N6251

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 345 OF 2016

THE STATE

V

BENJAMIN MAKILE

Kokopo: Anis, AJ
        2016: 21 March & 19 April

CRIMINAL LAW - Sentence - accused pleaded guilty to unlawful wounding under s.322(1)(a) of the Criminal Code - considering law regarding use of court deposition when sentencing - 18 months starting point applied - custodial sentenced imposed 

Facts:

The prisoner swung a bush knife several times at the victim.  The victim used his left arm to block off the swings.  The victim sustained injuries to various parts of his left arm.  The victim lost blood, fell unconscious and was rushed to a clinic for treatment. The prisoner pleaded guilty to the offence of unlawful wounding.

Held:

1.	In regard to evidence contained in a court deposition on a plea matter, unless:

(i)	it is successfully objected to; or

(ii)	it is contentious; or

(iii)	it raises/contain facts outside those facts which the prisoner has admitted to at plea; or

(iv)	it contains new allegation of an offence(s) against the prisoner regardless of whether it relates to the offence the prisoner has admitted to; or

(v)	there is an existing arrangement between the parties that is tied to the prisoner's plea which may require consideration,

it may be available to the Court and the Court may use it to determine sentence after the court deposition is tendered by the prosecution. 

Cases followed:  Public Prosecutor v. Tom Ake [1978] PNGLR 469; Saperus Yalibakut v. State (2006) SC 890; Joe Nawa v The State (2007) SC1148; State v. Peter Yawoma (2001) N2032.

2.	The injuries sustained by the victim were serious and life threatening.

3.	The prisoner showed less remorse to the victim and for his actions.

4.	The prisoner is sentenced to a total of 2 years imprisonment.  He will serve the first year in custody.  His second year shall be suspended after he serves his first year in custody in full.  The suspension of the second year imprisonment is granted on the basis that the prisoner shall remain on good behaviour bond on his own recognizance for one year.  During the suspended sentence period, the prisoner shall not consume alcohol or use abusive language in public or in private.  If the prisoner is found to breach the terms imposed with his suspended sentence and if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

Cases Cited:

(i)	Public Prosecutor v. Tom Ake [1978] PNGLR 469
(ii)	Saperus Yalibakut v. State (2006) SC890
(iii)	Joe Nawa v The State (2007) SC1148
(iv)	State v. Peter Yawoma (2001) N2032
(v)	State v. Arnold Ongkau (2007) N5488
(vi)	State v. Peias Pangi (2014) N5587
(vii)	State v. Aine Petrus (2011) N4257
(viii)	State v. Owen Sangu (2008) N3950
(ix)	State v. Philip Lekis (2007) N5029
(x)	State v. Joseph Ping (2001) N2169
(xi)	State v. Jackam Lubiala (2014) N5779

Counsels:

Ms T. Aihi, for the State	
Mr P. Kaluwin, for the Prisoner

SENTENCE

19th April, 2016

1.	ANIS AJ:  The trial commenced on 21 March 2016.  The prisoner was charged with unlawful wounding under section 322(1)(a) of the Criminal Code Act Chapter No 262 (Criminal Code).

2.	The prisoner pleaded guilty and I entered a provisional guilty plea.

3.	The defence counsel confirmed shortly afterwards that the plea was consistent with his instructions.

4.	Following that, I proceeded to and perused the court deposition, which the prosecution had tendered with leave of this Court.  I was satisfied that the evidence contained in the court deposition was sufficient to sustain the charge of unlawful wounding.

5.	I confirmed the prisoner's guilty plea and convicted the prisoner for the offence of unlawful wounding under section 322(1)(a) of the Criminal Code.

6.	The prosecution tendered the Antecedent Report.

7.	The Court administered allocatus to the prisoner.  Following that, the defence and prosecution presented their submissions on sentence.

8.	I reserved my ruling.  The defence applied orally immediately after under section 10 of the Bail Act Chapter No. 340, for grant of bail for the prisoner.  The prosecution did not object to the application.  I granted bail to the prisoner for the duration of the pending decision on sentence.

9.	This is my ruling.

Brief facts

10.	I restate the facts as presented by the prosecution:

The accused on the 20th of March 2015, between 11:00pm on 12:00 midnight was at the residence of the complainant at Wairiki No. 2 village in Toma.

At that time he was under the influence of alcohol and used insulting words at the people present at the complainant's residence and others who came into the residence.

The complainant told the accused to stop.  The accused was not happy and had a fight with the complainant.  During the fight the accused's son came and punched the victim's face and he fell.

After a few minutes the complainant got up and drove his employer's vehicle to another place for safe keeping.  He then walked back to his residence with one Pastor Benson Tomar.

At the complainant's residence, the accused came back and swung a bush knife at him.  The complainant blocked the bush knife with his left arm and the bush knife cut the complainant's arm several times.  The accused tried to continue but he was stopped by others.

The complainant received injuries to his arm that resulted in blood loss.  He was unconscious and rushed to Paparatava Health Centre for medical treatment.

The actions of the accused contravened Section 322(1)(a) of the Criminal Code Act 1974.

11.	Based on a medical report dated 24 March 2015 of OLSH Health Centre at Paparatava (medical report), which was tendered in the Court deposition, the complainant suffered these injuries:

(i)  Swollen (black) eye;

(ii)  Lacerations to the left arm:-

(a)	medial side upper arm cut measured at 8cm;
(b)	forearm laceration medial surface measured at 3.5cm;
(c)	abrasion medial surface (superficial) measured at 8 x 5cm.

(iii)  Lacerations to the left hand/palm surface:-

(a)	base of thumb at 3.5cm;
(b)	index finger at 4cm;
(c)	base of 2nd index finger at 3cm;
(d)	lateral palm into wrist at 3.5 cm.

12.	The report concluded with a note that there was no nerve or tendon injury.

Issues

13.	The issues are:

(i)	Can the Court consider court depositions tendered by consent of parties in plea matters to determine fitting punishment for prisoners, and if so, to what extent?

(ii)	What would be the fitting punishment for the prisoner?

Criminal history

14.	I turn to the Antecedent Reported tendered by the prosecution.

15.	The prisoner has no prior convictions.

Personal details

16.	The prisoner is 47 years old.  He is from Wairiki village (Toma), Gazelle District of East New Britain Province.  The prisoner completed primary education up to grade 6, which is his only educational qualification attained.  He once worked as a chainsaw operator for 2 years but now lives and works as a subsistence farmer.  He lives in his village, which is his permanent home.  

17.	The prisoner is married and has 5 children.  The youngest is 15 years old.  The Antecedent Report says he lives with and supports his wife and children.

18.	The report did not give details of the age of the prisoner's other children but it is safe to assume that some may be 18 years old or over.

Allocatus

19.	The prisoner gave a short statement and I summarise that here:

(i)	he said he was sorry to the Court for the offence he committed; and

(ii)	he said he was sorry to the victim calling him a brother.

20.	At the end of his speech, the prisoner stated that he would not have cut the complainant if the complainant had not provoked him.

21.	When he finished, I raised the issue of provocation with the defence counsel.  Counsel clarified that what the prisoner meant was provocation in a non-legal sense.

Defence's submission on sentence

22.	The defence submitted that (summary):

(i)	the prisoner was a first time offender;

(ii)	the prisoner pleaded guilty to the offence and thus saved the Court's time;

(iii)	since the prisoner confessed right from the start and during the record of interview, more weight should be given in his favour;

(iv)	there was provocation in the non-legal sense;

(v)	the injuries sustained by the complainant were serious but not life threatening;

(vi)	the fact that the prisoner was a blood relative of the complainant should be considered favourably in the prisoner's favour;

(vii)	the normal sentence for offence such as this would be suspended sentence with imposed conditions;

(viii)	a suspended sentence of 18 months with imposed conditions should be applied.

23.	The defence did not give comparative verdicts or cite case law to support its submission.

Prosecution's submission on sentence

24.	The prosecution submitted that (summary):

(i)	the maximum penalty for the offence was 3 years which it said would be appropriate for worst type cases for offences under section 322(1)(a) of the Criminal Code;

(ii)	in relation to mitigating factors, it said the prisoner was a first time offender, secondly, he pleaded guilty to the charge and thirdly he confessed to committing the offence during the record of interview;

(iii)	in relation to aggravating factors, it said the prisoner used a bush knife and secondly the complainant sustained serious injuries as a result;

(iv)	the Court should consider the cases namely State v. Philip Lekis (2007) N5029, State v. Jacklyne (2014) N5779 and State v. Joseph Ping (2001) N2169, and that for the present case, the starting point for sentencing should be 18 months;

(v)	it was discretionary upon the Court to impose an appropriate penalty on the prisoner.

Mitigating factors

25.	I have considered the brief facts presented by the prosecution, the court deposition, the Antecedent Report and submissions by the parties, and I list the mitigation factors:

•	the prisoner is a first time offender.
•	the prisoner confessed soon after the incident.
•	the prisoner admitted in the record of interview to committing the offence.
•	the prisoner pleaded guilty to the offence.
•	evidence of payment of compensation.
•	limited educational back-ground.

Aggravating factors

26.	Similarly, I have considered the brief facts presented by the prosecution, the court deposition, the Antecedent Report and submissions by the parties, and I list the aggravating factors:

•	the attack was un-provoked.
•	the prisoner used an offensive weapon i.e., bush knife.
•	the prisoner was under the influence of alcohol.
•	the prisoner did not swing a single blow; the prisoner kept swinging and cutting the complainant until people came and stopped him.
•	the complainant sustained many cuts to different parts of his left arm.
•	the complainant lost a lot of blood and fainted from the injuries he received to his left arm.
•	the complainant's life was in real danger at that time.
•	the attack was vicious with intention to harm the complainant.
•	the attack was at the home of the complainant and in front of his family members.
•	the prisoner, by his actions, instilled fear to the complainant and his family members and to the prisoner's immediate community members.
•	the prisoner is a senior committee member of his ward.

Other factors/notable factors

27.	The first, which, in my opinion is striking, is the signed statement dated 26 March 2015 given by the ward councillor Wesley Kavut.

28.	Here are some of the things he said about the prisoner:

•	As the Ward Councillor of Wairiki No. 2, I knew very well of this man Benjamin Makila Senior.  Even though he is one of my Ward Committees, he is a problem man in the community.

•	He spoils his own family unit.  Benjamin has a incest case pending against his biological daughter and also a wife basher.  He almost killed his biological sister namely Vole Kekete last month.

•	Benjamin Makila Senior never respects the village elders and the church leaders in my ward.  He used to say all sorts of insulting or bad words against the village elders and the church leaders.

•	He is a threat in my ward anyway.

29.	I have noted the above to try to get an insight as to the type of person the prisoner is.  Based on the ward councillor's assessment, it appears that the prisoner could easily fit in as a violent person or a persistent troublemaker, who is unwanted by his own community.

30.	The second striking factor I notice is from perusing the prisoner's record of interview and from perusing his written confessional statement to the police.  I find that the prisoner did not appear to show any real remorse for his actions, and it seems that he may have deliberately intended to cause serious harm to the complainant.

31.	For example, in his admission statement, he said these:

When he saw me going in and getting the bush knife, he ran away and I chased him into his resident and chopped him with that bush knife.

Several times I swung the bush knife and chopped his arm.

I chopped him until people came and pulled off the bush knife from me.

Simon Laen never did well to my family and me for so long till now and my frustration was building up since then so I chopped him to teach him a lesson that he would stop from that.

32.	I can see similar pattern of lack of remorse, or of intention to cause serious harm by the prisoner to the complainant, from the record of interview.

33.	For example, I will demonstrate that by re-stating some of the questions and answers in the record of interview:

Qtn. 12.	What have you got to say about the allegation that you were using a bush knife to chop one namely Simon Laen on Friday, 20 March 2015 during the night at Wairiki No. 02 village in Toma?

Ans:	Yes, I chopped him.

Qtn. 13.	Why did you chop Simon Laen with a bush knife that night?

Ans:	He came saying insulting words and got the ladder to my kid's house and broke it.  He destroyed our house, he got a piece of timber and smashed all our plates and cups so I got angry and chopped him.
...

Qtn. 26.	It was alleged that when they arrived, you didn't waste time; you went and start cutting Simon Laen.  What have you got to say about this?

Ans:	I called on Pastor Benson and asked him what Simon was doing when he was destroying my properties.  I was angry, got my bush knife and went cutting him.

