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State v Kosmas (No. 2) [2025] PGNC 471; N11603 (21 November 2025)

N11603

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1735, 1736, 1737, 1738, 1739 & 1740 OF 2022

THE STATE

v

NOAH KOSMAS,
JOSHUA KAMBIA,
JACK WASE,
JONAH TIMUN,
JACKSON TUPULYA &
JOB PULI (No. 2)

BAISU: ELLIS J
21 NOVEMBER 2025

CRIMINAL LAW – WILFUL MURDER - s 299(1) CCA – Sentence following trial – six offenders plus two others attacked victim – an axe plus multiple bush knives carried by them – victim struck with bush knives – 25 years IHL.

Brief facts
The victim and one of the offenders had an argument one evening. The next afternoon, a group of eight men, including these six offenders, went to where the victim lived, armed with one axe and bush knives. Injuries causing the victim’s death were a wound to his left leg and his left arm being almost severed.

Held
(1) Kovi, upper limit of category 2.
(2) Reduction for role of these offenders and conditions at Baisu, from 30 years IHL to 25 years.

Cases cited
Kovi v The State [2005] PGSC 789
State v Minimao (2025) N11503
State v Uphas (2025) N11592

Counsel
J.Kesan, for the State
L. Toke, for the defendants

JUDGEMENT ON SENTENCE

1. ELLIS J: These six offenders were charged with wilful murder and were found guilty, following a trial. It was alleged that on the 28 May 2024, at Waires village, they wilfully murdered Elly Frank (the victim). The charge, which was based on s 299((1) of the Criminal Code Act 1974 (the CCA), carries a maximum penalty of imprisonment for life.
   

Allocutus

2. Since the evidence upon which the State relied supported a conviction, an opportunity was provided for the offenders to address the Court, prior to closing submissions.
   
3. What was said by Noah Kosmas is set out below:
   

I have all my children in school. One is in Grade 12 and the other is in Grade 10. While I am here in Baisu, one of my children who is doing Grade 12 has left school as well as the others who have no-one to look after their school needs. There is trouble back in the village and there is no-one willing to look after my children. Therefore, I am willing to go back and look after them. That is if this Court can grant me bail. I have six children. If I continue to stay here, the future of those children will be spoiled. In view of the situation back home, I am asking this Court to have mercy on me and give me bail which I am willing to pay. That is all and I am again asking this Court for mercy.

4. What was said by Joshua Kambia is set out below:
   

I am a married man with one child and I also attend classes. I am only a young person and if I continue to stay here in Baisu, the future of my family will not be good, and my child will not have a good future. I accept whatever punishment this Court can give me, and I am asking if this Court can allow me to be on a good behaviour bond and stay at home. I am a first-time offender. Whatever punishment that this Court will impose on me, I will accept that. Again, I am asking if I can look after my family back at home. Finally, I am asking mercy from this Court.

5. What was said by Jack Wase is set out below:
   

I am the only child in my family. I am a married man. I have four children. One is in Grade 7, one is in Grade 4, another one is in Grade 2, and one is in kindergarten. I have never committed any offence in my life. This is my first time to be before the Court. Whatever punishment that is imposed by this Court on me, I will accept that. I am willing to serve that time back in the village and also to look after my family.

6. What was said by Jonah Timun is set out below:
   

I am the only child in my family. My father died, leaving my mother living alone in the house. I do help my mother with the housework and other things that she needs from me. There was daylight or sunlight when the incident happened. I was not there. I am only a young man, and I am asking this Court to have leniency on me. This place is not in good condition, and I am asking this Court to place me on a good behaviour bond. This place has no water. Sometimes we have to live without water. The village here is too old. With conditions like that, I am asking this Court to have leniency or mercy on me.

7. What was said by Jackson Tupulya is set out below:
   

I am the last-born of three children. Both my parents are dead. The incident happened when there was still daylight and the Creator also witnessed that. When it comes to the last day, I know that no blame or anything relating to the deceased’s life will be for me. I am asking this Court to have leniency on me and to reduce the term of punishment on me. This place was built a long time ago. There is no water, food and sometimes rain comes into the place where we are living. So whatever punishment the Court imposes on me, I am asking this Court is I can be transferred to another institution to serve that term. That is all and, again, I am asking this Court to have mercy on me.

8. What was said by Job Puli is set out below:
   

I am the last born in the family. While I was here in Baisu my mother died. My father is an old man. I have five children. The first-born is doing Grade 8. The second-born is doing Grade 1. The third one is in kindergarten. The other two are only small children, with their mother. Because of the tribal fights, my families are not properly settled. Those kids at school, I cannot do anything to support them while I am here. I will accept whatever punishment the Court imposes on me. I am asking this Court to reduce the term of punishment that is imposed on me so I can serve a lesser time here then go back to my village and continue to look after my family. This place here was built a long time ago. It is not in good condition. I am asking this Court to place me on a good behaviour bond or transfer me to another institution to serve my sentence.

Evidence

9. In the judgement delivered this morning, following the trial, the Court made the following findings of fact. They are repeated below as they provide the factual foundation for the purposes of sentencing in that they establish the circumstances of the offence.
   

