N9974

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 291, 292, 293, 294, 295, 304, 305 and 306 of 2019
CR 296, 297 and 313, 314, 315, 316, 317 and 318 of 2019
CR 298, 299, 300, 301, 302, 303, 307 and 308 of 2019

THE STATE
-v-

JOE ARI KINTS, LAWI KINTS & ADAM KINTS

Mt Hagen:  Kaumi. J
2022: 15th March, 2nd June, 17th & 31st August, 15th September

CRIMINAL LAW – Criminal Code Act 1974, Stealing-Section 372 (1) -Malicious Damage- Section 444 (1)-Threats-Section 359-Wounding-Section 322 (1)-Pleas of Guilt 

CRIMINAL LAW – There was a family dispute that spanned over two decades-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentences-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Circumstances serious but Not worst type of offence-Aggravating factors outweigh mitigating factors-Interests of peace and harmony and reconciliation within the family paramount-Whole of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW- Totality principle considered and applied- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG. 

CRIMINAL LAW- Principle of Parity of Sentence discussed and applied.

The co-offenders pleaded guilty to two counts of Stealing, one count of Malicious Damage, three counts of Threats and one count of Wounding and matter for sentence. 

Held:

[1] Where there are differences in terms of culpability or criminality, antecedents and character of co-offenders, a disparity in sentence is justified through the proportionate recognition of these differences and that such disparities are clearly explained to the co-offenders so as to avoid giving rise to a justifiable sense of dissatisfaction or a sense of injustice. Andrew Uramani & 4 Others v The State [1996] PNGLR 287

[2] The application of the parity principle is flexible given the peculiar circumstances of offenders. The State v Pandau Hahuahoru (No.2) [2002] PGSC 136; N2186 (21 February 2002) The State v Bira [2009] PGNC 274; N3633 (26 May 2009).

[3] The totality principle operates to safeguard a first offender against a   sentence that would be crushing upon him, and particularly so in circumstances where he is facing a potentially high sentence as a result of being convicted of multiple offences, so the courts are obligated to ensure this does not occur. 

Cases Cited:

Secretary for Law v Witrasep Binengim [1975] PNGLR 172
Andrew Uramani & 4 Others v The State [1996] PNGLR 287
The State v Joseph Pingin (2001) N2169.
The State v Pandau Hahuahoru (No.2) [2002] PGSC 136; N2186 
The State v Pangih (2004) PGNC 106 N2627
The State v Tobby Alekun (2004) N2636
Tom Longman Yaul v The State (2005) SC803
The State v Wesley Vireru, Ian Vusi, Jerry Mesmin & John Lalu CR 469, 470, 472 & 473/2002 (20/12/05) Cannings. J
Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006
The Independent State of Papua New Guinea v Benson [2006] PGNC 68 
The State v Lekis (2007) PNGC 214 N5029
The State v Richard Samban (2007) N4998 
The State v Jan Tundub and 4 Ors Unreported (10 December 2008), Makail, J.
The State v Bira [2009] PGNC 274; N3633 
The State v Douglas Boku CR 844/2009 (18 August 2009), Buka.
The State v Asi Taba CR 1443/2009 (12 August 2010) Cannings. J
The State v Steven Molu Minji, Simon Koso Keranga, Didi Gelwak Sakol, John Minji & James Kaubai (2009) N3794 
The State v Stanley Pipi (2017) N7204.
The State v Angela Michael, Wallace Noel & Beverlyn Ben Noel CR 648, 649 & 650/2021 N9743 Miviri, J.
The State v Harry Boii (2021) N8968
The State v Nathan Gedi & Hatoa Kuk Gedi (2022) N9732

Counsel

Mr. Emmanuel Thomas, for the State
Mr. David Pepson, for the offenders

SENTENCE

15th September, 2022

1.	KAUMI J: INTRODUCTION: On the 15th March 2022, an indictment was presented charging the three co-offenders with two counts of Stealing, Section 372(1) and one count of Malicious Damage contrary to Section 444(1), three counts of Threats under Section 359(1) and one count of Wounding under Section 322 of the Criminal Code. The State also alleged that they were principle offenders pursuant to Section 7 & 8 of the Criminal Code.

