N6245
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
								
CR NO. 529 OF 2014

THE STATE 

V

MOFAT PONI 

Waigani: Davani .J
				2016:  07th & 9th April    

CRIMINAL LAW – sentence – prisoner charged for one count of attempted murder - guilty plea –prisoner shot victim on the knee – use of a gun -  mitigating and aggravating circumstances considered – ten years imprisonment imposed less time spent in pre-trial custody – s.304(b) Criminal Code Act.

Counsel:	

Mr D. Kuvi	, for the State 
Mr E.Yavisa	, for the Prisoner 

SENTENCE
9th April, 2016
1.	DAVANI, J	: Mofat Poni (the ‘Prisoner’) pleaded guilty to 1 count of attempted murder under s: 304(b) of the Criminal Code. This provision reads; 

“304. Attempted murder, etc.

A person who- 
...
(b)	with intent unlawfully to kill another person does any act, or do any act that it is his duty to do, the act or omission being 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.

FACTS

2.	The Prisoner is from Koropata village in the Higaturu LLG. He was aged about 28 years at the date of the offence.

3.	On 19th January, 2013 at about 4 to 5 pm, the Prisoner and his accomplices went to one Stanford Ameme’s home, situated at the Koropata Block, Higaturu LLG, Oro Province.  The Prisoner and his accomplices were armed with a homemade gun and bush knives.

4.	The Prisoner’s accomplices were his relatives, who together with the Prisoner surrounded the hauswin where Elisha Collin and her father Stanford Ameme were. The Prisoner’s intentions were to kill Stanford Ameme because they believed he was practising sorcery which resulted in his (the Prisoner’s) father’s death which had occurred earlier.

5.	A person who was with the Prisoner, one Vincent, then pulled the trigger of the gun that he had pointed at Stanford Ameme.  However, the gun did not discharge itself. 

Vincent pulled the trigger again, and this time the shot hit Stanford Ameme in his left knee. This was when Elisha Collin then threw herself on top of her father Stanford Ameme to protect him. Vincent fired again. The shot hit Elisha Collin in her right leg. This was when the Prisoner and his relatives left the scene of the crime.  

These are the facts the Prisoner pleaded guilty to.

MITIGATING FACTORS

6.	The Prisoner’s guilty plea saved the court a lot of time and expense. He also does not have any prior convictions.

On allocatus, the Prisoner told the Court that he did go to the crime scene and was part of the group that went in.  He said he tried to shoot Stanford Ameme but his daughter was lying on top of him so he did not shoot him.

AGGRAVATING FACTORS 

7.	These are the use of an offensive weapon and the fact that people in the hut, who were attacked, were attacked by a group of men when it was dark. Additionally, the attack on Elisha Collin was done in the commissioning of another offence. And finally, that Elisha Collin was seriously injured.

ANALYSIS OF SUBMISSION 

8.	Mr Yavisa referred me to State v Pupi (2013) N5916. That decision is not available on PNG Niu Media. And because internet is down here in Popondetta town, I am unable to access PACLII. Mr Yavisa did not hand up a copy of the decision.

9.	However, he submits that a 9 year sentence was imposed after a plea to a charge of murder under s.3 (1) (a) of the Criminal Code. Relying on that, he asks that the court impose a sentence of between 4 to 7 years.

10.	Mr Kuvi on the hand submits that the aggravating factors far outweigh the mitigating factors.  That regardless of whether the Prisoner and his accomplices intended to kill another, they did carry out an unlawful purpose which has resulted in the victim suffering extensive injuries to her left knee.  The medical report from the Popondetta General Hospital dated 21.2.2014, in the court file, describes the injuries as;

“... a gunshot wound to the posterior aspect of the right lower leg. There were multiple entry wounds but no exit wounds”.

11.	Mr Kuvi submits that the court should impose a sentence between 9 to 10 years. 

12.	The result of an attempted murder is less serious (the victim survives) than that of murder (the victim dies), so generally, the sentence for an attempted murder should be lower than for a murder (see State v Bulu Yasangara (2007) N5478). In that case, there was a strong element of de facto provocation, apart from the guilty plea and the accuser’s full cooperation with the police. This was a case where there was a vicious and surprise attack on a man who was unarmed and sleeping. The court in Bulu Yasangara, set its own tariffs after discussing the tariffs in Manu Kovi v The State (2005) SC 789. The court sentenced the prisoner to 10 years after a guilty plea.

13.	This case involved a pre planned, vicious attack and that there was a strong desire to kill, although the intended victim was not shot.  Such a situation was faced by the court in the State v Misin Kinapa (2009) N3814 where the victim was dragged off a PMV than attacked by 3 men with bush knives.  The blows severed the victim’s right hand near the wrist.  The matter went to trial after which the prisoner was sentenced to 10 years.

14.	In this case, the injuries suffered by the victim are not as serious as the victims in Misin Kinapa.

15.	Clearly, the circumstances of this case will warrant a sentence between 7 to 10 years.  Noting the victim’s injuries are not as serious as the victims in both Misin Kinapa and Bulu Yasangara, I note that because of the effluxion of time, sentence must be at 10 years for this case.  The term spent on remand awaiting trial will be deducted from the head sentence, to be reflected on the Certificate of Conviction.

16.	In relation to the purported payment of compensation by the Prisoner’s family to the victim’s family, that does not, in anyway, change the way or influence the courts sentencing process.  However, the manner in which the ‘statement’ was handed up by Mr Yavisa leaves a lot to be desired.  I would prefer that counsel Mr Yavisa, have his client swear an affidavit, to which he will depose to what occurred. In any event, the Prisoner will serve a term of imprisonment that is warranted, upon a guilty plea.

________________________________________________________________ 
Public Prosecutors Office		: Lawyer for the State			
Public Solicitor Office		: Lawyer for the Prisoner