State v Hrembari [2021] PGNC 643; N9911 (4 November 2021)

N9911

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 228 OF 2021

THE STATE

V.

WARANDUO KUNGSENGI HREMBARI

Kokopo/Kerevat: Suelip AJ
2021: 16^th August, 7^th, 9^th, 24^th, 30^th September, 1^st & 4^th November

CRIMINAL LAW – Sentence – plea – attempted murder s.304(a) – cut on several parts of victim – permanent paralysis and bedridden – no improvement – aggravating factors outweigh mitigating factors – some de facto provocation – seriousness of injury – unfavorable presentence report - 10 years imprisonment in hard labour – less time spent in custody – no order for compensation

Cases Cited

Goli Golu v The State [1979] PNGLR 653
State v. George Paheki (2018) N7218
Peter Naibiri & ors v. State (1978) SC137
State v. Bulu Yasangara (2007) N5478
Manu Kovi v. State (2005) SC789

Counsel

J Batil, for the State
S Pitep, for the Prisoner

SENTENCE

4^th November, 2021

1. SUELIP AJ: On 16 August 2021, the prisoner pleaded guilty to the charge of attempted murder, thus contravening section 304(a) of the Criminal Code. He was thus convicted of the charge.

2. This is my decision on sentence.

3. The facts upon which the prisoner pleaded guilty to and were convicted are these. On Tuesday, 4 February 2020, at 8pm, the prisoner, now before the Court were at Bush Camp Takubar, Kokopo District, East New Britain Province. On the above date, time, and place, he was sitting with Livai Nangusase’s wife, Nerish Steven inside their house and discussing some past issues of their neighbors. Livai Nangusase is employed with Guard Dog Security Services. He then came home from work and heard his wife and the prisoner talking about the issues, and he walked straight to his wife Nerish Steven and punched her several times. The prisoner went outside and grabbed a bush knife and cut Livai on his left arm, left leg and his right thigh. The victim called out for help saying “yupla kam helpim me ya. Waranduo laik kilim mi nau ya”. The neighbors then went towards them and flashed the torch at the prisoner, and he ran away. He was later apprehended by the police and arrested for attempted murder under section 304(a). His actions contravened s.304(a) of the Criminal Code and he was charged with attempted murder under that provision.

4. Section 304(a) of the Criminal Code provides as follows:

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.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code.

6. For the purpose of sentencing, the prisoner’s personal particulars are these. He is 35 years old and come from Kasambuk village of Yangoru in the East Sepik Province. He is not married and have no children. He is also unemployed. He never went to school, and he has been in this province since 2015. He does not have a permanent place of residence. He is the fourth child in a family of 6 siblings and 2 of them including the prisoner live here, while the rest are in his province of origin.

7. During allocutus, he apologized to God, the victim, your community, and those in the courtroom. He said this is his first time in Court and he asked to be placed on probation.

8. Before deciding on the appropriate sentence, lets discuss briefly the mitigating and aggravating factors in this case. Against the prisoner, the aggravating factors include the use of an offensive weapon, the attack was vicious, his intention to cause grievous bodily harm, the multiple and life-threatening injuries sustained and the prevalence of the offence in society.

9. In his favor, the mitigating factors include his guilty plea which has saved the Court’s time and resources. He is also a first-time offender as he does not have any prior convictions. The factor that stands out for him is that there was some de facto provocation in the non-legal sense where the victim suddenly attacked his wife infront of the prisoner and he felt obliged to stop the assault. Finally, he expressed some remorse.

10. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. However, it is trite law that the maximum penalty is reserved for the worse type case as held in the case of Goli Golu v The State [1979] PNGLR 653. As it is, there are no sentencing guidelines specifically set for the offence of attempted murder. Hence, this Court has wider discretion to impose sentence for this offence. As discussed in the case of State v. George Paheki (2018) N7218, there are presently two arguments or school of thoughts where on the one hand, attempted murder is more serious than murder or manslaughter (see Peter Naibiri & ors v. State (1978) SC137) and on the other hand, attempted murder is less serious that murder or manslaughter (See State v. Bulu Yasangara (2007) N5478) as the victim does not die. Which school of thought a Court decides to follow is dependent on the circumstances of each case. I have also taken into account the sentencing guidelines in Manu Kovi v. State (2005) SC789.

11. None of the cases of attempted murder referred by both counsels is similar to the circumstances of this case. Amongst the cases referred to, both counsels cited State v. George Paheki (supra) which involved the loss of the victim’s right hand. Both counsels also referred to the case of State v. Jacob Puti [2013] N5196 but that case is also about the prisoner cutting off the victim’s hand. The prisoners were sentenced to 8 years and 7 years respectively.

12. This case is more serious as the victim is now permanently paralyzed and bedridden because of the injury he sustained to his spinal cord. This is shown in the most recent Medical Report of the victim dated 22 September 2021. As stated in the report, he is now a lifetime burden to his family.

13. Counsel for the prisoner submits that the appropriate starting point for him on a plea is 7 years, and his head sentence should be 6 years or less in consideration of the mitigating factors, which she says, outweighs the aggravating factors. His counsel submits that since this is not a worse type case, his sentence should be fully suspended since he has spent 1 year and 5 months in custody, which she says is sufficient punishment for you.

14. On the other hand, the State’s counsel submits that the offence of attempted murder is a serious offence hence, the maximum penalty is life imprisonment. She says it is similar to wilful murder because there is an element to kill but the victim survives. In light of the aggravating factors, it is submitted that the appropriate starting point for the prisoner is a sentence of 10 years.

15. In the updated presentence report, it became evident that the victim is the prisoner’s cousin. The victim is now at his village in Kasambuk village in the East Sepik Province. The prisoner’s uncle, Jeffrey James, who is also the victim’s uncle says that the common relatives in their home province want the prisoner to serve a longer sentence. Even the prisoner’s sister, Rachel Nason wants to him to spend more time in prison because he has been in trouble with the law for drug trafficking and he also has been hiding from the locals from Kabakaul regarding an argument. The victim says the prisoner’s family have not paid any compensation at all and he wants compensation to be discussed otherwise, the prisoner should serve a lengthy sentence. The report finds the prisoner to be risk to the victim and others if he returns to the community and recommends that he requires rehabilitation during his incarceration.

16. In considering the appropriate sentence for the prisoner, let me start by saying that although this is not a worse type case to warrant the maximum penalty, the injuries sustained by the victim is very serious as he can longer live like a normal human being. He is completely paralyzed and bedridden. He is a burden to his family for the balance of his life. It is also a very expensive exercise to take care of him. I take into account that the prisoner pleaded guilty to the committing the offence and that there was some provocation in the non-legal sense, but the permanent injuries sustained by the victim has resulted in his paralysis. His remorse is less convincing. I am of the view that attempted murder is more serious than murder and manslaughter and therefore a higher sentence should be imposed on him.

17. Because the aggravating factors outweighs the mitigating factors and in the circumstances of this case, I am satisfied that it warrants a sentence of 10 years on a charge of attempted murder. The prisoner has been in custody now for 1 year and 6 months. This period will be deducted from his head sentence. This leaves 8 years and 6 months.

18. The discretion to suspend sentence must be exercised according to proper principles. The presentence report is unfavorable to the prisoner and recommends that he is a risk to the victim and others and so I will not suspend any part of his sentence. He will serve the balance of his sentence in hard labor. This is to primarily to rehabilitate him and also to deter him from repeating the same offence in the future. I will also not make any order for compensation as he does not have the means to pay compensation. Even if he does, it may not necessarily come from legal means.

Orders

19. The Orders of the Court are:

(i) The prisoner is sentenced to 10 years imprisonment in hard labour.

(ii) His presentence term of 1 year and 6 months is deducted.

(iii) He will serve the balance of 8 years and 6 months in prison at Kerevat Correctional Institution.

________________________________________________________________
Public Prosecutors Office : Lawyer for the State
Public Solicitors Office: Lawyer for the Prisoner