SC2368

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 6 OF 2022

DANIEL GAMU
Appellant

AND
THE STATE
Respondent

Waigani: Gavara-Nanu, Mogish and Berrigan JJ
2023: 21st February and 29th March

CRIMINAL APPEAL – AGAINST CONVICTION – S 304, Criminal Code – Attempted Murder - Principles applied – Conviction not unsafe or unsatisfactory – Appeal dismissed. 

CRIMINAL APPEAL – AGAINST SENTENCE – Principles applied – Vicious attack, with a bush knife, causing permanent injuries to the head, neck, hands and elbow of the complainant - Sentence of 15 years of imprisonment appropriate in all the circumstances.  

The appellant was convicted of the attempted murder of the complainant, John Kariap, and sentenced to 15 years of imprisonment.  It was alleged that the complainant was drinking with his friends outside the appellant’s store when the appellant’s brother, Steven, came out of the store and started threatening people with a bush knife. The complainant, an off-duty police officer, stood up and told Steven to put the knife away. Steven swung the knife at the complainant, who punched Steven, knocking him to the ground. Steven’s wife called out that the complainant had cut Steven, following which the appellant came out of his shop armed with a bush knife and attacked the complainant from behind, striking him to the left side of his head, causing a very deep wound and severing his ear, then inflicting a long wound to the complainant’s neck, before repeatedly attempting to strike the complainant’s face. The complainant tried to defend himself. Both his hands were severely wounded in the process, as was his elbow which was also fractured and dislocated. The complainant collapsed to the ground, apparently dead, at which point the appellant struck him once on his left calf and once on his right calf before walking away.   

Held:

(1)	The identification of the appellant was not unsafe or unsatisfactory.  It was a case of recognition. The appellant was well known to the State witnesses who observed the appellant under light at the time he committed the offence.

(2)	The finding that the appellant intended to kill the complainant was not unsafe or unsatisfactory.  The totality of the circumstances, the weapon used, the ferocity and relentless nature of the attack, the location and nature of the injuries, and the fact that the appellant stopped only when it appeared that the complainant was dead excluded any rational possibility that he only intended to cause grievous bodily harm.
 
(3)	The learned trial judge erred in failing to take into account the appellant’s medical condition and the presence of de facto provocation in determining sentence.  

(4)	Attempted murder is one of the most serious offences found in the Criminal Code. The gravity with which it is regarded by the legislature is reflected in its maximum penalty of life imprisonment.  Given the intention required, the sentence imposed for attempted murder may appropriately fall beyond those imposed in some cases of manslaughter or murder depending on the facts and circumstances of the particular case concerned: Kapi DCJ in The State v Rex Lialu [1988-89] PNGLR 449 approved.

(5)	Taking into account the appellant’s health condition and the presence of de facto provocation whilst also considering that the maximum for attempted murder is life imprisonment, and noting the violent nature of the offence, the weapon used, the permanent injuries sustained by the victim, and the impact of the offence on his physical and mental health, we are not persuaded that the sentence of 15 years should be substituted with a different one.  

Appeal against conviction and sentence dismissed.

Cases Cited:

Lati v The State (2015) SC1413
John Beng v The State [1977] PNGLR 115
Beng v The State [1977] PNGLR 115
Michael Tenarum Balbal v. The State (2007) SC860
Waranaka v Dusava [2009] PGSC 11
SC980; RD Tuna Canners Ltd v Sengi (2022) SC2232
R v Bauoro-Dame [1965-66] PNGLR 201
Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188 
State v Raphael Kuanande [1994] PNGLR 512
Manual v State (2018) SC1732
William Norris v The State [1979] PNGLR 605 
Regina v Peter Ivoro [1971-72] PNGLR 374
Ume v The State (2006) SC836 
The State v Rex Lialu [1988-89] PNGLR 449
Manu Kovi v The State (2005) SC789 
State v Yasangara (2007) N5478

References Cited:

Section 23 of the Supreme Court Act
304 of the Criminal Code (Chapter 262)

Counsel:

Mr B. Mamu and Mr F. Kirriwom, for the Appellant 
Ms M. Tamate, for the Respondent/State

DECISION ON APPEAL

29th  March, 2023

1.	BY THE COURT: The appellant, Daniel Gamu, was convicted of the attempted murder of John Kariap, contrary to s 304 of the Criminal Code (Chapter 262) (the Criminal Code), following trial and sentenced to 15 years of imprisonment.  He appeals against conviction and sentence. 

