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State v Gigmai [2016] PGNC 248; N6443 (16 August 2016)

N6443

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1030 OF 2013

THE STATE

V

KAMANE GIGMAI

Kundiawa: Liosi, AJ
2016 : 16^th August, 28^th April

CRIMINAL LAW – Sentence – Attempted Murder – Criminal Code Section 304(A) –Plea – Conflicting version of facts – Acceptance of version of facts most favourable to the prisoner –

Cases cited:
Gimble -v- The State (1988-89) PNGLR 271
Koniel Alar and Hosea Biu -v- The State (1979) PNGLR 300
Manu Kovi -v- The State (2005) SC 789
State -v- Gurua (11 December 2002) N2312
State -v- Kesi Aura CR 338/06
State -v- Michael Waragu [2007] N3265
State -v- Misin Kinapa PGNC 183 N3814
The State -v- Jack Magal CR 224/08
The State -v- Jack Puti CR 338/11
The State -v- Mathew Balu & Bernard Kavanamur Balu PGNC 97; N4362
The State -v- Namba Mako CR 48/07

Counsel:
Mr. P Tengdui, for the State
Mr. M Yawip, for the offender

SENTENCE
28^th April, 2016

1. LIOSI AJ, On 28^th April 2016, I convicted the offender on 1 count of Attempted Murder of one David Peter pursuant to Section 304(A) of the Criminal Code. This I did after he pleaded guilty to the crime and after satisfying myself from the depositions presented that the charge was sufficiently made out against him. The matter was further adjourned for preparation of pre-sentence report as requested.

Brief allegations of fact

2. It is alleged that on the 29^th day of March 2013 at about 10.00 pm to 11 pm, the accused, Kamane Gigmai was at his village at Gera along the Okuk Highway. The victim David Peter was also at Gera Village with his family inside their house. The victim heard somebody being beaten up by the accused and two others. When the victim went out to stop the beating, the accused and his two other accomplices turned their attention on the victim and attacked him using their fists, axes and raw coffee tree stumps. The victim received severe injuries and he was taken to the hospital where he received treatment. The matter was reported to the police and the accused was arrested and charged for the offence.

Allocutus

3. On allocatus he says he is one of the co-accused with Markson Gunua and Bonny Gunua. That afternoon at about 4 pm he was at his market place selling his buai and cigarettes, Bonny, Markson Gunua and David Peter had been drinking. A fight than ensured between Markson Gunua and Bonny Gunua that caused him and David Peter to argue which eventually led to the fight. This was after Bonny Gunua destroyed his market. He then hit David Peter on his left hand side of the shoulder with a tree stump. He not only fought with David Peter but also with Markson and Bony Gunua. Nobody got any serious injury from the fight and nobody bled from the fight to warrant admission to the hospital. After dispersing he collected his market goods they had destroyed. He had never appeared in court and he is sorry to the Court and to the lawyers for taking up their time and asked for leniency.

The Law

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

“304(A) Attempted Murder

A person who –

(a) Attempts unlawfully to kill another person ;

(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 been 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”.

Defence Submission

5. Mr. Yawip gives personal details as follows:

• The prisoner at the time of offence was 21 years old
• From Gera village, Kamtai , Simbu
• Completed grade 10 at Paparabuk High School in 2010
• He is a single man
• Was previously employed with guard dog security company as a security guard

Mitigation

6. In mitigation the following is submitted:

• The offender entered an early guilty plea.
• He has cooperated with the police.
• Compensation of K4, 200.00 has been paid.
• There was a defacto provocation in non legal sense as he says he was sitting and marketing when they destroyed his market scattering his goods.
• He is a first time offender.
• There was no preplanning and the assault was spontaneous.
• The offender’s medical condition that he is suffering from Tuberculosis.
• Degree and extent of offender’s participation.

Aggravating factors

7. Prevalence of offence

Pre Sentence Report

8. The Pre-Sentence Report recommends that the prisoner is a suitable candidate for Probation Supervision.

State Submissions

9. The State submits that in considering an appropriate sentence, one has to revisit the range of sentences in attempted murder cases under section 304(A) of the Code. In assisting the Court, he cited the case of State v. Michael Waragu N3265.

10. In this case, the prisoner together with others armed with knives held up three men in their vehicle, while hitching a ride in the victim’s vehicle and intending to use the vehicle to commit a robbery elsewhere. The victims refused and in the course of it attacked the victims where two of them died and the third received severe bodily injuries. The prisoner became a principal offender by operation of Section 7 of the Criminal Code and was sentenced to 25 years imprisonment for attempted murder of the victim who survived.

11. In the present case the prisoner had been in the company of others and they were attacking somebody else close to the victim’s house. When the victim went out to investigate to stop the attack, the prisoner and his accomplices turned their attention on the victim with sticks, stones and coffee stumps, causing grievous bodily harm to the victim.

12. While one of his co-offenders was charged and indicted for grievous body harm on the same facts, the prisoner was indicted for attempted murder. The District Court depositions indicate the prisoner was in fact actually responsible for attack of the victim.

13. The aggravating factors are;

a) Multiple wounds inflicted.
b) Various weapons including, axe, coffee tree stump were used in the attack.
c) The offence was committed at night.
d) It was a group attack on a single unarmed person.
e) The prevalency of the offence.

14. These are the aggravating factors and the State submits this is a serious case. The victim went out into the night from the security of his home to stop and assist someone being beaten up. Instead he was set upon and he suffered very serious injuries. While such cowardly and gang attack is serious indeed, however, it concedes in this instant case that it is not a worst case to attract the maximum penalty.

15. This case is similar in certain respects to the above case; however, it submits that the culpability of the prisoner in this case is far less. This case calls for a sentence far less and it submits that a head sentence of 7 years is appropriate.

16. Such sentence, it submits does not offend the principals of parity of sentence as discussed in such cases as in a State v. Gurua N2312 (11 December 2002), Kirriwom J, in Lae. It also reflects the prisoner’s level of participation in the attack of the victim.

17. The Pre-Sentence Report recommends for a non-custodial sentence. However, the victim suffered serious injuries to his right shoulder which will require hospitalization at a substantial cost to correct. In the event the court considers suspending any of the sentences on terms, it submits for an order for compensation to be paid by the prisoner to the victim as one of the conditions for a suspended sentence, pursuant to the Criminal Law (Compensation) Act.

18. In dealing with this matter, I have also considered other decided cases which I think are relevant. This are for purposes of considering the gravity, seriousness and culpability of the offender in the current case.

19. They are the cases of the State v. Misin Kinapa PGNC 183 N3814, The State v. Mathew Balu & Bernard Kavanamur Balu PGNC 97 N4362, State v. Kesi Aura CR 338/06, The State v. Namba Mako CR 48/07, State v. Jack Magal CR 224/08, The State v. Jack Puti CR 338/11.

• In the case of the State v. Misin Kinapa. The victim was dragged out of a PMV by 3 men then attacked with bushknives. The offender’s blow severed the victim’s right hand near the wrist. The prisoner was sentenced to 10 years in hard labour.
  
• In the case of Balu v. The State, the prisoners were charged with 3 counts of attempted murder each. They pleaded not guilty to the charge but were found guilty after the trial. In this case the prisoners were charged with various other offences in the prosecution of a common purpose including, arson, wilful damage to property, unlawful assault and attempted murder. This was a retaliatory fight by the defendants on the perpetrators relatives who were still at large. For each of the 3 counts of attempted murder:- each prisoner was sentenced to 5 years to be served cumulatively with the other sentences pursuant to the general principle of sentencing as set out in the case of Gimble v. The State (1988- 89) PNGLR 271.
  
• In respect to the attempted murder charges the first count related to an attempt to kill with the victim sustaining a serious bushknife cut to her left hand almost severing it. The second count related to the victim suffering a fractured skull. It showed a hole in the skull causing the brain tissue to leak out. The third count related to the victim sustaining a very deep and wide wound to the back of the neck.
  
• In the case of State v. Kesi Aura CR 338/06, a decision of Lenalia J on 22^nd May 2006 at Popondetta. Therein a sentence of 6 years was imposed following a plea of guilty to attempted murder. The court considered the sentence should fall below the lowest category for manslaughter cases which in the case of a plea includes a range of 8-12 years according to Manu Kovi v. The State SC 789.
  
• In the case of The State v. Namba Mako CR 48/07, a decision of David J delivered on 16 October 2007. The victim herein sustained a severed hand at the wrist. The sentence was 5 years in hard labour following a guilty plea.
  
• In the case of The State v. Jack Magal CR 224/08, Makail AJ (as he then was) a sentence of 9 years in hard labour was imposed following a trial on attempted murder.
  
• The State v. Jack Puti CR 338/11. In this case Gauli AJ sentenced the prisoner to 7 years imprisonment in hard labour after a plea of guilty. The prisoner swung a bushknife at the neck. The victim raised her left hand to prevent herself that her left hand severed. There was no provocation.

Reasons for Decision

20. In dealing with the issue of an appropriate penalty. I have to look at the above cited cases to determine the range of sentences in attempted murder cases. In an attempted murder case, the charge would have been wilful murder had the victim not survived. This is supported by the fact that offence carries a maximum of life sentence. To simplify matters a charge of murder and manslaughter involve a death but lacks the intention to kill whereas a charge of attempted murder involves an intention to kill but no death results.

21. Whilst there may be little guidelines in relation to sentencing for attempted murder cases, there is still the Supreme Court decision of Manu Kovi in which sentencing guidelines were set for wilful murder, murder and manslaughter cases. If the sentencing ranges are not appropriate, the considerations in that judgment are appropriate and relevant to assist in determining an appropriate range of sentence.

22. Given the above another way of considering the appropriate sentence would be to consider the lessor offence of inflicting Grievous Body Harm under Section 319 of the Criminal Code for which the maximum penalty is 7 years. This apparently would have happened if the offender had been charged for grievous bodily harm. He should have got the maximum sentence of 7 years or a term close to that.

23. A consideration of sentences in cases involving Grievous Bodily Harm is understandable because in a lot of cases the injuries sustained in grievous bodily harm cases are similar or even lesser than those encountered in cases of attempted murder and where in the victim survives the injuries inflicted. The only difference is that in an attempted murder case, there is that intention to kill. Hence sentencing in attempted murder cases should not be married to cases of grievous bodily harm which to an extent separated them from cases of manslaughter, murder and wilful murder cases which can easily be considered by reference to Kovi’s case.

24. Those considerations suggest to me a sentencing range herein between 7-13 years. There is an aggravating factor of the offender acting in company and using offensive weapons. I also note the mitigating factors including compensation payment of K4, 200.00.

25. Before I can consider the appropriate sentence, there is a preliminary issue. That is there are 2 differing views of what happened on the day of the attempted murder. As both versions are different which version do I adopt for sentencing purpose? Counsels have failed to address this issue.

26. I will accept the most favourable version to the prisoner. I adopt the decision in the Supreme Court case of Koniel Alar and Hosea Biu v. The State (1979) PNGLR 300. The case provides guidelines as to acceptance of facts in guilty plea cases particularly when there is conflict in the version of facts for and against an accused. I accept the version most favourable to the accused and that is the version he gave on his allocatus. I say this because it will impact on the sentence which I will impose. That is that on his allocatus he used a tree stump to attack the victim and not any other weapons. The attack occurred at about 4 pm and not at 10 pm in the night. I further note that section 7 and 8 of the Criminal Code have not been alleged. I therefore will sentence him on that basis.

27. Having made that ruling, I will now proceed to determine an appropriate sentence.

Decision of the Court

28. The maximum penalty for offence of attempted murder is life imprisonment subject to Section 19 of the Criminal Code which empowers the Court to impose a lesser sentence other than the maximum penalty.

29. I have already ruled that because of differing views. I have accepted the version most favourable to the prisoner and that is the version he gave in his allocatus. I will sentence him on that basis.

30. In the case of the State v. Mathew Balu and Bernard Kavanamur Balu (supra) it was a case of mob retaliatory attack using bushknife and timbers to inflict life threatening injuries for not only one but three counts of attempted murders each for the two prisoners. 5 years in hard labour was imposed for each count to be served cumulatively after being found guilty at trial.

31. In the case of The State v. Jacob Puti the prisoner pleaded guilty to attempted murder. The prisoner swung a bushknife aimed at the neck. The victim raised her left hand to defend herself and had her left hand severed. There was no provocation and no reason for the attack. He was sentenced to 7 years less time in custody.

32. In the case of Manu Kovi, the court expressed the need for consistency in murder cases. The court said the so called tariff is but a guide to the proper and just sentence but the court must take into account all relevant factors. They include ordinarily the offender’s prior good character, family background, education, plea, remorse and cooperation with police and compensation, preplanning etc...

33. Though arguable that the offence of attempted murder is equally as serious as murder or even more serious as it involves a specific intent to kill, I think that it is less serious because the victim survives unlike murder cases.

34. Noting the above principles and all the circumstances of the case. I impose a head sentence of 7 years Imprisonment in Hard Labour. I deduct the Pre-trial custody period of 3 years and 4 months. The remaining balance of the term of 3 years 8 months is suspended on the following conditions.

1. The prisoner immediately enters into his own recognizance to keep the peace and be of good behaviour for the duration of the suspended sentence.

2. He shall not consume any alcohol or homebrew during the suspended period of sentence of 3 years and 8 months.

3. He must attend local church every weekend for service and worship and assist the church in its community activities.

4. Within 6 months the offender is to pay compensation of K1, 000.00 to the victim David Peter.

Conclusion

35. Accordingly the prisoner is sentenced as follows:

• The offender is sentenced to 7 years imprisonment in hard labour.
• Pre-trial custody period of 3 years 4 months is deducted.
• Resultant length of sentence to be served is 3 years 8 months.
• Amount of sentence suspended 3 years 8 months.
• Within 6 months the offender is to pay compensation of K1, 000.00 to the victim David Peter.
• Time to be served in custody – Nil.

Sentenced accordingly,

_____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Offender