State v Enuma [1997] PGNC 171; N1724 (18 December 1997)

N1724

PAPUA NEW GUINEA
[National Court of Justice]
(Constituted by the Defence Force Judge)

DFCR 1 OF 1997

THE STATE

-v-

MAJOR WALTER ENUMA
CAPT. BOLA RENAGI
CAPT. BELDEN NAMAH
LIEUT. MICHAEL DAVID
2ND LT. LINUS OSOBA

Court Martial – Mutiny – Armed troops holding Commander and senior officer under house arrest – Order to duty personnel not to use communication equipment to communicate – Temporary unplugging of telephones – Troops armed with automatic rifles, rocket propel grenade launcher and armored vehicle with machine gun mounted on roof.

Mutiny – Sentence – Defence Act Ch 74, ss 53, 55.

Capt. M. Unagui for prosecution
Mr. P. Parkop for accuseds

18th December, 1997

SEVUA, J: The five accused persons who are officers of the Papua New Guinea Defence Force, were convicted of mutiny on 15th December, following a lengthy trial which spanned over three months. I heard them on allocutus the same day and on 16th December. Both counsels also addressed the Court on 16th December. It is now my task to consider punishment.

It is not my intention to state all the facts here, suffice it to say that, on 28th July, 1997, the Commander of the Papua New Guinea Defence Force, Brigadier General Leo Nuia, and a senior officer, Lt. Col. Carl Malpo were detained in their respective homes under house arrest by armed troops from the Special Force Unit (SFU) in an operation codenamed ‘Operation Stretim Ples, which commenced at 0430 hours and ceased at 1750 hours the same day.

I have made various findings of facts in my judgment on 15th December. I need only reiterate some of these findings of facts, which I consider relevant to sentence.

The operation was initiated, planned and executed by Capt. Bola Renagi, acting Officer Commanding SFU. He was well supported by Capt. Belden Namah, Lt. Michael David and 2nd Lt. Linus Osoba. The latter two were officers of SFU, whilst Capt. Namah had been detached from SFU to HQ PNGDF at Murray Barracks. Major Walter Enuma was not a member of SFU, however, armed troops from SFU had forcefully and unlawfully released him from Boroko Police Station cells early that morning, and taken him to Murray Barracks where he was briefed by Capt. Renagi.

Capt. Renagi, Capt. Namah, Lt. David and 2nd Lt. Osoba were convicted of mutiny pursuant to s.55(1), the maximum penalty for which is, life imprisonment. Major Enuma was convicted of mutiny under s.55(2)(a), the maximum penalty for which is, 10 years imprisonment. Both counsels have submitted that mutiny is a very serious offence and I agree. The severity of this criminal offence is manifested by the penalty which the Parliament had seen fit to legislate, and in my view, there can be no doubt in anyone’s mind that mutiny is a very serious criminal offence.

From the evidence and the findings of facts I have made, I consider that there are circumstances of aggravation that warrant the imposition of a heavy penalty, especially on the four officers convicted under s.55(1).

I will highlight these aggravating features as I consider it necessary to do so in considering the appropriate penalty for this offence.

Brigadier General Leo Nuia is the duly appointed Commander of the Papua New Guinea Defence Force. His appointment is made in pursuance of s.193(3) of the Constitution and s.6(2) of the Defence Act. There is no doubt therefore, that he is the highest ranking military officer of the country and by virtue of the Constitution and the Defence Act, the command and control of the Defence Force is vested in him. Holding him under house arrest is very serious. Within the nature and tradition of the military, I consider this act as the worst form of insubordination. Likewise, Lt. Col. Malpo who is the Director of Transport and Movement, and, at that time, SOG Commander, is a senior officer. Holding a senior officer under house arrest is also a serious case of insubordination. Three of the prisoners hold middle level ranks, whilst two hold junior ranks. Detaining the Commander and a senior officer under house arrest by junior officers and ordinary troops is therefore very serious that it must be deterred, in my view.

