a bush knife aimed at his head swung it twice on each occasion he lifted his left hand to fend and was cut on each occasion there. Then Junior Sanamia came and cut him once on his right hand. He suffered serious grievous injury of both his forearm. He was rushed to the Kimbe General Hospital where he underwent treatment leaving him with 80 per cent functional loss. They had intended to kill him.
   

Evidence by Consent

4. The tale of all these evidence by consent from exhibit S1 to S7 was that on the 15^th August 2015 Malu Aris aged 23 years old was initially presented to the Kimbe General Hospital accident and emergency department diagnosed with knife wounds to his left and right forearm. He had compound fracture of the left and right radius and ulna with nerve injury of both hands. On the 23^rd September 2015 he was readmitted to the surgical ward by Doctor Annette Ketalu. On the 24^th September 2015 he underwent an operation for rush pin to be inserted to stabilize the bone in his left forearm. Radial nerve was not repaired due to high risk of infection. In his right forearm the laceration was sutured. On the 28^th September 2015 he was discharged. On the 9^th October 2015 he had attained full range of movement of the right forearm. In the left hand he had 80 per cent of functional loss of that hand. The trauma had caused his educational time and immense physiological stress.
   

Background

5. For sentencing I set out Malu Aris the victim’s testimony of the events of Saturday 15 August 2015 about 12 0’ clock in his own words; - I turned and saw group of boys running after us and I saw Peter Sanamia call out and shout, paitim ol kilim ol, interpreted, “fight them kill them”. When they came they fought us. They threw bottles and stones so we fought. My two friends Rodney Timothy and Joseph Tiwi saw we were outnumbered so ran up a small hill and watched from there. I saw that I was by myself so I got a small knife and was swinging trying to scare them off so that I could escape. They surrounded me and Angelberth Rava came in to stop me as I was swinging the knife and he was cut, so too Petrus. I wanted to run away but was prevented by Angelberth Rava who stood in front of me and grabbed me and together with Chris Galawe they both held me, dumped me and we fell into the drain. The knife fell off my hand and they both held me and I tried to get up and was facing up. I saw Peter Sanamia came clear he lifted up the bush knife and aiming at my head, so I lifted my left arm to block the knife from cutting me but he cut me and second time he swang the knife and I blocked again with the same hand and he cut me again. I was lying on the ground his son Junior Sanamia came and cut my right hand because my left hand was already cut. My two hands were cut I could not get up I was sleeping in the drain, wife of Peter Sanamia came held me tore her meri blouse and tied it around my hand. And they brought me to the hospital on their vehicle a red one where another person drove it. This testimony has been verified by Francisca Malu, Rodney Timothy, and Cathy Otto. And it is aggravated offence of attempted murder.
   

General rule in sentencing

6. There is no reason for the attack by the prisoners upon the victim. They were not acting in defence of another person, or were provoked to act as they did. There is no lawful reason for the attack nor are they separated by time and location in the offence. All were present together at the same place at the same time encouraging each other aiding and abetting each other. “The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated: Gimble v The State [1988-89] PNGLR 271 at 273.
   
7. That is what happened here because there is no distinction as demonstrated in Nimagi v State [2004] PGSC 31; SC741 (1 April 2004) it is also consistent with section 55 of the Constitution that all are equal in the eyes of the law. Further that the protection of the law is without distinction except where there is very clear evidence that demarcates one prisoner from another in participation or knowledge of the crime: Nimagi v State (supra) where one of the three prisoners did not know that the other two prisoners had abducted the daughter of one of the victims who resisted and was shot and died. This prisoner did not know as he was in another part of the offence guarding a victim. It was held that he should be treated differently in the sentence that was passed. See also State v Yokum [2002] PGNC 24; N2337 (4 December 2002). The total effect of their actions individually at the same time same place is the offence. There is no parity in the sentence passed upon each they all acted in concert in aiding and abetting each other in the commission of the crime. Peter Sanamia called out to Junior Sanamia, Angelberth Rava, and Chris Galawe, “paitim ol kilim ol” interpreted, “fight them kill them”, and they heeded spoken by the evidence of Malu Aris set out above.
   

