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State v Lukas [2022] PGNC 606; N10347 (14 June 2022)

N10347

PAPUA NEW GUINEA
[IN THE NATIONALCOURT OF JUSTICE]

CR No. 575 OF 2021

THE STATE

V

CLEM LUKAS

Bulolo/Lae: Polume-Kiele J
2021: 2^nd August, 3^rd, 10^th, 19^th & 22^nd November, 2^nd & 9^th December
2022: 22^nd & 23^rd February, 13^th May, 14^th June

CRIMINAL LAW – Sentence – Attempted Murder – Criminal Code Act, Section 304 (a) - Plea - prisoner attacked complainant with bush knife causing injuries – Unsuspecting complainant - Seriousness of – Factors in mitigation – First time offender – No pre-planning - considerations of – deterrence – personal and general - incarceration appropriate

CRIMINAL LAW – Sentence - 8 years imprisonment – Criminal Code Act, Section 304 (a) and Criminal Code Act, Section 19 - Pre-trial period in custody deducted - Criminal Justice (Sentences) Act, Section 3(2) -To serve 6 years 10 months 28 days in prison

Brief facts

The relevant facts put to the prisoner during arraignment which were consistent with his instructions to his defence counsel and also contained on the depositions for the plea of guilty were that: The prisoner is 20 years old and is from Piu Village, Bulolo, Morobe Province. On 8 January 2021, at New Camp Settlement, Bulolo, he attempted unlawfully to kill Simon Reuben. The prisoner was charged with attempted murder contrary to s. 304 (a) of the Criminal Code Act.

Cases Cited

SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418
Avia Aihi v The State [1982] 92 PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Thress Kumbamong v The State (2008) SC1017
The State v Bulu Yasangara (2007) N5478
Manu Kovi v The State (2005) SC789
Gimble v The State [1988-89] PNGLR 271
The State v Benjamin Sei (Unreported Judgement) CR 933 of 2018
State v Pulkun [2014] PGNC 69; N5603 (14 May 2014)
The State v Timothy [2017] PGNC 277; N6929
The State v Fimino [2012] N4763
The State v Gigmai [2016] N6443
The State v Yasangara [2007] N5478
The State v Jacob Puti [2013] N5196
The State v Poni [2016] N6245
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor –v- Done Hale (1998) SC564
Public Prosecutor –v- Tardrew [1986] PNGLR 91
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
Kuri Willie v The State [1987] PNGLR 298
State v Taulaola Pakai (2010) N4125

Counsel:

Ms. S. Joseph, for the State
Mr. C. Boku, for the Prisoner

SENTENCE

14^th June, 2022

1. POLUME-KIELE J: On 3 November 2021, an indictment was presented by Ms. Matana of the Public Prosecutor’s Office against the accused, Clem Lukas on a count of attempted murder under s 304 (a) of the Criminal Code Act.
   
2. On 10 November 2021, the accused entered a plea of guilty on the charge of attempted murder and convicted under s 304 (a) of the Criminal Code Act. The submission centers on the issue of appropriate sentence for the prisoner who pleaded guilty to the offence, saving the Court’s time.
   

Charge

3. Section 304 (a) of the Criminal Code states:
   

“Section 304 –ATTEMPTED MURDER, ETC.

A person who–

(a): attempts unlawfully to kill another person; or

(b): with intent unlawfully to kill another person does any act, or omits to 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.

Committal Court Disposition

4. Ms. Joseph for the State tendered the Lae District Court Deposition into evidence by consent which comprised of the following:
   
   • (i) The Record of interview both the original pidgin and English Version conducted on 20 January 2021, CR 7 of 2021; marked as Exhibit "A" relating to the defendant Clem Luka during which he admitted to using a bush knife to cut one namely Simon Reuben on the afternoon of 8 January 2021 between 2 and 3 o’clock pm at New Camp 2 Settlement, Bulolo.
     
   • (ii) The Statements of State witnesses namely Simon Reuben (victim) dated 13 January 2021, Sukulu Alphonse dated 19 January 2021, Gideon Lina dated 19 January 2021, Allan Alimaka, Police Constable (undated)
     
   • (iii) Police Constable Allan Alimaka conducted the Record of Interview. He confirmed the identity of the prisoner and his demeanour during the record of interview which was conducted on 21 January 2021. Included in the Court disposition is the Medical Report on the victim prepared by OIC, Accident Emergency Bulolo Hospital and photographs of the wounds sustained by the victim, Simon Reuben.
     