Qtn. 27.	It was alleged that you were chasing Simon Laen into his resident with your bush knife and cut him there.  What have you got to say about this?

Ans:	Yes, I chased him into his house and chopped him.

34.	The police asked the prisoner whether he felt sorry or paid compensation to the complainant and I quote the relevant part of the interview as follows:

Qtn. 35.	Did you compensate Simon Laen for the injuries he sustained from you?

Ans:	I gave 50 param tabu (shell money) to some other guys to give it to Simon.

Qtn. 36.	You didn't give the shell money yourself to Simon Laen and say sorry to him for what you did to him.  Is that right?

Ans:	Yes

Qtn 37.	Did you feel sorry for what you did to Simon Laen?

Ans:	Yes, I feel sorry for him.

Qtn. 38.	Have you got anything to say in regard to the allegation?

Ans:	No.

35.	Despite these and by reading the record of interview and the prisoner's confessional statement together as a whole, in my opinion, the prisoner did not appear sorry or showed any real remorse to the complainant for his unlawful actions.  With the above example, he left the shell money to someone else to pass onto the complainant.  That in my opinion cannot be regarded as a genuine act of remorse or reconciliation demonstrated by the prisoner.

Court deposition

36.	Am I wrong in considering the court deposition to determine a fitting sentence for the prisoner?  I do not think so.  Let me discuss the case law on point.

37.	The first case is the Supreme Court case of Public Prosecutor v. Tom Ake [1978] PNGLR 469.

38.	On point, the Supreme Court held:

(1)	When no challenge is made to any of the facts alleged in the state case on a plea of guilty, the doctrine that the version of the facts most favourable to the accused should be acted upon, does not apply.

Reg. v. De Haan [1968] 2 Q.B. 108 referred to.

39.	And at page 471, the Supreme Court said:

Mr. Kapi relying on the decision of O'Malley v. French (1971) 2 S.A.S.R. 110 at p. 112.3, that of a single judge of the Supreme Court of South Australia, submitted that where the evidence of the witnesses conflicted with that of the respondent in his record of interview, then on the plea of guilty, and accordingly now, the version most favourable to the accused must be accepted. We think that decision is distinguishable, in that therein, on a plea of guilty, facts in mitigation were alleged. In the instant case, neither on plea nor on allocutus was any challenge made to any of the facts sworn to in the evidence.
(underlining is mine)

40.	The above was the earlier Supreme Court decision on point.  Later, the National Court, for example, in the case of The State v. Peter Yawoma (2001) N2032, Justice Kandakasi held:

It is now a well established practice that, a Court is entitled to use the depositions following a guilty plea to extract the relevant facts for the purposes of sentencing unless there are serious and valid objections against that. A relevant case on point and supporting that proposition is the case of The State v. Sabarina Yakal [1988-89] PNGLR 129. In The State v. John Gurave Guba (19th December 2000) N2020, I followed that practice and said this about the practice at pages 3-4 of the judgement:

In practice the courts invariably read the depositions and use them following a guilty plea to determine appropriate sentences. Thus, there should be no restriction as to the use of the depositions to determine the appropriate sentence simply because there has been a plea bargain. This is because an indictment is presented and an accused person pleads on the basis of facts presented which are in turn based on facts set out in the depositions and only after reading the depositions can a court decide whether or not to confirm a guilty plea and record a conviction before proceeding to sentence the offender. On this basis, I will use the depositions to arrive at the sentence in this case.

41.	The second Supreme Court case is the case of Saperus Yalibakut v. State (2006) SC 890.

42.	On point, the Supreme Court held:

(4)  When sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty. 

(5)  As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt. 

(6)  If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
...

53.  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.

43.	I adopt the decisions of the two Supreme Court cases, which are binding. 

44.	Based on case law and in response to the first issue, I will summarise my understanding of instances where a National Court could use a court deposition.

45.	That is, in regard to evidence contained in a court deposition on a plea matter, unless:

(i)	it is successfully objected to; or

(ii)	it is contentious; or

(iii)	it raises/contain facts outside those facts which the prisoner has admitted to at plea; or

(iv)	it contains new allegation of an offence(s) against the prisoner regardless of whether it relates to the offence the prisoner has admitted to; or
(v)		there is existing arrangement between the parties which is tied to the prisoner's plea which may require consideration, 

the National Court may be at liberty to consider the evidence therein for purposes of sentencing.

46.	It is therefore important I think on the part of the defence to thoroughly check the court deposition, and it should object or take further steps if it sees evidence that should not be tendered based on various circumstances, some of which I have highlighted above.

47.	Failure to do so by the defence can prove detrimental for a prisoner in sentencing.

Answer - first issue

48.	My answer to the first part of the issue Can the Court consider court depositions tendered by consent of parties in plea matters to determine fitting punishment for prisoners? is "Yes", and my answer to the second part of the issue  and if so, to what extent? is that I have already identified above five circumstances where the National Court may be restricted, that is from considering the court deposition to determine an appropriate sentence.  I do not think the list is exhaustive and in time there may others that may similarly apply as well.

Summary of findings

49.	I will now review and summarise what I have discussed above:

(i)	Firstly, the prosecution tendered the court deposition without any objection.  Based on case law, particularly the Supreme Court case of Public Prosecutor v. Tom Ake (supra), I am entitled to consider its content to determine an appropriate sentence for the prisoner.

(ii)	I particularised at the beginning of my judgment the injuries the prisoner sustained during the attack.  I extracted the information from the medical report, which is in the court deposition.  There is no contest to this evidence so, based on case law, this Court is entitled to use that information to consider sentence.

(iii)	I have considered and discussed the ward councillor's sworn statement above.  

The ward counsellor swore and signed his statement, and the prosecution tendered the statement unchallenged.  Based on case law, I will accept the statement generally or as a starting point.

In my discussion above on the subject, I said the information contained in the sworn statement was relevant to assist me determine the type of character the prisoner was.

But in view of Supreme Courts' decisions in Public Prosecutor v. Tom Ake (supra) and Saperus Yalibakut v. State (supra), let me clarify.

The ward councillor alleges the prisoner also committed other offences in one of the paragraphs in his statement, and I restate the relevant paragraph, that is, paragraph 3:

Benjamin has a incest case pending against his biological daughter and also a wife basher.  He almost killed his biological sister namely Vole Kekete last month.

Although these allegations are in evidence now available to this Court, I note that they allege other criminal matters, claims and facts that are unrelated to the offence for which the prisoner has pleaded guilty.

Before I make my ruling on this point, I also note what the Supreme Court has said in the case of Joe Nawa v The State (2007) SC1148, which is relevant and I quote:

33. In the present case the learned trial judge went beyond the facts to which the applicant pleaded guilty. The applicant was not given the benefit of the doubt on the issue of whether there had been two previous incidents. Indeed the issue of whether there were any previous incidents was not raised by either the prosecutor (who made no submissions on sentence) or the defence counsel. The applicant had no opportunity to comment or rebut the very serious allegations, indeed findings, made by the trial judge.

This Court could suffer a similar fate if it allows alleged facts or offences on different matters not raised by the prosecution or put to the prisoner earlier.

And despite the fact that the ward counsellor's statement was tendered without objection, to accept and consider namely paragraph 3 of the ward counsellor's statement, will offend the decisions of the two Supreme Court cases and also the Supreme Court case of Joe Nawa v. The State (2007) (supra).

I will therefore disregard completely paragraph 3 of the statement of the ward counsellor and not use that as a factor in my assessment in sentencing.

Having ruled on that aspect, it must be noted that this Court is at liberty to consider the balance of the sworn statement of the ward councillor in considering sentencing.

(iv)	I noted the prisoner's confessional statement.  This evidence is contained in the court deposition and therefore forms part of the evidence available to this Court to consider.

(v)	I have discussed and quoted certain parts of the record of interview in my judgement.  The record of interview was tendered without objection.  The facts therein namely the facts as quoted above in my various discussions on the subject matter are not contentious.  In my opinion and based on the two Supreme Court decisions stated above, this Court is at liberty to have regard to them when considering sentencing.

(vi)	In my various discussions in my judgment, I have stated that evidence suggests that the prisoner had intended to cause serious harm to the complainant.  Although this fact was not pleaded in the brief facts read out in the charge, evidence supporting my suggestion or claim is contained in the court deposition which has been tendered in Court.  Secondly, the parties do not dispute this fact.  Thirdly, I note that the prisoner himself in his confessional statement and in the record of interview confirmed his intention and actions.