2.	The offenders pleaded guilty to all charges and their plea was confirmed by the court on reading their court depositions. Allocutus was administered to each offender and the matter was then adjourned to 2 June 2022 for presentation of a PSR and MAR and for Submissions on Sentence.

3.	The matter is for sentence today.

ISSUE

4.	The relevant issue is what the appropriate sentence should be.

BRIEF FACTS

5.	The brief facts as follows are what the co-offenders pleaded guilty.

6.	The dispute between the offenders Ari Joe Kints, Lawi Kints, Adam Kints and the complaints Onda Koim, Tom Koim and their family related to ownership and possessory rights over real estate property in Mt Hagen City, namely the YMCA Hall located along Moka Place also referred to as Section 13 allotment 1 and 2 Mt Hagen. 

7.	At the material time ownership of the subject was in dispute and the matter was before the National Court to determine ownership between Mr Gregory So Koim, a relative of the complainants, and Mr Nickson Koi a relative of the offenders. At the material time the complainants were in lawful possession of the subject property.

8.	Between 19th August 2016 and 11th  February 2017, unlawful attempts were made to evict the complainants and their families from the subject property, during which the offences were committed against the complainants as listed in the indictment.

9.	The offences committed by the offenders were against their own family and kinsmen because they took sides in a dispute between two individuals Mamon Investment Ltd owned by the late Nickson Koi, whom the offenders were supporting, and Gregory So Koim whose relatives were the complainants Onda Koim and his family.

10.	The offences were committed on various dates between 19th August 2016 and 11th February 2017. Guns, bush knives and axes were used by the offenders against the complainants. The offenders committed these offences in the presence of the police officers.

ANTECEDENT

11.	The Antecedent Report provided to the Court by the State states that the offenders have no prior convictions.

ALLOCUTUS

12.	When I administered allocutus to the offenders i.e. allowing them the opportunity to say what matters they would like the court to consider when contemplating what kind of punishment to give them, the following are paraphrased summary of their responses:

Ari Joe Kints - “I say sorry to this honorable court and I say sorry to the families. This trouble came up in 2016 when a court decision was made. I say sorry to my brothers at home, the victims. The trouble happened in the community. My lawyer shall tell the court”. 
Lawi Kints – “I am sorry to the court, my family and tribe at home and the law. I say sorry to the laws of the country”.
Adam Kints – “This is a family issue. I say sorry to this honorable court and family at home. I say sorry for what we did to the court. I ask this court to give us good behavior bond. I say sorry to the families for what we did. I ask for mercy and to be put on a good behavior bond”. 

OTHER MATTERS OF FACT

13.	The offenders pleaded guilty and so I will give them the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus and submissions that are not contested by the prosecution Saperus Yalibakut v. The State (2008) SC890. It is common in their respective allocates that this issue was within their tribe and they are related, and I accept this.

SUBMISSION BY DEFENCE COUNSEL

14.	The offender’s counsel, Mr. Pepson highlighted inter alia, that considering their favorable Pre-Sentence Reports the court consider wholly suspending sentence and placing the offenders on good behavior bonds with the Probation orders that could encourage both parties not to interfere or intimidate each other but to live in peace and harmony as a family.

SUBMISSION BY THE STATE

15.	Mr. Thomas submitted that the court’s leniency should not be overborne by the seriousness of the circumstances of the offences committed in this case. That the court must send a strong message to the wider community against taking matters into their hands and the use of police to support or pursue such agendas. He submitted that the Court should consider a cumulative term of 9 years to be imposed for each offender. Further, that any suspension should be subject to reconciliation between the two parties following compensation or other settlement forms.

WHAT ARE THE MAXIMUM PENALTIES?

16.	 Section 372 STEALING of the Criminal Code states:

(1) Any person who steals anything capable of being stolen is guilty of a crime.
Penalty: Subject to this section, imprisonment for a term not exceeding three years.

17.	Section 444(1) MALICIOUS DAMAGE of the Criminal Code states:

(1)	A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.
Penalty: 	 If no other punishment is provided by this section – imprisonment for a term not exceeding two years.

