N11291
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1730 & 1731 OF 2024

THE STATE 

V
 
JUNIOR HESUM

WALUME: WOOD J
      9 APRIL, 12, 13, 14 MAY 2025

CRIMINAL LAW – sentence – the prisoner pleaded guilty to one charge of grievous bodily harm against his mother contrary to section 319 of the Criminal Code and one count of attempted murder against his brother contrary to section 304(a) of the Criminal Code – sentencing provisions

Aggravating and mitigating factors and consideration of gravity of the offence 

Held:

1.	The prisoner is sentenced to 3 years imprisonment for the offence of grievous bodily harm.
2.	The prisoner is sentenced to 8 years imprisonment for the offence of attempted murder.
3.	1 year and 2 months are deducted for time spent in custody.
4.	The sentences are to be served concurrently.
5.	The prisoner is to serve the remaining term of 6 years and 10 months in custody.
6.	No part of the sentence is suspended.

Cases cited
The State v John Timbi [2021] PGNC 565; N9306
The State v. Rex Kimai [2017] PGNC 63; N6689
The State v Martin Konos [2010] PGNC 179; N4157
The State v. Hrembari [2021] PGNC 643; N9911
The State v Oscar  [2021] PGNC 452; N9215
Goli Golu v State [1979] PNGLR 653
Thress Kumbamong v The State (2008) SC1017
The State v Felix [2022] PGNC 603; N10352
The State v Mais (2014) N5838
The State v Sheekiot (2011) N4454
The State v Konos (2010) N41557
The State v Bulu Yasangara (2007) N5478
The State v Lukas [2022] PGNC 606; N10347
The State v Gigmai [2016] PGNC 248; N6443
The State v Anataula [2013] PGNC 386; N9045
The State v Puti [2013] PGNC 98; N5196

Counsel
Ms T Kagl for the State
Mr D Pepson for the prisoner

JUDGMENT ON SENTENCE

1.	WOOD J: The prisoner pleaded guilty to one charge of grievous bodily harm against his mother and one count of attempted murder against his brother.

Brief facts

2.	The Brief Facts of the case to which the prisoner agreed were that:

It is alleged that on the 27th of March 2024 between 5 p.m. to 6 p.m., the accused Junior Hesum was at Kupulom Village in Nipa Kutubu District, Southern Highlands Province.

At that time the accused went to his brother’s house and approached the first victim Unis Hesum who was cooking in the kitchen of that house.  This victim Unis Hesum, is the biological mother of the accused.

When the accused approached the victim, he took an iron pipe from the kitchen fire place and without a word, the accused lifted the iron pipe and hit the victim on her head.  The accused again lifted the iron pipe and swung it towards the victim’s head the second time but the victim lifted her arm and the pipe landed on her arm.  The accused again lifted the same iron pipe and hit the victim on her right arm more than once resulting in a fracture.  The victim Unis Hesum was helpless and cried out in pain.

Her cries were heard by her other son Lemeck Hesem who is the second victim.  When Lemeck Hesem approached the house to see what was happening, the accused grabbed an axe in the house and swung it towards Lemeck Hesem but missed, then accused then ran away and hid in the bushes.  Lemeck Hesem then followed the accused and searched for him in the bushes.  When the accused saw Lemeck Hesem, he emerged from his hiding place and used the axe he had and swung it toward Lemeck Hesum and chopped him on his head.  After that the accused went into hiding.  Lemeck Hesum was found by villages and he was rushed to the hospital.

As a result of the attack by the accused, the first victim Unis Hesum sustained a laceration on her head and a deformed right arm; she was admitted and discharged three days later.  The second victim Lemeck Hesum sustained an axe wound on his head, the skull was fractured and he was admitted to the hospital and discharged after two weeks.

The State therefore says that the actions of the accused contravened Section 319 and Section 304(a) of the Criminal Code respectively.