5. Upon the reading of the Committal Court depositions and being satisfied that the evidence contained in the depositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of attempted murder prescribed under s 304(a) of the Criminal Code.
   

Pre-Trial Detention

6. The prisoner was remanded on the 29 of March 2021 and has been held in custody for a period of 1 year 2 months 2 days to the date of this decision on sentence.
   

Allocutus

7. On allocutus, the Prisoner admitted committing the offence. He said sorry in the eyes of God and the Court. He also said sorry to the Complainant. He further stated that he was a student and completed Grade 8 and was selected to do Grade 9 but could not continue due to the offence. He said he is a first-time offender and asked for mercy and to be placed on good behaviour bond.
   
8. Counsel for the prisoner, Mr. Boku submitted that this is a case involving a young offender and requested that a Pre-Sentence Report (PSR) and Means Assessment Report (MAR) on behalf of the prisoner be provided by the Community Based Corrections Officer (Probation Officer), Bulolo or Lae. The CBC Officer, Ms. Takuvai was then directed to prepare these Reports and have it filed at the Registry by 17 November 2021. This has been done and I have taken note of the contents of the said report which was filed on 19 November 2021.
   

Pre-Sentence Report

9. The Community Based Corrections Officer, Ms. Jane Taibob has in response to a request, prepared a Pre-Sentence Report which is now available to this court for consideration. According to the Pre-Sentence Report, the prisoner, is an adult male, aged about 20 years old and comes from Piu Village of the Mumeng LLG, Bulolo, Morobe Province. He is single and both his parents are still living. I understand that he did complete up to Grade 8 Education level and was unemployed at the time of offending. He has no record of prior convictions. He appears fit and healthy during trial.
   
10. With regard to the prisoner’s suitability for rehabilitation back into the community, this aspect of the assessment was carried out however, the views differ as one is in favour, and the other is not.
    
11. Further, the mother and sister of the prisoner were also able to assist the Probation Officer compile a Pre-Sentence Report on the prisoner. Nevertheless, whilst the prisoner appeared remorseful and has said sorry to the Court, for the offence committed, the prisoner in his interview for the Pre-Sentence Report has stated that he has no means of supporting himself and that he relies on his mother and sisters for financial assistance. He however hopes that he can continue with his education and get a decent job in future. He also plans to assist his mother by finding ways and means of supporting his mother and also to compensate the victim. The prisoner also plans to stay out of trouble if placed on probation and that he is prepared to abide by other probationary orders that the Court will make.
    
12. The community view on the other hand is that the prisoner although appears to be of some good character, he however drinks alcohol and when he drinks, he is out of control and causes nuisance in the community. So, in general, the overall assessment gathered from the Pre-Sentence Report is that the community will not benefit from the prisoner in his rehabilitation progress back into the society, although I note that the PSR recommends suitability for probation. Given there is no consensus on the rehabilitation processes, I am of the view that there is a clear need for general deterrence as the assault on the victim was an unprovoked assault and that a lethal weapon was used. The prisoner has intentionally caused actual violence which would have been very fatal.
    

Mitigation factors

13. The mitigating factors were that there was no prior conviction, an early guilty plea and the accused had co-operated with police. In addition, the prisoner is a first-time offender and there was no pre-planning. The prisoner expressed remorse for his actions.
    

Aggravating factors

14. The aggravating factors were that this was an unprovoked attack, where the accused had used a dangerous weapon, bush knife in the attack. It was a vicious attack with a strong desire to inflict grievous bodily harm to the victim.
    

Sentencing principles

15. It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of case, under consideration, (SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] 92, Ure Hane v The State [1984] PNGLR 105, Goli Golu v The State [1979] PNGLR 653. It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. The Courts have unfettered sentencing discretion under s 19 of the Criminal Code Act and the Courts are not necessarily bound by the maximum and minimum tariffs suggested by Supreme Courts (Thress Kumbamong v The State (2008) SC1017.
16. The crime of attempted murder is a serious crime and thus the question for this court is to consider whether this present case falls within the worst type of case that warrants the imposition of the maximum penalty of life imprisonment as held in SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] 92, Ure Hane v The State [1984] PNGLR 105; Goli Golu v The State [1979] PNGLR 653.
17. Section 19 discretionary power provisions as to punishments are as follows:

^“(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

(aa) ...