18.	Section 359 THREATS of the Criminal Code states:

(1) A person who threatens to do any injuries or cause any detriment, to another person with intent –
(a)  to prevent or hinder the other person from doing an act that he is lawfully entitled to do; or
(b)To compel him to do an act that he is lawfully entitled to abstain from doing is guilty of misdemeanour.
Penalty: 	A fine not exceeding K400.00 or imprisonment for a term not exceeding one year

19.	Section 322 WOUNDING AND SIMILAR ACTS states:

(1)A person who-
(a) unlawfully wounds another person; or
(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or to be taken by, any person, is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years.

WHAT ARE THE STARTING POINTS?

20.	The proper starting points for the offences the offenders have pleaded guilty are:

[i] Stealing- 18 months (midway point)
[ii] Malicious Damage – 12 months (midway point)
[iii]Threats- 6 months or K200:00 (midway point)
[iv] Wounding – 18 months (midway point)

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?
21.	I will now consider the sentencing trends in recent history for Stealing contrary to section 327 (1), Malicious Damage contrary to section 444(1), Threats contrary to section 359 and Wounding contrary to section 322.

NATIONAL COURT SENTENCES FOR STEALING

22.	The State v Tobby Alekun (2004) N2636 Cannings, J. The offender pleaded to Stealing from a woman a bilum containing K2900.00 in a public place, Tumi Market contrary to section 372(1) and was sentenced to 2 years imprisonment. His Honour in passing sentence considered the offence to be serious as markets must be a place where families can come with their children. Everyone should be able to come in safety and security. Eighteen (18) months of this term was suspended with strict conditions.

23.	The State v Douglas Boku CR 844/2009 (18 August 2009), Buka. The offender pleaded guilty to stealing 27 mobile phones from his employer, Digicel (with whom he had a grievance), a total value of K8,100.00. He was sentenced to 3 years imprisonment.

24.	The State v Asi Taba CR 1443/2009 (12 August 2010), Cannings. J Madang. This was a trial in which the offender, a company employee who joined with other employees in making and implementing a plan to steal company property, tinned fish, valued at K58,399.00. He was found guilty and sentenced to 2 years 6 months.

NATIONAL COURT SENTENCES FOR MALICIOUS DAMAGE

25.	The State v Richard Samban (2007) N4998 Cannings. J. The offender went on a drunken rampage, destroying household properties belonging to his neighbours and burning down two semi-permanent houses in an oil palm settlement where he lived. He pleaded guilty to two counts of malicious damage to property and two counts of arson. For the two counts of malicious damage he was sentenced to head sentences of two (2) years & 1 year respectively and with the application of the totality principle these sentences were reduced to one year.

26.	The State v Wesley Vireru, Ian Vusi, Jerry Mesmin & John Lalu CR 469, 470, 472 & 473/2002 (20/12/05) Cannings. J. The offenders pleaded guilty to ransacking properties and a house valued over K30,000.00. Two of their co-offenders were convicted and sentenced for burning the house in question. The offenders were sentenced to two (2) years each.

27.	The State v Jan Tundub and 4 Ors Unreported (10 December 2008), Makail, J. The offenders went in armed with axes and knives and went into a primary school and entered the principal’s office and destroyed computers, printers, etc causing damage worth K16,442.80. They were sentenced to a head sentence of 1 year which was wholly suspended.

28.	The State v Steven Molu Minji, Simon Koso Keranga, Didi Gelwak Sakol, John Minji & James Kaubai (2009) N3794 Makail. J. The offenders were found guilty after a lengthy trial for destroying more than 2000 coffee trees worth K45,658.80 owned by Catholic Church in Mt Hagen. They were sentenced to 1year of which none was suspended because aggravating circumstances outweighed the mitigating ones.

NATIONAL COURT SENTENCES FOR THREATENING

29.	I was unable to locate any suitable sentencing precedents for this offence so I will start at the mid-way point of 6 months or K200:00.

NATIONAL COURT SENTENCES FOR WOUNDING
 
30.	The State v Joseph Pingin (2001) N2169. The offender pleaded guilty. The offender told victim to stop calling his brother a sorcerer in public and a fight ensured. The offender cut the victim on his right shoulder and was sentenced to 3 years less PTC of 1 year. The balance of 2 years wholly suspended conditionally with the offender ordered to payment of K5000.00 compensation to the victim within 6 months of date of sentence.