BACKGROUND

2.	It was the State’s case at trial that between 6 pm and 7 pm on 12 October 2014 the complainant, and three others, Tai Tale, Dagi Stanley and Terry Henry were drinking alcohol in front of the appellant’s store which was located along the 9 Mile Road towards Hiritano in Port Moresby. The appellant’s brother, Steven Gamu, came out of the appellant’s premises armed with a bush knife and started threatening people with it.  The complainant, an off-duty police officer, stood up and told Steven to put the knife away.  In response Steven swung the knife at the complainant, who punched Steven, knocking him to the ground. Steven’s wife called out that the complainant had cut Steven.  At this it was alleged that the appellant came out of his shop and attacked the complainant with a bush knife, striking him to the left side of his head, then to his neck, before repeatedly attempting to strike his face and that in doing so he struck the complainant’s right hand and right forearm several times before the complainant fell to the ground, following which the appellant cut the complainant once on the left calf and once on the right calf before walking away. 

3.	The State called the complainant and two witnesses, Dagi Stanley and Tai Tale. Terry Henry is now deceased.  It tendered the appellant’s record of interview in which he denied any involvement.  He said in his record of interview that he was at his house with his family at the time.  

4.	At trial the appellant said in oral evidence that he was at his store but that the incident did not happen outside his store but at another location nearby.  He only found out that the complainant had been attacked later.  He called Steven’s wife, Jennifer Steven, and his former employee, Kure Iso, in his defence.  

5.	Jennifer said that the incident happened elsewhere, at a nearby buai market. She said that the complainant was very drunk and squeezed her breast. Her husband punched the complainant in response, causing him to fall down, at which point Tai and Dagi arrived. John then jumped up, grabbed the bush knife Tai was holding and chopped her husband twice at which point she yelled out “John cut my husband” before the crowd started assaulting the complainant. It was “a big cut” and she took her husband into a taxi and home.  

6.	Kure confirmed that the appellant was in the shop at the relevant time and that he did go out at some point. He did not know what happened outside. 

7.	The learned trial judge found the offence established beyond reasonable doubt and convicted the appellant.

APPEAL AGAINST CONVICTION

8.	To succeed on an appeal against conviction an appellant must by virtue of s. 23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

9.	There are essentially two areas of contention on the appeal, identification and intention. 
Identification

10.	On the issue of identification, the appellant submits that the trial judge’s finding that he was the person who attacked the complainant is unsafe and unsatisfactory.  It was dark, the surroundings were only partially lit and there was evidence that the complainant may have been assaulted by other members of the public who had gathered following the altercation between the complainant and Steven.  The complainant said that he was not at first aware he was being attacked by the appellant and only learnt that the appellant was his attacker some time later.

11.	We are not persuaded by these arguments. 

12.	Having heard and observed the State witnesses the learned trial judge found their evidence to be clear and convincing.  The trial judge identified those parts of the defence case which supported the State’s evidence, including that the complainant and State witnesses were drinking together, that there was an altercation between Steven and the complainant, and that Steven’s wife called out for help.  She identified those parts of the defence case which she considered had been designed to distance the appellant from the offence and which were against common sense and logic for the reasons she gave.  The trial judge also found that there was sufficient lighting for the purposes of identification.

13.	It is well established that this Court will not intervene on findings of fact based on the credibility of witnesses unless the trial judge is shown to be demonstrably wrong:  Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v. The State (2007) SC860; Waranaka v Dusava [2009] PGSC 11; SC980; RD Tuna Canners Ltd v Sengi (2022) SC2232.

14.	The trial judge’s findings are supported by the evidence. This was a case of recognition.  All of the witness were well known to one another.  They are from Tari and lived together at 9 Mile.  Whilst it was already dark at the time of the offence, lights were on at the appellant’s store and at the stores on either side. There were also security lights.  

15.	It is the case that the complainant was not at first aware that it was the appellant striking him but that is because he was attacked from behind and without warning.  He immediately became aware that the appellant was his attacker when he turned around to protect himself.  In addition, Dagi Stanley and Tai Tale both gave evidence that they saw the appellant come out of his store, approach and then attack the complainant. They observed him from a short distance of just a few metres. 

16.	The possibility that other members of the public assaulted the complainant was excluded in those circumstances. 

17.	It follows that the appellant has not established that the learned trial judge’s finding that it was he who attacked and caused the injuries to the complainant is unsafe or unsatisfactory. 

