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State v Sangu [2008] PGNC 315; N3950 (22 February 2008)

N3950

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 22 OF 2006

THE STATE

V

OWEN SANGU

Madang: Cannings J
2008: 18, 22 February

SENTENCE

CRIMINAL LAW – sentence – two offences – unlawful wounding (Criminal Code, Section 322(1)(a)) – guilty plea on both offences – whether sentences concurrent or cumulative – totality principle – total sentence of 4 years.

The offender was drunk and got into an argument with some other young men. He left the scene of the argument, went to his house, armed himself with a kitchen knife then returned to the scene of the argument. Then he stabbed two innocent people, inflicting serious but not fatal wounds.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2) The following notional sentences were passed:

• count 1: 2 years;
• count 2: 2 years;
  

resulting in a total potential sentence of 4 years.

(3) The offences were part of the one series of events but there were two victims, so the sentences should be served cumulatively.

(4) The totality principle does not require any further reduction.

(5) Accordingly the court imposed a total head sentence of 4 years. The pre-sentence period in custody was deducted, and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Arnold Ongkau CR No 715 of 1999
The State v Philip Lekis CR No 1927 of 2005, 13.07.07

SENTENCE

This is a judgment on sentence for two counts of unlawful wounding.

Counsel

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

22 February, 2008

1. CANNINGS J: This is a decision on the sentence for a young man, Owen Sangu, who has pleaded guilty to two counts of unlawful wounding. The offences were committed on 6 October 2005 at Vanimo, where the offender was raised. He had been consuming alcohol and at 7.00 pm went to Wesdaco settlement. He was very rowdy and fought with some boys. He left the scene of the argument, went to his house, armed himself with a kitchen knife then returned to the scene of the argument. By that time the boys had run away but the offender found someone else, Luke Pais, to argue with, and stabbed him on the neck. Mr Pais was taken to hospital and had to have stitches inserted after losing a lot of blood and being in great pain. The offender was still swearing and causing a commotion, causing Clement Numbos to try to quieten him down. Mr Numbos also became a victim when the offender stabbed him on the back, causing a 9 cm deep wound. The knife penetrated his chest, causing internal bleeding, and he was hospitalised. Owen Sangu had no lawful justification for stabbing those men.

ANTECEDENTS

2. The offender has four prior convictions, one for assault, one for wilful damage to property and two for being unlawfully on premises; all of which were dealt with in the Vanimo District Court.

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 know that I am wrong and I have a bad record but I ask the court to give me a chance as I am doing my practical at Madang Resort Hotel. I intend to compensate the victims.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).

5. It appears that after these incidents his family home was destroyed by fire in a reprisal attack by the victims' relatives.

PERSONAL PARTICULARS

6. Owen Sangu is 23 years old and single. Both parents are alive and living in Vanimo, where he was raised. He has completed a certificate course in accounts and clerical assistance at the Institute of Professional Studies. He is now employed by Madang Resort.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Turi asked the court to take into account the expression of remorse by the offender and his attempt to get his life into order by being educated and getting a steady job. She submitted that a sentence of one year on each offence would be sufficient and that the sentences should be fully suspended.

SUBMISSIONS BY THE STATE

8. Mr Ruarri submitted that though the offences were serious, he would not object to suspended sentences being imposed given the age of the offender and the fact that he now has a steady job.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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.

11. 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?

12. 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?

13. In a 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.

14. In a Madang case The State v Arnold Ongkau CR No 715 of 1999, 18.10.07, 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. I sentenced him to the maximum term of three years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

15. Mitigating factors are:

• only one attacker;
• the guilty pleas;
• he appears to have made a concerted attempt at turning his life around.
  

16. Aggravating factors are:

• the number of prior convictions;
• offender solely responsible;
• dangerous weapon used;
• no accident;
• unprovoked attack;
• vicious assault;
• did not give himself up;
• no compensation;
• no genuine remorse.
  

17. After weighing all these factors and bearing in mind that there are more aggravating factors than mitigating factors, the head sentence for each offence should be above the starting point. These were vicious attacks with a lethal weapon. The offender is lucky not to have been charged with more serious offences, such as attempted murder. I impose a head sentence of two years imprisonment for each offence.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

18. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together).

19. The offences were part of the one series of events but there were two victims, so the sentences should be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

20. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. I do not consider that four years would be excessive. The offender did a stupid and violent thing while drunk. The penalty must reflect the gravity of the crimes committed. No reduction of the sentence is warranted.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. 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 week.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. No. Though the prosecutor has agreed with the defence counsel that a fully suspended sentence is appropriate, I am not bound by that concession. To give a fully suspended sentence for this sort of crime sends the wrong message to the community. This was a case of senseless, alcohol-fuelled violence.

23. The offender was only 21 years old when he committed these acts of stupidity but that does not excuse him. He has turned his life around, it seems, and he is to be applauded for that, but he should serve a custodial sentence.

SENTENCE

24. Owen Sangu, having been convicted of two counts of unlawful wounding, is sentenced as follows:

Sentenced accordingly.

_________________________

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