31.	The State v Pangih (2004) PGNC 106 N2627, Lorengau, Kandakasi, J (as he then was) The offender shot the victim with a fishing gun. The offender sentenced to 3 years imprisonment which was wholly suspended conditionally.

32.	The State v Lekis (2007) PNGC 214 N5029, Cannings, J. The offender had an argument with his sister and father in a public place and attacked them. He pleaded guilty and sentenced to 2 years 6 months of which the pre-trial custody of 1 month was deducted and the balance of 2 years 5 months was wholly suspended conditionally. He was ordered to pay K1000.00 to victim and others.

33.	The State v Stanley Pipi (2017) N7204. The offender was drunk and kicked and damaged victim’s bamboo fence. The victim confronted offender and hit him with the flat side of a bush knife on his back. The offender’s father took him away, but he later returned with others and attacked the victim slashing him on his back. He was sentenced to one (1) year imprisonment less the pre-trial custody period and balance wholly suspended conditionally. He placed on GBB for 8 months 1 week.

34.	The State v Angela Michael, Wallace Noel & Beverlyn Ben Noel CR 648, 649 & 650/2021 N9743 Miviri, J. The offenders pleaded guilty to stabbing the victim to the head and stab wounds to her right bicep over allegations of adultery with the husband of one of them. The Pre-Sentence Report and Means Report were favourable to the prisoners and the victim was prepared to accept compensation in settlement and the victim did not suffer any residual injuries. They were sentenced to 18 months Imprisonment each and which were all wholly suspended with strict conditions. Compensation of K500.00 was ordered to be paid to the victim within six (6) months.

35.	The State v Harry Boii CR 15/2021 N8968 (21 May 2021) Rei, AJ. The offender was drunk and went to the victim’s premises armed with a bow and arrow and tried to attack him. A fight erupted and the offender speared Augustine Boii on the buttock and stabbed Camillus Boii in the area of the stomach. He was sentenced to three (3) years imprisonment less the pre-trial custody – deducted 25 months balance removed – 13 months suspended conditionally – The offender was ordered to pay K2,000.00 each to the 2 victims within 12 months from date of release.

36.	The State v Nathan Gedi & Hatoa Kuk Gedi CR 1359 & 1361/2019 N9732, Rei, AJ. (10 May 2022). The offenders were angry after their brother died at the Boram Hospital and went to the hospital and attacked to two health workers. They were each sentenced to three (3) years imprisonment which was wholly suspended 3 years and placed on Good Behaviour Bond. Their bail of K500.00 each was converted to fine. The PSR strongly recommended non-custodial sentences for the offenders. Both offenders paid compensation of K11,000.00.

37.	All the above cases demonstrate that the National Court views the offences of Stealing, Malicious Damage, Threats and Wounding seriously. 

38.	The sentence range for Stealing is 1 to 3 years with full or partial suspension conditionally, Malicious Damage is 6 months to 2 year with full or partial suspension conditionally, Threats will start at the half-way point of K200:00 or 6 months and Wounding is 1 to 3 years with full or partial suspension conditionally.

STEP 4: WHAT ARE THE NOMINAL HEAD SENTENCES?

39.	Since this matter involves multiple offenders and multiple offences I will firstly, consider what a nominal head sentence for each of the offences the offenders have pleaded guilty to, and the sum of all these will come the aggregate nominal sentence. This will involve a consideration of the circumstances in which they have committed the offences and the result of which will come the factors in their aggravation as well as those in their mitigation. 

Mitigating Factors

40.	The mitigating factors are that the offenders pleaded guilty to all the charges and saved the Court’s time and State’s resources in running a trial, they are all first-time offenders, there was no physical injuries to Onda Koim, Elijah Koim, Rop Koim and Tom Koi and there was de facto provocation.

Aggravating Factors

41.	I highlight the aggravating factors in the individual offences in the following manner:

-Counts 1, 2, and 3
I.	Personal properties of substantial value (K14,540:00) were stolen from Onda Koim’s house.
II.	Personal properties of substantial value (K12,328:00) were stolen from Elijah Koim’s residence.
III.	Items were stolen after the accused forcefully entered the Oda and Elijah’s dwelling house.
IV.	Unlawful damage was caused to a dwelling house.
V.	Done in broad day light.
VI.	The offenders were armed with weapons, guns and bush knives and were in the company of certain Mt Hagen based police officers.

	-Count 4 and 5
I.	The offence against Tom Koim occurred in broad day light at 2:00pm in the afternoon.
II.	The offenders were armed with bush knives and a gun.
III.	Shots were fired from the gun.
IV.	Offence against Onda Koim occurred in broad daylight, in front of his family.
V.	Onda Koim was shot at but missed being hit.
VI.	Police officers were present with the other co-accused. They drove away with the shooter after Onda was attacked.

	-Count 6
I.	The victim, Gabriel Kew, was ambushed by the offenders and two police officers on a public road into Mintip village.
II.	Gabriel Kew was unarmed and surrendered but was cut with bush knives ad put into a vehicle and brought to the police station.
III.	He sustained deep knife gashes to the head and to his Achilles tendon.

	-Count 7
I.	The victim, Rop Koi’s house was surrounded by the offenders who came there purposely to attack him. It was a planned surprise dawn attack. They were armed and surrounded the victims house in preparation to attack.
II.	The victim escaped, but shots were fired at him and his family but missed and he was warned against going to disputed property.
III.	Trauma caused to the victim’s family.

Extenuating Circumstances

42.	This is an old family dispute between half brothers that has spanned over two decades and has been in and out of the civil and criminal courts in this period of time, both in the lower and higher courts.

43.	The offenders’ houses and properties were burnt down by the victims and they were chased out of their village and forced to live elsewhere.

44.	The offenders through their lawyer submit that an extenuating circumstance is that their roles in the offences (they pleaded guilty to) were very minimal as policemen were at the forefront acting on and enforcing orders of the Courts. However, the offenders have opted to take responsibility as leaders of their family and put this long court process to an end. I read the committal court depositions and take this submission with a grain of salt as it shows that they played much more active roles in the whole saga, suffice to say, the prosecution has not taken issue with it so it will be taken in their favour. Saperus Yalibakut v The State (supra)

45.	Clearly, the aggravating considerations outweigh the mitigating factors. 

46.	For the offences of Stealing though they occurred to two different victims, the circumstances are serious. I note that on they happened on the same day and time and at the same place. And there were a lot of other people involved as well. I impose nominal sentences of two (2) year respectively for count 1 and count 2.

47.	For the offence of Malicious Damage, the circumstances of this matter are serious as it involved a dwelling house as opposed to say, an office building or a store etc and as such warrants a nominal sentence of one year.

48.	For the three counts of Threats, the actions of the offenders were blatant, intimidating and deliberate, calculated to cause the victims to stop going to or entering the YMCA premises, these circumstances are serious and warrant nominal sentences of six months for each count.

49.	The count of Wounding is serious as the victim suffered knife wounds to the head and his Achilles tendon, so the nominal sentence is `2 years. 

50.	The aggregate result of these nominal head sentences is eight and a half years.

PARITY OF SENTENCE

51.	This matter involves the sentencing of co-offenders who were involved in the commission of multiple offences hence necessitating the consideration and application of the principle of “Parity of Sentence”.

52.	    The principle of parity of sentence is a principle of law that states that a sentence should be ‘similar to sentences imposed on similar offenders for similar offences committed as in similar circumstances. Andrew Uramani & 4 Others v The State [1996] PNGLR 287

53.	    Its purpose entails the sentencing judge avoiding the imposition of sentences that are not only disproportionate and disparate among co-accused where essentially the same facts and circumstances indicate equivalent or like sentences. Secretary for Law v Witrasep Binengim [1975] PNGLR 172

54.	   Where there are differences in terms of culpability or criminality, antecedents and character of co-offenders, a disparity in sentence is justified through the proportionate recognition of these differences and that such disparities are clearly explained to the co-offenders so as to avoid giving rise to a justifiable sense of dissatisfaction or a sense of injustice. Andrew Uramani & 4 Others v The State [1996] PNGLR 287

55.	   The application of the parity principle is flexible given the peculiar circumstances of offenders. The State v Pandau Hahuahoru (No.2) [2002] PGSC 136; N2186 (21 February 2002) The State v Bira [2009] PGNC 274; N3633 (26 May 2009)

56.	The co-offenders pleaded guilty to committing all the offences they were indicted for, clearly, they acted in concert. The question now, is whether there should be parity or disparity in sentence, in other words whether there this court should impose sentences that are not only disproportionate and disparate among co-accused. It is therefore incumbent upon this court to glean from the circumstances of this matter the nature and extent of their participation in the commission of the offences. I note from my reading of the committal court depositions that the offenders participated in all the offences and further in terms of the levels of their individual criminal culpability, antecedents, characters etc, I can find no justifiable reason for a disparity of sentence as they do not discriminate, accordingly, I do not sentence them individually but impose the same sentences against each of them for the all offences they pleaded guilty to.  

SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY? 
57.	There were five different victims so the sentences must be cumulative, subject to the application of the totality principle.

APPLICATION OF THE TOTALITY PRINCIPLE
58.	The totality principle operates to safeguard a first offender against a sentence that would be crushing upon him, especially in circumstances where he is facing a potentially high sentence as a result of being convicted of multiple offences and the courts are obligated to ensure this does not occur. 

59.	I adopt what Cannings. J in The State v Benson [2006] PGNC 68 said with respect to the “Totality Principle”.

“I now look at the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The Court needs to guard against imposing a crushing sentence, i.e. one that is over the top’ or manifestly excessive”.

60.	 I note all the offenders are middle aged and have become landless as they were forcibly removed from their land by the complainants. I note that both the offenders and complainants are closely related by blood, as a matter of fact are half brothers having the same father but different mothers. I further note that there were a lot of other people involved in the commission of all these offences yet only these three offenders were charged. The offenders are all first offenders and have through their respective Pre-Sentence Reports expressed their desire to reconcile with their relatives the victims through customary compensation payments so they can move back to their tradition land. The victims have also asked for the offenders to be dealt with in accordance with the law for the crimes they committed, surrender of any firearms the offenders might have in their possession and for the offenders not to enter the YMCA premises. What the offenders did against their own blood was totally against their custom and culture and the law and so they must be punished so that they know that such conduct will not be tolerated. Lastly, the Pre-Sentence Reports are in their favour. Having said this I do not think that immediate incarceration would necessarily have that desired reconciling effect on all concerned. 

61.	Accordingly, I deduct 2 years for count 1 and 2, 6 months for count 3, 6 months for counts 4, 5 and 7 and 1 year for count 6.

62.	The resultant head sentence is now four and a half years for all offenders.

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?
63.	Section 3 (2) of the Criminal Justice (Sentences) Act 1986, allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

64.	The co-offenders Joe Ari Kints and Adam Kints spent five months in PTC whilst Lawi Kints spent four months in pre-trial custody. I deduct time spent in Pre-Trial Custody for all co-offenders.

65.	Therefore, for Joe Ari Kints and Adam Kints the resultant length of sentence is  4 years and 1 months to be served. The resultant length of sentence for Lawi Kints is 4 years and 2 months to be served.

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

66.	As I indicated above that I do not think immediate incarceration would be in the interests of these half-brothers, the offenders and complainants. It is essential that every effort be made to heal the rift between these brothers, a rift that is over 20 years old and the court must be conscious of this and act accordingly.

67.	The offences are prevalent and there need to be deterrent sentences to deter likely-minded persons in the community.

68.	The offenders received a favourable pre-sentence reports which recommend non-custodial term and are based on views obtained from the Community as well as the victims, offenders and a community leader and on the same token I note the victims’ call for justice to be meted out to the offenders for the crimes they committed, surrender of any firearms the offenders might have in their possession and for the offenders not to enter the YMCA premises. It is for the aforementioned reasons above and the circumstances of this case, there should be full suspension but conditionally.

69.	 The circumstances of this case are serious but do not fall into the worst category of cases.

70.	Therefore, the sentence I impose is a sentence which will serve the purposes of sentencing of Deterrence and Rehabilitation.

