State v Mari [2011] PGNC 132; N4306 (2 June 2011)

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CRIMINAL LAW – sentencing – murder, Criminal Code, Section 300(1)(a) – convicted after trial – offender did not directly kill the deceased but led a group that attacked the deceased and enabled and aided his brother to murder the deceased – sentence of 25 years.

A man was convicted after trial of one count of murder. He did not directly kill the deceased but led an angry mob who committed acts of violence against the deceased's relatives and who attacked the deceased. The offender was directly involved in inciting the violence. He was convicted by virtue of both Sections 7(1)(b) and 8 of the Criminal Code as he acted for the purpose of enabling and aiding his brother to murder the deceased and he encouraged and therefore counselled his brother to commit murder; and he formed a common intention with other members of his group to attack and kill certain persons, that being an unlawful purpose in the prosecution of which the offence of murder, which was the probable consequence, was committed. It was a savage and brutal group attack, in which the deceased was cut with a bushknife.

Ignatius Pomaloh v The State (2006) SC834
Manu Kovi v The State (2005) SC789
The State v Jacob Aku Matai (2011) N4256
The State v Todd Mari (2011) N4259

1. CANNINGS J: This is a decision on sentence for Todd Mari who has been convicted after trial of the murder of Peter Anangui at Bafor village, Karkar Island, on 31 December 2008. He did not directly kill the deceased but led an angry mob who committed acts of violence against the deceased's relatives and attacked the deceased. The offender was directly involved in inciting the violence. He was convicted by virtue of both Sections 7(1)(b) and 8 of the Criminal Code as he acted for the purpose of enabling and aiding his brother, Kadurai Joe Mari, to murder the deceased. He encouraged and therefore counselled his brother to commit murder. He formed a common intention with other members of his group to attack and kill certain persons, that being an unlawful purpose in the prosecution of which the offence of murder, which was the probable consequence, was committed. It was a savage and brutal group attack. The deceased was cut with a bushknife. His left leg was almost severed. The offender and other members of his group prevented bystanders from coming to the immediate aid of the victim after he was attacked. Eventually two of the victim's relatives intervened and managed to get him to Gaubin Hospital on Karkar Island. He underwent emergency surgery but died of haemorrhagic shock later the same day. Kadurai Joe Mari was the person who directly killed the deceased. He has pleaded guilty and been convicted of murder and is being sentenced in separate proceedings before another Judge. Further details of the circumstances of the offence are in the judgment on verdict: The State v Todd Mari (2011) N4259.

I thank the court for dealing with my case and finding me guilty and for my time in custody. I apologise to the court for what I have done and I apologise to the deceased and his relatives for what I have done. I am very concerned about my wives and my children who are no longer in school. My parents are old and I am very worried that there is no one to look after my children. My house has been destroyed and three of my brothers have been killed as a result of what happened. All of their children are now fatherless and there is no one to look after them either. Please give me a reasonable sentence to serve so that I can go back and look after my family.

4. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Age : 38
Origin : Karkar Island, Madang Province
Upbringing : Karkar Island, Madang Province
Marital status : Married, 2 wives
Dependants : 7 children
Family : Parents alive, family of 7 children
Education : Grade 5
Employment : 15 years employment as security guard, Karkar
Occupation : Security guard/subsistence farmer/villager
Health : Sound
Religion : Lutheran

5. The offender has lived all his life on Karkar Island. He claims that he is actively involved in community activities and is a regular churchgoer and that he is well regarded in the local community and he is a good socialiser who has no enemies. There was, however, no independent verification of these claims, which are very difficult to believe and must be rejected in light of the findings of fact made by the court at the trial.

6. Ms Turi submitted that the circumstances of this case – a vicious attack, showing a strong intention to do grievous bodily harm – bring it within category 3 of the Supreme Court murder sentencing guidelines from Manu Kovi v The State (2005) SC789. However, the court must take into account that the offender was not armed and he was not the one who cut the deceased. There was no pre-planning. It was a spur of the moment incident. Although the offender was present at the crime scene he was not directly involved in the killing. The person who killed the deceased was the offender's brother, Kadurai Joe Mari. In that sense the offender, Todd Mari, had a low degree of involvement in the murder and his sentence should reflect that, Ms Turi submitted.

7. Mr Collins did not agree that this was a category 3 case. He submitted that because of the viciousness of the attack, which showed signs of pre-planning, it was a very serious case which brought it within category 4 of the Kovi guidelines. No concession should be granted to the offender on account of his not being the person who directly killed the deceased. He incited the violence and shouted orders to the members of the group to kill the deceased. His brother acted in accordance with the orders that he gave. Other aggravating features of the case raised by Mr Collins were that it was a particularly brutal and savage murder, committed in the presence of the victim's daughter; it involved a campaign of violence; the offender and his group prevented bystanders coming to the aid of the victim once he had been cut; the offender has shown no remorse; he was the leader of the group; the deceased was a leading community figure who was defenceless at the time. A sentence of life imprisonment is warranted, Mr Collins submitted.

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

9. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

10. I will apply the sentencing guidelines for murder in the leading Supreme Court case of Manu Kovi v The State (2005) SC789, which are set out in the following table:

SENTENCING GUIDELINES FOR MURDER
FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
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
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
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
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

11. I accept Ms Turi's submission that this is a category 3 case. There was a strong desire to do grievous bodily harm with an offensive weapon. It certainly comes close to falling within category 4 as it was a brutal killing of an innocent, harmless person. However, there was a lack of premeditation. It was an ugly, violent incident that was fuelled by alcohol. Therefore the starting point range is 20 to 30 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. The recent Madang case of The State v Jacob Aku Matai (2011) N4256 is a useful precedent in view of the manner in which the deceased was killed: the offender attacked the deceased with a bushknife, cutting him on his neck, head and other parts of the body. The deceased, who was defenceless at the time, died instantly. The offender pleaded guilty to murder and was given a sentence of 22 years imprisonment. The incident arose out of long running tension between the offender and the deceased and there was an element of de facto provocation arising from that tension and from the deceased being in the offender's garden at the time.

13. To determine the head sentence I will focus on the starting point range of 20 to 30 years and assess the mitigating and aggravating factors. The more mitigating factors there are the more likely the head sentence will be towards the bottom of or below the starting point range. The more aggravating factors present the more likely the head sentence will be towards the top of or above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

16. I agree that the offender showed little remorse but I cannot agree that he showed none. Lack of remorse is therefore not regarded as an aggravating factor. There are more aggravating factors than mitigating factors. The sentence must reflect the fact that the offender was convicted after trial. A higher sentence than that in Matai, where the offender pleaded guilty, is warranted. The appropriate sentence is 25 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is 2 years, 3 months, 2 weeks.

18. There is talk about payment of compensation in the pre-sentence report but the views of the deceased's relatives have not been obtained, so the prospect of payment of compensation cannot be taken into account as something favouring suspension. Even if there were evidence of compensation, it is doubtful that it would go very far in this sort of case in saving the offender from a long prison term. There would need to be evidence of real, effective customary reconciliation and the involvement of the whole community in working towards lasting peace and resolution of the problems for which this offender is responsible. The pre-sentence report makes a vague recommendation for probation, which I do not accept. I do not find a good case for suspension. Therefore no part of the sentence will be suspended.

19. Todd Mari, having been convicted of the crime of murder under Section 300(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	25 years
Pre-sentence period to be deducted	2 years, 3 months, 2 weeks
Resultant length of sentence to be served	22 years, 8 months, 2 weeks
Amount of sentence suspended	Nil
Time to be served in custody	22 years, 8 months, 2 weeks
Place of custody	Beon Correctional Institution

Sentenced accordingly.
__________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

National Court of Papua New Guinea

State v Mari [2011] PGNC 132; N4306 (2 June 2011)