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State v Kinapa [2009] PGNC 183; N3814 (11 December 2009)

N3814

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 49 of 2005

THE STATE

V

MISIN KINAPA

Porgera: Ellis J
2009: 11 December

JUDGMENT ON SENTENCE

CRIMINAL LAW – Sentence - Particular offence – Attempted murder – Trial - Victim dragged off PMV then attacked by three men with bush knives – Offender’s blow severed victim’s right hand near the wrist – No priors – Some compensation paid - Sentenced to 10 years’ imprisonment with hard labour - Criminal Code, section 304

Cases cited:

Kovi v The State [2005] PGSC 34; SC789 (31 May 2005)
The State v Kesi Awa, CR 388 of 2006, Popondetta, Lenalia J (22 May 2006)
State v Henry Idob [2001] PGNC 39; N2172 (17 December 2001)
State v Namba Mako, CR48 of 2007, David J (16 October 2007)
State v Jack Magal, CR 224 of 2008, Mendi, Makail AJ (9 December 2008)
Peter Nairibi & anor v The State (1998) SC137

Counsel:

Mr J Waine, for the State
Mr P Kapi, for the Offender

11 December, 2009

1. ELLIS, J: The offender was found guilty of a charge of attempted murder brought under section 304 of the Criminal Code for which the maximum penalty is life imprisonment.

2 The evidence taken into consideration for the purposes of sentencing was the evidence led in the trial. The brief facts of this case are set out in the findings of fact made in the trial:

(1) Prior to 5 June 2001 the victim saw the offender on a number of occasions over a period of years which resulted in him knowing his name.

(2) At about 9am on 5 June 2001 the offender travelled from Porgera, delivering culverts, in the company of Benson Kuala and others.

(3) They returned to Porgera at about 3pm that day.

(4) Subsequently, the offender was one of three men who boarded a PMV.

(5) After they had boarded that bus, the victim boarded the same bus and sat near the entrance of the bus, next to the door.

(6) During the journey of that bus, the three men including the offender got off the bus.

(7) The victim was dragged off the bus by one of three men, assisted by the offender.

(8) After the victim was dragged off the bus, the offender swung his bush knife towards the head of the victim who put up his right hand in an effort to defend himself.

(9) As a result, the bush knife wielded by the offender sliced through the victim’s right hand, above but close to the wrist.

(10) That wound required a revision amputation of the victim’s mid-forearm which was undertaken on 6 June 2001.

(11) The victim was also struck on the back of the head and on the back of the neck with bush knives by the other two members of the trio.

(12) The resulting head wound required a full thickness skin graft.

(13) That head wound now presents as a near circular “bald patch”, about 3 cm in diameter, on the back of the victim’s head.

(14) The resulting neck wound healed but left a visible scar which is about 3cm in length.

(15) During the attack the victim was told that the reason for the attack was the death of Lot Kinapa.

(16) The reason for the attack was revenge for the death of Lot Kinapa.

(17) Lot Kinapa is a brother of the offender.

(18) After the attack, the victim ran away from the scene of that attack.

(19) When he reported the attack to the police, the victim named the offender as one of the three men who attacked him.

(20) The attack was such as to cause the doctor who treated the victim to form the opinion that the victim needs both physical and psychological rehabilitation.

3. When provided with an opportunity to address the court, after being found guilty of this offence, the offender denied committing the offence then apologised for what happened which I take to mean that he said sorry about what happened to the victim but still denies that he did it. The offender said this was his first time to appear in court and said he was a different person as a result of the time he had spent in prison which he said separated him from his family and resulted in a loss of resources and the loss of his job. The offender concluded by asking the court to have mercy on him.