71.	Their head sentences are suspended on the following on the following condition:

[A] JOE ARI KINTS
a) The offender must within two months of the date of sentence compensate each of the victims, namely, Onda Koim, Elizah Koim, Rop Koim, Tom Koi and Gabriel Kew, with a sum of K1000.00 each and participate in a reconciliation ceremony supervised by Mr. Peter Wimbkang, a community leader.
b) The offender must attend the sittings of the National Court at Mt Hagen on the 5 December 2022 that is two months two weeks after the date of sentence, to demonstrate compliance with condition (a) 
c) The offender must surrender any unlicensed firearms or licenced firearm he does not own that he has in his possession to police.
d) The offender must not enter the YMCA premises.
e) The offender will keep the peace and be of good behaviour for a period of his suspended sentence (4 years 1 month).
f) The offender will reside at his residence at Gabina village, Hagen Central, Western Highlands Province.
g) The offender will not leave the Western Highlands Province without written permission from the National Court.
h) You will report to the senior Community Corrections Officer (Probation Officer) in Mt Hagen at the end of every month.
i) You will have a favourable probationary report filed at the Mt Hagen National Court Registry by the CBC Officer in Mt Hagen after every six (6) months.
j) If you break any of the above conditions you will be arrested and brought before the National Court to explain why you should not be imprisoned for the suspended balance of your sentence: Tom Longman Yaul v The State (2005) SC 803

[B] LAWI KINTS
a) The offender must within two months of the date of sentence compensate each of the victims, namely, Onda Koim, Elizah Koim, Rop Koim, Tom Koi and Gabriel Kew, with a sum of K1000.00 each and participate in a reconciliation ceremony supervised by Mr. Peter Wimbkang, a community leader.
b) The offender must attend the first sittings of the National Court at Mt Hagen on the 5 December 2022 that is two months two weeks after the date of sentence, to demonstrate compliance with condition (a) 
c) The offender must surrender any unlicensed firearms or licenced firearm he does not own that he has in his possession to police.
d) The offender must not enter the YMCA premises.
e) The offender will keep the peace and be of good behaviour for a period of his suspended sentence (4 years 2 months).
f) The offender will reside at his residence at Gabina village, Hagen Central, Western Highlands Province.
g) The offender will not leave the Western Highlands Province without written permission from the National Court.
h) You will report to the senior Community Corrections Officer (Probation Officer) in Mt Hagen at the end of every month.
i) You will have a favourable probationary report filed at the Mt Hagen National Court Registry by the CBC Officer in Mt Hagen after every six (6) months.
j) If you break any of the above conditions you will be arrested and brought before the National Court to explain why you should not be imprisoned for the suspended balance of your sentence. Tom Longman Yaul v The State (2005) SC803

[C] ADAM KINTS
a) The offender must within two months of the date of sentence compensate each of the victims, namely, Onda Koim, Elizah Koim, Rop Koim, Tom Koi and Gabriel Kew, with a sum of K1000.00 each and participate in a reconciliation ceremony supervised by Mr. Peter Wimbkang, a community leader.
b) The offender must attend the sittings of the National Court at Mt Hagen on the 5 December 2022 that is two months two weeks after the date of sentence, to demonstrate compliance with condition (a) 
c) The offender must surrender any unlicensed firearms or licenced firearm he does not own that he has in his possession to police.
d) The offender must not enter the YMCA premises.
e) The offender will keep the peace and be of good behaviour for a period of his suspended sentence (4 years 1 month).
f) The offender will reside at his residence at Togoba village, Hagen Central, Western Highlands Province.
g) The offender will not leave the Western Highlands Province without written permission from the National Court.
h) You will report to the senior Community Corrections Officer (Probation Officer) in Mt Hagen at the end of every month.
i) You will have a favourable probationary report filed at the Mt Hagen National Court Registry by the CBC Officer in Mt Hagen after every six (6) months.
j) If you break any of the above conditions you will be arrested and brought before the National Court to explain why you should not be imprisoned for the suspended balance of your sentence. Tom Longman Yaul v The State (2005) SC 803

SENTENCE

72.	The orders of the Court in respect of Joe Ari Kints, Lawi Kints and Adam Kints are as follows:

Length of Sentence imposed	4 years 6 months	
Pre-sentence period to be deducted	5 months each for Joe Ari Kints and Adam Kints and 4 months for Lawi Kints respectively	
Resultant length of sentence to be served 	4 years 1 month each for Joe Ari Kints and Adam Kints and 4 years 2 months for Lawi Kints.	
Amount of sentence to be suspended	All sentences wholly suspended	
Time to be served in custody	Nil	
Bail	All refunded forthwith 	

Sentence accordingly.
________________________________________________________________    
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender