N11374

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1166 OF 2024

THE STATE

v

JOSEPH ASAGAR

Madang: Narokobi J
2025: 15 and 18 July

CRIMINAL LAW–  Sentence  – Offence of wilful murder – appropriate sentence.

CRIMINAL LAW (COMPENSATION) ACT 1974 –Payment of Compensation – relevant consideration in suspension of a term of imprisonment.
Facts

The Prisoner was convicted after trial of one count of wilful murder contrary to s 299(1) of the Criminal Code. The Prisoner was the subject of arson attacks from what he claims to have been caused by the deceased. He organised his family, and they attacked the deceased. He was found guilty as he aided and abetted the commission of the offence, having expressed clearly the intention to kill the deceased. The deceased was speared on his side in a mob attack and died of internal haemorrhage from that injury.  

Held

1.	In a village setting the payment of compensation, sanctioned by the Criminal Law (Compensation) Act 1991, apart from its monetary value to the victim’s family, considering the close-knit village community, has the objective of restoring harmony and healing relationships and this should be factored into an appropriate suspension of term, where the pre-sentence report shows genuine reconciliation  (Public Prosecutor v Hale (1998) SC564 referred to)

(1)	The Prisoner is sentenced to 22 years in hard labour, with time spent in custody deducted and an additional six (6) years to be suspended on account of his pre-sentence report.

Cases Cited
Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
The State v Junior Felix Ivangai (2019) N8207
The State v Latuve (2013) N5406
The State v Tawa (No 2) (2025) N11195
The State v Tokarep (2025) (No 2) N11371
The State v Yondick Ambangun (2021) N9543 

Legislation Cited
Constitution
Criminal Code Act

Counsel
Mr J Kasse, for the State
Mr C Momoi, for the Prisoner

DECISION ON SENTENCE

15 July 2025

2.	NAROKOBI J: The Prisoner, Joseph Asagar comes from Niapak Village Bogia in Madang Province. He was convicted of one count of wilful murder under s 299(1) of the Criminal Code after trial (See The State v Asagar (2025) (No 1) N11216).

3.	Joseph Asagar’s other co-accused were acquitted. Joseph Asagar being now found guilty, returns to court for his sentence.

4.	This is the background of the offence. The Prisoner was the subject of arson attacks from what he claims to have been caused by the deceased. He organised his family, and they attacked the deceased. He was found guilty as he aided and abetted the commission of the offence, having expressed clearly the intention to kill the deceased. The deceased was speared on his side in a mob attack and died of internal haemorrhage from that injury.  

5.	From the pre-sentence report, the Prisoner is 43 years old, married with six children and is the local pastor of the Four Square Church in their area. He supports himself and his family from the sale of betelnut and cocoa. Views of the local leader was not obtained, but the victim’s brother advised that there was some payment of traditional currency and later in September, three pigs and K3,000.00 will be given to restore harmony in the village. The Prisoner’s suitability for parole was not recommended as the community leaders did not respond to requests for an interview, to assess how well the Prisoner will be reintegrated into the village after coming out from prison. 

6.	Wilful murder is a very serious offence. Life of a person has been taken away. From the pre-sentence report the deceased is the son-in-law of the Prisoner. This is a tragic situation to be in. The person that has died is someone’s son, brother, husband, father, and in-law. Being a pastor, makes the matter worse, because it is not only the law of the country not to kill, but also offends the law of God – the sixth commandment. Every person, no matter what have done, has the potential for redemption through the saving work of Jesus Christ. But there has to be penance for that to take place. As laws are ordained by God, and man is created in the image and likeness of God, a fitting punishment to satisfy the requirements of the law, will help the Prisoner make peace with God, and provide the platform for healing and forgiveness to take place with the family of the victim.    

7.	I have made comments about protecting the village as a viable autonomies entity in cases such as State v Nitawa Tawa (No 2) (2025) N11195, and I apply them here. But my reservation is that the deceased was known to have caused trouble in the village, because he died from a retaliatory attack. This therefore requires community leaders to display strong leadership in the village. I am also surprised that they did not provide their views, when they were requested for the pre-sentence report. Although I am speculating, I wonder if the death would have taken place if the issue was resolved by the community leaders attending punctually to the behaviour of the deceased.

8.	When I am deciding the sentencing objective I should apply (Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510) I take the view that a strong sentence is necessary to deter like-minded persons in similar village setting. We as the courts have a responsibility to award sentences that will discourage what appears to be the norm now that a trouble-maker in the village will be silenced by “mob retaliatory action.” As I observed in State v Wesley Tokarep (No 2) (2025) N11371, Papua New Guinea is a close-knit society, and trouble of this nature, has the potential of causing social dislocation of families, adding to the growing population in Papua New Guinea of what the United Nations describe as “Internally Displaced Persons.”  

9.	After considering the allocatus, the mitigating and aggravating factors, including the remorse of the prisoner, and the pre-sentence report, I am persuaded that the aggravating factors outweigh the mitigating factors. Use of an offensive weapon on a vulnerable part of the body in circumstances in a mob attack warrants a sentence in the range of 20 to 30 years. I say this, bearing in mind the sentencing tariffs for wilful murder cases in Manu Kovi v The State (2005) SC789. The maximum of life sentence is not warranted on the basis that this not the worst instance of this offence (Goli Golu v The State [1979] PNGLR 653). 

10.	I am greatly assisted by Counsels in my sentence from the comparable wilful murder cases on sentencing they have brought to my attention. In The State v Latuve (2013) N5406 death was caused with the use of a blunt object hitting the head. A sentence of 20 years in hard labour less time spent in custody was imposed. The State v Junior Felix Ivangai (2019) N8207 decided in 2019, the Prisoner and his accomplices acted in revenge. The deceased was killed in a mob attack with the use of a spear, with accomplices also using sticks and bush knives. The Prisoner was sentenced to 20 years in hard labour, less time spent in custody. More recently in The State v Yondick Ambangun (2021) N9543 the Prisoner speared the deceased with a spear gun on his left arm pit, causing his death. A sentence of 25 years imprisonment was imposed with time spent in custody, deducted.

11.	The Prisoner submitted that a sentence of 22 years in hard labour less time spent in custody is appropriate when considering the comparable cases and the pre-sentence report. Also relying on these case authorities, the State calls for a sentence starting from 25 years is warranted to protect the village, citing the case of State v Nitawa Tawa (No 2). 

12.	I am inclined to accept the State’s submission, that the starting point should be 25 years, because the Prisoner was a pastor, and he had the influence over those who were involved with him in the killing. However, for the mitigating factors submitted by the Prisoner, I will start with 22 years. The mitigating factors and the factors in the pre-sentence report are:

•	First-time offender.
•	Has expressed remorse.
•	Some degree of de-facto provocation.
•	Initial customary rites to restore harmony described as “bel kol” has been performed with a promise to make further compensation as a stage for reconciliation.

13.	I want to add, that whilst payment of compensation alone, would satisfy the requirements of the Criminal Law (Compensation) Act 1991 for suspension of a term, yet there is an objective to this, which often gets concealed in a modern cash society. Compensation in a village setting is to restore harmony and heal relationships. The pre-sentence report suggests this from the interview with the brother of the deceased, and I give credit to the Prisoner for this, and will factor it into suspension of an appropriate period in the sentence. In my view the exercise of this discretion is allowed by s 19 of the Criminal Code Act 1974. I also make reference to Public Prosecutor v Hale (1998) SC564 when making this point that the type of punishment must engage the community.  

14.	Having said all that, I impose a sentence of 22 years.  Time spent in custody will be deducted.  Given the pre-sentence report indicating an initial reconciliation or “bel kol,” I deduct an additional 12 months. A further five years will be deducted after the reconciliation ceremony, within six months from today, with the payment of three pigs and K3,000.00, and it be witnessed by the probation office, who will provide a further report to confirm this event.  I cannot deduct any more than that because a life has been lost, and the sentence must reflect that.

15.	The formal sentence of the Prisoner is as follows:

1.	Prisoner is sentenced to 22 years in hard labour.
2.	Time spent in custody is deducted.
3.	An additional 12 months is suspended.
4.	A further five (5) years will be suspended, if within six months from today, the Prisoner pays K3,000.00 and three (3) pigs to the family of the deceased.
5.	The Probation Office provide a report to the court to confirm the reconciliation ceremony for the suspension to take effect.
6.	Balance of the term to be spent in hard labour.

16.	Sentence and orders accordingly. 

Public Solicitor: Lawyers for the Prisoner
Acting Public Prosecutor: Lawyers for the State