N9583

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 274 OF 2021

BETWEEN:
THE STATE

AND:
JEFFERY ONDA

Waigani: Ganaii, AJ
2022: 05th April

CRIMINAL LAW – Sentence – Attempt Murder – Section 304 of the Criminal Code – Swung Bush Knife Aimed at Neck of Victim - Victim Raise Arm in Defence and Received Gaping Knife wound to the forearm – Wilful Damage of Vehicle Windscreen – Section 444 of the Criminal Code - Sentencing principles – Comparable cases – Head Sentences of 6 years and 12 months respectively – PSR Favourable to Offender –– Full Suspension - Probation with Compensation Orders
Cases Cited:
Papua New Guinean Cases

Aieni v Tahain [1978] PNGLR 37 
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
State v Boas [2021] PGNC 102; N8843 
State v Dar (2015) N6106
State v Hotsia Geria (2008) N3868
State v Kagai [1987] PNGLR 320
State v Kaime Cr No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008)
State v Karuka (2021) N9281
State v Kiaro [2020] PGNC 277; N8610 
State v Kogen [2016] PGNC 39 N6211 
State v Meckpi [2010] PGNC 99; N4079
State v Minji and Sakol (No 2) [2009] PGNC 177; N3794 
State v Oscar N9215, Cr No 1163 of 2019
State v Paheki [2018] PGNC 123; N7218 
State v Penge [2002] PGNC 90; N2244 
State v Puti [2013] PGNC 98; N5196 
State v Sanamia & Others N7241 
State v Wamingi [2013] PGNC 329 N5723 
State v Waragu [2007] PGNC 134; N3265 
State v Yasangara [2007] PGNC 244; N5478 

Overseas Cases

Veen v The Queen (No 2) (1988) 164 CLR 465  
Legislation

The Criminal Code Act, Chapter, No. 262 of 1974, Sections 304, 444
Criminal Law Compensation Act, Chapter No 26 of 1991, Section 2, 3, 5 (3) (b)

Counsel

Ms. S. Suwae, for the State
Mr. Sumbuk, for the Defendant 		

DECISION ON SENTENCE 

05th April, 2022 

1.      GANAII, AJ	: This is a decision on sentence for the offender Jeffery Onda who was found guilty and convicted after trial on one count of Attempt Murder contrary to section 304 and one count of Wilful Damage contrary to section 444 of the Criminal Code.

Facts

2.	The offender was in the company of other persons. They were armed with bush knives when they entered the residence of the victim at Nine Mile. The intrusion into the home of the victim occurred at night at about 9:30 pm. The offender and his accomplice smashed the rear and side windscreen of the victim’s parked motor vehicle. The cost of damages was at K2, 293. 34. 

3. 	The victim was in the house resting when the offender invaded his home. He heard the sound of the glass smashing and went out to investigate. He was met by the offender and his accomplice. They immediately launched an attacked on him by swinging a bush knife. The offender swung the bush knife at the head of the victim aiming to cut his neck. The victim ducked and raised his left hand to fend off the knife. The knife landed on his forearm, cutting the flesh open and leaving a gaping wound. Immediately after the attack, the offender and his accomplice also attacked the wife of the victim. They then ran to a waiting vehicle parked outside and made their escape. The victim was assisted to the hospital by his neighbours. The motive for the attack revolves around the offender’s grievances over land. The motive for the attack is based on the offender’s claims that the victim was involved in illegally obtaining and effecting an eviction order against him. He claims that the victim and others were involved in the burning down of his house and properties in the course of the eviction. 
 
Outline of appropriate Considerations 

4.	The maximum penalty for the offence of Attempt Murder and Wilful Damage, subject to section 19 of the Criminal Code are terms of imprisonment up to life years and not exceeding 2 years respectively. On the task of appropriating a suitable penalty, the court takes into account these relevant considerations: the relevant finding of facts, the offender’s personal particulars and antecedent report, what the offender said in allocatus, the submissions of parties inclusive of the aggravating and mitigating factors; the Victim Impact Statement (VIS), the Pre- Sentence Report (PSR), the law, comparable case precedents and general sentencing principles.

