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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2004) N2547
• Date: 05 March 2004
• Year: 2004

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

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Kandakasi J: Late last year, this Court found all of you guilty after a trial on one count each of inciting mutiny contrary to s41(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 counsel 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 10 to 23 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 arming themselves. Without the parts you played in association with the mutineers, the mutiny could not have taken place, or last for 13 days. I therefore find that you, Ben Wafia, Simon Konga and George Wena played a major and critical role in the mutiny and so therefore, you succeeded in inciting the soldiers to carry out the mutiny.

As for Leslie Puka, although, the role you played was significant, I do not find your conduct as leading. The evidence against you is that you guarded the gate, whilst in military uniform. You armed yourself with a SLR gun and showed signs of a readiness to use it if necessary.

I agree entirely with the observations of my brother Salika J in The State v Private Nebare Dege (2002) N2333 in relation the mutiny itself that:

"It is the Constitutional duty of the Defence Force to protect this country and its people from any outside foreign incursion or invasion and because of the nature of that duty it is legally supplied and authorised to keep arms and ammunitions. Similarly the police and Correctional Services are legally supplied and authorised to keep arms and ammunition in their line of duty. As such the operations of these forces must be strictly regulated and controlled; thus the command structures in place. Soldiers, Policemen and Correctional Officers are trained to obey orders or commands from their properly constituted command.

In this case soldiers decided to rebel against the command at its 2RPIR at Moem. Buildings were destroyed, the armory was broken into and arms stolen. The magazine was also broken into and ammunition was stolen. The arms and the ammunitions were used against the command. The Defence Force instead of performing its constitutional duty and that is protecting the country it was having a battle within itself. It took another military operation to put that rebellion out of action or to neutralise the situation."

All of you not only...