As such and consistent with the two Supreme Court cases, I have, in my opinion, appropriately noted or applied the facts in my judgment.

Extenuating circumstance - non legal provocation

50.	There were instances of provocation in the non-legal sense.

51.	The first evidence is contained at page 2 paragraph 7 of the prisoner's confessional statement.

52.	It reads:

Simon Laen never did well to my family and me for so long till now and my frustration was building up since then so I chopped him to teach him a lesson that he would stop from that.

53.	I am satisfied that the said perception by the prisoner on the complainant has or could have easily transformed to provocation in the non-legal sense when the prisoner attacked the complainant.

54.	The next evidence is the prisoner's statement at the time the Court was administering allocatus.

55.	The prisoner said in part:

I say sorry to my brother; I would not have done that; he provoked me and so I chased him and cut him with a bush-knife.

56.	I read the court deposition and I gather that the prisoner made the statement in line with what he had stated in the record of interview.  That is, the prisoner alleged therein that the complainant had gone into his yard and destroyed his chattels and properties, which was why he said he chased the complainant back into the complainant's residence and attacked him.

57.	The prosecution has however filed several sworn statements contained in the court deposition, which challenged that fact and upon perusing them, I can perhaps see why the defence did not want to pursue with a legal defence of provocation.

58.	But that aside, I note that the facts on point are contested.  Following the Supreme Court cases of Public Prosecutor v. Tom Ake (supra) and Saperus Yalibakut v. State (supra), the prisoner should therefore be given the benefit of the doubt.

59.	I therefore also find evidence of provocation in the non-legal sense as claimed by the prisoner.

Discussion on penalty - case law

60.	The maximum sentence is 3 years imprisonment.

61.	I have looked at various cases on point.

62.	I have considered the three cases submitted by the prosecution to support the proposition that starting point for this type of offence should be 18 months.

63.	I have also looked at other cases and I have identified and considered three in total, which I think are comparable and similar to the present case.

64.	The first case is the case of State v. Arnold Ongkau (2007) N5488.  

65.	Justice Cannings tried and sentenced the prisoner for the offence of unlawful wounding.

66.	The prisoner confronted his victim from the back without the victim knowing.  He swung his bush knife at the victim three times. The first swipe landed on his head and inflicted the most serious wound requiring five stitches. The second sliced the victim’s ear and the third cut his back.  The attack was unprovoked and it appeared that the prisoner's motive was that he appeared to have blamed the victim over a death of someone in the past.

67.	The Court noted serious aggravating factors outweighing the mitigating factors.

68.	The Court noted two mitigating factors, that is, (i) only one offender and (ii) first time offender.

69.	The aggravating factors the Court considered were: 

•	repeated assault;
•	offender solely responsible;
•	dangerous weapon used;
•	no accident;
•	unprovoked attack;
•	able-bodied victim;
•	vicious assault;
•	did not give himself up;
•	no compensation;
•	took the matter to trial;
•	no genuine remorse. 

70.	The Court imposed the maximum sentence of 3 years upon the prisoner less the time he had already served in custody with no suspended sentence imposed.

71.	The second comparative case is the case of State v. Aine Petrus (2011) N4257.

72.	The prisoner was sentenced to 2 years after she pleaded guilty to unlawfully wounding the first wife of her husband whilst she was lying on the ground after a fight.

73.	The Court held:

(1)  The maximum sentence available was three years imprisonment, so a starting point of half the maximum was used. 

(2)  The mitigating factors (the guilty plea, the lack of prior convictions and payment of compensation) were outweighed by the strong aggravating factors (the victim had already been assaulted, she was on the ground, and the use of a knife to inflict multiple wounds), warranting a sentence above the starting point. 

(3)  A sentence of 2 years imprisonment was imposed. The pre-sentence period in custody of one week was deducted and one year of the sentence was suspended.

74.	The final comparative case is the case of State v. Owen Sangu (2008) N3950.

75.	The Court gave the prisoner a cumulative sentence of 4 years that is 2 years each after he pleaded guilty to two counts of unlawful wounding of two persons.

76.	The prisoner was drunk at that time.  He fought with some youths and went home but later returned to the scene armed with a kitchen knife and stabbed the two victims, one on the neck and the other in the chest inflicting serious but not fatal wounds.

77.	The Court held at paragraphs 15, 16 and 17 these:

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.

78.	The Court found the aggravating factors outweighing the mitigating factors.

Present case - summary

79.	In addition to what I have already stated above in my judgment, let me conclude.

80.	I find the present case to be in the serious category for the offence of unlawful wounding.  

81.	I find the aggravating factors serious and outweighing the mitigating factors.

82.	Although the complainant did not suffer any permanent injuries from the attack, the attack was vicious.  The prisoner kept cutting the complainant until other people stopped him.  

83.	The complainant could have suffered serious or fatal injuries had he not used his left arm to block off the knife swings.

84.	The complainant lost a lot of blood and fainted at the time of attack.  His life was in real danger at that moment because he could have died from loss of blood had they not rushed him to the clinic, and also he could have received fatal injuries to his head or neck had he not blocked off the knife swings with his left arm.

85.	I find that the prisoner showed little remorse for his actions.  I find that even when the prisoner had the opportunity to reconcile, he chose an unusual method, that is, by sending his traditional shell money through a third party to pass onto the complainant.  The prisoner is no stranger but a blood relative of the complainant.

86.	I also take into account the statement given by the ward councillor Wesley Kavut.  What is clear from that statement is that the prisoner although a ward committee member, is regarded as a troublemaker.  He was described as someone who has no respect for village elders and church leaders in his ward area.

87.	The community in which the prisoner lives in has made a strong statement through its ward councillor Wesley Kavut.  They want the prisoner punished for his actions.  Let me remind myself that courts, whether it be the Village Court, the National Court or the Supreme Court, belong to the people.  The people under the Constitution establish courts, and courts exist solely, in my opinion, to serve the best interest of the people.

88.	If this Court is for example too lenient on the prisoner, what message will this Court be sending out to the community concerned or communities at large in the country who have persons like the prisoner living amongst them?  

89.	The message I think this Court should send should be one that should be aimed at promoting, securing and guarding the interests of the people and the communities that they live in, against individuals like the prisoner.

90.	I think it is fair to also say that fear is a constant enemy to democracy.  Fear can shut out a person or a society completely from exercising his or its rights fully, and when that happens, the community or the country as a whole suffers.

91.	The offence committed by the prisoner was also an attempt, in my opinion, to instil fear not only to the complainant and his family, but to his community as well. 

92.	Finally, I wish to add that I also take into account the prisoner's submission on provocations in the non-legal sense.  That coupled with his limited educational background could, in my opinion, have explained or contributed perhaps to a certain extent, to the prisoner committing the offence. For example, because of his limited educational background, it is possible that the prisoner could have easily misconceived or misapprehended the facts.

Sentence

93.	Both parties submitted that the starting point appropriate for this case should be 18 months or 1 year 6 months.

94.	I will allow 1 year 6 months as the starting point.

95.	I consider that a head sentence of 2 years would be appropriate.  I impose a head sentence of 2 years imprisonment upon the prisoner.

96.	I find custodial sentence warranted in this case.

97.	But before I do so, I have decided that I should suspend the second year of imprisonment and impose conditions.

98.	This Court has powers under Section 19(1) (d)&(6) of the Criminal Code to impose custodial sentence and non-custodial sentence with imposed conditions.

ORDERS OF THE COURT

I make the following orders:

1.	I sentence the prisoner to a total of 2 years imprisonment for the offence of unlawful wounding.

2.	I suspend the second year imprisonment term and I shall impose set conditions.

3.	The prisoner shall serve the first year in custody.

4.	After serving his custodial sentence in full, the prisoner shall be on good behaviour bond on his own recognizance for 1 year whereby during that time, he shall not consume alcohol or use abusive language in public or in private.

5.	If the prisoner is found to breach the terms imposed with his suspended sentence and if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

6.	I order a refund of the prisoner's cash bail of K500.

Sentenced accordingly,

___________________________________________
Office of the Public Prosecutor	:  Lawyer for the State
Office of the Public Solicitor:	Lawyer for the Prisoner