N6020

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 778 of 2014

THE STATE

V

SAMUEL LAWRENCE
(NO. 2)

Lorengau: Geita J
2015: 13, 16 March; 8 July

CRIMINAL LAW – Sentence – Particular offence –Attempted murder – Trial-Victim slashed on hand, back and head with a bush knife whilst struggling helpless in the sea – pre-planning- attack in company of others – prior conviction –no compensation paid. Attack vicious and strong desire to harm.

CRIMINAL LAW – Sentence – Sentenced to 15 years' imprisonment with hard labour –Criminal Code, Section 304.

Cases cited

St v Misin Kinapa (2009) N 3814 
The State v Jacob Puti (2013) N5196
The State v Peter Nailiri, Kutoi Soti Apai (1978) SC 137
Thress Kumbamong v The State (2008) SC 1017 

Counsel

Ms. Helen Roalakona, for the State
Ms. Jan-Maree Ainui, for the accused

JUDGMENT ON SENTENCE
8 July, 2015

1.	GEITA J: The prisoner has been found guilty of attempted murder of his uncle Ivan Pasiu on 9th February, 2014 at Wacheleny village, Manus Province. The offence comes under Section 304 of the Criminal Code and attracts a maximum penalty of life imprisonment. 

Brief Facts

2.	The facts as found on your conviction following the trial are set out in brief. Whilst your uncle and his friend were out fishing at sea on a reef you and your brother accompanied by two other friends confronted them in your powered dinghy and assaulted him, resulting in your uncle receiving cuts to his arm, head and back of his head. Medical evidence forming part of the depositions also confirms excessive wounds occasioned on the victim's body.

Criminal History

3. A prior conviction has been recorded against your name.

Allocutus

4.	In your allocutus or when you were asked if you had anything to say about the sentence that should be considered, you said this was your first time to appear before a National Court and you asked for leniency. You further said you were sorry to the victim and his family members and to your family also. You also said sorry to court for dragging this case. 

Mitigation Circumstances

5.	The factors in mitigation are:

1.	You suffered some form of injuries.
2. Expressed remorse in allocutus.

Aggravating Circumstances

6.	The aggravating factors in your case are:

1.	 A weapon was used (bush knife)
2. 	Trial conducted and found guilty
3.	 Power boat used to try and ram the victim out in open sea with victim nowhere to hide or run too
4. 	Prisoner was in company of others
5. 	Prior conviction
6.	Prisoner committed crime after having escaped from lawful custody and on the run

Submissions on sentence – Defence

7.	In her oral submissions Defence Lawyer Ms. Jan-Maree Ainui conceded that the crime was serious in that the victim was severely injured. In support of her submissions for a mid range head sentence of between 7 -8 years to be considered by the court she referred me to the case of The State v Jacob Puti (2013) N5196. Plea of guilty – Attempted murder –Victim' s left hand severed with a bush knife, No provocation – No reason for the attack – First time offender – Showed remorse – Sentenced to 7 years – Less time in custody. In another case the prisoner in company of three other persons held up the passengers in motor vehicles, dragged them out and assaulted them. In the process the victim's wrist was cut with a bush knife resulting in amputation. He was sentenced to 10 years. (State v Misin Kinapa (2009) N3814.) The court was also invited to invoke its discretionary powers under Section 19 Criminal Code and consider partial suspension of sentence with orders for some compensation to be paid.

Submissions on sentence - State

8.	The State Prosecutor Ms Helen Roalakona submitted that although this crime could not be classed as the worst serious, injuries were caused to the victim. Furthermore the prevalence of such crimes in the society especially violence being used to resort to family disputes remains a concern and must be discouraged or deterred with stiffer penalties. The court was referred to the case of The State v Peter Nailiri, Kutoi Soti Apai (1978) SC 137. That case is authority for the proposition that charges of attempted murder may be regarded as potentially more serious as some cases of murder and manslaughter in that those cases commonly involve an intention to do less serious things, than kill a person. In short the State is asking for a custodial sentence of 15 years. in light of the seriousness of this case Ms Roalakona submitted that the court should not be inhibited by the sentencing guidelines in Manu Kovi but go outside and exercise its discretionary powers: (Thress Kumbamong v The State (2008) SC 1017). 

9.	In deciding the appropriateness of sentence to be imposed to the factual situation before me, I have had the benefit of submissions from both lawyers on all relevant issues including the supporting cases. In the two cases referred to me by Defence Counsel the prisoner pleaded guilty. In this case a trial was conducted and the accused found guilty. The attack in this case was pre planned, there was intention to cause harm, no compensation was paid. Another aggravating factor in this case is that the offender was in the company of others when the victim was attacked. Furthermore the victim was attacked whilst he was in the sea, away from the beach or the mainland. His form of escape or avoiding his attackers was practically nil. His sheer determination to live enabled him to shrug of his attackers and swim to the shore with his wounds. To my mind this attack was akin to piracy on the high seas with the victim nowhere to hide. 

10.	My task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides. Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. In the case of The State v Misin Kinapa (supra) Ellis J said in the absence of guideline judgments in relation to sentencing in cases of attempted murder it would be wrong to ignore the Supreme Court decision of Manu Kovi, in which sentencing guidelines were set out for wilful murder, murder and manslaughter. His Honour said even if the sentencing ranges are not appropriate, the considerations referred to in that judgment are relevant. I take judicial notice of those propositions by His Honour Ellis J.

11. 	In the present case the attack was vicious, pre-planned and weapons were used and there was a strong desire to kill. Had the victim died as a result of the attack, this case would certainly satisfy the criteria for category 2 cases of wilful murder: sentencing range is imprisonment for 20 to 30 years. For the moment I take judicial notice of Manu Kovi case (supra) however, I will not be guided by its sentencing guidelines for its lack in sentencing guidelines in attempted murder cases. Ordinarily this case would fall within Category 3 in Manu Kovi under the 50 % quotient murder sentencing regime, a head sentence of between 10 – 15 years. I will instead venture outside and exercise my discretion: (Thress Kumbamong v The State (2008) SC 1017). I am of the view that the appropriate sentence in this case, having regard to the circumstances of the offence and the circumstances of the offender, is imprisonment with hard labour for 15 years. From that term, deductions will be made for the time you have already spent in prison. 

 Sentenced accordingly
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner