State v Hariki [2003] PGLawRp 28; [2003] PNGLR 52 (3 February 2003)

NATIONAL COURT OF JUSTICE

THE STATE

V

ARUA MARAGA HARIKI

WAIGANI: SALIKA J

3 February 2003

CRIMINAL LAW — Sentence — Wilful murder — Convicted of two wilful murders — Imposition of death penalty.

Facts

The accused was found guilty of committing a double murder. Sentencing was reserved at the trial. The prisoner came up for sentencing.

Held

1. The crime of willful murder is the highest and most serious of homicide cases and s 299(2) of the Criminal Code states that a person who commits willful murder shall be liable to be sentenced to death.

2. The two killings were independent acts.

3. Sentence on the first count is life imprisonment, on the second count, death.

Papua New Guinea case cited

Ure Hane v The State [1984] PNGLR 105.

Counsel

Miss Boni, for the State.
A Amet Jr, for the defendant.

03 February 2003

Salika j. The prisoner has been found guilty of 2 counts of wilful murder after a trial. The crime of wilful murder is the highest of the homicide cases. It is also the most serious of the homicide cases. It is serious because it involves unlawfully taking of life. Taking the life of another person unlawfully with the intention that the person should die is a very serious crime. Life is only lived while one can. It can be taken away by natural death or through sickness. It can also be taken away through accidents like plane crashes or motor vehicle accidents. Death may also be caused through carelessness or wrecklessness. In each instance of homicide cases seriousness is usually measured by circumstances prevailing at the time. What happened before when homicide was committed goes to show the seriousness of the offence.

In this case the offence was committed while the prisoner and the deceased were drinking. Whatever was the prisoner's state of mind the court does not know, but the evidence is that the prisoner held the deceased, Heni Veidiho, on his neck and virtually blocked his windpipe thus cutting off precious air from getting into the lungs and the rest of the body. At that moment Heni's life and survival was dependent on the prisoner's action.

If the prisoner released Heni's throat Heni would live. If he continued to hold him and block the air Heni would die. The prisoner would have had the opportunity to release Heni but in this case he saw it fit to continue to hold Heni by his throat. A photograph of Heni's body showed an incised wound on his throat. Medical evidence is that the wound was sufficient to kill him.

In this case, I am satisfied that whoever inflicted that wound intended to cause Heni's death. The prisoner was present at the scene of the murder.

The motive for the killing was not established except by the utterance of the words "these are the people". Whatever those words mean are only known to the prisoner and Siaka Sava.

In the case of Togiri the court does not know how death was inflicted on Togiri. Evidence is that both Heni and Togiri were drinking with the prisoner. John Naime gave an explanation of how Heni met his death. He ran away for fear of his own life leaving Togiri asleep in the blue Mazda. Whatever happened to Togiri is not known but the bodies of the boys were found together along the Papa-Lealea road. This led me to find that whoever killed Heni must also be responsible for the killing of Togiri. I came to that conclusion because it makes sense and in my view is a reasonable conclusion supported by other evidence.

Killing another person with intent is in my view the most serious crime. Life is lived only once. Once it is taken away the person ceases to exist. Life is therefore sacred. It should be revered, respected and preserved and every effort should be made by every person to protect it.

I am mindful of the factors mentioned in the matter of Ure Hane v The State (1984) PNGLR 105 by Bredmeyer J. A wilful murder is a wilful murder. If a murder is not wilful then it must be murder or manslaughter. In this case evidence is that Heni met his death first. It appears that the death of Heni for whatever reason was not enough. The prisoner's state of mind must have been to kill what was available. John Naime in that regard probably made the right decision to flee to preserve his own life. His continued stay there may have proved disastrous in so far as his own life was concerned.

Coming back to the point, it appears that one person's life was not enough to put the prisoner's mind at ease. He therefore took the other life, that of Togiri as well. Thus making it two lives for whatever he was doing it for. It was like killing two birds with one stone. This makes the offence more serious in my view. Two wilful murders at one go.

Two very young boys lost their lives that night. They lost their right to live, a right that is guaranteed under s 35 of the Constitution. The families of both boys have lost their loved ones through no fault of theirs.

Over the years I have tried numerous cases of murder. It appears to me that killing are becoming more daring without any fear and respect for the sanctity of life. Life has become too cheap in this country to make it meaningful. Exposure to christianity and education has had little impact on some communities in PNG. Tribal fighting, payback killings and ethnic clashes are not unusual occurrences.

As I have said earlier wilful murder is a very serious offence. It carries a death penalty. Treason is the only other offence that carries a death penalty. That is how serious Parliament regards wilful murder offence.

Section 299(2) says that a person who commits wilful murder shall be liable to be sentenced to death.

In this case the prisoner has been found guilty of two wilful murders. It could be argued that the two murders were committed in one chain of events and as such should be considered as part of a single course of conduct. Normally I would accept that submission. In this case the evidence is that Togiri was asleep in the vehicle when Heni was murdered. Togiri did not know what was happening. He did not witness Heni's murder.

If Togiri later became aware that Heni was dead then there may have been a reason to get "rid" of him as well.

The point is there was no need to kill Togiri if he was asleep and saw nothing. There was also no reason to kill Togiri because John Naime, the eye witness to Heni's death would live to tell the story. The prisoner had time to consider whether or not Togiri should also die.

In this case he decided Togiri should die as well. As if one death was not enough he also took the life of Togiri.

I take into account the prior good record of the prisoner. He is about 34 years old, married with 5 children. He is a first time offender and has a good home at Baruni. He is involved in his family business – Hariki Transport. I take into account all that has been said by his lawyer on his behalf.

I also take into account that Baruni is very near to Port Moresby, the seat of the Government of Papua New Guinea.

However I am mindful too that 2 young lives have been lost at the hands of the prisoner unnecessarily without regard to sanctity of life and without regard to their right to live.

These types of killing must stop. The courts have been trying to stop these types of killing through passing of higher sentences but imposing higher sentences has not achieved much. It is time to consider the killing in this case to be worthy of a death sentence. And so in so far as the first count is concerned I sentence you to life imprisonment. In so far as the second count is concerned you are sentenced to death.

Such penalty is to be executed after the expiry of the 40 days appeal period to the Supreme Court.

Lawyer for the State: Public Prosecutor.
Lawyer for the defendant: Maladina Lawyers.