The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2) (2004) N2547

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 05 March 2004
• Court: National Court
• Citation: (2004) N2547
• Year: 2004
• Judgement Number: N2547

Full Title: The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2) (2004) N2547

National Court: Kandakasi J

Judgment Delivered: 5 March 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Lack of specific guidelines for sentencing in a particular case—Court at liberty to devise possible guidelines and apply them—Sentence in a prior similar case not a good guide unless clear on the principles—Need to avoid disparity in sentence—An important factor for consideration.

2 CRIMINAL LAW—Sentence—Particular offence—Advisedly attempting to incite mutiny—Offence having different categories—Mutiny in fact occurring over a long period with damages to public property, deprivation of personal liberty, threats to and use of offensive weapons amount to a serious case of inciting mutiny—Offence directly against military code of conduct and national security—A strong and immediate deterrent sentence called for—But sentence of 15 years and 5 years imposed to avoid a disparity in sentence between actual mutineers and inciters—s41(1)(b, s7, s8 and s19 of Criminal Code.

3 The State v Private Nebare Dege (2002) N2333, The State v Zima Munduai (2000) N2036, Public Prosecutor v Don Hale (1998) SC564, Avia Aihi v The State (No 3) [1982] PNGLR 92, The State v Fabian Kenny (2002) N2237, The State v Abel Airi (2000) N2007, Gimble v The State [1988–89] PNGLR 271, The State v Tony Pandau Hahuahori (No 2) (2002) N2186, The State v Tom Keroi Gurua (2002) N2312, The State v Albina Sinowi (2001) N2175, The State v Robert Kawin (2001) N2167, The State v Timothy Tio (2002) N2265, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Raphael Kimba Aki (No 2) (2001) N2082, R v Davey [1980] 2 A Crim R 254.

Decision on sentence

___________________________

N2547

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1433, 1434, 1435 and 1436 of 2002

THE STATE

-V-

BEN WAFIA,

GEORGE WENA,

SIMON KONGA, AND

LESLIE PUKA

(No. 2)

WEWAK: KANDAKASI, J.

2004: 03rd and 5th March

DECISION ON SENTENCE

CRIMINAL LAW - PRACTICE & PROCEDURE – Lack of specific guidelines for sentencing in a particular case - Court at liberty to devise possible guidelines and apply them – Sentence in a prior similar case not a good guide unless clear on the principles – Need to avoid disparity in sentence - An important factor for consideration.

CRIMINAL LAW - Sentence – Particular offence - Advisedly attempting to incite mutiny – Offence having different categories – Mutiny in fact occurring over a long period with damages to public property, deprivation of personal liberty, threats to and use of offensive weapons amount to a serious case of inciting mutiny - Offence directly against military code of conduct and national security – A strong and immediate deterrent sentence called for – But sentence of 15 years and 5 years imposed to avoid a disparity in sentence between actual mutineers and inciters –ss. 41(1)(b, 7, 8 and 19 of Criminal Code.

Cases cited:

The Statev. Private Nebare Dege & 26 Ors (Unreported judgment delivered on 20/12/02) N2333.

The State v. Zima Munduai (Unreported judgment delivered 12/12/00) N2036.

Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.

Avia Aihi v. The State (No.3) [1982] 1979 PNGLR 92.

The State v. Fabian Kenny (Unreported judgment delivered 16/05/02) N2237.

The State v. Abel Airi (Unreported judgment delivered on 28/11/00)N2007.

Gimble v. The State [1988-89] PNGLR 271.

The State v. Tony Pandau Hahuahoru (Unreported judgment delivered on /02/02) N2186.

The State v. Tom Keroi Gurua & Ors (Unreported judgment delivered on 11/12/02) N2312.

The State v. Albina Sinowi (Unreported judgment delivered on 13/12/01) N2175.

The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.

The State v Timothy Tio (Unreported judgment delivered on 21/05/02) N2265.

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

The State v. Raphael Kimba Aki (No.2) (Unreported judgment delivered on 28/03/01) N2082.

Overseas Cases Cited:

R v Davey [1980] 2 A Crim R 254.

Counsel:

M. Ruari for the State

S. Maliaki for the Accused, Ben Wafia

M. Bayam for Accused George Wena, Simon Konga and Leslie Puka

05th March 2004

KANDAKASI J: Late last year, this Court found all of you guilty after a trial on one count each of inciting mutiny contrary to s. 41 (1)(b) of the Criminal Code. A decision on your sentence was deferred to enable your lawyers and that of the State to do some research and prepare written submissions because your case is the first ever case on inciting mutiny in the country.

This week Wednesday, the Court granted you your right to address the Court on sentence and received submissions from your lawyers as well as that of the State. These submissions are in writing to which counsel spoke to during the hearing. The Court expresses its appreciation to all counsels for their assistance in this matter.

The Court has before it a pre-sentence report from the probation officer here in Wewak. This report is also of assistance to the Court and the Court extends its appreciation to Mr. Moses Galus, the author of the report.

The Court has carefully considered the submissions, the pre-sentence report and the evidence before it to enable it to arrive at a sentence that is appropriate in the particular circumstances of this case.

The Relevant Facts

The relevant evidence and facts are fully set out in the judgment on verdict. However, for the purposes of sentencing, it is necessary to restate the relevant facts, which are these. There was a mutiny by PNGDF soldiers at the Moem Barracks, which ran for 13 days from 10th to 23rd March 2002. You claim that delays in appropriately and effectively addressing and resolving issues of retrenchment of ex servicemen, repatriation of all discharged officers and soldiers and a down sizing of the PNGDF caused the soldiers to stage the mutiny.

The mutineers broke into the Barrack’s armory or magazine and stole guns and ammunition, which they used to carry out the mutiny. Two office complexes were set on fire and destroyed. Some of the witnesses testified of trying to stop the fire unsuccessfully because the mutineers threatened them with the use of guns. The mutineers took over the command of the Barracks by force and placed the officers under house arrest. The stolen guns were used to enforce the house arrests with threats of violence leveled against the officers and their families and to generally stage and continue the mutiny. Attempts by the acting commander of the Barracks to talk the mutineers into disbanding voluntarily were unsuccessful, resulting in an armed intervention to stop them.

At the time of the mutiny, all of you were discharged members of the PNGDF. Consequently, you had no reason to be at the Barracks but were there as you claim the issues giving rise to the mutiny also concerned and affected you. In addition to being at the Barracks without any lawful authority, the evidence also shows that all of you played a part in the mutiny.

Ben Wafia, George Wena and Simon Konga play led roles. Of the three of you, witnesses confirm that, Ben Wafia did play a very direct and leading role in terms of “running the whole show”. The same goes for George Wena. This comes from your respective conducts both generally and at a number of meetings conducted by the mutineers during the mutiny. As for Simon Konga you were the one that cut the lock to the armory with a bolt cutter giving the mutineers access to guns and ammunition to execute the mutiny.

The parts you all played were critical and or important for the mutiny. Ben Wafia and George Wena spoke for and strengthened the reasons for the mutiny, and led in the mutineers conduct. Your free moving in and out of the Barracks and town during the mutiny, when you were not legally at the Barracks speaks in support of your lead roles. Additionally, on Simon Konga’s part, you were the key to the soldiers gaining entry to the armory and...