Intention to Kill

18.	Having found beyond reasonable doubt that it was the appellant who attacked the complainant in the manner described it was necessary for the learned trial judge to also find that he intended to kill the complainant.  

19.	To establish the charge of attempted murder the prosecution must establish beyond reasonable doubt that the accused:

(a)	intended to actually kill another person; and
(b)	put that intention into execution by some overt act.

R v Bauoro-Dame [1965-66] PNGLR 201; Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188. 

20.	Intention goes to the accused’s state of the mind at the time he or she acted.  

21.	In the oft-quoted words of Injia J, State v Raphael Kuanande [1994] PNGLR 512:

“It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence.”

22.	The appellant submits that the trial judge failed to properly consider the possibility that the appellant, whilst intending to cause grievous bodily harm, did not intend to kill the complainant when the last two strikes against the complainant, whilst he was lying defenceless on the ground, were to his legs and not to another more vulnerable part of his body.    

23.	Whilst the trial judge did not refer to the possibility expressly, she correctly identified the above principles before setting out the reasons for finding that the intention had been established.  She did so after hearing the evidence from the witnesses who were present at the time and took into account the medical evidence. We see no error or unsafeness in the findings.

24.	The evidence showed that the offender attacked the complainant without warning, with a bush knife.  The first strike was a very deep one to the left side of the complainant’s head, measuring 7 cm in length and slashing his ear.  The second caused a 15 cm long wound to the complainant’s neck.  By then, of course, the complainant was attempting to escape the blows. Not satisfied, the appellant struck at the complainant’s face who tried to protect himself with his bare hands.  The appellant did so with such force that he almost severed the fingers on the complainant’s left hand.  The palm of the complainant’s right hand was split open. The injuries to both hands is consistent with the evidence that the complainant was unarmed.  The relentless nature of the attack is demonstrated by three further wounds to the complainant’s right elbow, caused again with such force that they fractured and dislocated it.  It was only when the complainant collapsed to the ground, and appeared, on the evidence of the State witnesses, to be dead, that the appellant cut the complainant on each of his calves before walking away.  Upon realising that the complainant was unconscious he was rushed to the hospital by his friends where he was resuscitated.    

25.	It is not the case that the trial judge failed to identify a motive for the killing.  Motive is not necessary to establish intention to kill but in many cases it will be relevant to establishing the charge: Manual v State (2018) SC1732.    Here the trial judge found that “the motive was clear, the accused was told that his brother was attacked by the complainant”. 

26.	In summary, the totality of the circumstances, the weapon used, the ferocity and relentless nature of the attack, the location and nature of the injuries, and the fact that the appellant only stopped once the complainant appeared to be dead excluded any rational possibility that he intended only to cause grievous bodily harm.  The act of cutting the complainant’s calves was simply the final act of contempt on the part of a man who had, in his mind, accomplished what he set out to do. 

27.	The appeal against conviction is dismissed.

SENTENCE

28.	An appellate court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously (and not merely arguably) out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.

29.	The appellant contends that the trial judge erred: a) placing too much weight on the complainant’s assertion in the victim impact statement that he suffered from post traumatic stress disorder; b) refusing to consider the appellant’s medical condition as an extenuating factor notwithstanding that the medical report was presented as prima facie proof of the appellant’s medical condition; and c) finding that there was no de facto provocation having found that the appellant was motivated to kill the complainant after hearing that he had cut his brother.  He submits that the sentenced should be substituted with one of 10 years of imprisonment.

30.	There is no merit in the submission that the trial judge placed too much weight on the victim impact statement.  The trial judge did not find that the victim suffered from post-traumatic stress disorder.  When assessing the impact on the victim the trial judge took into account that the complainant suffered permanent injuries that affected the quality of his life and his emotional and psychological wellbeing.   There can be no serious doubt about that assessment.     

31.	As to the second issue, the appellant’s medical condition cannot be characterised as an extenuating circumstance in this case.  It was irrelevant to the commission of the offence itself.

32.	Extenuating circumstances are “some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense but broadly, regard being had not only to moral considerations but to all the considerations which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour”: see Regina v Peter Ivoro [1971-72] PNGLR 374; Ume v The State (2006) SC836. 

33.	Rather, the effect of the appellant’s contention is that the trial judge failed to take into account his medical condition in personal mitigation.  

