The State v Joseph Viga

• Jurisdiction: Papua New Guinea
• Judge: Davani, J
• Judgment Date: 19 June 2016
• Citation: (2016) N6342
• Court: National Court
• Year: 2016
• Judgement Number: N6342

Full : CR NO. 8 OF 2014; The State v Joseph Viga; and CR NO. 9 OF 2014; The State v Cecil Viga; CR NO: 11 OF 2014 The State v Samson Viga JR; CR NO: 866 OF 2014; The State v Freddy Viga (2016) N6342

National Court: Davani, J

Judgment Delivered: 19 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: 16th & 19th June

Counsel:

Mr D. Sopane, for the State

Mr E. Sasingian, for the Prisoners

SENTENCE

19th June, 2016

1. DAVANI J: On 16th 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 12th 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 19th 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...