During the operation, troops involved were armed with assault rifles. There is undisputed evidence that they were armed with M16 rifles, pistols, the new M26 rifles, a grenade propel launcher or RPG 7 and the armored vehicle or SSV, with a machine gun mounted on its roof. The SSV at one stage was parked opposite the Commander’s residence with its machine gun pointing to his residence. No one has explained why the RPG 7 and the SSV were used that day. I consider that the RPG 7 and the SSV are very destructive military artillery, although they may not be the biggest in size, of military artillery. I am satisfied that the use of these weapons would have had destructive and devastating effects on lives and property. I am also of the view that the M16s and M26s are also very dangerous weapons, compared to the ordinary shotgun and .22 rifle.

It is my view that the presence of armed troops at military HQ that day had paused a very serious and potential threat, not only to the Defence Force, but to Port Moresby and the country. There is undisputed evidence that armed troops camouflaged their faces with paints, had sweat rags and hoods over their faces and also had webbings. I have already alluded to the fact that dangerous automatic weapons were carried, and of course, the SSV and RPG 7.

I do not think I can completely and realistically dispel the perception that the events of 28th July, 1997; stemmed from the unprecedented events of March, 1997. In my view, the illegal operation carried out on 28th July, 1997 was a flow on effect of the Sandline crisis. Of course, all the prisoners were part of the Operation Rausim Kwik in March this year. Major Enuma featured very prominently in that operation which almost brought constitutional and parliamentary democracy to their knees.

The unprecedented events in March this year with its sporadic spill-over effects involving soldiers loyal to the former commander leading to the illegal operation on 28th July this year, have not painted a good picture of this country and its Defence Force. Realistically, the Defence Force and the nation have had some turbulent and unstable times in the recent past. This Court, in my view, must rightly play its role in the administration of military justice in the present mutiny case because I believe the result of this case will assist in placing our Defence Force in its proper perspective.

It was common knowledge that when this operation was carried out on 28th July, and indeed, following the Sandline crisis in March, the public at large had had a different perspective of our military. The public had lost faith in our Defence Force, which is a State Service established by s.188(1) (c) of the Constitution with clear constitutional mandate under s.202 of the Constitution.

One of the functions of the Defence Force under s.202 of the Constitution is to defend the country. How can the government of the day and the public have faith in our military when some of its members act contrary to their constitutional role and the law? Officers and men of the Defence Force, whilst subject to the Defence Act, are not exempt from the provisions of the Criminal Code, and if I may add, other laws of the land. They have the same legal and constitutional obligation as all other ordinary citizens. They have the same obligations; to respect and to act in the spirit of the Constitution; and to respect the rights and freedom of others. Their actions at all times, in my view, must reflect these constitutional values. Their commitment and loyalty to the Constitution and the Defence Force must transcend any personnel perception that they can act contrary to these obligations because they are dissatisfied over certain matters within the administration of the Force.

I have considered everything that each officer has said during allocutus. Despite the fact that I have made certain findings of facts, one or two of them still dispute some of those findings and one even said he is not guilty, when he has been found guilty. They continue to raise complaints about activities of SOG. I reiterate that, if they claim "harassment" and "illegal activities" by SOG members, they did not exercise their right to seek appropriate remedies in Court. If they claim their Constitutional rights were being violated, they should have enforced their rights in a Court of law. They did not, and they cannot continue to rely on this claim.

I have also considered all the character evidence both oral and written. I have listened to the pleas that the witnesses on behalf of, the families and defence counsel have urged upon this Court. I must say at this juncture that sentencing is not an easy task for a Judge. Sentencing is the most difficult part of a Judge’s judicial function, because it involves a person’s life. In this case, I take particular note of the many pleas for leniency that have been urged. I would be lying if I say I am not sorry for these officers who have been convicted and now face punishment.

As the Defence Force Judge, I am quite saddened that these officers, very good and professional, in their career, are now going to be incarcerated. I could not help thinking that the Defence Force is going to lose five dedicated, professional and intelligent officers, convicted of mutiny, because of their own perception of how the Force was being administered at the material time.

I accept the special and particular traits and values that each of these officers possess. I accept that each of them are very professional officers. I accept that their promotions through the rank and file of the Defence Force were because of their professional commitment to duty, their abilities in training and operational duties, especially in Bougainville. I accept that each of these officers have served the Defence Force and the country with high distinction especially in the Bougainville conflict, and one or two officers in the PNG-Indonesia border and one officer in Vanuatu. I have no doubt about each officer’s professional qualities and leadership. They have all matured through experience and all these can be attributed to their commitment and vision. As I adverted to earlier on, I am saddened that the Defence Force will lose these five officers, however, leaving my own emotions aside, I have a constitutional role to play.

Counsel for these officers have submitted at length, various matters this Court should consider, and I assure him and the officers that I have given due consideration to all these submissions. He has referred to sentencing principles which I have also given due consideration. I have given weight to matters which needed to be given weight. I have considered the personal antecedents of each officer as submitted. Leniency has been urged upon me, and I have been urged to consider a sentence equivalent to or less than those imposed in the case of The State –v- Albert Ugunnie & Ors [1988-89] PNGLR 101, which I wish to refer to briefly.

That case involved a demonstration by some 400-500 servicemen to Parliament. There was no evidence of violence, abusive language or destruction of property. The accuseds were charged with mutiny.

Two of the servicemen were sentenced to nine months imprisonment with hard labour, whilst the third, was sentenced to four months imprisonment with hard labour. The facts of that case are quite different to the facts of the present case. The facts of this present case are more serious than that case, therefore, in my view, the sentence must be different. The sentence in the present case must be proportionate to the seriousness of the case. Whilst I accept the defence counsel’s submission that this is a very serious offence, I do not agree that the same punishment or less, imposed in the case referred to, is appropriate. In my view, the circumstances of the present case are far more serious and dangerous than the circumstances of that case. I am of the view therefore that the penalty imposed in this case must deter any soldier who may want to take part in a mutiny.

Mr Parkop has also referred me to The State –v- Wak Mond [1980] PNGLR 258 and some sentencing principles adverted to by Wilson, J; and Kapi, J (as he then was) in a case cited therein. Whilst I agree generally with these principles, the facts of the case are quite different. In that case, the prisoner’s father was killed in his presence and he reacted immediately under severe and emotional stress, by killing his father’s murderer. It was a "payback" killing and the sentencing principles for "payback" killing are quite different to other crimes. It would be quite absurd, in my view, to equate the facts and the rationale for sentencing in that case to this case. The prisoner in that case reacted in the heat of passion. In the present case, the mutiny, in respect of the four officers, except Major Enuma, was planned.

Capt. Unagui, on the other hand has called for a near maximum penalty on the basis of John Kolna & 14 Ors –v- Paul Ari [1980] PNGLR 23. He submitted, this was a very serious case of mutiny. Both counsels submitted this and I accept that. However, in my view, mutiny occurs occassionally, unlike, armed robbery or rape for example, that are prevalent. Therefore, in my view, a near maximum or even the maximum penalty would be inappropriate.

I consider therefore that what he has urged upon me is excessive. On the other hand, I also consider that the sentence urged upon me by defence counsel is quite inadequate.

There are no precedents for sentencing on mutiny, however, it is my view that whatever penalty this Court imposes, it must represent the notion of retribution, deterrence and other factors normally considered in sentencing. Public and personal deterrence are important factors Courts would usually consider. I do not think it is correct to say that the Court should not emphasise deterrence, of course it must emphasise it. The circumstances in which the offence was committed have been duly considered. Defence counsel made references to Sandline and Operation Rausim Kwik and asked that these should be considered. I have already adverted to those considerations, however they ought not to be used as an excuse or justification to down play the seriousness of the offence. In fact, those events in March, almost brought the country to its knees. Papua New Guinea then almost lost its constitutional and parliamentary democracy.