(1) There was a fight on the night of 27 May 2024 between Jackson Tupulya and the victim in which the influence of liquor played a role.

(2) On the next day, ie 28 May 2024, each of these six accused, with Philip Minimao and Kunjo Kanden, went to the residence of a local Member of Parliament.

(3) They went to those premises with the intention of attacking the victim.

(4) That was the common purpose of each of these six accused.

(5) One of those eight persons took an axe while the others carried a bush knife.

(6) After gaining entry to those premises, the unarmed victim was surrounded and was struck by those weapons.

(7) The words “cut his arms and legs”, or other words in the Engan language to the same effect, were said by at least one of the attackers.

(8) The arms of the victim were held while he was attacked.

(9) Those accused who did not strike the victim, aided the attack by preventing the victim from escaping and/or preventing anyone from assisting the victim.

(10) The victim suffered wounds to his left leg and his left arm.

(11) The victim died of blood loss while being taken to hospital.

(12) From the number of people present, the weapons they carried, and the nature of the injuries, it has been established that the offenders had an intention to kill.

(13) The role of Noah Kosmas, during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.

(14) The role of Joshua Kambia, during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.

(15) The role of Jack Wase, during the attack, was to act as a lookout for the purpose of enabling the attack to proceed without interruption.

(16) The role of Jonah Timun, during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.

(17) The role of Jackson Tupulya during the attack, was to surround the victim so that he could not escape and so that no-one could assist him.

(18) The role of Job Puli was to cut the victim once, and to prevent others from assisting the victim.

Submissions for the offenders

10. The personal circumstances of these offenders were indicated as set out below:
    

(1) Noah Kosmas was said to be 54, married with six children, having left school in Grade 6 in 1984. He was said to be a subsistence farmer who is the first of four children and is of the Seventh Day Adventist faith.

(2) Joshua Kambia is aged 28. He is an only child who left school in Grade 9 in 2026. He was said to be a subsistence gardener who is the fourth of five children and is of the Catholic faith.

(3) Jack Wase was said to be 37 and married with four children. He has had no education and is a subsistence farmer, of the Catholic faith whose parents are alive but old.

(4) Jonah Timun is 23, being an only child with no education who is a subsistence farmer whose father has died. He is of the Seventh Day Adventist faith.

(5) Jackson Tupulya is 23 and is the last born of four children. He left school at Grade 8 in 2019 and is a subsistence gardener. His parents have died and he is also of the Seventh Day Adventist faith.

(6) Job Puli is aged 34 and is married with five children. He has had no schooling and is a subsistence gardener. He is the last of seven children, his father had already died, his mother is old and he is of the Seventh Day Adventist faith.

11. The Court was reminded that the main participant was Philip Minimao. It was noted that this was a contested matter and that Kovi v The State [2005] PGSC 789 suggested a term of imprisonment for as long as 30 years. It was noted that each offender had already spent one year and six months in custody. Mr Toke echoed the request of some of the offenders to be transferred to another prison.
    

Submissions for the State

12. Since the Court had already determined, in the case of Philip Minimao, that this case fell within category 2 by reference to Kovi, and since these six offenders are being sentenced after a trial, it was not surprising that he suggested the sentence should be 30 years’ imprisonment, being the upper limit of the suggested range and being what was considered to be the starting point in the case of Philip Minimao.
    

Relevant law

13. In Kovi, the Supreme Court suggested sentencing ranges for the offence of wilful murder, under the following four categories which are summarised below.
    
14. It should be noted that cases do not always fall within any individual category and that there is an earlier determination that, while it could be suggested that this case fell within category 3, it was determined that this attack fell within category 2.
    

Category 1 15-20 years

Plea No weapons used.

Ordinary cases. Little or no pre-planning.

Mitigating factors with Minimum force used

no aggravating factors. Absence of strong intent to do GBH.

Category 2 20-30 years

Trial or plea Pre-planned. Vicious attack.

Mitigating factors with Weapons used.

Aggravating factors. Strong desire to kill.

Category 3 Life imprisonment

Trial or plea Pre-planned. Vicious attack.

Special aggravating factors. Strong desire to do kill.

Mitigating factors reduced in Dangerous or offensive weapon used

weight or rendered insignificant eg. gun or axe.

by gravity of offence. Other offences of violence committed.

Category 4 Death

Worst case - Trial or plea Pre-meditated attack.

Special aggravating factors. Brutal killing, in cold blood.

Killing of innocent, harmless person.

Killing in the course of committing another serious offence.

Complete disregard for human life.

15. While Kovi provides a framework for sentencing, there are two recent decisions which are relevant to the question of what sentence should be imposed in this case.
    
16. The first is State v Minimao (2025) N11503 (Minimao), decided on 1 October 2025. That was a case involving a seventh member of the group which attacked the victim, noting that the eighth is yet to face trial. Philip Minimao was indicted with these six offenders on a charge of wilful murder to which he pleaded guilty. It is clear he was the principal offender. In that judgment it was indicated that, had his case against him gone to trial, he would have been sentenced to imprisonment for 30 years. By reason of (1) his plea of guilty, (2) the loss of two houses that were damaged by fire, and (3) the payment of significant compensation, he was sentenced to imprisonment for 21 years.
    
