State v Mari [2011] PGNC 145; N4419 (6 October 2011)

N4419

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1464 OF 2009

THE STATE

V

WILSON MARI

Madang: Cannings J
2011: 16 August, 5, 6 October

SENTENCE

CRIMINAL LAW – sentencing – murder, Criminal Code, Section 300(1)(a) – sentence after trial – offender killed deceased by stabbing him in the chest after a drinking session – offender motivated by jealousy as offender's wife was in close company of deceased – sentence of 22 years.

The offender was convicted after trial of the murder of a friend with whom he had been drinking alcohol, who was later seen drinking and socialising with the offender's wife. The offender followed the deceased and the offender's wife and stabbed the deceased three times, killing him almost instantly.

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) Mitigating factors were that it was a spontaneous incident, involving little planning and an element of de facto provocation but the viciousness of the attack and the use of a knife demanded a heavy sentence.

(3) A sentence of 22 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:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Abaya Ulas (2010) N4009
The State v David Solomon Lingen CR No 1292/2009, 20.11.09
The State v Jacob Aku Matai (2011) N4256
The State v Julius Kembu CR No 288/2009, 23.04.09
The State v Wilson Mari (2011) N4359

SENTENCE

This was a judgment on sentence for murder.

Counsel

S Collins, for the State
A Turi, for the offender

6 October, 2011

1. CANNINGS J: This is the decision on sentence for Wilson Mari who has been convicted after a trial of murder under Section 300(1)(a) of the Criminal Code. The victim is a 19-year-old-man, Rudolph Pius. The offence was committed between 5.00 and 6.00 am on Saturday 28 February 2009 in the Nabasa area of Madang town. Both the offender and the deceased were long-term residents of that part of town. They were friends. They were both drinking alcohol rather heavily on the night of Friday 27 February and into the early hours of Saturday morning, but not at all times together. The deceased was for a while in the company of the offender's wife and they walked off and the offender did not know where they went. He became concerned by their whereabouts and what they were doing and followed them. When he reached the deceased he stabbed him three times, killing him. The deceased died from a right tension pneumothorax (collapsed lung) caused by a stab wound (2 cm x 10 cm) to the right side of the chest inflicted by a sharp metal object, and there were two other stab wounds to the left side of the chest (2 cm x 16 cm and a 1 cm puncture) and fractured ribs. The deceased died almost instantly. The offender did not intend to kill the deceased but did intend to cause him grievous bodily harm. Further details of the circumstances of the offence are in the judgment on verdict, The State v Wilson Mari (2011) N4359.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I am married with four children. I have two brothers. I was very young when our father left us. We were brought up by our mother. I am the only member of the family who is employed so they all depend on me for financial support. Two of my children are in school. I ask for the mercy of the court.

PRE-SENTENCE REPORT

4. Wilson Mari is 34 years old. He comes from East Sepik Province but has lived all of his life at the Gov Stoa settlement, close to where he committed the offence, in Madang town. He has two wives and four children. His mother remains strongly supportive of him and wants the family to reconcile with the deceased's relatives. He has a grade 9 education and was employed until recently at the PNG Maritime College. He claims to have health problems, but there is no evidence of this. He does not have any history of violence and has a good reputation in the local community. There has been talk of compensation but the deceased's relatives, who are from the Bogia District, Madang Province, are not interested and do not want the offender to be shown any leniency. The report concludes that the offender is not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Ms Turi submitted that the circumstances of this case – some aggravating factors as well as mitigating factors – bring it within category 2 of the Supreme Court murder sentencing guidelines from Manu Kovi v The State (2005) SC789. This case is comparable to The State v Abaya Ulas (2010) N4009, a recent Madang case in which the accused, a police officer, was charged with wilful murder, convicted of murder and sentenced to 16 years imprisonment. Here there was only one fatal stab wound, and a high degree of de facto provocation (as the deceased was having an affair with the offender's wife) so the sentence should not exceed 16 years imprisonment.

SUBMISSIONS BY THE STATE

6. Mr Collins did not agree that this was a category 2 case. He submitted that because of the viciousness of the attack, involving not just one stab wound, but three, there was a strong intention to cause grievous bodily harm, the case falls within category 3 of the Kovi guidelines, warranting a sentence within the range of 20 to 30 years imprisonment. Compared to the recent case of The State v Jacob Aku Matai (2011) N4256 the sentence should be at least 22 years imprisonment.

DECISION MAKING PROCESS

7. 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 similar 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?

8. 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?

9. I will apply the sentencing guidelines for murder in the leading Supreme Court case of Manu Kovi v The State (2005) SC789 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

10. I accept Mr Collins' submission that this is a category 3 case. The post-mortem report shows that there was a strong desire to do grievous bodily harm with an offensive weapon. The starting point range is 20 to 30 years.

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

11. Four recent cases I have decided provide useful precedents. In the Kimbe case of The State v Julius Kembu CR No 288/2009, 23.04.09 the offender pleaded guilty to the murder of a man who he believed had threatened his wife, had sex with her and made her pregnant. The offender, together with four others, staged a planned attack on the deceased who was busy off-loading cargo from a vehicle when he was attacked. The offender cut him on the back with a bushknife and the deceased ran towards the beach. The offender and the others chased him, with their knives. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with as a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of the strong element of de facto provocation and evidence of reconciliation between the offender and the deceased's relatives.

12. In the Wewak case of The State v David Solomon Lingen CR No 1292/2009, 20.11.09 the offender pleaded guilty to the murder of a man who had over a long period ill-treated him. The offender approached the deceased and attacked him with a bushknife on the right side of the neck and face. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with as a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of a strong element of de facto provocation. It was also significant that the offender acted alone, not in a group.

13. In the Madang case of The State v Abaya Ulas (2010) N4009 the offender, a police officer, was not on official police duty but went to a village where the deceased was staying and with the help of others, raided the house the deceased was staying in and fired at least two shots from a police-issued firearm that he was carrying. The deceased died soon afterwards from loss of blood caused by a bullet wound to the leg. The offender was convicted after a trial. It was dealt with as a category 2 case under the Kovi guidelines and there were a number of mitigating factors warranting a sentence at the low end of the starting point range: 16 years imprisonment.

14. In the Madang case of The State v Jacob Aku Matai (2011) N4256 the offender pleaded guilty to murdering his brother-in-law by cutting him with a bushknife several times on various parts of his body, while the deceased was working in a plantation. It was a vicious attack, arising out of long running tension between the offender and the deceased. The sentence was 22 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. 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 at the low end of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top end 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. Mitigating factors are:

• the offender acted alone;
• it was a spontaneous incident, involving little pre-planning;
• there was some element of de facto provocation at the time of the incident due to the deceased being in the company of the offender's wife and going missing with her for some time in the early hours of the morning;
• he is a first-time offender.
  

17. Aggravating factors are:

• it was a vicious attack, involving multiple wounds to vulnerable parts of the body;
• there was a strong desire to inflict grievous bodily harm;
• the use of a sharp object, an offensive and lethal weapon.
  

18. There appear to be more mitigating factors than aggravating factors, however the viciousness of the attack and the use of an offensive weapon warrants a heavy sentence. This case is more serious than the cases of Kembu and Lingen and Ulas which resulted in sentences of 16 or 18 years. The circumstances of the killing are less serious than that in Matai but that case involved a guilty plea whereas in the present case the offender pleaded not guilty. The appropriate sentence is the same as in Matai: 22 years imprisonment.

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

19. 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 six months.

STEP 6: SHOULD ANY PART OF THE SENTENCE BE SUSPENDED?

20. There is talk about payment of compensation in the pre-sentence report but there is insufficient evidence of tangible progress. The favourable matters in the pre-sentence report have already been taken into account for the purposes of fixing the head sentence. The deceased's relatives are not in favour of suspension. I do not find a good case for suspension. Therefore no part of the sentence will be suspended.

SENTENCE

21. Wilson 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	22 years
Pre-sentence period to be deducted	6 months
Resultant length of sentence to be served	21 years, 6 months
Amount of sentence suspended	Nil
Time to be served in custody	21 years, 6 months
Place of custody	Beon Correctional Institution

Sentenced accordingly.

__________________________

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