SC2807

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 49 OF 2023

MARK POKA
 Applicant

AND 
THE STATE
Respondent

WEWAK: MURRAY J, BERRIGAN J, PURDON-SULLY J
30, 31 OCTOBER 2025

CRIMINAL – APPLICATION FOR REVIEW OF SENTENCE – ATTEMPTED MURDER - Vicious attack, with a bush knife, causing permanent injuries to the shoulders and back of the victim - Sentence of 25 years substituted with one of 13 years of imprisonment.  

Cases cited
William Norris v The State [1979] PNGLR 605
Yalibakut v The State (2006) SC890
Gemu v The State (2023) SC2368
The State v Yasangara (2007) N5478
The State v Gigmai (2016) N6443
The State v Jacob Puti (2013) N5196
The State v Paheki (2018) N7218
Leslie v The State (1998) SC560
The State v Elizah Ute (2004) N2586
The State v Frank Johnson, Murray William and Moses William (2004) N2586
Mark Bob v The State (2005) SC808 
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305. 

Counsel
F Kirriwom with A Kana for the applicant 
A Kaipu with L Jack for the respondent State

DECISION

1.	BY THE COURT: The applicant pleaded guilty to the attempted murder of Jano Joseph on 26 November 2020, contrary to s 304 of the Criminal Code for which the maximum penalty is life imprisonment. 

2.	The applicant was sentenced to 25 years of imprisonment, five of which was suspended upon the payment of K5000 within 6 months. He applies to review his sentence of 25 years of imprisonment. The question of suspension is moot.

3.	The applicant and his father Hendrick Poka took their weapons after drinking home brew (steam) and attended the victim’s house at Yar Point at Angoram Town. There was an altercation during which the applicant’s father, Hendrick Poka, punched the victim several times. The applicant then assisted his father by telling him ‘papa move’ and as he moved out of range the applicant used a bush knife cutting the victim’s right shoulder who fell to the ground. The applicant then swung the bush knife a second time and slashed the victim’s left back then again swung the bush knife and repeated the blow to his left back. The applicant’s father returned with a spade to hit the victim a fourth time in order to kill him but the victim’s son, Junior Jano, arrived in time to remove the spade.

4.	The applicant failed to file his appeal within time but was granted leave to apply to review his sentence on the grounds that the sentencing judge erred by: a) not fully considering the applicant’s early guilty plea, expression of remorse and that he was a first-time offender; b) over-emphasising the victim’s occupation as a voluntary missionary which was not part of the facts pleaded to; and c) imposing a sentence which was manifestly excessive. 

5.	It is well established that the Supreme Court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously, but not merely arguably, out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.

GROUND A: FAILURE TO GIVE WEIGHT TO CERTAIN MITIGATING FACTORS  

6.	The applicant essentially abandoned this ground on submission conceding that the sentencing judge did have regard to the applicant’s early guilty plea, expression of remorse and lack of prior conviction. He asks us to consider these matters, however, on the question of manifest excessiveness, discussed below.

7.	The ground is dismissed.

GROUND B: OVER-EMPHASISING THE OCCUPATION OF THE VICTIM

8.	The applicant submits that the sentencing judge treated the fact that the victim was a voluntary missionary as an aggravating factor when it was not a fact contained in the agreed facts and that was in contravention of Yalibakut v The State (2006) SC890, which held that “if there are significant issues of fact arising from the depositions or the allocutus that were not in the summary of the facts to which the accused pleaded guilty, the court should generally act on the version of the facts, which, within the bounds of possibility, is most favourable to the accused.” 

9.	There is no merit in this ground. 

10.	This was not a contentious issue on sentence.  As is clear from the materials, all of the parties concerned were well known to one another in the community. Of course the applicant knew that his victim was a voluntary missionary. The fact that it was not in the agreed facts is beside the point. 

11.	In addition, the nature of a victim’s occupation may well constitute a factor in aggravation depending on the circumstances of the particular case.

12.	The fact that the victim in this case was a missionary might well be regarded as a factor in aggravation. The sentencing judge did not expressly identify it as a factor in aggravation, however, and nor does it appear to us that he placed too great an emphasis on it, other than to make the observation that the applicant must have been aware that the victim was a missionary, that as such he was trying to bring peace and order to the community, and that instead of trying to resolve the dispute with him peacefully the applicant and his father resorted to violence.  We see no error in those findings.

GROUND C: THE SENTENCE WAS MANIFESTLY EXCESSIVE

13.	The applicant contends that the sentence of 25 years was manifestly excessive having regard to the facts and circumstances of the case and the comparative case law. He seeks a sentence of 12 to 15 years in substitution having regard to Gemu v The State (2023) SC2368.  

14.	The State concedes that the sentence imposed by the learned sentencing judge was manifestly excessive and adopts the sentencing range proposed by the applicant.

15.	The parties referred to a number of cases.  In The State v Yasangara (2007) N5478 the offender pleaded guilty to attempted murder. He heard that his wife had left him and gone to live with another man. He went to the other man's house, broke down the door of the house and tried to get into the room where the other man was sleeping. He attacked that door with a bush knife, intent on getting inside the room and killing the other man. In the course of the attack the other man had one of his thumbs severed. The sentencing judge found that the case fell within category 3 of Kovi attracting a starting point normally of 20 to 30 years but applied a 50% quotient on the basis that the case was one of attempted murder.

16.	In The State v Gigmai (2016) N6443, the offender pleaded guilty and was sentenced to 7 years of imprisonment. After time served was deducted the balance of three years and eight months was suspended with conditions. In that case, the victim heard somebody being beaten up by the offender and two others. When the victim went out to stop the beating, the offender and his accomplices turned their attention on the victim and attacked him using their fists and raw coffee tree stumps. The victim received severe injuries. 

17.	A sentence of 7 years was also imposed in The State v Jacob Puti (2013) N5196. The offender pleaded guilty. He swung a knife at the victim’s neck attempt to chop it off. She raised her hand in time to save herself but her arm was completely severed.  

18.	In The State v Paheki (2018) N7218: the offender was drunk and attacked the victim, his father, with a knife, ultimately resulting in the amputation of his hand. He pleaded guilty and was sentenced to 8 years of imprisonment. The offender was angry with his father for deserting his mother and three other siblings, which led to the confrontation. He was youthful and remorseful.

Consideration 

19.	We are of the view that the sentence imposed is obviously, not merely arguably, out of all reasonable proportion to the circumstances of the case such that it is manifestly excessive: William Norris v The State applied.

20.	In determining sentence the learned sentencing judge referred to the following cases: Leslie v The State (1998) SC560; The State v Elizah Ute (2004) N2586; and The State v Frank Johnson, Murray William and Moses William (2004) N2586.

21.	The first two of those cases is distinguishable from this case. In Leslie the Supreme Court affirmed a sentence of life imprisonment following a guilty plea where the appellant, a prison escapee serving a prior conviction for wilful murder and armed with a shotgun, attempted to kill a policeman in execution of his lawful duty. The offence was of the worst kind representing an attack on the State. In Ute, a member of the disciplined force fired on a defenceless health worker. He was sentenced to 25 years of imprisonment following a guilty plea.

22.	Johnson is similar to the present case. The three offenders were convicted following trial of setting out with bush knives and slingshots to kill the victim, who suffered the total loss of sight in one eye. They were sentenced to 20, 19 and 17 years, respectively. 

23.	Whilst we agree that the sentence imposed by the sentencing judge was manifestly excessive, the above three cases demonstrate the very serious nature of the offence of attempted murder, which was more recently affirmed in Gamu which is relied upon the applicant.

24.	In Gamu the appellant was convicted following trial of attempted murder and sentenced to 15 years of imprisonment. The victim, John Kariap, was drinking with his friends outside the appellant’s store when the appellant’s brother, Steven, came out of the store and started threatening people with a bush knife. The victim, an off-duty police officer, stood up and told Steven to put the knife away. Steven swung the knife at the victim, who punched him in response, knocking him to the ground. Steven’s wife called out that the complainant had cut Steven, following which the appellant came out of his shop armed with a bush knife and attacked the victim from behind, striking him to the left side of his head, causing a very deep wound and severing his ear, then inflicting a long wound to the victim’s neck, before repeatedly attempting to strike the victim’s face. The victim tried to defend himself. Both his hands were severely wounded in the process, as was his elbow which was also fractured and dislocated. The victim collapsed to the ground, apparently dead, at which point the appellant struck him once on his left calf and once on his right calf before walking away.  Whilst the appellant established that the sentencing judge did fail to take certain factors into account, the Supreme Court confirmed the sentence of 15 years of imprisonment as appropriate.

25.	As the Supreme Court made clear in Gamu, “[a]ttempted murder is one of the most serious offences found in the Criminal Code.  The gravity with which it is regarded by the legislature is reflected in its maximum penalty of life imprisonment.  Like any case the sentence must be determined according to its own facts and circumstances.  Given the intention required, however, the sentence imposed for attempted murder may appropriately fall beyond those imposed in some cases of manslaughter or murder depending on the facts and circumstances of the particular case concerned.”

26.	In this regard the Supreme Court disapproved of the approach in Yasangara.

27.	Returning to the present case, the applicant has established that there are cogent and convincing reasons and exceptional circumstances such that some substantial injustice is manifest or that there are clear legal grounds meriting a review of the decision on sentence at the National Court: Mark Bob v The State (2005) SC 808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305. 

28.	It now remains to determine an appropriate penalty.

29.	In our view Gemu suggests a range of 12 to 16 years for similar offences. This case was similar to but not as serious having regard to the ferocious and relentless nature of the attack in Gemu. Of course, that does not mean that a lesser sentence should automatically follow. The Supreme Court decided in Gemu not to interfere with the sentence imposed.  Here we must determine an appropriate penalty. Every case must be decided on its own facts and circumstances.

30.	In aggravation this was a vicious crime. The offence was conducted in company. The applicant and his father set out to confront the 60 year old victim albeit not to kill at that stage. A physical altercation ensued between the applicant’s father and the victim following which the applicant struck the victim from behind with a bush knife several times causing severe and life-changing injuries. The impact on the victim has been great. He can no longer paddle his canoe to the churches and communities he served along the river and has been retired from mission work as a result. 

31.	We have also had regard to the factors in mitigation, in particular that the offender immediately surrendered himself following the offence, made admissions to police and pleaded guilty at the first opportunity before the National Court. He expressed remorse and attempted compensation. He was a relatively youthful offender of 22 years of age.  

32.	In all the circumstances we are of the view that a sentence of 13 years of imprisonment is appropriate.

33.	As above, the question of partial suspension on the payment of certain monies within 6 months is moot. We do not intend to order suspension of any part of the sentence now imposed.

ORDERS

34.	We make the following orders.

(1)	The application to review the sentence of 25 years of imprisonment is upheld. 
(2)	The sentence is substituted with one of 13 years of imprisonment.
(3)	Time spent in custody to date shall be deducted from time to be served.
________________________________________________________________
Lawyer for the appellant: Public Solicitor		
Lawyer for the respondent: Public Prosecutor