Allocutus

5.	The offender was given an opportunity to say what matters the court should take into account when considering and imposing a punishment. (Aieni v Tahain [1978] PNGLR 37. He said the following:

“Firstly I say sorry to the court, the state lawyer and all the officers of this court. Secondly, I say a big sorry to Rose Peter my sister and her husband Peter Kiap. The court has found me guilty and I say a sorry. Thirdly, I say sorry to the court for those times I was not able to attend court. It was because I had suffered a minor stroke and was admitted into hospital. 

Since my young days, and from my schooling days to the time I came to live and worked in Port Moresby, that is for the past for 20 years, I have not been in trouble with the law. I have worked at the Attorney Generals Department, and in the Public Curators Office for 13 years. For all these times I had not been in trouble with the law until this court has now found me guilty. 

When I work, I support my community. When there are problems at home, I do help. I was in Bomana for two months and some weeks awaiting trial until I was given bail. My wife is pregnant and since I suffered from a minor stroke, I ask this court for leniency. If the court gives me Good Behaviour Bond, with orders for restitution, I will pay for the damage to the windscreen. I did try to say sorry for what I did at Unagi oval, but the victim did not attend. I again tried to settle this at the 6 Mile Police Station and again the victim did not turn up. I ask the court to take note of that and be lenient on me.”

Pre-Sentence Report

Origin, Family Background and Place of Residence

6. 	The offender is 38 years old and comes from Keta village, Dei District of the Western Highlands Province. Currently, he resides at Erima with his wife. His parents are both deceased. He is the fifth born out of a family of four brothers and five sisters. Most of his siblings are married and live their own lives.

Persons Interviewed

7.	The offender’s wife was interviewed. She said they have only been married for a year now and she is four months pregnant with their first child. Her husband is good natured, humble and an honest man in the family with no history of causing problems to anyone in the family and community. He looks after her well. She needs him at this time of her pregnancy. She seeks the court’s mercy when considering a sentence. 

8. Three other persons were interviewed. Two of them were the offender’s tribesmen namely Mr. Sent Wari who is a Community leader and Mr. Robert Romuri who is a Keta Village and Dei Council area leader who resides in the NCD. The sum of their view is that the offender is the only one from their tribe who is educated and formally employed. He is their pride and is a committed tribe member. He assists the tribe and their community financially by supporting customary obligations or resolving customary disputes. He is a good-natured person and is not a threat to the community. The problem between both the offender and the victim happened some years back over land. They are related by marriage where the offender’s sister is the wife of the victim. Both leaders say that the parties have moved on in life. They seek the court’s leniency in imposing a non-custodial sentence. 

9.	The Public Curator of PNG, Mr. Jacob Popuna was also interviewed. He said the offender is one of his good officers who was recruited in 2011 and has since worked his way up to be a Para legal officer. He is committed to work. Mr. Popean was surprised to learn of this incident. He said the offender is a non-violent man and is not a threat to anyone. He asked that the court consider a non-custodial sentence.

 Educational and Employment History

10.	The offender did his schooling, Grades 1 – 10 at Keta village, Dei District of the Western Highlands Province. He then enrolled at the Port Moresby Business College but did not complete his education due to having no school fees. In 2007, the offender enrolled at the IBS school for a certificate in accounting but again did not complete the course due to no school fees. He had not done any other studies after that. The offender started work at the Public Curators Office as a paralegal officer and this is his eleven years now with the Public Curators Office. 

Marital Status, Dependents, Financial and Health Situation and Future

11.	The offender has just been married and has no children yet. His wife is currently four months pregnant with their first-born child. The offender sustains his family and assists his tribesmen with their customary obligation from monies earned from his fortnightly salaries. He has no health problems and appears to be in good physical health. The offender is a Christian and does not take alcohol and other intoxicating substances including drugs. On his future plans, the offender wants to run his own business and look after his family and the community.

Offender’s attitude towards the Commission of this Offence and Prior Records

12.	The offender is sorry for what has happened. He begged the Court for leniency and asked that the court consider that his wife is four months pregnant and she needs him during these times. The offender does not have a prior record with the court or a probation supervision record.

Victim’s Views
 
13.	The victim said this incident happened in 2018. It is four years and he has waited all these years for an outcome of the case, including for the offender to settle the matte in the PNG traditional way of making peace but nothing has happened. He leaves it to the court to make a decision on an appropriate penalty.

Circumstances of the offence

14.	The offender said he bought a piece of land and got his family members to live there. He said with the help from the victim, a man called John Paraka who was also residing at the same block of land, illegally got the title to the land. They then went to the District Court and obtained an eviction order. John Paraka and the victim Peter Kiap then went onto the land and forced the offender out. In the process, he claimed they damaged property worth up to K400, 000. He said he went with some boys to victim’s house to find out why they did that to him and evicted his family from the land. The boys assaulted the victim and damaged his vehicle windscreen. He was with the group of boys and so he accepted the blame. 

Potential Danger to the Community and Suitability for Probation Supervision

15.	The writer says that from the views of those that were interviewed, the offender is not a threat to the community. He is suitable candidate for non-custodial sentence. According to the community views, the offender is good natured, dedicated and committed to completing tasks, is generous, hardworking, is non-violent and is not a threat to the community. 

Victim Impact Statement (VIS)

16.	The victim, Peter Kiap made the following statements:

Physical Injury – Since he sustained the injuries, the inside of the of his left arm where he received the knife wound, has no feelings. He does not feel anything with that part of the hand. He also feels pain and discomfort when he lifts heavy objects with that hand. He avoids physical labour with the use of his left hand. 

Financial Cost – Due to the injury sustained the victim has paid for medical treatment for himself and his wife too who was also attacked. He had spent about K1, 000 for medical treatment, including cost for his upkeep at the hospital. The victim has also spent money on repair work on the damages done to his motor vehicle. He attached a quote of K2, 522.65. 

17.	The victim said that they could have resolved this problem through the Melanesian way, but offender wanted the matter to go to court. He therefore leaves it to the court to decide on an appropriate penalty. He said because the court has now found him guilty after refusing to settle him out of court, and because the offender has left a mark on the victim’s body, and almost taken his life, he should serve time in prison. He also said he will accept whatever punishment the court will impose. 

 Defence Submissions

18.	Defence submitted that the wound sustained by the victim had healed and the victim had made a complete recovery from the injuries sustained. Defence submitted that a sentence of between 2-3 years, wholly suspended with orders for good behaviour bond and compensation is appropriate in the circumstance. 

Comparable Cases Precedents 

Wilful Damage 

19.	For the offence of Wilful Damage, in the case of State v Dar (2015) N6106, after a trial, the offender was found guilty of leading his tribesmen who damaged the fuel pumps belonging to a Fuel Distributor. The total value of damage done to the Fuel Station was said to be over K140,000.00. He was sentenced to 12 months in prison. The sentence was fully suspended on condition for restitution of the full amount of damage. 
 
20.	In the case of State v Minji and Sakol (No 2) [2009] PGNC 177; N3794 (20 November 2009), after trial, the prisoners were found guilty of destroying 2, 230 coffee trees, properties of the Banz Catholic Church. The value of damaged done to the coffee trees was at K45,658.80. Prisoners were sentenced to one year imprisonment in hard labour with no suspension. For those prisoners who have spent more than one year in pre-trial custody, they were sentenced to the rising of the court. Others were ordered to serve the full term. 
21.	In citing the above cases and in comparing them to the present, Defence argues that the main considerations on sentence in such cases is the extent of damage that is done to property. In this instance, the damage although serious is minimal and reparable in the value of K2 293. 34 which the offender can restitute. 

Attempt Murder
22.	For the offence of Attempt Murder, Defence submitted that in the case of State v Oscar (2021) N9215, on a guilty plea, where the offender had used a doubled edged bayonet in attempting to stab the victim on the throat once and  in a second attempt where the victim grabbed the bayonet in self-defence and the blade stabbed him on his shoulder resulting in loss of blood, the prisoner was sentenced to 9 years in prison. Time spent in custody was deducted and the offender was ordered to serve the balance of the prison term. 
23.	In State v Paheki [2018] PGNC 123; N7218 (23 March 2018), the prisoner was found guilty after trial for chopping the victim’s left wrist. He was sentenced to 8 years imprisonment in hard labour. Time in pre-trial custody was deducted and the balanced was to be served in prison. 
24.	Defence submitted that in considering an appropriate penalty, sentences in attempt murders cases will differ differ based on various accounts of circumstances like the veracity of the attack and the extent of the injury. In the present case, a lethal weapon was used, the injuries were surgical but it is unclear if there was residual long-term effect. Regardless, in attempt murder cases, offenders are punished not due to the seriousness of the injury but for the intent to commit a crime. In this instance the Court must look at the intent to cause serious injury and not the actual perpetration of assault. 

25.	Defence submit that a sentence of 4-6 years is appropriate for the offence of Attempt Murder and a sentence of six months is appropriate for the offence of Willful Damage. Defence also submit that both sentences be served concurrently and fully suspended with orders for compensation and restitution. 

State Submissions

26.	In the case of State v Yasangara [2007] PGNC 244; N5478 (16 October 2007), the court expressed that in the absence of any sentencing guidelines for attempt murder cases, the guidelines for Manu Kovi v The State (2005) SC789 should be used. The Court said the starting point should be at 50% or halfway from the tariffs in Kovi case. So according to the categories of case in Kovi, this case falls into category 3 where there was some pre-planning, a strong desire to do harm and lethal weapons were used. Hence, where Kovi case suggested a range of sentence from 20 -30 for murder in Category 3, for attempt murder, this case should attract a sentence of between 10-15 years. State therefore submits that a sentence of between 10-15 years is appropriate. 

27.	State relied on the following comparable cases. In State v Waragu [2007] PGNC 134; N3265 (23 November 2007), on a guilty plea to the charges of attempt murder and wilful damage, where the prisoner was in the company of other persons, at night, and where they used a bush knife to smash the windscreen of a motor vehicle, cut the side of the vehicle and stabbed the victim on the neck, he was sentenced to 25 years for attempt murder and one year for wilful damage.  
28.	In State v Meckpi [2010] PGNC 99; N4079 (16 April 2010), the victim was an employee of the National and Supreme Court. On a guilty plea to a charge of wilful damage, where the offender used an iron bar to smash the windscreen of the victim’s vehicle, where he was frustrated over the delay of the hearing of his Supreme Court case, and where the damage was worth K10, 924.34, the offender was sentenced to 10 months imprisonment in hard labour. 
29.	In State v Betty Kaime Cr No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008), on a guilty plea to a charge of wilful damage to a police vehicle where the offender in finding out that her husband was transporting his girlfriend, smashed the wind screed and cabin windows of the police vehicle with a stone. Where the damage was worth K1, 200, she was sentenced to six months imprisonment, wholly suspended with orders for restitution. 

30.	In State v Sanamia & Others (2018) N7241, the four offenders were found guilty after a trial on a charge of Attempt Murder. They fought the victim down to the ground then used bush knives aiming to cut his head. He raised in hands in self defence and was cut in both arms. He suffered from compound fracture of the left and right radius and ulna with nerve injury of both hands. he was admitted to the surgical ward and 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. 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. The offenders were sentenced to 19 years imprisonment with no suspension. 

31.	In State v Puti [2013] PGNC 98; N5196 (12 April 2013), on a guilty plea to a charge of attempt murder, where the offender swung a bush knife aiming to cut the neck of the victim, and where the victim raised her hand to fend the knife, sustaining a cut and fractured bone in the hand, a sentence of 7 years was imposed. 
32.	In the present case, State submitted the following aggravations are present; prevalence of the offences, dangerous weapon was used, second time offender, unprovoked assault, multiple offenders, inside the safety and comfort of home of the victim where his family was watching and were traumatized, the victim’s wife was also attacked; their vehicle was damaged and this offence is a domestic violence offence where the offender is related to the victim by marriage.

33.	In summary, State submitted that for the offence of wilful damage, a sentence of 6 to 12 months is appropriate and for Attempt Murder, a sentence of 6 -7 years according to the Puti (supra) case is an appropriate sentence. 
 
Application 

34.	It is settled law in this jurisdiction that the maximum penalty for any offence is reserved for the worst kind of case. Principle in case of Goli Golu v the State [1989] PNGLR 653 is applied. Section 19 of the Criminal Code vests the sentencing authority the discretion to impose a sentence less than the maximum prescribed sentence, where the circumstances of the case warrants. 
 	
The purpose for sentencing

35.	The court is  mindful of the purpose for sentencing which is to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and to the community. Sentencing principle in Veen v The Queen (No 2) (1988) 164 CLR 465 is adopted and applied in State v Paul Karuka (2021) N9281. 

36.	The punishment that this court will impose should be in proportion to the harm inflicted on the victim. Where society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient. Principle in State v Kiaro [2020] PGNC 277; N8610 (30 October 2020), applied. 
Relevant Consideration

37.	In State v Hotsia Geria (2008) N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are; and what the appropriate head sentence should be and whether all or part of it should be deducted.

Sentencing Trend 

38. 	I summarise the comparable cases cited to me by counsels in the following way. On a guilty plea to the charge of Wilful Damage, where a vehicle windscreen was smashed, costing damages in the vicinity of K1, 000 plus, a sentence of six months prison term was imposed. Where damages were worth over K10, 000 - K100, 000 plus, the offenders were sentenced to 12 months imprisonment. Whilst I agree with the Defence submission that the cost of damage in the present case is much less compared to those above cases, and therefore a lesser sentence should be considered, I am of the view that the cost of damage should not be the only consideration in appropriating a sentence for wilful and unlawful damage cases. Other factors such as motive, what time of the day, where the offence occurred and what weapons were used should be considered as aggravating factors and should call for a sterner punishment with a strong view to consider deterrence. The element of intent and how the intent was carried out must be punished. In a more recent case of State v Boas [2021] PGNC 102; N8843 (14 May 2021), where the cost of damage to cash crops was much less at K835, the prisoner was sentence to two years, where the Court considered circumstances of aggravation such as the offence was committed in the company of others; with use of offensive weapons, loss of properties and business and prevalence of the offences. Courts are also considering an increased penalty from 12 months. 

39.	On the charge of attempt murder, the comparable cases demonstrate that the sentencing trend is between 8-9 years (Oscar and Paheki (supra) on a guilty plea where a single stab or cut was effected on the shoulder and wrist of the victim. Sentences of 25 and 19 years in the cases of Waragu and Sanamia (supra) were appropriate where the injuries were to the neck and to both arms of the victim. In the present case, apart from the display of the intent to kill, the sentence would be lower because the injury was not as serious to those two cases. There is no review medical report to support the victim’s claim that he experiences numbness in his hand and this has affected efficient and full use of his hand. 

Consideration of the circumstances of this case

40.	I am mindful that the Court’s view in the Yasangara (supra) case is a useful guideline. However, sentencing for this must be determined having regard to its own peculiar facts and circumstances. The principle in Lawrence Simbe v The State [1994] PNGLR 38 is applied. 

41.	In this case the offender was with his accomplices and they had planned on going to the victim’s house to attack him. The planning is evident in them coming in a group unannounced and armed. Even though the offender said he wanted to talk to his sister who is married to the victim; the Court found that they went in a vehicle and the vehicle was on stand-by as their get-away car and they were being armed with lethal weapons, namely bush knives.

42.	There was a motive for the attack on the victim. The motive was over land. The offender was aggrieved about his eviction from the land. He claimed that the victim had colluded with one other and had illegally obtained a fraudulent title over the land when they took District Court orders to evict him. As such, the court found that he was angry and had a motive for the attack when he approached the victim. 
 
43.	The bush knife was swung within close proximity towards the victim and it was aimed at his neck. It was at night-time and the victim came out of the house, from sleep, unaware, unarmed, and caught off guard by intruders into the privacy and comfort of this home. The vehicle of the victim was also willfully damaged. These actions of the offender and his alleged accomplices demonstrated the element of the crime of attempt murder and wilful damage which are crimes of intention. The intent was made known and was carried out by the offender’s actions when in company of another accomplice. 

44.	Being crimes of intention, sentencing must be according to the extent to which the intention was put into effect by the offender’s actions. For instance, the extent of the offender’s actions shows him taking steps by planning, getting other accomplices involved, arming or possessing lethal weapons, using the lethal weapon, moving at night and intruding into the privacy and security of the family home of the victim when he was resting and when his family was going about their business. 

45.	The preplanning leading to specific acts taken to execute the plan by the actual and intentional use of the bush knife, aiming at the neck of the victim demonstrates the intent to cause very serious and life-threatening injuries to the victim and wilful damage of the victim’s vehicle. This aggravates the offence and should attract a strong punitive punishment. For the offence of attempt murder, the victim would have been killed if it had not been for his quick reaction to fend off the knife with his arm. Consequently, the offender must be punished for his intentional and wilful acts. 

Head Sentence

46.	Having taken into account all the circumstances of the case, I say the aggravations outweigh the mitigations. For both offences of Attempt Murder and Wilful and Unlawful Damage, the facts demonstrate the element of a strong intent to cause serious injuries and death and malicious and wilful damage of property. 

47.	For Attempt Murder, in the case of Paheki (supra), the court expressed that there are no sentencing guidelines provided for the offence of attempted murder. But over the years, the Courts have been imposing sentences ranging between 2-10 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 - 12 years. In the present case, I note that the injury to the victim’s forearm is not permanent, there are no multiple injuries and the damage to the vehicle windscreen is not substantive. Sentence will therefore be lower than eight years. 

48.	Consequently, I arrive at the following head sentences; for the offence of Attempt Murder, a sentence of six years imprisonment in hard labour and for the offence of Wilful Damage, a sentence of 12 months imprisonment in hard labour. Both sentences are to be served concurrently as the acts constituting the offences arise out of the same or closely related set of facts. 

Principles of Suspension of Head Sentence

49.	Some case law principles on suspension of head sentences say that suspension is not an act of leniency but it is imposed in the interest of the community to promote rehabilitation and prevent recidivism (tendency of a convicted prisoner to re-offend): State v Kagai [1987] PNGLR 320. Where defence say that evidence of good character supports suspension, there must be actual evidence and not mere submissions that the offender has good character: State v Kagai (supra). 

50. 	On the offender’s good character, I am mindful that apart from his employer, those persons interviewed were his wife and tribesmen who may give self-serving statements in order to ensure that the offender is not sent to prison so that he can continue to support them in his family and customary obligations. Whilst they all have an interest in the outcome of the decision on sentence, it would also be fair to consider the independent and balanced view of his employer, the Public Curator. His employer had said that the offender is a non-violent person and is not a threat to anyone. The court can place weight on this view although his actions have shown that he has let his tribesmen and employer down, it is accepted that he can be rehabilitated. 

51. 	However, in violent offences such as this, this court is reminded that the view of the victim is also important when considering suspension of sentence: State v Kogen [2016] PGNC 39 N6211 and State v Wamingi [2013] PGNC 329 N5723. In this instance, I note that the victim ultimately expressed that he leaves it to the court to decide on an appropriate penalty. 