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

(c) a person sentenced on conviction on indictment to pay a fine may be sentenced–

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid–to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may–

(i) instead of, or in addition to, any punishment to which he is liable–be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that–

(i) he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) Imprisonment in accordance with Subsection (1) (c)(i), for non-payment of the fine–

(a) shall not extend for a term longer than two years; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(3) In a case to which Subsection (1) (c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period or any extension of that period.

(4) If under Subsection (3) a person directed to appear, or called on by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period, or any extension of that period, does not appear at the required time and place, a Judge may issue a warrant to arrest him and to bring him before a Judge.

(5) Imprisonment under Subsection (1) (d) for not entering into a recognizance–

(a) shall not extend for a term longer than one year; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(6) When a court sentences any person convicted under Subsection (1) (d) to a term of imprisonment, it may further order that–

(a) the offender be imprisoned for such portion of that term as it thinks proper; and

(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

(7) A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.

(8)[9] [Repealed.]

(9) Notwithstanding that restriction of movement is not specified as a punishment for an offence, a court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with Section 600.

(10) When a court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.

18. The Supreme Court has not specifically established any sentencing guidelines relating to the crime of attempted murder. However, I am inclined to be guided by guidelines set out in case of The State v Bulu Yasangara (2007) N5478 (per Cannings J, at paragraph 11), which I adopt and apply the sentencing guidelines used in that case to this present case. In that case, his Honour Cannings J did point out that whilst the Supreme Court has not given sentencing guidelines for attempted murder which had left the National Court with wide discretion available to it when fixing a sentence, the Court did carefully consider the sentencing guidelines that their Honours applied in those cases. The Supreme Court in Manu Kovi v The State (2005) SC789 gave detailed sentencing guidelines for manslaughter, murder and wilful murder which is useful to consider and can be useful when sentencing for attempted murder and I quote from the statement made by Cannings J in the case of The State v Bulu Yasangara (supra) at paragraph 11 where he stated, and I quote:
    

“... it is arguable that the offence of attempted murder is equally as serious as murder or even more serious as it involves a specific (though unsuccessful) attempt to kill (see Peter Naibiri and Others v The State (1978) SC137), I think that because the result of the crime (the victim survives) is less serious than murder (the victim dies), the sentence for an attempted murder should generally be lower than for a murder (which can be regarded as an attempted murder brought to fruition). For the purposes of setting starting points for attempted murder it is appropriate to use the guidelines for murder derived from the Supreme Court’s decision in Manu Kovi’s case and set starting points at around 50% of the tariff, as shown in the following table.

His Honour Cannings J went on further to set out a table setting out the sentencing guidelines for attempted murder which I adopt and apply to this case. The Table is reproduced below:

“Table 1: sentencing guidelines for attempted murder using a 50% quotient re murder sentences from supreme court’s decision in Manu Kovi’s case.

Submission on sentence

19. Mr. Boku in his submission on sentence, pointed out that there are no established sentencing guidelines in relation to the crime of attempted murder. Mr. Boku in his submission contended that this is not the worst type of offence which calls for the maximum penalty of life imprisonment and that this Court should not waste its time in making enquiry as to the circumstances of the victim. He also submits that this Court has wide discretionary powers under s 19 of the Criminal Code Act, which creates an avenue for this Court to deviate from the maximum penalty and decide alternate sentences as established in the case authority of Thress Kumbamong v The State (2008) SC1017.
    
20. He submitted further that this Court exercise discretion under s 19 (d) of the Criminal Code and impose a suspended sentence on terms (good behaviour bond) considering that the injury was sutured, and the victim was discharged with medication and antibiotics. In support of this line of argument, Mr. Boku referred me to the case of The State v Gigmai (supra) in which the prisoner was involved in a fight in the village where offensive weapons of various description were used, including, an axe. The victim was hospitalised and received medical attention. A sentence of 7 years imposed was wholly suspended. In this case, whilst I note that there is no feedback on the recovery of the victim, I must however, point out that this Court does not take too kindly, Mr. Boku’s comments that this Court should not waste time into the inquiry of this circumstance. This statement clearly shows that the prisoner and his lawyer do not take seriously, the consequences of offending. The crime of attempted murder is a serious offence. It should not be taken too lightly, irrespective of what became of the victim or the complainant.
    
21. In addition, I also note that Mr. Boku has referred to a few cases more particularly, that of Gimble v The State [1988-89] PNGLR 271, and The State v Benjamin Sei (Unreported Judgement), CR 933 of 2018, which are both armed robbery cases. In the Gimble case, there were multiple offenders whilst in the case of The State v Benjamin Sei, it is a single offender. I find no relevance in the facts and circumstances of these cases to this present attempted murder case except perhaps regarding the exercise of discretionary powers of the Court under s 19 of the Criminal Code.
    
22. In any event, this Court was also referred to a few cases where s 19 of the Criminal Code has been exercised in terms of reduction in sentences and these are the case of the State v Pulkun [2014] PGNC 69; N5603 (14 May 2014), where his Honour Geita AJ (then) outlined that:
    

“Accused persons plead guilty prior to trial for various reasons. Some of these include a hope for reduction in sentence; the avoidance of lengthy long-drawn-out trials or after successful plea bargaining just to name a few. Whatever the reason, I am of the view that since the accused has surrendered his constitutional right to enter a guilty plea, the sentencing court in the exercise of its unfettered discretion must reciprocate that gesture in a meaningful way”.

In saying so, he imposed a sentence of 4 years. Two years from the total sentence was ordered for deduction if K2,000.00 compensation was paid within 3 months and the balance to be served in remand. This was related to a domestic violence resulting to the beating of the wife, severing the toes and ultimately making the wife receive medical attention after being unconscious for some time.

In the case of The State v Timothy [2017] PGNC 277; N6929 (3 October 2017), His Honour Liosi A J (then) pointed out that:

“Committing a wrong to correct a wrong and later trying to justify it is wrong and against the law”

Here, the offender was ordered to pay K5,000 compensation within 6 months and the balance of 1 year 9 months reduced from 3 years would be wholly suspended. This was related to a serious knife injury to the Achilles tendon of the leg inflicted by a bush knife by his uncle causing 50% disability.

23. Mr. Boku then invited this Court to consider that since the prisoner had spent approximately 10 months in custody awaiting trial, he submits that that time spent in custody is sufficient punishment for an injury that was sutured on the same day and the victim released on medication and antibiotics as per the undated Medical Report by David Manasseh from Bulolo Rural Hospital at page “J” of police hand up brief in the Court File. Thus, the prisoner should be returned to the Community as per the CBC report. Furthermore, this Court also consider rehabilitation (see State v Fimino (supra) instead of imprisonment and that the balance of a sentence term (if any imposed be wholly suspended with orders for good behaviour bond during periods of suspension. If in breach, the prisoner will be arrested and remanded in Buimo CIS to serve the suspended sentence.
    

Submission by the State

24. Ms. Joseph for the State in reply submitted that there is no reason provided for the unprovoked attack, it was a vicious attack with a bush knife which the prisoner used to cut the victim on the head. She further submitted that the injury is very serious. Whilst the victim may have survived, this is no justification for such an unprovoked attack and therefore the court must impose a stern punishment. Ms. Joseph submitted also that the Pre-Sentence Report does not speak highly of the accused. There is acknowledgement that the PSR is not a balanced report, there is no confirmation that the accused has paid any compensation nor shown any form of remorse and if he does say he is sorry, this gesture is not genuine. In addition, there is no evidence to show any form of reconciliation and therefore no assumption is to be made by this court on reconciliation or compensation to be made as there are no sufficient details on the accused’s behaviour which will assist in the determination of penalty.
    
25. Ms. Joseph relied upon several case authorities to support her submission which I will refer to in this judgment. Ms. Joseph has also referred this Court to this case of The State v Yasangara [2007] N5478, which I have alluded to earlier in this judgment, and although am not bound to follow, I am guided by as it is a useful guide which this Court can adopt and apply to the circumstances of this present case. In that case, the prisoner pleaded guilty that he heard his wife left him for another man. He broke down the door to this man’s house and attacked the other man with a bush knife. In the attack, the prisoner severed one of the other man’s thumb. The Court in passing sentence, considered that as mitigating factors that the prisoner was the sole attacker, there was de facto provocation, it was a spontaneous incident, the prisoner co-operated with police, pleaded guilty and expressed remorse. The aggravating factors were that the victim was seriously injured, it was a vicious attack, played a major role in the attack, did not surrender to police, no compensation or reconciliation, not a first-time offence. The prisoner was sentenced to 10 years imprisonment, pre-sentence period in custody deducted. None of the sentence was suspended.
    
26. In The State v Jacob Puti [2013] N5196, the prisoner pleaded guilty to attempted murder. He swung a bush knife at the victim’s neck attempting to chop it off, the victim raised her hand in time to save herself. Unfortunately, the knife struck her arm, completely severing it. In determining sentence, the Court considered that the prisoner was a youthful offender and had already paid K300.00 in compensation to Court. Sentence of 7 years imposed, pre-sentence period of 2 years and 5 months deducted, the balance to serve in Baisu CIS.
    
