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State v Gamu (No 2) [2021] PGNC 456; N9330 (6 December 2021)

N9330

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1164 OF 2019

STATE

V

DANIEL GAMU
(No 2)

Waigani: Wawun-Kuvi, AJ
2021: 30^th November, 6^th December

CRIMINAL LAW-SENTENCE-Use of bush knife to cut victim on multiple parts of the body-victim hospitalized

Cases Cited

State v Tom Oscar [2021] N9215
State v Sanamia [2018] PGNC 141; N7241
State v Paheki [2018] PGNC 123; N7218
State v Lawrence (No. 2) [2015] PGNC 127; N6020
State v Kinapa [2009] PGNC 183; N3814
State v Yasangara [2007] PGNC 244; N5478

Reference

Criminal Code, section 304(a)

Counsel
Ms Gretel Gunsen, for the State
Mss Rachel Mangi, for the Defence

DECISION ON SENTENCE

6^th December, 2021

1. WAWUN-KUVI, AJ: Senseless and vicious attacks are a norm in our society. Violence continues to be the problem-solving mechanism. The offender was not originally party to the altercation between his brother Steven and the victim. He heard that his brother was attacked, without hesitation or pause, without so much as an enquiry and with swift precision commenced slashing the victim.
   
2. He cut the victim on the left side of his head right down to the back of the ear. It left a gaping wound measuring 7 cm which exposed air cells. He cut him again on the neck. The wound measured 15 cm across. As the victim raised his hand to prevent the third swing, the knife landed on his left hand. His left ring finger was fractured and was near amputation. There was a deep cut on the left tall finger. The right palm was split. The offender was relentless and swung a fourth time. The victim raised his right forearm to protect himself. His left hand already rendered ineffective. He was struck three times on his right elbow. His joint was left dislocated. The victim fell. Unrelenting, the offender cut on the victim on his left and right calf as he lay bleeding on the ground. The wound on the left calf was 7 cm deep and the right calf also had a deep wound.
   
3. It is unfortunate that the parties are not strangers to each other. They are both form Tari and were once good friends.
   
4. I must now decide what is the appropriate penalty.
   

Purpose of Sentencing

5. In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.
   

The Charge

6. The offender was convicted following a trial on the charge of Attempted Murder pursuant to section 304 (a) of the Criminal Code.

Penalty

7. The maximum penalty is life imprisonment. The penalty is subject to section 19 of the Code.
   
8. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.
   

Submissions

9. The defence submit a term of imprisonment between 7 and 9 years. It is argued on before of the offender the factors in mitigation are that the offender expressed remorse, there was de facto provocation, and the offender has no prior convictions. In aggravation, it argued that the offence is prevalent and the use of a bush knife.
   
10. There was no remorse as the offender continues to maintain his innocence. Likewise, I do not consider that there was any de facto provocation. The facts disclose that the offender did not make any enquiries but rather proceeded to attack the victim who was standing and drinking with his friends.
    
11. The following are comparable cases submitted by the defence:
    
12. State v Paheki [2018][1]: The offender was convicted following a trial. The offender was drunk and chopped victim’s arm at the wrist. He was sentenced to 8 years imprisonment less time spent in custody.
    
13. State v Kinapa [2009][2]: The prisoner was convicted following a trial. The prisoner and two others dragged the victim out of a PMV bus and cut him multiple times with bush knives. This was in revenge for the death of the offender’s brother. The offender was sentenced to 10 years imprisonment less time spent in custody.
    
14. State v Yasangara [2007][3], Cannings, J: The offender pleaded guilty to the attempted murder of a man he suspected was having an affair with his wife. He returned home at night and discovered his children home alone. He went to the victim’s house, broke down the door of the house and tried to get into the room where the victim was sleeping. He attacked that door with a bush knife, intent on getting inside the room and killing the victim. During the attack the victim had one thumb severed. The offender was sentenced to 10 years imprisonment less time spent in custody.
    
15. The State submits for a term of imprisonment between 16 and 20 years. The State argues that the only mitigating factor is that the offender has no priors. Other than that, the offence consisted of vicious physical assault, the use of a bush knife, the victim was cut on multiple parts of his body, the victim was unarmed and had life threatening injuries.
    
16. The State referred the Court to the cases of State v Lawrence (No. 2) [2015][4], State v Puti [2013] [5] and State v Yasangara [2007][6].
    
17. In State v Lawrence (No. 2) [2015]^[7]: The offender was convicted following a trial. The offender’s uncle and his friend were out fishing at sea on a reef the offender and his brother accompanied by two other friends confronted them in in the offenders powered dinghy and assaulted him, resulting in his uncle receiving cuts to his arm, head and back of his head. He was sentenced to 15 years.
    
18. In State v Puti [2013][8]: The offender pleaded guilty to the attempted murder of the victim. He was a youthful offender. The offender swung the bush knife aiming at the victim’s neck. The victim raised her left hand to defend herself and the knife severed her left hand and fractured a bone. There was no provocation and no reason for the attack. The offender was a first-time offender and showed remorse. He was sentenced to 7 years less time spent in custody.
    
19. Whilst the State submits for a sentencing range between 16 and 20 years, there is no correlation between the comparable cases or the rationale in State v Yasangra [2007]^[9]. The range would be 7-15 years.
    

Comparable cases

20. Additionally, these are some comparable cases:
    
21. State v Tom Oscar [2021]^[10]; The offender pleaded guilty to the attempted murder of a man who was having an affair with his wife. He was a first-time offender. He cut the victim with a homemade bayonet on multiple parts of the victim’s body. He was sentenced to 9 years imprisonment.
    
22. State v Sanamia [2018]^[11]: The offender was convicted following a trial. Four men fought with the victim. Two men held the victim and threw him on the ground. One offender walked over to the victim with an intent to cut him on his body however the victim raised his hand. His was cut twice in the left hand. Another offender cut the victim on the right hand. The offenders were sentenced to 19 years imprisonment less time spent in custody.
    

Personal Particulars

23. The offender is 35 years old and hails from Kupari Village,Tari, Hela Province. His permanent address in National Capital District is at 9 Mile.
    
24. The offender has had no formal education.
    
25. He is the 6th child in a family of 8 children. He has three brothers and four sisters. His parents are deceased, and all his siblings live in National Capital District and operate their own businesses.
    
26. He has three wives and 11 children. One of his wives is deceased. Seven of the 11 children attending primary school. Four stay at home.
    
27. The offender is self-employed and generates income in the informal sector.
    

Allocutus

28. The offender said in Allocutus:
    

“I say thank you to the complainant. I say sorry to the family. I say thankyou to the Court. I am the victim. I lost all my properties.”

29. There is no remorse. The offender still maintains that he is innocent.

Pre-sentence Report

30. The Probation officer interviewed the offender, the victim, a community leader, the offender’s brother Steven Gamu, Steven Gamu’s wife Jenifer, and Thomas Gamu.
    
31. The offender and his relatives still maintain that the offender is innocent. Steven Gamu who was elusive at trial and did not appear to offer evidence in support of his brother, surprising attendance of the interview with the Probation Officer. I place very little weight on his statements in the pre-sentence report.
    
32. There is noting in the pre-sentence report that indicates any community views regarding supervision back in the community. The Community source only wants to negotiate peace.
    

Victim Impact Statement

33. The victim says that he suffers from loss of memory and post-traumatic stress disorder. He difficulty using his right hand because of the injury he sustained on his elbow. He cannot lift heavy things. His hand is slightly deformed. His experiences numbness when he goes to high altitudes. He has no sensation on his left ringer finger, pain in his left knee and numbness in his left leg.
    
34. He says that his wife has left him since the incident.
    
35. He has been affected psychological and often has thoughts to kill Steven Gamu and Daniel Gamu. He reminds himself constantly that he is in law enforcement. He constantly stresses and worries about his health.
    
36. He says that he obtained a loan for K40, 000.00 for medical costs but did not produce any medical or loan documents to support his claim. He has also spent K10, 000 during his hospitalization at the Port Moresby General Hospital.

Mitigating Factors

37. The only mitigating factor is that the offender has no prior convictions.

Aggravating Factors

38. I find the following to be the aggravating factors: The use of a bush knife, multiple swings to various parts of the victim’s body, the life-threatening injuries which have now left the victim with permanent injuries that affect the quality of his life and the emotional and psychological impact on the victim. And finally, the prevalence of violent offence involving knives.
    

Consideration

39. Violence has become a norm in our society. In the present case, had the offender exercised some restrain, he would not be sitting here today.
    
40. While the offender has said that he has medical conditions, the letter written by the Doctor was only prepared recently. Counsel did not provide any medical history. In any event, Correctional Services are equipped to deal with any medical conditions that the offender faces or may likely face.
    
41. The offender through his lawyer submits that his home and property were damaged by police. There is little evidence before the Court to support this. It was incumbent on defence counsel to provide the necessary evidence. There was no evidence provided to the Probation Officer as well. It remains as mere allegations.
    
42. In violent offences, the views of the victim are important. Here the victim has suffered serious life threatening and no doubt debilitating injuries. He seeks no compensation and asks the Court to impose a custodial sentence.
    
43. In terms of suspension, this was a violent offence, and it is a prevalent offence.^[12] There are no additional factors that support suspension. To suspend sentence based on the same factors that reduced the sentence would amount to a double discount. ^[13] The Pre-sentence report should have contained the views from the community and independent sources about the offender’s prior good character. These would have been factors that may have assisted the Court in considering suspension.^[14] The pre-sentence report only obtained the views of the offender’s brothers and a community leader who already has a biased view and seeks only to mediate.
    
44. There was no de facto provocation in this case. The offender was not privy to the altercation or cause of the altercation. This is the challenge in this country where people are so quick to react and take sides, rather than ascertaining the true facts and becoming problem solvers.
    
45. The facts in this case demonstrate an unbridled desire to protect family at all cost without care to the sanctity of human life. The sentence must reflect the seriousness of this offence and a message must be sent to the wider community that violence is never the solution.
    
46. Considering all the factors as they pertain to this case and sentencing trends, I find that a sentence of 15 years is appropriate. No part of the sentence shall be suspended for the reasons stated above.
    
47. I exercise my discretion to deduct time spent in custody.
    

Orders

48. The Orders are as follows:
    1. The offender is sentence to 15 years imprisonment.
    2. Time spent in custody of 29 days is deducted.
    3. Offender shall serve 14 years, 11 months and 1 day in Bomana Correctional institution

________________________________________________________________
Office of The Public Prosecutor: Lawyers for the State
Office of The Public Solicitor: Lawyers for the Offender

^[1] PGNC 123; N7218 (23 March 2018)
^[2] PGNC 183; N3814 (11 December 2009)
^[3] PGNC 244; N5478 (16 October 2007)
^[4] PGNC 127; N6020 (8 July 2015)
^[5] PGNC 98; N5196 (12 April 2013)
^[6] supra
^[7] supra
^[8] supra
^[9] supra
^[10] N9215 (11 October 2021)
^[11] PGNC 141; N7241 (9 May 2018)
^[12] Public Prosecutor v Sima Kone [1979] .
^[13] Public Prosecutor v Thomas Vola [1981]
^[14] The State v Kagai [1987] , Gima v Independent State of Papua New Guina [2003] , State v Winston [2003] , Public Prosecutor v Hale [1998] and Public Prosecutor v Tardrew [1986]