52. 	In consideration of a favourable PSR for the offender where the offender can be rehabilitated, compensation as a form of punishment can be imposed. Serving time in prison for deterrent purpose is not appropriate. This court must give the parties an opportunity to reconcile and build relationships. Pursuant to the Criminal Law Compensation Act, and the principle in the case of State v Penge [2002] PGNC 90; N2244, the court will consider compensation as a means of punishment and to encourage reconciliation. 

Payment of Compensation 

53. 	On compensation, it is noted that the victim said the offender made no attempt to settle and wanted to go to trial, meaning that the offender maintained his innocence. The offender said otherwise that he made two attempts to settle. Unlike in a guilty plea case where the benefit of the doubt can be given to the offender, this is sentence matter after trial and so I will not accept the version favorable to the offender. As this is a disputed matter, instead of calling evidence on whether compensation was attempted in order to consider it as a mitigation, I accept one things and that is that the positions of the parties now and then demonstrates that they were and are willing to participate in restitution, compensation and reconciliation. I am mindful that both the offender and the victim are related by marriage and that the court can encourage reconciliation. The offender is formally employed and will have the support from his tribesmen to pay compensation if such is ordered. 

54. 	Whilst the offender had said in allocatus that he has suffered from a minor stroke and was not able to come to court for some time, there is no medical evidence to that effect. It is not argued that his medical condition if any will affect his ability to restitute. Where the offender has not indicated how much time he will need to prepare for restitution and compensation payment, the court will decide on this issue in the light of the other evidence already mentioned above. 

55.	I am mindful that making an order for compensation to be paid within a shorter period of time will achieve these three main sentencing goals, firstly, considering that the cost of living in the city is high and when put under pressure to make compensation payments, in my humble view, it is considered sufficient punishment for the offender; secondly, such a punishment recognises the harm done to the victim and helps to put him back to the position he was at financially, prior to the commission of the offences on him. Thirdly, it is hoped that in ordering compensation and restitution, the court will encourage the parties who are related by marriage to reconcile in the true Melanesian spirit. 

Prior Conviction

56.	I am also mindful that State had not been able to prove an alleged prior conviction by failing to tender a conviction certificate. The offender is considered a first time-offender and considering his good character, can be rehabilitated with probation orders. 

Suspension

57.	For the foregoing, the concurrent sentence of 6 years imprisonment is fully suspended. The offender shall be placed on Probation for a period of six years with conditions. 

Conditions on the Probation Order

58. 	The following conditions are imposed in the Probation Order:
 
1)	The offender shall report to the Probation Office within 48 hours from today, date of pronouncement of this sentence (order).

2)	The offender shall reside at his known address, Erima, National Capital District. 

3)	The offender shall not leave his place of residence, that is Erima, in Port Moresby without the leave of this court and during the course of her probation period. If the offender has to change his address, he shall inform the Probation Office of his new or intended residential address.

4)	The offender shall perform 600 hours of community work at a worksite to be approved by the Probation Office.

5)	The offender shall keep the peace with the victim and generally be of good behaviour at all times.

6)	Offender shall pay compensation in amount of K5, 000 to victim within three months from today. Matter returns on Tuesday 05th of July 2022; 9:30 am for review. 

7)	Failure to comply with order (6) will result in the offender’s commitment to prison to serve six years in prison.

8)	The offender shall not commit any indictable or summary offences including the summary offences of Breach of Peace and Possession of Dangerous Weapons whilst on probation. 

9)	The Probation Officer shall file a report on the responses and progress of the probationer once a year for the six years of his probation term. The report shall be filed at the National Court Registry at the end of each of the six probation years, namely 05th of April 2023; 05th of April 2024, 05th of April 2025; 05th of April 2026;05th of April 2027 and 05th of April 2028.

10)	In breach of any of these Probation Orders, the offender’s Probation    shall lapse and he shall be arrested and ordered to serve the term of the four years sentence imprisonment in hard labour.

11)	The offender’s bail sum is to be refunded forthwith. 

Orders accordingly. 
__________________________________________________________________
Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Defendant