The law

3.	Section 319 of the Criminal Code provides as follows:

319	  GRIEVOUS BODILY HARM.
A person who unlawfully does grievous bodily harm to another person is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.
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) .............,
is guilty of a crime.
Penalty: Subject to Section 19, imprisonment for life.

5.	Section 19(1)(a) of the Criminal Code provides as follows:

19	 CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS.
 (1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–
(aa) .........; and
(a)	 person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term.

Submissions by the State, including reference to case authorities

6.	The State made submissions and I have extracted part of the written submissions below, namely:

ISSUE
	What is the appropriate sentence that should be imposed on the prisoner on each count?	
In deciding sentence, we ask the Court to the aggravating and mitigating factors in this case;

E.	AGGRAVATING FACTORS
a)	Use of dangerous weapons namely an iron pipe and an axe.
b)	Two victims involved and they were the prisoner’s biological mother and brother.
c)	Both victims sustained very serious injuries.  
d)	The attacks on both victims were vicious. 
e)	The victim Lemek Hesum was chopped on the head which is a vulnerable part of the body. 
f)	Both victims were unarmed at the time the prisoner attacked them.
g)	The offences are prevalent.

The State acknowledges the mitigating factors in favor of the prisoner that he is a first-time offender, there was some provocation in the non-legal sense in that there was an argument over food and also some past grievances the Prisoner had with his family fueled his anger. It is also acknowledged that prisoner pleaded guilty to both charges thereby saving the Court and the State’s time in running a trial.  

COMPARABLE CASES

In relation to the first count of Grevious Bodily Harm (S319), the following cases are cited;
 
•	State v John Timbi [2021] PGNC 565; N9306 
Offender pleaded guilty to causing grievous bodily harm to the victim who was his brother in law. After a confrontation, Offender used an iron post and struck the victim on his head and body inflicting very serious injuries. As a result of the attack, the victim sustained abrasions and cuts on his head and a fractured forearm. Offender was sentenced to 4 years imprisonment which was fully suspended and offender placed on Probation. An order was also made for the offender to compensate the victim.  

•	State v. Rex Kimai [2017] PGNC 63; N6689 
Where the offender pleaded guilty to doing grievous bodily harm to his wife. There was tension in their relationship and on the day of the offence, the offender approached the victim and kicked her and the victim fell down. The offender then used an iron bar to hit the victim all over her body inflicting serious multiple injuries. Victim sustained deep lacerations to her head, her ankle and injuries to her both her arms as well.  Offender was sentenced to 3 years imprisonment which was wholly suspended. The Court also made an order for the offender to compensate the victim.

•	State v. Martin Konos [2010] PGNC 179; N4157 
Where the offender pleaded guilty to doing grievous bodily harm to his nephew. Offender used a piece of timber and fractured the victim’s knee and inflicted other injuries on the victim. Court held that in relation to mitigating factors, there was de facto provocation, a blunt object was used and early admissions were made by the offender. In aggravation, the victim sustained a serious leg injury, offender took the law into his own hands, no compensation or reconciliation attempts. Offender was sentenced to 3 years which was fully suspended since the PSR was favorable to the offender.  Court also made an order for compensation to be paid to the victim.

In relation to the second count of Attempted Murder (S304(a)), the following cases are cited;

•		State v. Hrembari [2021] PGNC 643; N9911 
Where the offender pleaded guilty to Attempted Murder. Offender used a bush knife to cut the victim on parts of his body inflicting serious wounds to the left arm and right thigh of the victim. Victim was hospitalized and later discharged. Court held that PSR was not in favor of the offender and he was a risk to the community. Offender was sentenced to 10 years in custody.  

•		State v. Oscar  [2021] PGNC 452; N9215 
Where the offender pleaded guilty to Attempted Murder. Offender hid and waited for the victim and when the victim approached, he plunged out of his hiding place used a bayonet and swung it towards the victim’s throat. The victim tried to avoid the blade and tripped and fell. The victim swung the blade again and cut the victim on his shoulder. Offender was sentenced to 9 years imprisonment. 

•		State v. Puti [2013] PGNC 98; N5196 
Youthful offender pleaded guilty to Attempted Murder. Offender was armed with a bush knife which he aimed at the victim’s neck and swung it. Victim lifted her left hand in defence and the blade landed on it fracturing the bone.  Court held that there was no provocation and no reason for the attack, first time offender and he showed remorse. The offender was sentenced to 7 years imprisonment.  

G.	CONCLUSION

The Pre-Sentence Report of the prisoner is acknowledged and favours a suspended sentence however, it is submitted that this is a youthful offender who had taken the law into his own hands and inflicted multiple and very serious injuries on his own family members. He had no respect for his own mother and elder brother who looked after him and cared for him. It was a simple argument over food but the offender quickly resorted to violence and used offensive weapons on his own family members. Such behaviour must not be condoned.     

The State submits that in relation to the first count of Grevious Bodily Harm, a sentence between 3-4 years be imposed on the prisoner. In relation to the second count of Attempted Murder, it is submitted that a sentence between 7-10 years be imposed on the prisoner. Sentences imposed by this Honourable Court can be served concurrently.

Submissions on behalf of the prisoner, including reference to case authorities

7.	The prisoner, through his lawyer made submissions and I have extracted part of the written submissions below, namely:

B.	MITIGATING FACTORS

We submit the following Mitigating Factors:
 
(a)	The Prisoner has Pleaded Guilty and has saved the Court’s time

(b)	The Prisoner made early confessions during police investigations and admitted to the Offence in Record of Interview. He has maintained his admission to this day.

(c)	The Prisoner showed genuine remorse for his actions

(d)	No Pre-Planning & Acted Alone.

(e)	The Prisoner has no prior conviction (He is a first time offender)

(f)	The Prisoner’s older brother feeling sorry for the prisoner and the victims, stepped in and paid compensation of K7,000 cash for the compensation of Unis and Lemech’s injuries and the matter has been peacefully resolved within the family at the community level. Total spent on transport hospital fees, food and other costs related to this case add up to about K16,000 (page 3 of Pre Sentence Report)

C.	AGGRAVATING FACTORS

We acknowledge the presence of the following aggravating factors:

(a)	Axe being a dangerous weapon was used in committing offence of attempted murder
(b)	Offence is prevalent.

D.	THE LAW
These are the applicable laws in relation to the two offences of Grievous Bodily Harm (s319) and Attempted Murder (s304) under the Criminal Code.

(i)	Statute

– Section 319 of the Criminal Code – Grievous Bodily Harm
“A person who unlawfully does grievous bodily harm to another person is guilty of a crime. 

Penalty: Imprisonment for a term not exceeding seven years.”

– Section 304 of the Criminal Code – Attempted Murder-

“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. 

(ii)	Case Authorities
Cases on Sentencing Principles
•	Goli Golu vs State [1979] PNGLR 653
•	Thress Kumbamong v The State (2008) SC1017
•	

Cases for Grievous Bodily Harm
•	State vs Felix [2022] PGNC 603; N10352
•	State vs Mais (2014) N5838
•	State vs Sheekiot (2011) N4454
•	State vs Konos (2010) N41557

Cases for Attempted Murder

•	The State v Bulu Yasangara (2007) N5478
•	State v Lukas [2022] PGNC 606; N10347
•	State v Gigmai [2016] PGNC 248; N6443
•	State v Anataula [2013] PGNC 386; N9045

E.	SUBMISSION ON LAW
CASES ON SENTENCING PRINCIPLES:
We submit the following case relating to principles of sentencing:
Goli Golu vs. The State [1979] PNGLR 653. 
-	The maximum penalty should be reserved for the worst type of cases in terms of facts and circumstances leading up to, during and following the crime. 
-	We submit the facts and circumstances in this case are not the worst of Grievous Bodily Harm and therefore do not warrant a maximum penalty which is 7 years imprisonment.
-	We also submit in relation to the Charge of Attempted Murder, it is not the worst case and therefore should not attract the maximum penalty of life Imprisonment.