I reiterate that I have considered the personal antecedents of each prisoner. They have wives and children, and it is natural that they would be concerned about the welfare of their families. Whilst I sympathise with them in that predicament, let me say that the Supreme Court has already settled this issue. In, The Public Prosecutor –v- Vangu’u Ame [1983] PNGLR 424, the Supreme Court said that, what the effect of custodial sentence might have on the welfare of the children of an offender should not be allowed to out weigh the seriousness of the offence. This view was applied in the appeal of John Goea Kevandi –v- The State, (SCRA 14/97), an unreported decision of the Supreme Court of 11th July, 1997.

Despite the fact that the troops were armed and such arms included the RPG 7 and the SSV, there was no violence and no bloodshed. I do not accept defence counsel’s submission that the carrying of arms that day was to prevent a confrontation.

The fact is there could have been a confrontation, except that the majority of soldiers at Murray Barracks and other units did not want one, therefore common sense prevailed. It would be wrong to say that the carrying of arms that day was for deterrence purpose.

I am asked to consider the role each officer played and his culpability and impose a punishment befitting his role.

I consider this an incorrect approach to sentencing. The Supreme Court in William Gimble –v- The State [1988-89] PNGLR 271 at 273 said, "The general rule is that all active participants in the crime should be sentenced on the same basis..................." However, having said that, I consider that in the present case, the person who played the leading role should get the heaviest penalty, in this case, it is Capt Renagi. He initiated the operation, he issued orders to the other three officers, he directed and supervised it. And last, but not the least, he was prepared to accept the legal consequences. The other three officers, excluding Major Enuma, took their orders from Capt. Renagi and of course, they had to carry out their tasks. I propose to impose something slightly less to Capt. Namah, Lt. David and 2nd Lt. Osoba.

As for Major Enuma, since he has been convicted of a lesser charge of mutiny, his punishment will be quite different to the other four officers.

The maximum penalty under s.55(1) is, imprisonment for life. In some countries, the penalty is death. I believe in other countries a person convicted of mutiny would face a firing squad. These examples reveal how serious the offence of mutiny is. However, despite the maximum penalty, the Court is mindful of other matters that have been considered, in particular, the fact that all officers are first time offenders. They are entitled to some leniency.

For the reasons I have alluded to, the Court makes the following orders:-

1. Capt. Bola Renagi is convicted and sentenced to ten (10) years imprisonment with hard labour.
   
2. Capt. Belden Namah, Lt. Michael David and 2nd Lt. Linus Osoba are each convicted and sentenced to eight (8) years imprisonment with hard labour.
   
3. Major Walter Enuma is convicted and sentenced to five (5) years imprisonment with hard labour.
   

I have considered the security aspect of whether the prisoners should serve their sentences in the same prison. In the light of the fact that armed SFU troops had forcefully and unlawfully released Major Enuma from lawful police custody in the early hours of 28th July, 1997, there is no guarantee that a similar thing will not happen again. I believe, for reasons of security pursuant to s.37 (20) of the Constitution that the prisoners should be isolated from each other. Accordingly, I order that Major Enuma be transferred to Bundaira CIS in Kainantu, Capt. Renagi be transferred to Beon CIS in Madang; Capt. Namah be transferred to Boram CIS in Wewak; Lt. David be transferred to Buimo CIS, Lae; and 2nd Lt. Osoba be transferred to Kerevat CIS, Rabaul, to be near his family.

I make further orders that cash bail for each officer is to be refunded.

Lawyer for Prosecution: Capt. Malaki Unagui
Lawyer for Accuseds: Parkop Harricknen & Associates