4. On behalf of the offender, Mr Kapi noted that the offender has no prior convictions and drew the court’s attention to a number of National Court decisions. The first was The State v Kesi Awa, CR 388 of 2006, a decision of Lenalia J on 22 May 2006 at Popondetta. In that case, a sentence of 6 years was imposed following a plea of guilty to a charge of attempted murder. The court considered the sentence should fall below the lowest category for manslaughter cases which, in the case of a plea, involves a range of 8 to 12 years according to Kovi v The State [2005] PGSC 34; SC 789 (31 May 2005). Secondly, Mr Kapi referred to the case of State v Henry Idob [2001] PGNC 39; N2172 (17 December 2001) which was a case where a sentence of 5 years’ imprisonment was imposed following a plea of guilty to a charge of causing grievous bodily harm. That case involved a right hand injury which resulted in an assessed 85% disability in relation to that hand. However, the charge in that case only involved an intention to inflict grievous bodily harm and not an intention to kill. Thirdly, The State v Namba Mako, CR48 of 2007, a decision of David J delivered on 16 October 2007, was also a case which resulted in a hand severed at the wrist. The sentence, following a plea of guilty, was imprisonment for 5 years. Finally, the court was referred to the decision of Makail AJ (as he then was), delivered on 9 December 2008 at Mendi in State v Jack Magal (CR 224 of 2008) in which a sentence of 9 years’ imprisonment was imposed following a trial on a charge of attempted murder.

5. The submissions made on behalf of the State were that reference should be had to Kovi’s case as well as cases involving grievous bodily harm. Reference was also made to the Supreme Court decision in Peter Nairibi & anor v The State (1998) SC137 which is authority for the proposition that charges of attempted murder may be regarded as potentially more serious than some cases of murder and manslaughter in that those cases commonly involve an intention to do less serious things than kill a person.

6. An aggravating factor in this case is that the offender was in the company of others when the victim was attacked. It must be made clear that I am not sentencing this offender as if he was responsible for the injuries inflicted by the other two attackers. However, in cases of armed robbery and rape, the Criminal Code treats the involvement of more than one person as an aggravating factor: see sections 386(2) and 349A. The victim’s significant, lifelong disability of an amputated right arm is also an aggravating factor.

7. Mitigating factors in this case are the payment of some compensation. I do not consider this offender has shown remorse in that, a mere apology, when accompanied by a denial, does not constitute remorse. I note that he has no prior convictions.

8. It would be wrong to think of attempted murder as anything less than a serious crime because it is really a situation where, because of the need to establish an intention to kill, the charge would have been wilful murder had the victim not survived. Support for the view that attempted murder is a serious offence may be found in the fact that the offence of attempted murder carries a maximum sentence of life imprisonment. When someone is charged with murder instead of wilful murder it is usually the case that there was an intention to inflict grievous bodily harm rather than an intention to kill. Manslaughter is commonly the charge when death is an unintended consequence of where death is due negligent or reckless conduct. Simply stated, a charge of murder and manslaughter involve a death but no intention to kill whereas a charge of attempted murder involves an intention to kill but no death.

9. There is no guideline judgment in relation to sentencing in cases of attempted murder. However, it would obviously be wrong, when sentencing an offender for attempted murder to ignore the Supreme Court decision in Kovi’s case, in which sentencing guidelines were set out for cases of wilful murder, murder and manslaughter. If even the sentencing ranges are not appropriate, the considerations referred to in that judgment are relevant.

10. This case involves a pre-planned, vicious attack in which weapons were used and there was a strong desire to kill. Had the victim died as a result of the attack, this case would certainly satisfy the criteria for category 2 cases of wilful murder, for which the sentencing range is imprisonment for 20 to 30 years. Indeed, had the victim died as a result of his injuries, the present case could be said to fall within category 3 of the wilful murder criteria. If this matter had been a murder charge then it would have fallen within category 3 for which the sentencing range is, again, 20 to 30 years. If this matter had been a manslaughter case then it would also have fallen, at least, within category 2 for which the sentencing range is 13 to 16 years. In other words, having regard to the circumstances of this case, had the victim died then the low point in the appropriate sentencing range for the offence of manslaughter (overlooking murder and wilful murder) would have been imprisonment for 13 years.

11. It appears to me to be wrong to approach a case of attempted murder on the basis that it is only a case involving an attempt because that could be said to make attempt the noun, not murder. In the present case it is necessary to consider what allowance should be made for the fact that the victim did not die? No-one who read the medical report in this matter would doubt the proposition that this victim was lucky to survive the attack. Likewise, anyone who has seen the victim would form the view that the victim was lucky to survive the attack. There have been many cases in this court in which people died from lesser injuries and it is clear that few people who were injured to the extent to which this victim was injured survive those injuries.

12. Another way of considering the appropriate sentence in this case is to consider the lesser offence of inflicting grievous bodily harm, set out in section 319 of the Criminal Code, for which the maximum penalty is imprisonment for 7 years. If this offender had been charged with inflicting grievous bodily harm then there is little doubt that either the maximum sentence of imprisonment for 7 years, or something close to that term, would have been imposed.

13. A consideration of sentences in cases involving a charge of inflicting grievous bodily harm is understandable because in those cases the injuries may be similar to the injuries encountered in cases of attempted murder and in each case the victim survives the injuries inflicted. However, the difference between cases involving grievous bodily harm and cases involving attempted murder is that the latter category of cases involve an intention to kill. In order to heed what the Supreme Court said in Nairibi’s case, reference should also be had to cases involving manslaughter, murder and wilful murder. It seems to me that the position may be summarised by saying that sentences in cases of attempted murder should not be “married” to cases of grievous bodily harm to an extent which “divorced” them from cases of manslaughter, murder and wilful murder which can conveniently be considered by reference to the decision in Kovi’s case.

14. Those considerations suggest to me a sentencing range in this case of between 7 and 13 years. There is an aggravating factor of the offender acting in the company of others and a mitigating factor in that some compensation has been paid. I am of the view that the appropriate sentence in this case, having regard to the circumstances of the offence and the circumstances of the offender, is imprisonment with hard labour for 10 years.

15. It is appropriate to recognise the work of the treating doctor, Moises V Granada MD. The consequences of crimes of violence and serious injuries is that the skills of the doctors who serve in Papua New Guinea are sorely tested and they often work in difficult conditions with limited facilities. I hope that a copy of this judgment can and will be provided to Dr Granada so that he becomes aware that his work has been acknowledged with appreciation.

16. I cannot help but observe that, in this case, the offender was committed for trial on 13 September 2004. It is bad enough that the offender had to wait more than 5 years for his trial and it is even worse that the victim had to wait more than 8 years from the date when he was attacked for one of his attackers to be imprisoned. Everyone who is involved in the Law and Justice Sector should regard the delays which occurred in this case as unacceptable. This case makes a mockery of section 37(14) of the Constitution which suggests that accused persons should be brought to trial within four months of being committed for trial. Lest that provision be forgotten, I set it out in full:
In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

17. If that provision were obeyed, the Minister for Justice would have an office so full of reports he would not have time to read them. It is to be regretted that the standard which was set when Papua New Guinea attained independence in 1975 has slipped over the following 34 years to be an objective which some people, I hasten to add, not me, see as unachievable.

Remarks to the offender on sentence

18. This was a brutal attack in which the victim was almost killed. The fact that he survived is the only reason why you did not face a charge of wilful murder. On 5 June 2001 you were implementing a system of payback. That is why, on 11 December 2009 I am implementing a system known as the rule of law which is a phrase used to describe the system under which this country is governed by laws, made by elected members of parliament, which are enforced by the courts.

19. Under that system of payback, it was you who decided what punishment was to be inflicted, when it was to be inflicted and on whom it was to be inflicted. That system, even though it is widespread and has been in place for a long time, is wrong. When people do something wrong, the punishment should be left for the courts to decide, after hearing all the evidence, making sure beyond any reasonable doubt that the right person has been blamed for the crime.

20. The people of Porgera should be pleased that during the next 10 years, if you use a bush knife, it will only be to cut bush and not be part of a group of men who drag a passenger off a PMV, try to chop him on the head and chop off his right hand when he tries to defend himself. If you think that 10 years is a long time for you to spend in gaol then you should bear in mind that the victim has lost his right hand for the rest of his life.

21. Taking into consideration what has been said by you and by your lawyer, I sentence you to imprisonment with hard labour for 10 years. From that term will be deducted a period of 1 year, 6 months and 2 weeks to take into account the time you have already spent in prison. That leaves a term of 8 years, 5 months and 2 weeks to be served from today.

Sentenced accordingly.
__________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender