State v Oscar [2021] PGNC 452; N9215 (11 October 2021)

N9215

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1163 OF 2019

STATE

V

TOM OSCAR

Waigani: Wawun-Kuvi, AJ
2021:  13^th September 5^th & 11^th October

CRIMINAL LAW-SENTENCE-Criminal Code, s 304 (a), Attempted Murder- Strong intent to kill-Domestic Setting- Use of knife-multiple knife wounds- attack on a defenseless unsuspecting victim- de facto provocation

Cases Cited

State v Marcia Pau (2021) Cr 1149/19 (Unreported)
State v Paip (2021) Cr 430 of 2021, (reported in PNGSDB)
State v Aret [2015] PGNC 202; N6103
State v Lawrence (No. 2) [2015] PGNC 127; N6020
State v Puti [2013] PGNC 98; N5196
State v Yasangara [2007] PGNC 244; N5478
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Sima Kone [1979] PNGLR 294
Apia v The State [1978] PGSC 1; SC137

Reference

Criminal Code, Ch 262

Counsel
Ms Soynna Binding-Suwae, for the State
Mr Benjamin Popeu, for the Defence

DECISION ON SENTENCE

11^th October, 2021

1. WAWUN-KUVI, AJ: This is yet another case of violence arising out of a domestic setting. And this is again another case where an individual, in this case, the offender, decided that violence was the appropriate mechanism to resolve conflict.
   
2. Tom Oscar (the offender) lurked in the dark watching in anticipation as Joseph Muli (the victim) approached oblivious to his impending fate. As the unsuspecting victim neared, the offender lunged out from his hiding place and swung his home-made doubled edge bayonet at the victim. The victim was not able to react in time and the bayonet struck him on the back of his head. Relentless the offender swung the bayonet towards the victim’s throat. In his endeavor to avoid the approaching bayonet, the victim tripped and fell. Still, unrelenting, the offender swung again. The victim grabbed hold of the bayonet, but it was to no avail. The offender had succeeded in his malevolent intent. The bayonet penetrated the victim’s left shoulder. Had it not been for the prompt arrival of relatives, the victim would have succumbed to a worser fate. The offender made haste and the victim was rushed to the hospital. The victim was treated for his injuries and recovered; The offender was later apprehended and handed over to police.
   
3. I now must decide on the appropriate penalty for the offender following his plea of guilty.
   

Purpose of Sentencing

4. In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.
   

The Charge

5. The offender pleaded guilty to the charge of Attempted Murder pursuant to section 304 (a) of the Criminal Code.
   

Penalty

6. The maximum penalty is life imprisonment. The penalty is subject to section 19 of the Code.
   
7. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.
   

Submissions

8. The defence submitted that a term of imprisonment is appropriate, however the issue is the length of that sentence. The defense concedes that the offence is prevalent, a knife was used and that serious injuries were sustained by the victim. In mitigation, the defence agree that the offender is a first-time offender, he cooperated with police by making early admissions, he pleaded guilty to the offence, he expressed remorse in his allocutus and in the pre-sentence report.
   
9. Defence further submitted that there was no premeditation and that there exists an extenuating circumstance. That is, there was de facto provocation, in that, the offender’s wife did not give an explanation as to where she was heading earlier on and was later seen with the victim. The victim’s statement confirms a relationship between the victim and the offender’s wife. The victim refers to the offender’s wife as his girlfriend. It is contended that when the Court considers the circumstances in totality, de facto provocation is established.
   
10. The defence refers to the case of State v Yasangara [2007] N5478 and submits that it assists the Court with guidelines in Attempted Murder cases. And that in applying the guidelines the range of sentence would be between 8 to 10 years.
    
11. It was contended that the facts in the case are similar in the present case and that the Court may follow the same approach as in State v Yasangara [2007]^[1]. However, the sentence should be less because the offender did not hear but rather, he saw his wife and the victim together.
    
12. The State however submits for a term of imprisonment between 10 and 15 years. It is contended that the offence was planned and was a vicious attack on an unsuspecting victim at night. That the manner of attack indicated a strong intent to cause grievous bodily harm.
13. The State submits that the aggravating factors are that the offence is prevalent, the use of a bayonet, that it was an attack on an unsuspecting victim, there was excessive force, the offence occurred at night, the offender hid behind a tree and attacked, there was some element of planning, there was an intention to kill the victim, the prisoner escaped apprehension and there are residual or permanent injuries.
    
14. The State concedes with the defence as to matters of mitigation including that there was de facto provocation.
    
15. The State referred the Court to the cases of State v Lawrence (No. 2) [2015]^[2], State v Puti [2013] ^[3] and State v Yasangara [2007]^[4].
    
16. I have attached the cases in a schedule in this judgment along with some recent published attempt murder cases.
    
17. From those cases, it appears that, in where there is a guilty plea, one offender, use of offensive weapon and less serious injuries, the sentences range between 5-10 years. And in cases where there is more than one offender, use of an offensive weapon, guilty plea and vicious attack, the sentences range between 10-15 years.
    
18. Both counsels have submitted that there are two schools of thought in relation to sentencing of attempted murder cases. I am of the view that attempted murder is more serious than manslaughter cases because of the specific intent to kill the victim. That intent is demonstrated using a weapon on a vulnerable part of the body and by the persistence and unrelenting attack on the victim. This is in line with the statements by the Supreme Court in Apia v The State [1978]^[5]. I am also of the view that sentences for attempted murder should be higher than sentences for the charge of intention to cause grievous bodily harm.
    
19. In that regard I refer to two cases of intention to cause grievous bodily harm to assist in the determination of an appropriate sentence. The cases bear similarities in that bush knives were used to attack the victims; multiple wounds and the attacks were done in domestic settings.
    
20. In State v Luke Paip (2021)^[6] ,the victim was the brother-in-law of the offender. He was 27 years old and a villager. There was de facto provocation. The victim had assaulted his sister in front of him on a previous occasion and on the date of the offence he had gone to get his wife and child when he fired gun shots and swore at members of the community. The offender approached him from the back and cut him with a bush knife on his head, shoulder, and hand. He pleaded guilty, was a first-time offender, there was de facto provocation. He was sentenced to 8 years imprisonment less time spent in custody. The sentence was not suspended.
    
21. In State v Aret [2015] ^[7] The offender attacked his wife and mother in-law with a bush knife and inflicted multiple life-threatening injuries. The offender chopped off his wife's right arm just below her elbow and inflicted three other cuts to the right arm, shoulder and back. The offender chopped his mother in-law on her arm, shoulder and back. The victims were hospitalized as a result. He was angry that he and his wife’s family matters were brought to the village court. He assumed that his mother-in-law was responsible for the report and so attacked her also. He pleaded guilty and was a first-time offender. He was sentenced to 8 years for the attack on his wife and 6 years for his mother-in-law. The sentences were made concurrent, and time spent in custody was deducted. The sentence was not suspended.
    

Personal Particulars

22. The offender is 26 years old and hails from Sawa Iviri Village, Moveave, Gulf Province. His permanent address in National Capital District is at Morata 2.
    
23. He attended Butuka Primary School, Port Moresby South, National Capital District and completed only Grade 3. He did not further his education due to financial difficulties.
    
24. He was living in his father’s house in what he describes as a settlement style house. His father is deceased, and his mother is alive. He is the third child and has four other siblings. All his siblings are married except for the youngest who is attending school.
    
25. He had two children, one of which is deceased and the other is a four-year-old male being raised by his mother. His wife and the mother of his children were separated in 2018.
26. He was employed as a security guard with CG Corporate Security Company from 2015 to 2017. He was unemployed at the time of the offence.
    

Allocutus

27. The offender said in Allocutus:
    

I say sorry to the victim, and I say sorry to the Court for what I did where it was wrong. I was not supposed to do for what I did. I just ask the Court to be merciful to me.

28. I accept the statement by the offender as a sign of genuine remorse and regret for his actions. This is a factor that acts to his benefit.

Pre-sentence Report

29. The Probation officer interviewed the offender, the victim, the offender sister, and the offender’s mother.
    
30. The offender apologized for his actions and asked the Court for mercy. He stated that he committed the offence out of frustration when he saw the victim walking with his wife. That the victim knew that he and his wife were married and had two children but had been seeing his wife.
    
31. The offender’s mother stated that her son may have acted out of frustration because of his wife neglecting their son and running away from him. She further states that since the offender’s incarceration she has had difficulty caring for his four-year-old son since everyone in their family is unemployed. She pleaded for leniency as she requires the offender’s assistance to raise his son.
    
32. The offender’s sister restated what her mother said and added that her brother is a very good person with no history of violence.
    
33. The victim other than restating the events of the offence, asked the Court to impose a harsh sentence.
    

Victim Impact Statement

34. The victim is a Morgue Attendant. He is from Papanda, Wabag, Enga Province. He is 50 years old. He stated that he presently experiences pain in his left shoulder and cannot lift heavy items because it causes pain. He suffers from dizzy spells which sometimes results in him not attending to work. He goes to the hospital to get pain killers. He does not have any issues with a suspended sentence but only asks that the Court order the offender not to disturb his family. He does not seek compensation.
    
35. The Defence submits that the Victim Impact Statement contradicts the Pre-Sentence Report. The State concedes. On close reading of both documents, I do not find that there is a contradiction. The victim is merely stating his wish that the offender be given a harsh sentence and accepting that if there was a suspension of sentence, the Court consider imposing a condition that restrains the offender from disturbing him and his family.
    

Consideration

36. This is yet another case involving extra marital affairs in which the Courts have identified as an issue that has been the factor behind a lot of the social and law and order problems that continue to plague our society.
    
37. Whilst it is understanding that the offender was placed under the emotional stress when he saw his wife with the victim, it no way justifies his actions. As said in the case of the State v Marcia Pau (2021) Cr 1149/19, an individual must take responsibility for their actions. An action that has resulted in an individual receiving permanent disability that has and will continue to affect the quality of his life.
    
38. I accept the factors in mitigation and aggravation that have been submitted by counsels. In terms of the aspect of pre-planning, I accept the accused version that he did not pre-plan the act and only acted when he saw his wife with the victim. It is however weighed against the ferocity of the attack which has caused permanent disability.
    
39. In considering the sentencing trends alluded to and the factors that apply to the offender, I consider a sentence like the case of State v Yasangara [2007]^[8], would be appropriate. Especially so that in both cases, the offenders’ children were left at home whilst their wives went out with their adulterous partners. However, I accept the submissions by the Defence that unlike the case of State v Yasangara [2007], the offender in this case, caught his wife with her partner. I find that a sentence of 9 years is appropriate.
    
40. In terms of suspension, this was a violent offence, and it is a prevalent offence. There are no additional factors that support suspension: Public Prosecutor v Sima Kone [1979] PNGLR 294. To suspend sentence based on the same factors that reduced the sentence would amount to a double discount: Public Prosecutor v Thomas Vola [1981] PNGLR 412. The Pre-sentence report should have contained the views from the community and independent sources about the offender’s prior good character. These would have been factors that may have assisted the Court in considering suspension.^[9] The pre-sentence report only obtained the views of the offender’s mother and sister which is biased.
    
41. I shall exercise my discretion and deduct time spent in custody being 2 years, 7 months, 3 weeks, and 3 days.
    

Orders

42. The Orders are as follows:
    
1. The offender is sentenced to 9 years imprisonment.
2. Time spent in custody of 2 years, 7 months, 3 weeks, and 3 days is deducted.
3. The offender shall serve 6 years, 4 months, and 4 days at the Bomana Correctional Institution in light labor.

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

Case	Plea	Head Sentence	Time Spent in Custody	Suspension	Offence details
State v Martin [2021] PGNC 208; N8913 (15 June 2021)	Guilty	17-15 years	Not indicated	Nil	Five prisoners pleaded guilty to 3 counts of attempted murder. 2. One Walter Bara’s wife Aloilolo Meteke was found dead in her house. Her family members caused several acts of retaliation on Walter’s family members. After a failed mediation on 25 August 2018 the Meteke boys accompanied by their cousins raided the Walter Bara homestead in the early hours of the morning and attacked family members in that house. Walter Bara received cuts to his left arm, right bicep and back; Manue Bara was speared on the back of her head with a spear gun by Gideon Meteke, Samson Douglas received cuts and injuries to his back.
State v Manye (2021) Unnumbered National Court decision, Cr No 411 of 2018 (Published on PNGSD)	Not Guilty	5 years	3 years 8 months	Balance wholly suspended and placed on GBB for 2 years with conditions to pay K100O compensation within 6 months	Offender married with 7 children. 47 years old. Villager with no formal education. The offender demanded the victim to return a pig the offender gave to him. When the victim went to his house the offender swung the bush knife at his neck, but the victim ducked low, and the bush knife grazed his head.
State v Sanamia [2018] PGNC 141; N7241 (9 May 2018)	Not Guilty	19 years	Deducted	Nil	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.
State v Paheki [2018] PGNC 123; N7218 (23 March 2018)	Not Guilty	8 years	1 year 6 months	Nil	Offender is single and was 23 years old. Was attending school and completed only Grade 9 prior to arrest for offence. The offender was drunk and chopped victim’s arm at the wrist
State v Gigmai [2016] PGNC 248; N6443 (16 August 2016)	Guilty	7 years	3 years, 4 months	Balance wholly suspended on condition that offender pay compensation	Offender is singe, 21 years and completed Grade 10. Between 10.00 pm and 11 pm, the victim heard somebody being beaten up by the offender and two others. When the victim went out to stop the beating, the offender and his two other accomplices turned their attention on the victim and attacked him using their fists, axes and raw coffee tree stumps. The victim received severe injuries and he was taken to the hospital where he received treatment.
State v Poni [2016] PGNC 62; N6245 (9 April 2016)	Guilty Plea	10 years	Deducted	Nil	The offender and others went to the victim’s home. Their intention was to kill him because of their belief that he was practicing sorcery which caused the death of the offender’s father. The victim was shot in the leg. When his daughter shielded him with her body, she was also shot in the leg.
State v Lawrence (No. 2) [2015] PGNC 127; N6020 (8 July 2015)	Not Guilty	15 years	Deducted	Nil	The offender’s uncle and his friend were out fishing at sea on a reef the offender and his brother accompanied by two other friends confronted them in in the offenders powered dinghy and assaulted him, resulting in his uncle receiving cuts to his arm, head and back of his head.
State v Puti [2013] PGNC 98; N5196 (12 April 2013)	Plea of Guilty	7 years	2 years, 5 months	Nil	Youthful Offender. Armed with an offensive weapon. The offender swung the bush knife aiming at the victim’s neck. The victim raised her left hand to defend herself and the knife severed her left hand and fractured a bone. There was no provocation and no reason for the attack. The offender was a first-time offender and showed remorse
State v Balu [2011] PGNC 97; N4362 (3 August 2011)	Plea of Guilty	5 years. Three victims and sentences were cumulative hence 15 years	Pre-trial custody deducted	Nil	The two offenders along with others were involved in a fight. They retaliated for an earlier incident. One victim was cut on her left hand with a bush knife, another was cut with a bush knife at the back of her neck and the third received severe and serious injuries from being hit with a piece of plank on the head and around the ear.
State v Kinapa [2009] PGNC 183; N3814 (11 December 2009)	Not Guilty	10 years	1 year, 6 months and 2 weeks	Nil	The prisoner and two others dragged the victim out of a PMV bus and cut him multiple times with bush knives. This was in revenge for the death of the offender’s brother.
State v Yasangara [2007] PGNC 244; N5478 (16 October 2007)	Plea of guilty	10 years	2 months	Nil	He heard that his wife had left him and gone to live with another man. He went to the other man's house, broke down the door of the house and tried to get into the room where the other man was sleeping. He attacked that door with a bush knife, intent on getting inside the room and killing the other man. During the attack the other man had one of his thumbs severed.

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^[1] PGNC 244; N5478 (16 October 2007)
^[2] PGNC 127; N6020 (8 July 2015)
^[3] PGNC 98; N5196 (12 April 2013)
^[4] supra
^[5] PGSC 1; SC137 (25 October 1978)
^[6] Cr 430 of 2021, (reported in PNGSDB)
^[7] PGNC 202; N6103 (12 October 2015)
^[8] supra
^[9] The State v Kagai [1987] , Gima v Independent State of Papua New Guinea [2003] , State v Winston [2003] , Public Prosecutor v Hale [1998] and Public Prosecutor v Tardrew [1986]