34.	The medical report is not contained in the appeal book but it appears from the transcript that a medical report was provided by a doctor stating that the appellant was suffering tuberculosis.  The diagnosis was not reflected in the sentencing remarks and it appears from the trial judge’s comments that she doubted the veracity of the report because it was prepared only recently and without additional detail.  The trial judge may well have formed an adverse opinion of the appellant during the trial but the report was provided by a doctor.  The fact that the condition was only recently diagnosed does not mean it was not genuine, serious or requiring treatment.  The trial judge was not in a position to dismiss the doctor’s report without more.  The judge went on to find that Correctional Services was equipped to deal with any medical conditions the offender faces or may be likely to face.  That is somewhat of an oversimplification.  Nevertheless, it is the case that Correctional Services is required and does treat those suffering tuberculosis and many other serious conditions whilst in custody.  In addition, as in any case, the offender’s medical condition must be balanced against the gravity of the offending. We will return to this further below.

35.	On the matter of de facto provocation, the trial judge found that there was none. 

36.	The finding is inconsistent with the judge’s finding that the appellant attacked the complainant upon hearing his sister-in-law call out that the complainant had cut his brother.  The judge’s finding appears to be based on the fact that the appellant did not witness the complainant attack his brother and that his response was unreasonable and out of all proportion to the circumstances.  Those matters are true but that does not mean that there was not some de facto provocation present on the trial judge’s own findings of fact.  That of course is to be distinguished from legal provocation or self-defence which would afford a defence.  The question to be determined was the weight to be given to the de facto provocation in the circumstances of the offence taken as a whole.  

37.	It follows that the appellant has established that the trial judge failed to take into account his medical condition and the presence of de facto provocation, that is that at least on the face of the record there were errors upon which he founded his appeal.  The question remains whether a different sentence should be passed. 

38.	This Court has repeatedly emphasised the need to deal sternly with crimes of violence.  

39.	Attempted murder is one of the most serious offences found in the Criminal Code.  The gravity with which it is regarded by the legislature is reflected in its maximum penalty of life imprisonment.  Like any case the sentence must be determined according to its own facts and circumstances.  Given the intention required, however, the sentence imposed for attempted murder may appropriately fall beyond those imposed in some cases of manslaughter or murder depending on the facts and circumstances of the particular case concerned.

40.	We reiterate the comments of Kapi DCJ in The State v Rex Lialu [1988-89] PNGLR 449:
“The principle that an offence which has the element of death should receive a higher penalty than an offence which does not have such an element is inconsistent with what the Supreme Court said in Peter Naibiri and Kutoi Soti Apea v The State (Supreme Court, Judgment No SC 137, 25 October 1978, unreported) an attempted murder case. It was submitted in that case that an attempted murder was less serious than the offence of murder because of the absence of death. The court said:
‘The crime of attempting to murder, in so far as it involves the specific (though unsuccessful) intent to kill may be regarded as potentially more serious than that of murder and many cases of manslaughter, which involves intents to do less serious things, but produce, without intending, death.’”
41.	It follows that it is erroneous to apply a fifty percent discount to the guideline sentences for murder contained in Manu Kovi v The State (2005) SC789 as a starting point as proposed in State v Yasangara (2007) N5478, which was relied on by the appellant in the court below.  

42.	This approach fails to recognise the maximum penalty provided by law and the intention required to establish the offence.  It also fails to recognise the very high level of violence usually involved, and the associated and often enduring cost to the survivor’s physical and mental health, their livelihood and enjoyment of life, as well as that of their family.  Moreover, there is a very strong need for specific and general deterrence in a case of attempted murder, to punish the offender, protect the community and send a strong message that such offences will not be tolerated. 

43.	The Supreme Court is yet to set guidelines for attempted murder.  Given the grounds of the appeal we have not heard submissions from either counsel in this regard and will not issue any guidelines in the circumstances. 

44.	We have considered the appellant’s health condition.  As above, Correctional Services is equipped to treat such conditions and the condition must be balanced against the severity of the offending.  We have also considered the presence of de facto provocation which must also be considered in all the circumstances.  

45.	Considering that the maximum for attempted murder is life imprisonment, and noting the violent nature of the offence, the weapon used, the permanent injuries sustained by the victim, and the impact of the offence on his physical and mental health, we are not persuaded that the sentence of 15 years should be substituted with a sentence of 10 years of imprisonment or any other. 

ORDERS

46.	We make the following orders.

(1)	The appeal against conviction for attempted murder is dismissed.
(2)	The sentence of fifteen years of imprisonment is affirmed.

________________________________________________________________
Office of the Public Solicitor:	Lawyer for the Appellant
Office of the Public Prosecutor: Lawyer for the Respondent