Thress Kumbamong v The State (2008) SC1017

-	It is emphasized in the case of Thress Kumbamong vs the State that the Courts have unfettered sentencing discretion under s 19 of the Criminal Code Act and the Courts are not necessarily bound by the maximum and minimum tariffs suggested by Supreme Courts.

CASES ON GRIEVOUS BODILY HARM:

•	State vs Sheekiot (2011) N4454
The Prisoner Pleaded guilty to unlawfully doing grievous bodily harm to his cousin sister by cutting her on the neck and check with a bushknife.

He was sentenced to four years which was fully suspended in view of facourable pre-sentence report and payment of compensation and reconciliation.

•	State vs Konos (2010) N41557
A man pleaded guilty to unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows.

Three years sentence was imposed, was fully suspended in view of favorable pre-sentence report subject to conditions including payment of compensation and participation in a reconciliation ceremony with the victim.

•	State vs Felix [2022] PGNC 603; N10352
This is a case involving two counts of Grievous Bodily Harm. The prisoner was drinking alcohol with his friends at around 10pm when he saw his wife and on of the victims on the road. He approached the first male victim violently and assaulted him all over his body until he fell down.

The other victim who was also an adult male tried to intervene when the Prisoner took out a small knife which he had on himself and struck the second victim on the face causing the victim to sustain serious injuries to the face and fall unconscious to the ground.

The Court Sentenced the prisoner in that matter to 4 years for each count and they were to serve the sentence Concurrently. Pre trial custody of 3 months and 3 weeks was deducted and the remaining 3 years and 8 months was wholly suspended.

CASES ON ATTEMPTED MURDER:

The Supreme Court has not specifically established any sentencing guidelines relating to the crime of  attempted murder . 

However In the Case of The State v Bulu Yasangara (2007) N5478 (per Cannings J, at paragraph 11), guidelines were set out for Attempted Murder cases.

Cannings J in that case states at paragraph 11:
“... it is arguable that the offence of  attempted murder  is equally as serious as murder or even more serious as it involves a specific (though unsuccessful) attempt to kill (see Peter Naibiri and Others v The State (1978) SC137), I think that because the result of the crime (the victim survives) is less serious than murder (the victim dies), the  sentence  for an  attempted murder  should generally be lower than for a murder (which can be regarded as an  attempted murder  brought to fruition). For the purposes of setting starting points for  attempted murder  it is appropriate to use the guidelines for murder derived from the Supreme Court’s decision in Manu Kovi’s case and set starting points at around 50% of the tariff, as shown in the following table.
His Honour Cannings J went on further to set out a table setting out the sentencing guidelines for  attempted murder  which I adopt and apply to this case. The Table is reproduced below: 
“Table 1: sentencing guidelines for  attempted murder  using a 50% quotient re murder  sentences  from supreme court’s decision in Manu Kovi’s case.

Item	Description	Details	Murder	 Attempted Murder 	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years	6-8 years	
2	Trial or plea – mitigating factors with aggravating factors.
No strong intent to do grievous bodily harm	weapons used – some pre-planning – some element of viciousness.	16-20 years	8-10 years	
3	Trial or plea special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.
Pre-planned – 	vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, e.g., gun, axe – other offences of violence committed.	20-30 years	10-15 years
– 	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.
Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence	complete disregard for human life.	Life imprisonment	15 years-life imprisonment	

We therefore submit that the case of before this Honorable Court, falls in higher end of category one and lower end of category two and falls within the sentencing ranges of 6 to 10 years.

State v Lukas [2022] PGNC 606; N10347
This is an attempted Murder case that occurred in Morobe Province, the Offender pleaded guilty to one count of Attempted Murder. The Offender in this matter without reason or provocation, viciously attacked the victim with a bush knife inflicting a serious cut on the victims head and lacerations on the victim’s shoulder without any provocation.
The Court accepted that the offender had no prior convictions, early guilty  and the accused had co-operated with police. In addition to that the offender was a first time offender and there was no pre-planning in the offence. The Offender also expressed remorse for his action in that case.
The Aggravating factors the court found were that it was an unprovoked attack where the accused had used a dangerous weapon, bush knife in the attack. The attack was a vicious attack with strong desire to inflict grievous bodily harm to the victim and there were no attempts made to reconcile or pay compensation to the victim by the Offender and relatives.
The Pre Sentence report in that matter was unfavorable and did not speak highly of the accused and there was no information about any compensation. 
Defence submits that as the Prisoner has pleaded guilty and taken full responsibility of the offence and the death of the deceased, her matter would be similar to matters where offender’s actions amount to criminal Negligence. We therefore firstly submit the following cases relating to manslaughter through negligence.
In this matter the court imposed 8 year sentence, pre sentence period spent in custody (1 year 10 months 2 days) was suspended and the offender was left to serve a remainder of 6 years, 1 month and 28 days which was not suspended.

State v Gigmai [2016] PGNC 248; N6443
The Offender in this matter was alleged to have committed offence with two others who used fists axes and raw coffee tree stumps to attack the victim who sustained injuries. The Offender put forth that it was a group fight and attacks were not just targeted to the victim and he only thing he did was attack the victim with a coffee stick and that nobody was seriously harmed in the fight. 
Where there was conflicting version of facts that court accepted the version of facts most favourable to the Prisoner in accordance with Yalibakut vs The State.
The Offender in this matter was sentenced to 7 years imprisonement, Pre Trial Custody of 3 years and 4 months was deducted and the resultant length of 3 years and 8 months was wholly suspended with the condition that the offender was ordered to pay K1,000 within 6 months.

State v Anataula [2013] PGNC 386; N9045
In this case the charge of Attempted Murder was reduced to one of Grievous Bodily Harm after plea bargaining.
The Offender in this matter was alleged to have gone to his wife’s village armed with a bush knife. He went behind the victim who was a man he believed was having an affair with his wife. The offender  came from behind the victim and struck the Victim’s thigh with the flat side of the bush knife, when the victim turned to see who had struck him, the offender swung the bush knife at the victim cutting the victim across his right shoulder and arm, the victim tried to move away and escape but the offender cut him again on his chin. The Offender then left without telling the victim why he had cut him.
The Prisoner was sentenced to 2 years imprisonment with 1 year 6 months pre sentence custody deducted. The remaining 5 months and 25 days was suspended.

F.	SUBMISSIONS ON APPROPRIATE SENTENCES

In Considering what the appropriate sentence is in this case, it is our submission that this is not the worst case of its kind and therefore not attract the maximum penalties for the respective charges of Grievous Bodily Harm and Attempted Murder.

Appropriate Sentence for Grievous Bodily Harm
We submit that given the extent of the injuries sustained by the mother of the prisoner who was the victim in the assault, and considering the mitigating and aggravating factors surrounding the offence, the prisoner should be sentenced to 1 to 2 years for the offence of grievous bodily harm against his own mother.

Appropriate Sentence for Attempted Murder
We further submit that in relation to the Attempted Murder Charge, the Prisoner should be sentenced to 4 to 6 years imprisonment as the mitigating and extenuating circumstances outweigh the aggravating factors.

Although the offences involve two different people, we submit that they both occurred within the same transaction and therefore ask this honorable court to allow the sentences for both offences to be served concurrently.

G.	PRE-SENTENCE REPORT – REQUEST FOR SUSPENDED SENTENCE

The Pre-Sentence Report is highly favorable to the accused. The victims are the offenders biological mother and brother. They have made peace and are missing the prisoner who has been locked up for over 1 year.

Peace has been restored within the family and they hope to have the prisoner welcomed back into their community and family soon.

The leader of the family who is the Prisoner’s older brother has met most of the costs to restore peace and good health within the family and to the victims.

He is a teacher by profession and has volunteered to help supervise the prisoner if he is given a non-custodial sentence. The Pre Sentence Report also state that the prisoner is a suitable person for a non-custodial sentence.

We therefore ask that his honourable court deducts 1 year and 2 months spent in custody and further suspends the remainder of the sentence allowing the prisoner to be placed on good behavior bond with strict conditions such as not using drugs or any alcohol and to not disturb or interfere with the Victims at all.

Other considerations

8.	In relation to the submissions for the prisoner, I note that in the matter of 
The State v Iran Gaira (supra), the offender pleaded guilty.

9.	It is important to remember that the sentence to be imposed depends on the facts of the case as held in Simbe v the State [1994] PNGLR 38, including an aggravating and mitigating factors as well as any extenuating circumstances.  In this matter, I consider the following are relevant factors.

Aggravating factors

a)	the prisoner used an iron pipe and an axe in the attack;
b)	the prisoner attacked his own mother and brother;
c)	both victims sustained very serious injuries;  
d)	the attacks on both victims were vicious; 
e)	the victim, Lemek Hesum, was struck by the axe on his head.  It was indeed lucky that the brother was not killed in the attack, noting that the prisoner is being sentenced for attempted murder and not a homicide related offence; and 
f)	both victims were unarmed at the time the prisoner attacked them.

Mitigating factors

a)	the prisoner acted alone;
b)	the prisoner made early confessions during the police investigation and admitted to the offence in the Record of Interview;
c)	the prisoner has shown genuine remorse for his actions; and
d)	the prisoner is a first time offender and has no prior convictions.

10.	 In his allocutus, the prisoner said what is contained in his file is true and that he had nothing further to say, but that he wanted to ask for the mercy of the Court.

11.	 I note in the Pre-Sentence Report that the prisoner says he regretted inflicting the injuries on his own mother and his brother and for that, he is very sorry.  He said that as a way forward, he wants to change and not commit an offence in the future because he has learned form his mistakes and feels the pain and consequences of being detained in custody and his chances of finding a school to complete his vocational studies are being wasted. 

12.	  I have taken into account the above-mentioned cases on sentence which were referred to by the State and the prisoner in their submissions, noting that there was simply no justifiable reason for the prisoner to act this way and in such a violent manner.  Furthermore, I consider the sentence to be imposed on the prisoner must be at the mid-range of the sentencing range, given there was clearing some animosity and underlying issues within the family.  I am also satisfied that the offences were more spur of the moment and not pre-planned.  

13.	Nothwithstading this, the prisoner only has himself to blame for his predicament and while he is in prison, it is important that he reflect upon his behaviour and do every possible to be a better person and change his life around.  Based on what the prisoner has said in his Pre-Sentence Report, he needs to make every effort to reconcile with his family.  He should also not blame his siblings for things he said occurred in the past or how he says he was neglected growing up.  Being resentful about those things will not help anything.  

14.	In this regard, the prisoner should give a lot of thought whilst in prison about life after prison, including to find a job on release and not rely on his mother.  I say this because I note the prisoner is 27 years of age and I am somewhat surprised he says he was not employed prior to the issues for which he was arrested.

15.	 If not for the matters referred to above, and with my view that the prisoner has a good chance of rehabilitation, I would have ordered that his sentences be served cumulatively.  However, I order that the sentences be served concurrently.  The below sentences are also necessary to deter other from committing such violent acts.

16.	 Accordingly, I make the following orders:

1.	The prisoner is sentenced to 3 years imprisonment for the offence of grievous bodily harm.
2.	The prisoner is sentenced to 8 years imprisonment for the offence of attempted murder.
3.	1 year and 2 months are deducted for time spent in custody.
4.	The sentences are to be served concurrently.
5.	The prisoner is to serve the remaining term of 6 years and 10 months in custody.
6.	No part of the sentence is suspended.

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