27. In The State v Poni [2016] N6245, the offender pleaded guilty to one count of attempted murder, at the time of the alleged offending, he was in the company of his accomplices, and they were all armed with bush knives and a homemade gun. The prisoner and his accomplices intended to kill the victim as they accused him of practicing sorcery, however, upon breaking into his house, they shot at him but missed and hit him on the knee. Another shot was fired where the victim’s daughter threw herself on her father and the bullet hit her on her right leg, the prisoner and his accomplices escaped. The court considered the nature of the injuries sustained by the victim and found them not to be serious and a sentence between 7- and 10-years imprisonment was considered. The court took into account the principle of deterrence and effluxion of time. A sentence of 10 years was imposed, time in custody was deducted. The balance was served in hard labour.
    
28. Ms. Joseph submitted that in the cases relied upon, the Courts did take into account the circumstances of each case and had exercised discretion under s 19 of the Criminal Code Act to impose a sentence term of years much less than the maximum penalty prescribed under the Criminal Code.
    
29. Given these factors, Ms. Joseph invited this court to take into account the fact that there is a strong need for both personal and general deterrence, as this attack was an unprovoked attack on the complainant/victim with the use of a lethal weapon, a bush knife. Thus, taking into consideration the comparable sentences alluded to in the cases cited, she submits that a custodial sentencing range of 7 years to 10 years imprisonment in hard labour is appropriate.
    

Determining sentence

30. The offence of attempted murder under Section 304 (a) of the Criminal Code Act carries a maximum penalty of life imprisonment. It is however, well established that the maximum penalty for any offence is always reserved for the worst instances of that offence: (Golu –v The State [1979] PNGLR (653); Aihi –v- The State (No.3) [1982] PNGLR 92). It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
31. Whilst it is the task of this Court to determine an appropriate sentence to be imposed on you, in that; considerations must also be taken into account in relation to whether or not this case deserves the imposition of the maximum penalty of life imprisonment and also to consider whether if the maximum penalty is to be imposed, should consideration be given in terms of suspending wholly or partly a sentence once imposed. The Court has considerable discretion whether to impose the maximum penalty by virtue of s 19 of the Criminal Code Act.
    
32. Deciding what is an appropriate sentence is not an easy task for this court or a judge as there is no formula or mechanism through which a sentence is rated. The Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender and the interest of the State or society generally, including accepted objectives and purposes for sentencing. Plus, sentencing guidelines that have been established by case law and tariffs (in limited areas) enacted by legislation. But in all this, the court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. Furthermore, for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances.
    
33. For your case, the offence you pleaded guilty to, is very prevalent. A number of these cases have come through the courts; some of these cases (reported and unreported) have been cited by both your Defence Counsel and the Lawyer for the State. References to these cases where relevant will be used to assist this court determine an appropriate sentence.
    
34. Whilst I note that your lawyer has submitted that there are no established sentencing guidelines on the offence of attempted murder, I must state here that the National Court in a number of cases have attempted to set out some sentencing guidelines for the offence of attempted murder under s 304 (a) of the Criminal Code. One such case is that of The State v Bulu Yasangara (2007) N5478 (per Cannings J). In that case, there was a vicious and surprise attack on a man who was, at the time he was attacked, unarmed. The manner of the attack showed that the offender had a strong desire to do grievous bodily harm and an offensive weapon was involved. Matters which his Honour took into account in determining penalty here was the mitigating factors in favour of the offender, which included his guilty plea, sole attacker, de facto provocation, spontaneous incident, co-operated with police and expressed remorse. However, the aggravating factors against the offender in that case included the facts that the injury sustained by the victim was serious, it was a vicious attack, played a major role in the attack, did not surrender to police, no compensation and reconciliation made and that the prisoner was not a first-time offender. His Honour in that case, imposed a sentence within category 2 of the sentencing guidelines, so the starting point is 8 to 10 years.
    
35. Bearing all these observations in mind, this court now asked itself as to what purpose will incarceration bring to the community at large, particularly when such atrocity occurs. The unprovoked attack and the force within which these wounds are inflicted does indicate that the accused had intended to cause real harm to the victim, and it was a very vicious attack. There was a strong desire to inflict grievous bodily harm which had resulted in a depth of 5 cm and length of 10 cm wound on the head and laceration on the left shoulder blade.
    
36. Whilst this case may not be the worst type of attempted murder, I am minded to refer to sentencing guidelines used in the case of The State v Bulu Yasangara (2007) N5478 (per Cannings J, paragraph 11), which I adopt and apply the principles to this present case. I find that this was a vicious and surprise attack on a man who was, at the time he was attacked, unarmed. The manner of the attack showed that the offender had a strong desire to do grievous bodily harm and an offensive weapon was involved. I place this case within category 2 of the sentencing guidelines, so the starting point is 8 to 10 years imprisonment with adjustments upwards or downwards depending on the circumstances of the case and applying the guidelines established relating to the aggravating factors that are present in situations where:
    
    • (i) there is use of a lethal weapon such as a bush knife or axe on an unarmed victim.
    • (ii) the offender inflicts injury on a vulnerable part of the body
    • (iii) the offender inflicts multiple injuries on the victim
    • (iv) the victim is unarmed or innocent.
    • (v) did not surrender to the police,
    • (vi) no compensation or reconciliation made
    • (vii) played a major role in the attack
      
37. Regarding the case against you, I noted that there are a number of mitigating factors in your favour. These are that you pleaded guilty to the charge, have no prior convictions and co-operated with the police and you have expressed remorse. On the other hand, the facts of the case show that you attacked the victim with a bush knife, an offence which is a very prevalent one in Papua New Guinea, it is a vicious attack, and the victim was seriously injured on the head and left shoulder blade (medical report), and that no attempts has been made for compensation or reconciliation with the victim and these are taken as aggravating factors against you.
    
38. In determining what penalty to impose, I accept the submission made by the State, that this type of offence is very prevalent and thus a sentence must be seen as a personal and general deterrence. The assault on the complainant using a lethal weapon. I must also state that by passing sentence, offenders are discouraged from re-offending and that others are discouraged from committing crimes of this nature and or taking the law into their own hands. Here, victims however innocent have suffered injuries of varying degrees on their persons due to range of degree of anger and behaviour which have involved the use of all kinds of weapons however lethal. In order to deter such behaviour, it is proper that a sentence of appropriate proportion be imposed on you and for this, I sentence you to a term of 8 years imprisonment, which is within category 2 of the guidelines used in The State v Bulu Yasangara (supra).
    
39. I also noted that you have already been in custody for a period of 1 year 2 month 2 days. The next issue now is to determine whether such a pre-sentence period in custody be deducted from the sentence term of 8 years? This is allowed for under Section 3 (2) of the Criminal Justice (Sentences) Act, so given that provision, I now deduct the period of 1 year, 2 month 2 days from 8-years term of your sentence. This then leaves the balance of 6 years 10 months 28 days of the sentence term to be served at Buimo, CIS.
    
40. The next issue is to consider whether the balance of your 6 years 10 months 2 days sentence be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91).
    
41. For your case, whilst the PSR is favourable and has recommended that if the Court were to suspend the sentence as this will enable you to reconcile you with the victim and re-establish your relationship with the victim and his extended family and overall community, I find that such a recommendation does not reflect the fact that not all community leaders’ view on the prospect of reconciliation and rehabilitation are consistent. The opposite view express is that you have a bad reputation in the community and have no respect for others in the community. You are seen as a troublemaker and there are other cases pending within the community against the prisoner.
    
42. Given this contradictory view, I am inclined to disregard the recommendation presented in the PSR Report. I accept the submission made by the State that this is case where there is a strong need for both personal and general deterrence. The assault was unprovoked and that a lethal weapon was used. No indication or information has been provided before this court of any moves towards compensation or reconciliation. Furthermore, no material has been presented that warrants suspension of any part of the sentence.
    
43. With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However although this prisoner is a first time offender and young man, the crime of attempted murder which is committed with such impunity must carry with it some serious penalties as a deterrent factor and I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."
    
44. In these circumstances, this court considered that incarceration is an appropriate penalty and sentence you to 8 years imprisonment with hard labour less the period of 1 year 10 month 2 days being the period that the prisoner has been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act.
    

Sentence

45. Having convicted you, Clems Lukas, of one count of attempted murder, you are now sentenced as follows:

Length of sentence imposed: 8 years

Pre-sentence period deducted: 1 year, 10 months 2 days

Balance of term of sentence to be served:6 years, 1 months 28 days

Amount of sentence suspended: Nil

Time to be served in custody: 6 years, 1 month 28 days

Sentenced accordingly.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender