The State v Bulu Yasangara (2007) N5478

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 October 2007
• Citation: (2007) N5478
• Docket Number: CR NO 1524 0F 2003
• Court: National Court
• Year: 2007
• Judgement Number: N5478

Full Title: CR NO 1524 0F 2003; The State v Bulu Yasangara (2007) N5478

National Court: Cannings J

Judgment Delivered: 16 October 2007

N5478

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1524 0F 2003

THE STATE

V

BULU YASANGARA

Madang: Cannings J

2007: 8, 16 October

CRIMINAL LAW – sentence – attempted murder – Criminal Code, Section 304 – guilty plea – offender used a bushknife to break down door of a house in which the victim was sleeping – offender motivated by belief that victim was having an affair with his wife – strong de facto provocation – sentence of 10 years.

A man pleaded guilty to attempted murder. He heard that his wife had left him and gone to live with another man. He went to the other man’s house, broke down the door of the house and tried to get into the room where the other man was sleeping. He attacked that door with a bushknife, intent on getting inside the room and killing the other man. In the course of the attack the other man had one of his thumbs severed.

Held:

(1) In the absence of Supreme Court sentencing guidelines for attempted murder it is appropriate to use the guidelines for murder derived from the Supreme Court’s decision in Manu Kovi v The State (2005) SC789; and set starting points at 50% of the tariff in that case.

(2) The present case falls within category 3 of Kovi, and applying the 50% quotient, results in a starting point of 15 to 22 years imprisonment.

(3) Mitigating factors are: sole attacker; de facto provocation; spontaneous incident; cooperated with police; pleaded guilty; expressed remorse. Aggravating factors are: victim seriously injured; vicious attack; played a major role; did not surrender to police; no compensation or reconciliation; not a first offence.

(4) A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

Peter Naibiri and Others v The State (1978) SC137)

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

The State v Elizah Ute (2004) N2550

The State v Frank Johnston and Others (No 2) (2004) N2586

SENTENCE

This was a judgment on sentence for attempted murder.

Counsel

M Ruarri, for the State

A Turi, for the offender

16th October, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of attempted murder arising from the following facts. Late on the night of Friday 27 June 2003 the offender, Bulu Yasangara, went to his village, Guria, after arriving from Goroka. He had heard that his wife had left him and was living with the victim, Dickson Yamuru. Bulu went straight to Dickson’s house, broke down the front door and tried to get into the room where Dickson was asleep. Bulu used a bushknife to cut down the door. Dickson tried to hold the door but Bulu cut him twice on his right hand, severing the thumb and cutting the pointer finger. Dickson called out to his brother, Samson, who came to his rescue. Bulu stopped what he was doing and ran away. As he was leaving Dickson’s area he called out that he would kill Dickson. It was clear that if Samson had not arrived on the scene, Bulu would have proceeded to kill Dickson. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for attempted murder under Section 304 of the Criminal Code.

ANTECEDENTS

2. The offender has a prior conviction for murder for which he was sentenced to 5 years imprisonment in 1990.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I had arrived at my village at 1.00 in the morning. I saw my two sons and they told me that their mother had left them and Dickson had taken her away. When I heard that story I was feeling very sorry for my children. I got a knife and went to Dickson’s house and broke down the door. I say sorry for what I have done. I am now very worried for my two children. My former wife has already married.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). He made admissions in his police interview and co-operated with the police.

PERSONAL PARTICULARS

5. Bulu Yasangara is 43 years old. He has no formal education. He has been employed as a chainsaw operator at Goroka for a number of years with a logging company.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted that there was strong de facto provocation as his children had been abandoned by his wife who entered a relationship with another man. She pointed out that though the victim was injured and suffered a serious injury the injury was not to a vulnerable part of the body.

SUBMISSIONS BY THE STATE

7. Mr Ruarri submitted that this was a crime of violence, which could have had fatal consequences. It requires a deterrent sentence in the range of 4 or 5 years. The offender took the law into his own hands.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 304 (attempted murder etc) of the Criminal Code states:

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.

10. The maximum penalty is therefore life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. As Kandakasi J pointed out in The State v Elizah Ute (2004) N2550 and The State v Frank Johnston and Others (No 2) (2004) N2586 the Supreme Court has not given sentencing guidelines for attempted murder so the National Court has a wide discretion available to it when fixing a sentence. I have carefully considered the sentencing principles his Honour applied in those cases. Since they were decided the Supreme Court has in Manu Kovi v The State (2005) SC789 given detailed sentencing guidelines for manslaughter, murder and wilful murder. It is useful to consider those guidelines when sentencing for attempted murder. Though 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.

TABLE 1: SENTENCING GUIDELINES FOR ATTEMPTED MURDER

USING A 50% QUOTIENT RE MURDER SENTENCES

FROM SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Murder	Attempted Murder
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years	6-8 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years	8-10 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years	10-15 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment	15 years-life imprisonment

12. This was...