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State v Ongkau [2007] PGNC 251; N5488 (18 October 2007)

N5488

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 715 OF 1999

THE STATE

V

ARNOLD ONGKAU

Madang: Cannings J
2007: 10, 12, 18 October

CRIMINAL LAW – sentencing – unlawful wounding – Criminal Code, Section 322(1)(a) – sentence after trial – offender slashed a man with bushknife – sentence of 3 years.

A man was convicted after trial of unlawful wounding. He slashed another man with a bushknife in an unprovoked attack, inflicting a head wound requiring 5 stitches and other less serious wounds.

Held:

(1) The starting point for sentencing for this sort of assault is 18 months imprisonment.

(2) There are only two mitigating factors: the offender was the only attacker and he is a first-time offender.

(3) There are many aggravating factors: repeated assault; offender solely responsible; dangerous weapon used; no accident; unprovoked attack; able-bodied victim; vicious assault; did not give himself up; no compensation; took the matter to trial; no genuine remorse.

(4) This case falls within the worst case category of unlawful wounding and warrants the maximum sentence. A sentence of three years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following case is cited in the judgment:

The State v Philip Lekis CR No 1927 of 2005, 13.07.07

SENTENCE

A man was convicted after trial of unlawful wounding and the following reasons for sentence were given.

Counsel

M Ruarri, for the State
A Turi, for the accused

18th October, 2007

1. CANNINGS J: This is a decision on the sentence for a man who was convicted after trial of unlawful wounding. The offender, Arnold Ongkau, confronted the victim, Geri Bogas, on a footpath near Yabob village, Madang Province, late on the night of 12 March 1999. The victim was walking back to the village after having some beer at the Fabo Club. The offender came from behind and swung his bushknife at the victim three times. The first swipe landed on his head and inflicted the most serious wound requiring five stitches. The second sliced the victim's ear and the third cut his back. The offender was drunk and as he left the scene he was heard to be shouting "he's the person who killed Sandy Gabriel". The offender's apparent motive for attacking the victim was that he considered that the victim had something to do with the death of Sandy Gabriel, the front man of the band Kales Gadegads in the late 1990s.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

I respect my God and this court. I apologise for what I've done and I apologise to the victim, the witnesses and the lawyer who defended me. I admitted that I had cut the victim with the bushknife and I said that I did that because he provoked me to do it. I've been waiting for my trial for a long time in remand. I am a musician. The Government gets tax from the sales of my cassettes. I find it very difficult to pursue my music career while in custody. I have cocoa trees to look after in my village in Bogia and since I have been in jail I don't know who has been looking after them. I ask for a suspended sentence so I can pursue my music career, make some money and make peace with the victim.

PERSONAL PARTICULARS

4. Arnold Ongkau is a musician. He used to be in the late Sandy Gabriel's band. He has since played a part in the band Junior Kales, following the death of Sandy Gabriel. Ongkau is aged 30 and comes from Sepa in the Bogia District, Madang Province.

SUBMISSIONS BY DEFENCE COUNSEL

5. Ms Turi asked the court to take into account the expression of remorse by the offender. He has spent a long time in custody waiting for his trial and all of that pre-sentence period in custody should be deducted from the head sentence.

SUBMISSIONS BY THE STATE

6. Mr Ruarri submitted that this was a serious case of unlawful wounding as the victim was innocent and unsuspecting. The offender gave the victim no chance to defend himself and did not provoke the assault. There were multiple wounds and this is a case that calls for imposition of the maximum sentence.

DECISION MAKING PROCESS

7. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. Section 322(1)(a) (wounding and similar acts) of the Criminal Code states:

A person who ... unlawfully wounds another person ... is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

9. The maximum penalty is therefore three years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. I have been unable to locate a suitable precedent, so I will use the mid-point of 18 months as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. In a recent case in Kimbe, The State v Philip Lekis CR No 1927 of 2005, 13.07.07, I sentenced a man to 30 months imprisonment for unlawfully wounding his sister in the course of a domestic dispute and had inflicted the wound requiring 20 stitches on the victim's head. The offender pleaded guilty. It was a very serious case and I indicated that the offender was lucky not to have been charged with a much more serious offence.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the assault on the victim consist of just a single blow? No.
   
2. Was just one person involved in the assault? Yes.
   
3. Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? No.
   
4. Was the victim injured by only a fist? No.
   
5. Did the offender not set out to hurt anyone? No.
   
6. Did the victim or any other person provoke the offender in 'the non-legal sense', eg did the victim abuse or assault the offender? No.
   
7. Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No.
   
8. Can the assault on the victim be classed as 'not vicious'? No – it was very vicious, the head wound required five stitches.
   
9. Did the offender give himself up after the incident? No.
   
10. Did the offender cooperate with the police in their investigations? Neutral. When interviewed by the police he exercised his right to remain silent.
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? No.
    
12. Did the offender plead guilty? No.
    
13. Has the offender genuinely expressed remorse? No.
    
14. Is this his first offence? Yes.
    
15. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

13. To recap, mitigating factors are:

• No 2 – only one attacker;
• No 14 – first-time offender.
  

14. Aggravating factors are:

• No 1 – repeated assault;
• No 3 – offender solely responsible;
• No 4 – dangerous weapon used;
• No 5 – no accident;
• No 6 – unprovoked attack;
• No 7 – able-bodied victim;
• No 8 – vicious assault;
• No 9 – did not give himself up;
• No 11 – no compensation;
• No 12 – took the matter to trial;
• No 13 – no genuine remorse.
  

15. The other factors (Nos 10, 15 and 16) are neutral. After weighing all these factors and bearing in mind that there are eleven aggravating factors compared to two mitigating factors, the head sentence should be above the starting point. This was a vicious attack with a bushknife. The offender is lucky not to have been charged with a more serious offence. This case falls within the worst case category of unlawful wounding and therefore warrants the maximum sentence. I impose a head sentence of three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year and eleven months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. No. The court has not been informed of any moves towards compensation or reconciliation. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

18. Arnold Ongkau, having been convicted of the crime of unlawful wounding, is sentenced as follows:

Sentenced accordingly.

_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused