The State v Todd Mari (2011) N4306

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 02 June 2011
• Docket Number: CR NO 1450 OF 2009
• Citation: (2011) N4306
• Court: National Court
• Year: 2011
• Judgement Number: N4306

Full Title: CR NO 1450 OF 2009; The State v Todd Mari (2011) N4306

National Court: Cannings J

Judgment Delivered: 2 June 2011

N4306

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1450 OF 2009

THE STATE

V

TODD MARI

Madang: Cannings J

2011: 19, 21 April, 30 May, 2 June

SENTENCE

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.

Held:

(1) The starting point for sentencing for this sort of murder (vicious attack, strong intent to do grievous bodily harm, weapon used) is 20 to 30 years imprisonment.

(2) There was a strong mitigating factor in that the offender did not directly kill the deceased but the fact that the offender was the leader of the group, and actively encouraged and counselled his brother to murder the deceased counterbalanced the effect of that mitigating factor. The viciousness of the attack and the use of the bushknife demanded a heavy sentence.

(3) A sentence of 25 years imprisonment 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:

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

SENTENCE

This was a judgment on sentence for murder.

Counsel

S Collins, for the State

A Turi, for the offender

2 June, 2011

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.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

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.

PRE-SENTENCE REPORT

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

Personal details of Todd Mari

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

Other aspects of the offender’s life

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.

SUBMISSIONS BY DEFENCE COUNSEL

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.

SUBMISSIONS BY THE STATE

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.

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 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.

STEP 2: WHAT IS A PROPER STARTING POINT?

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 – No weapons used – little or no 12-15 years
mitigating factors – no pre-planning – minimum force used
aggravating factors. – absence of strong intent to do
grievous bodily harm.

2 Trial or plea –...