17. The second case is State v Uphas (2025) N11592 (Uphas), decided on 17 November 2025. That was a recent case in Porgera in which a group of as many as 30 people attacked a victim. The victim was struck with punches, stones, wood and a bush knife. The charge was murder, the case was assessed by reference to category 3 in Kovi, the applicable range was also 20 to 30 years, and a sentence of imprisonment for 25 years was imposed after a trial resulted in a verdict of guilty, that being the mid-point of the applicable range.
    

Consideration

18. It is necessary to note that, either because those who went to the premises attacked this victim had a common purpose, or because these six offenders aided in the commission of this offence, they are each liable as if they were the principal offender. However, the role they played is relevant to the question of what sentence should be imposed. That role was summarised in the findings of fact, set out above.
    
19. In this case it important that the sentence should take into consideration the following matters:
    

(1) The number of people who attacked the victim, namely eight people, including these six offenders.

(2) The personal circumstances of those offenders.
(3) The attack was clearly pre-planned.
(4) Those eight people carried an axe and bush knives.
(5) The victim was unarmed and outnumbered.

(6) The nature of the wounds inflicted, including one which almost severed the victim’s arm.
(7) An intention to kill was established.

(8) The role played by each individual offender, as included in the findings of fact which are set out above.

(9) One of the two other members of the group entered a plea of guilty to the same charge and was sentenced to imprisonment for 21 years.

(10) That sentenced was reduced from 30 years due to (a) his plea of guilty, (b) the loss of two houses that were damaged by fire, and (c) the payment of significant compensation.

(11) A similar form of attack, by a group of as many as 30 men, resulted in sentences of 25 years for offenders, charged with murder, who played a lesser role than that of the principal offender. While the charge in that case was murder, not wilful murder, the “Kovi category” was 3 in that case and 2 in this case. However, the applicable sentencing range is the same, namely 20 to 30 years.
(12) The prevalence of this kind of conduct and this offence.

(13) The need for general deterrence in this place at this time so it is clear this kind of conduct will not be treated as anything but serious by this Court.

(14) That need for deterrence is important in this case since the attack now under consideration occurred in the premises of the local member of parliament at Wapenamanda and it is important, given the nature and extent of tribal fighting in that area, for people to accept that matters such as this should be left for the Court to decide and not dealt with by the use of a bush knife, axe or gun.

(15) The prevailing conditions in the Correctional Facility at Baisu which have, in recent times, been considered by this Court.

20. It is noted that this case could be considered, by reference to what was said in Kovi, to fall within category 3 because one of the members of the group which attacked the victim carried an axe. However, as there was no evidence that an axe was used, and no evidence that any of these six offenders carried an axe, the Court has treated this case as falling within category 2, for which the suggested sentencing range is imprisonment for 20 to 30 years.
    
21. There were matters raised when the offenders had an opportunity to address the Court which warrant a response. First, some of the offenders raised the fact that their children will be affected by a sentence of imprisonment. That is a matter that people should consider before they decide to commit a crime and not after they have been convicted.
    
22. Secondly, there were request for the Court to impose a good behaviour bond but that is inappropriate in a case such as this where eight men attacked an unarmed man and inflicted injuries that caused his death. To impose a good behaviour bond in this case would be to show the same lack of respect for human life as was shown by these offenders on the day of the attack.
    
23. Thirdly, the condition of the facilities here at Baisu was raised. It is accepted that there is an urgent need for repairs and maintenance here at Baisu, which was constructed more than 50 years ago and has not been properly maintained since. That is a matter which has been taken into consideration when deciding what sentence should be imposed.
    
24. Fourthly, as to the requests for a transfer to another prison, the Court is not persuaded that should be done for some offenders but not others and it cannot be done for all offenders that come before this Court.
    
25. Fifthly, there were requests that the Court show mercy to these offenders, despite them showing no mercy to the victim on the day of the attack.
    
26. There are two relevant comparisons in this instance. First, that Philip Minimao, who participated in the same attack, was sentenced, on a plea of guilty to the same charge of wilful murder, to imprisonment for 21 years, it being indicated that his sentence would have been 30 years is he had entered a plea of not guilty. Secondly, that the case of Uphas involved a similar form of conduct and resulted in a sentence of 25 years for offenders who were not the principal offender.
    
27. As indicated to the lawyers during closing submissions, the Court considers the approach in this instance should be to use the starting point of 30 years and allow a reduction to 25 years due to (1) the lesser role these offenders played, when compared to that of Philip Minimao, and (2) the current conditions at the Baisu Correctional Facility. There does not appear to be a sufficient basis to impose different sentences for any of the six offenders.
    

Sentence

28. For those reasons, the Court considers that each offender should be sentenced to imprisonment for hard labour for 25 years. It is necessary to deduct the periods which the offenders have already spent in custody to determine the period remaining to be served. The relevant details are set out in the following table:
    

Sentenced accordingly.
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor