State v Tokarep (No. 2) [2025] PGNC 266; N11371 (15 July 2025)

N11371

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 330 OF 2023

THE STATE

Against

WESLEY TOKAREP
(No 2)

MADANG: NAROKOBI J
9, 15 JULY 2025

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

CRIMINAL CODE ACT 1974 – Section 19, “Construction of Code as to Punishment” – Relevant Considerations on Objective of Sentencing – Constitution, National Goal 5, “Papua New Guinea Ways,” – Traditional villages to remain as viable units of Papua New Guinea society – Exercise of judicial power to implement National Goals and Directive Principles, s 25(3), Constitution.
Facts

The Prisoner comes from a remote part of Bogia District in Madang Province. He was convicted of one count of wilful murder, contrary to s 299(1) of the Criminal Code (see The State v Tokarep (2025) (No 1) N11238). The Prisoner killed the deceased with a spear gun, with the spear puncturing his chest, causing his death. He was upset about an order of a Village court magistrate over an incident he caused.

Held

(1) Applying s 19 of the Criminal Code, and Lawrence Simbe v The State [1994] PNGLR 38, the village should be protected as a viable, autonomous unit as envisaged by National Goals Five (5), “Papua New Guinea Ways,” of the Constitution, calling for a strong deterrent sentence, weighed against the mitigating factors to the Prisoner’s credit. Implementation of the National Goals and Directive Principles in the exercise of judicial power is provided for in s 25(3), “Implementation of the National Goals and Directive Principle,” of the Constitution.
(2) The Prisoner is sentenced to 22 years in hard labour, with time spent in custody deducted and an additional 12 months 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 1) N11238
The State v Yondick Ambangun (2021) N9543

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

DECISION ON SENTENCE

1. NAROKOBI J: The Prisoner, Wesley Tokarep comes from a remote part of Bogia in Madang Province. He was convicted of one count of wilful murder under s 299(1) of the Criminal Code (See The State v Tokarep (2025) (No 1) N11238).
   
2. Wesley Tokarep’s other co-accused were acquitted after the State could not produce evidence against them. Wesley Tokarep being now found guilty, returns to court for his sentence.
   
3. This is the background of the offence. The Prisoner had digitally raped a woman in the village. This was reported to the village court magistrate. A compensation of K1,000.00 was awarded against him. He was upset for paying the compensation. A duel was called for by the Prisoner with the husband and the family of the woman. Upon their arrival, the deceased, Kenny Kingston was speared in the chest with a spear fired by the Prisoner from a rubber gun, causing his death.
   
4. From the pre-sentence report, it appears that the prisoner is not educated and cannot read or write. He does not know how old he is. In my assessment of him, he is probably in his mid 30s or early 40s. His village is accessible by car and then by boat along the Boroi River of Bogia District of Madang Province. He is a first-time offender.
   
5. Wilful murder is a very serious offence. Life of a person has been taken away. Given that the village is some distance from the closest police station. The village is largely self regulating. When trouble arise, reporting the matter to the police is difficult. Equally difficult is for the police to respond swiftly to complaints. In conditions like this, councillors and village court magistrates play a large role in maintaining law and order and keeping the peace.
   
6. Applying s 19 of the Criminal Code and the principles of Lawrence Simbe v The State [1994] PNGLR 38, I am minded to adopt my observations in The State v Tawa (No 2) (2025) N11195, that the village should be protected as a viable, autonomous entity as envisaged by National Goal Five (5), “Papua New Guinea Ways,” of the Constitution. I am able to consider the National Goals and Directive Principles under s 25(3), “Implementation of the National Goals and Directive Principles,” of the Constitution in the exercise of my judicial power. This calls for a strong deterrent sentence when weighed against the mitigating factors to the Prisoner’s credit.
   
7. Why do I say this? The circumstance of this case was that there was a rape in the village. Obviously, the police would have been called to investigate. Geographically this was difficult. The village court magistrate intervened, but this was resented by the Prisoner. He retaliated by killing a person related to the family of the woman he raped.
   
8. This consideration weighs heavily in my mind when I am deciding the sentencing objective I should apply (Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510). A strong sentence is necessary to deter like-minded persons in similar village setting. Violently attacking a person for engaging the established process that maintains social order in the village must be discouraged with a strong deterrent sentence. Because Papua New Guinea is a close-knit society, 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 where the Prisoner previously engaged in sexual violence 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 cases they have identified. Firstly, in The State v Latuve (2013) N5406 the deceased was killed with a blunt object hitting the head and was sentenced to 20 years in hard labour less time spent in custody. Some years later, in The State v Junior Felix Ivangai (2019) N8207, in a revenge attack where 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, he received a sentence of 25 years imprisonment 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 unique circumstances of this case, and the comparable cases. Also relying on these case authorities, the State says a sentence starting from 25 years is warranted to impose deterrence upon society in general and in particular for this case, achieve justice for the victim and his family.
    
12. I am inclined to accept the State’s submission, that the starting point should be 25 years, however given that the Prisoner appears to be an unsophisticated villager, who cannot read or write, surrendered to the police, and this is his first contact with the law, I will impose a sentence of 22 years. Although I must emphasise that the circumstance of this offence did not arise from a one-off incident as it were. There was a long-standing resentment, initiated by the Prisoner himself, when he raped a married woman in the village. She suffers this stigma. The Prisoner was not arrested and charged for this. Now a life has been lost from an incident the Prisoner himself set into motion.
    
13. Having said all that, I impose a sentence of 22 years. Time spent in custody will be deducted. Given the sympathetic pre-sentence report, highlighting that the Prisoner had voluntarily surrendered and he is not a threat to society, I deduct an additional 12 months, although I note that the Prisoner continues to deny his involvement. I cannot deduct any more than that because the views of the victim’s family were not obtained and no compensation was paid.
    
14. 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. Balance of the term to be spent in hard labour.
       
15. Sentence and orders accordingly.
    

Lawyer for the State: Acting Public Prosecutor
Lawyer for the prisoner: Public Solicitor