Medical evidence

8. Medical evidence confirms that the left hand is 80 per cent dysfunctional after being cut twice and that both forearms left and right have both ulna and radius bones within broken, to use the terms of the doctor “compound fracture”. This is the hand that Peter Sanamia cut with his bush knife that he aimed at the head where victim in self-defence sustained which is 80 per cent dysfunctional for 23 year old man in the prime of his life. It establishes the amount of force used to inflict the injury to a harmless victim who was on the ground incapable of fighting or defending himself. It also ties in with Peter Sanamia’s utterance before inflicting the injuries, “Paitim ol na Kilim ol”, interpreted,” fight them and kill them”. It is not a light matter for a Public Servant educated to University level holding a degree and holding the office of Forestry Advisor to behave in this manner openly and under the influence of liquor. He demonstrated conduct fitting Porewa Wani v The State [1979] PNGLR 593 (30 November 1979) but aggravated because unlike Porewa Wani he was armed with a bush knife and used it twice on the left arm. The Supreme Court in Sanawi v The State [2010]PGSC 31; SC 1076 (29 September 2010) sets out the principle of parity as follows:
   

“A consideration of all these authorities shows that a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them”

9. The evidence is that all four accused and others were all consuming alcohol from early in the night of Friday 14^th August 2015 to the morning of Saturday 15^th August 2015 and were heavily effected by it immediately leading up to the offence. They threw bottles and stones at them and when they caught up there was fighting between them in the course of which Malu Aris, Rodney Timothy, and Joseph Tivi were outnumbered, both Rodney Timothy, and Joseph Tivi ran away leaving Malu Aris who defended himself by getting a bush knife from Joseph Tiwi’s house and swinging it to stop the accused from fighting him. In the process of that swinging he cut Angelberth Rava and also Petrus Sanamia who ran away to the house because he was injured in the shoulder and the arm. Angelberth Rava persisted together with Chris Galawe tackling Malu Aris to a drain on the side of the road where the bush knife he held fell. That is joined to by the actions of Peter Sanamia and Junior Sanamia. There is no parity for the purposes of sentencing against all prisoners. All will be treated alike in the sentence that is passed upon all except for Angelberth Rava who has a prior conviction for Grievous bodily harm imposed by this court on the 21^st September 2017 where he was sentenced to 4 years IHL 2 years 6 months suspended on conditions one of which was to keep the peace and be of good behaviour. Also not to consume alcohol. By this conviction it is evident that he has breached the orders that were issued by this court suspension was to be for 2 years 6 months. The State has tendered that Judgement of this court The State v Angelberth Rava CR No. 517 of 2014 which is self-explained. In law he has breached the orders that were imposed by this court by this conviction. The effect is that the suspended sentence is activated he serves that term in jail now cumulative with any sentence for the present conviction. Both are separate by time and date and therefore will be treated in that manner: Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 (2 July 1981).
   

Antecedents

10. Angelberth Rava is 40 years old from Tamare in Talasea married with children, he is a subsistence farmer with no record of formal employment. The presentence report is not favourable to him in the light of his prior conviction and breach now of those orders set out above. The means assessment report confirms that he has not paid any compensation ordered in respect of the first conviction and will not be likely to do the same should orders be made in respect of this offence.
    
11. Peter Sanamia is 48 years old from Holik village, Yangoru East Sepik Province but married to Tamare Village, Talasea. At the time of conviction he was employed by West New Britain Provincial Administration as Principle Advisor for Forestry. Therefore a Senior Public Servant well educated in the Province. He had no excuse to do what he did. He is married with three dependents. Pre-sentence report leaves discretion of the court to consider penalty appropriate. He is a first offender. Aggravating his case is that he led the four calling them to fight set out above in Malu Aris evidence. He delivered the two blows to the left hand now made 80% disabled. At his age he would have stopped what happened but did not institute the matter culminating in the injuries received by victim.
    
12. Junior Sanamia is 20 years old, son of the Defendant Peter Sanamia. He is from Tamare village where his mother is from. He is educated to grade 10 Kimbe Secondary School in 2014, immediately before incarceration he was studying at the University Centre Kimbe. He has no prior convictions but he cut the right hand of the victim when the left hand was already cut by his father Peter Sanamia. Therefore the victim was in no position to defend himself from the blow that he delivered. Presentence reports supports that he be placed on probation. Means assessment report says he can pay compensation supported by his parents who do not want him to go back into jail.
    
13. Chris Galawe is 33 years old form Kilenge in Cloucester, lives with his wife and family at Tamare. He is a first offender. He assisted Angelberth Rava lift up and dump the victim on the ground where Peter Sanamia cut him twice on the left hand followed by the son on the right hand. His actions made it possible for the father and son to do what they did to the victim. Had he not done what he had done all would not be before the court. Presentence proposes that he be accorded and placed on long term probation period.
    

Issue

14. What is an appropriate sentence for the prisoners?
    
15. Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) sets out murder sentences where there is vicious group attack with very strong intention to cause Grievous Bodily Harm with dangerous or offensive weapons ranging from 20 to 30 years under category three of that case. In my view it is relevant to consider attempted murder in this light because of the views set out above. To sentence lightly in attempted murder would not be serving deterrence for murder. The Supreme Court has stressed in Leslie v The State [1998] PGSC 22; SC 560 (7 August 1998) where the attempted murder of a policeman with the use of a shotgun was met with life years in jail for the prisoner: Peter Naibiri and Kutoi Soti Apia (supra) has drawn similar for attempted murder of police officers. Since these cases of attempted murder have not subsided and the facts of the present case evidence warrant continued deterrent sentence to be imposed.
    
16. Here bush knives readily available are used with the effects medical report has set out depicting the victim with 80% disability in the left arm. In the State v Frank Johnston Murray William and Moses William (2004) N2586 the victims eye was shot with a slingshot resulting in total loss of that eye. All prisoners were in company acting together and were armed and court detailed out their roles in the offence. It was also viewed that attempted murder is more serious than manslaughter because there is an intention to kill whereas that is not so in manslaughter. The court imposed 20 years upon the prisoner who delivered the fatal shot with the sling shot, 17 years for the prisoner who was armed encouraging the offence, and for one who swang his bush knife and missed 19 years IHL.
    
17. The facts here are distinguished because all acted in unison were part of the same chain of events, one leading to the next in the offence and therefore cannot be distinguished as in that case. Three are first time offenders Peter Sanamia; Junior Sanamia delivered the blows with the bush knives, the former twice and the latter once on either hand. Chris Galawe and Angelberth Rava tackled the victim preventing escape setting the stage for the father and sons actions. He has reoffended which is an aggravation. All prisoners were on bail up to the time of conviction, a period of almost three and half years and not one made an attempt to pay compensation. It does not reflect well to pay compensation because to be so considered it must meet the minds of both sides to the dispute and genuine. There must be mutual understanding in settling the matter. On the other hand it should not be a way to avoid what is due in law upon law breakers creating a gap where the haves can pay their way out of jail and the have nots go to jail. The extension of this is that suspension of part of a sentence under section 19(6) is or maybe appropriate in three broad categories; (1) Where suspension will promote the personal deterrence reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of stolen money; (3) Where imprisonment will cause excessive degree of suffering to the particular offender , for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). The evidence facts and circumstances do not support that their sentences be suspended. The gravity of the offence outweighs and would be disproportionate all will serve time in jail.
    
18. This is a very prevalent offence in that part of this province. Despite the stern and punitive sentences imposed, the bush knife has become a weapon more rather than a tool. It is readily available use of it into breaches of criminal law is rampant in this court time and again. Alcohol and its abuse as here has once again led to serious criminal conduct which must be stopped and deterred. The community must be protected from persons like yourselves. Your actions are denounced in the sentence imposed upon you all. There is no apparent or identifiable evidence of any extenuating circumstances State v Hagei [2005] PGNC 60; N2913 to sway other than to impose the penalty that is due given all set out above, including rehabilitation which must start in my view with the attitude and conduct of the prisoner to the offence. There is no evidence nor has there being any facts circumstance apparent or identifiable to sway sentence in that regard. These include settlement or payment of compensation even before the realm of the sentencing court. This is not the same as perversion of the course of justice and the like but goodness and intent to see amicable peace and reconciliation.
    
19. The sentence of the court proportionate upon you all is 19 years IHL. Time on remand will be deducted forthwith.
    
20. Angelberth Rava this conviction and sentence has breached the earlier orders of this court which Judgment is CR 517 of 2014 The State v Angelberth Rava ordered 21^st September 2017. The orders of the court suspending 2 years 6 months IHL is hereby revoked you have by this conviction and sentenced breached the conditions (3) (e) shall not consume, or deal with any form of liquor, alcohol or drug and (3) (f) to keep the peace and be of good behaviour and 2 years 6 months has not lapsed and you have been convicted and sentenced here. Your sentence is 19 years IHL cumulative to that sentence of 4 years IHL which you shall serve in time. Your time on remand and service of that term earlier is deducted forthwith. You shall serve the balance in jail.
    
21. Peter Sanamia, Junior Sanamia, and Chris Galawe your sentence is 19 years IHL and time in remand is deducted forthwith.
    
22. Angelberth Rava your sentence is 19 years IHL cumulative to 4 years IHL for the earlier conviction and sentence of 4 years imposed by this court on the 21^st September 2017.
    
23. Your sentence is therefore 23 years IHL. Time in remand and served in the earlier sentence will be deducted forthwith. You will serve the balance in jail.
    

Ordered accordingly,

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