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State v Viga [2016] PGNC 150; N6342 (16 June 2016)

N6342 PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 8 OF 2014

BETWEEN:

THE STATE

AND:
JOSEPH VIGA
Prisoner

CR NO. 9 OF 2014

BETWEEN:

THE STATE

AND:
CECIL VIGA
Prisoner

CR NO: 11 OF 2014

BETWEEN

THE STATE

AND:
SAMSON VIGA JR
Prisoner

CR NO: 866 OF 2014

BETWEEN:

THE STATE

AND
FREDDY VIGA
Prisoner

Popondetta: Davani,J

2016: 16^th & 19^th June

Counsel:

Mr D. Sopane, for the State
Mr E. Sasingian, for the Prisoners

SENTENCE

19^th June, 2016

1. DAVANI J: On 16^th June, 2016, I found Freddy Viga, Samson Viga Jnr, Cecil Viga and Joseph Viga ( ‘Prisoners’), guilty of the lesser charge of murder, charge laid under s.300(1) (a) of the Criminal Code.

Facts

2. After a trial on a charge of wilful murder, the following facts were proven to have occurred. On 12^th November, 2012, Densley Kariva (the ‘Deceased’), went to Yagisa hamlet, Tufi, Oro Province, to visit his uncle and aunt Serah and Eric Desigari. He wanted to borrow a biro to write a letter. However, his uncle Eric was not there, doing some church work in a neighbouring village. Only his aunt Serah was at home. Whilst he was there talking to his aunt, Accused Joseph Viga , on finding out that the Deceased was with his aunty, went and told his father Samson Viga snr. Samson promptly came along and told the Deceased to leave. He did that because there had been ongoing issues between his family and the Deceased’s family, over land.

3. The Deceased returned to Yagisa hamlet, sometime later, with his brother, a male cousin and his sister. They were tasked by their father to talk to the Prisoners and their father and to hopefully, resolve any differences they may have. However, upon entering the Yagisa hamlet, the Prisoners father led in a charge at the Deceased and his siblings. A fight started. In the melee, the Deceased had to defend himself and his brothers. It was during the fighting, that Accused Joseph Viga picked up a sharp knife that was lying on the ground and ran at the Deceased from the back. He then slashed the Deceased in the stomach resulting in the Deceased’s intestines spilling out. The Deceased died soon after.

Mitigating factors

4. On allocatus, the Prisoners all expressed their deep remorse and regret for what they had done, apologising to God, the State, the Court, the Deceased and his family and to their family. They expressed concern that if they are incarcerated, there will be nobody to look after their families properties because they are all in jail now.

5. I heard that they do not have prior convictions and that this is their first offence.

Aggravating factors

6. During the fight, accused Joseph Viga used a knife to inflict an horrendous injury upon the Deceased, cutting open his stomach, causing the spillage of his intestines and eventually, his death.

7. And the fact that the court had to run a trial and shift through evidence, time being a luxury it does not have, is most aggravating.

Analysis of evidence and the law

8. Both counsel referred me to Manu Kovi v the State (2005) SC 789. Defence Counsel submits that the court should consider category no.2 of Manu Kovi and to sentence the Prisoners to a period between 16 and 20 years.

9. He submits that sentence must also portray or reflect the involvement of all Prisoners.

10. Counsel for the State on the other hand, submits that the court consider the fact that the co-accused and their father had done some pre-planning after which the Deceased was killed. The State submits that the court must consider the part played by all Prisoners in the killing.

11. The State submits further that the circumstances of aggravation are very serious in that the Prisoners had sharpened their weapons and were waiting for the Deceased and his siblings, to attack them.

12. Indeed, the Prisoners, urged on by their father, were waiting for the Deceased and their siblings, to attack them. They all played a role in the fight, as I found, in that they were all fighting the Deceased and his siblings. The evidence is that the Deceased, had stepped in to help his brother, who was being attacked by two of the Prisoners, and it was whilst he was distracted in that group fight, that the Prisoner Joseph Viga, attacked him from the back. Joseph Viga just threw the knife at the Deceased, in a slash like movement, across the Deceased’s stomach, with no thought of the consequences. Indeed, although the other Prisoners did not throw the fatal blow, they each are equally responsible.

13. Although Prisoners asked the court for its mercy, they must be reminded that the court must sentence according to the proper principles laid down by the law. It reminds accused persons that they must seriously consider their positions before embarking on a quest that will see them breach the laws of this country. When that happens, and accused persons are arrested and are successfully prosecuted, then the courts must mete out penalty that is befitting the crime.

14. How can or should this court deal with the sentencing of each offender, considering the role each played in the killing?

15. In Steven Loke Ume and Ors v The State (2006) SC836, bench consisting Kapi CJ, Injia DCJ, Los, Hinchliffe, Davani.J dated 19^th May, 2006, the court considered the issue of accused persons involvement where there are several Prisoners.

16. The facts of the case were briefly that after one Patrick Reu was killed, a group went looking for the person responsible, for vengeance. They did not find him but found his mother. They brutally assaulted and raped her then chopped her so viciously, she died. The appellants were amongst the group of 9 who attacked and killed the deceased.

17. The appellants were each sentenced to death. They appealed. Appellants counsel raised 10 points where he said the trial judge erred, and which all basically went towards the accused’s involvement.

18. In the appeal, the Supreme Court held, amongst others, that the involvement of 9 people was not carefully considered. The Court noted that the deceased sustained a variety of injuries. That there was evidence the killing was done by a group of 9 men and that she was repeatedly raped before she was killed.

19. The Supreme Court noted that although in principle, 3 appellants were liable to the same penalty as participants in a common enterprise, that it was necessary to ascertain each appellants involvement and impose a sentence which reflected the extent of their involvement.(my emphasis)

20. The Supreme Court held that the trial Judge did not do that. It quashed the death penalty and imposed a life sentence only because there was no evidence to differentiate the role played by each appellant in the killing.

21. However, in Alois Erebebe v The State (2013) SC 1228, bench comprising Gavara-Nanu.J, Davani.J, Yagi.J, Makail.J, I was the dissenting Judge in an appeal involving the degree of participation by appellants where the Supreme Court held that because the degree of participation by each accused is not known, that sentence should still be reduced because of the nature of the injuries inflicted on the deceased persons. I said this, although it is obiter:

“107. I reiterate again that at a trial involving several accused and when deliberating on an appeal against sentence involving several accused, where the issue of the degree of participation by each accused and appropriate sentences is considered, then the trial court or the supreme court must continuously remind itself of the actual physical involvement in the crime by the accused, which would then assist the court in determining sentence for each accused. In a situation such as this where the role each accused played in the killing is not known but there is a finding of guilt because the accused have aided and abetted each other, that the proper finding to make under these circumstances is that they all serve the same sentence regardless of the nature of the injuries”.

22. In this case, the role each Prisoner played is clear. I set out these evidence and findings at paragraph nos. 118 to 145 of my published reasons on Verdict. I need not repeat myself except to say that it was Joseph Viga, who, after 4 unsuccessful attempts, succeeded in fatally stabbing the Deceased. The 3 other Prisoners were involved in fist fights with the Deceased’s siblings, with the exception of Freddy Viga, who was seen hurling a spear at the Deceased, but which the Deceased fended off. After that, Freddy Viga became a spectator.

23. Based on the above reasoning, indeed, sentence to be imposed against the Prisoners, will vary.

What is an appropriate penalty for an offence of this nature?

24. In The State v Tupis Tom No.2 (2009) N3675, the deceased was killed in a mob attack during a drunken brawl. Tupis Tom punched the deceased after which they exchanged punches. The co-accused delivered a heavy blow to the deceased’s ribs, fracturing them. The deceased died as a result of broken ribs and respiratory failure. The prisoner is a first time offender. They attacked the deceased with bare hands. There was no pre-planning. There was also de-facto provocation. The court sentenced the prisoner to 12 years.

25. In State v Ronny Aike (2006) N3455, which was a case involving a guilty plea to a charge of manslaughter under s.302 of the Criminal Code, the deceased was stabbed by the accused in the groin when they both grappled. The wound was deep. The deceased died from loss of blood. He was sentenced to 16 years.

26. The third category of Manu Kovi states that on a trial or a plea, where there is a pre-planned vicious attack, and there is a strong desire to do grievous bodily harm, and a dangerous and offensive weapon is used, then a sentence between 20 to 30 years should be imposed.

27. This court finds that this case falls within the third category of Manu Kovi because of the following reasons;

• The attack upon the Deceased and his siblings was pre-planned.
• An offensive, dangerous weapon was used, with no regard for the Deceased’s fate.
• That the Prisoners were determined to carry out their attack upon the Deceased and his siblings, with no thought of the consequences.

28. For the above reasons, this court finds that a sentence of 25 years to be served in hard labour by offender Joseph Viga, is appropriate under the circumstances.

29. Prisoners Freddy Viga, Samson Viga Jnr and Cecil Viga, will each serve the term of 20 years, in hard labour.

30. The time spent on remand awaiting trial will be deducted from the head sentence of each accused.

31. So ordered.

Public Prosecutors : Lawyer for the State

Public Solicitors : Lawyer for the Offender