State v Wafia (No 2) [2004] PGNC 223; N2547 (5 March 2004)

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 State v. 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] 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] FCA 134; [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 armoury 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 levelled 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 armoury 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 armoury 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 Justice Salika in The State v. Private Nebare Dege & 26 Ors[1] 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 armoury 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 committed the offence of mutiny but also did commit, in my view, a number of other offences. This includes being unlawfully on premises, wilful damage to property, and acting in a threatening manner, carrying offensive weapons, unlawful deprivation of personal liberties for a number of your victims and organizing an illegal assembly.

These facts alone call for an immediate custodial sentence to demonstrate the fact that the offence you committed is serious and to serve both as a personal and general deterrence. This is necessary in view of the fact that the offence you committed continued for a number of days and the incitements translated to actual mutiny. In addition, this kind of a sentence is necessary to demonstrate that the offence you committed was not only directly against the military code of conduct but also directly against the security and interest of the nation.

In expressing that view, I have carefully considered the pre-sentence report and arrived at the view that in the circumstances of this case, and the nature of the offence itself the report’s recommendation is inappropriate. I also note that, the report does not represent a unanimous view from the community. The Police in this Province are against a non-custodial sentence. Further, I note that, the report does not have any inputs as wide as possible from the leaders and representatives of the community in order to show that the report is a fair representation of the community’s view. Furthermore, I note that the report ignores the fact that you are beyond the age group in which the Court is required to consider whether a non-custodial is appropriate.

I have already expressed the view in many cases already such as that of The State v. Zima Munduai[2], that the Court is not bound to accept the recommendations in a pre-sentence report. Instead, the Court must satisfy itself that, the recommendation is a well-balanced and is a fair reflection of the community’s response to the crime. Proceeding on that basis, I have also expressed the view in the case cited and others that, where a non-custodial sentence is recommended as in this, the offender must come within the age group, 19 years and below. I proceeded on the authority of the Supreme Court judgment in Acting Public Prosecutor v. Don Hale.[3]

In the circumstances, the Court needs to consider and determine the terms of a custodial sentence. In this regard, the nature of the offence it self and whether the offence you committed is the worse or the lesser of its kind are relevant considerations.

The Offence and Sentencing Principles

Starting with the nature of the offence, I note that s.41 (1) of the Criminal Code creates the offence of inciting mutiny and defines it in these terms:

"41. Inciting to mutiny.

(1) A person who advisedly attempts—

(a) to seduce any person serving in the Defence Force by sea, land or air from his duty and allegiance; or

(b) to incite any such person to commit an act of mutiny or any traitorous or mutinous act; or

(c) to incite any such persons to make or endeavour to make a mutinous assembly,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life."

There is no case law built around this provision or the offence of inciting mutiny in our country. That does not mean that this Court is without guidance. Instead, the general sentencing principles are there to guide the Court in its endeavour to arrive at an appropriate sentence.

One of these principles provides for a preservation of the maximum prescribed sentence for the worse kind or category of the offence under consideration. This means that each case must be determined on its own facts. The judgments in cases like that of Avia Aihi v. The State (No.3)[4], exemplify this principle.

An application of this principle "... requires a sentencing judge to carefully consider the circumstances in which an offence has been committed as well as the effect of that on the victim and the community." Then the judge must ensure that the sentence ultimately arrived at reflects "... the particular facts of the case as well as the competing interest of the community to punish offenders and the interest of an offender to be treated fairly and be given an opportunity to reform."[5]

As would be apparent from these, "... there are two conflicting responsibilities vested in a sentencing judge - one owed to the prisoner, to rehabilitate him, to treat him gently as it were – the other owed to society, to punish, to levy retribution, to deter..."[6] for the protection of the society from offenders. In the process, we must remember that the objective of the criminal law is to bring wrong doers to justice for the protection of the community.

This requires a balancing act on the part of a judge. In some cases, the judge could determine that a severe punishment would be better for the protection of the society. Whilst in other cases, the judge could determine that a lenient punishment with conditions of probation, or community work orders would better protect the society. Either of these decisions must of course, be arrived at carefully in view of the competing interests of the society and the offender.

A proper exercise or discharge of the duty vested in the judge or the Court requires a proper appreciation of the nature of the crime and the category in which the offence under consideration falls. A worse type of the offence under consideration calls for a severe punishment, whilst a less serious offence of the type under consideration would warrant a lenient punishment. Of course, the particular antecedents of the offender and the circumstances in which the offence was committed do play a key role in the determination of an appropriate punishment.

Another generally accepted sentencing principle, in so far as is relevant is that, where an offence is committed in the company of another person, each participant is a principle offender regardless of what part each played. This is clearly the import of the provisions of ss. 7 and 8 of the Criminal Code. However, as the Supreme Court said in the often-cited case of, Gimble v The State,[7] this is only a general rule. That means in appropriate cases, a sentencing judge may impose varying sentences to co-offenders.

In The State v. Tony Pandau Hahuahoru[8], I considered a number of Supreme Court judgments on point and said:

"A consideration of all these authorities shows that, a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them."

My brother, Justice Kirriwom cited this with approval in The State v. Tom Keroi Gurua & Ors.[9] In so doing, His Honour noted that this view was consistent with practices in jurisdictions similar to ours, such as Australia. His Honour then concluded in the context of the case before him:

"It is my respectful view therefore that the sentences for each of the prisoners in this case must reflect strictly the degree of criminality of each one of them ..."

Present Case

Bearing these principles in mind, I now turn to consider the case before me. The first thing I note is that, there is no dispute that the offence of inciting mutiny is a serious offence. It therefore carries a maximum sentence of life imprisonment. The offence is therefore akin to offences like murder, rape, arson and armed robbery to the extent that they all carry a maximum sentence of life imprisonment. However, the offence of inciting mutiny differs from these other cases because it is an offence against the military code of conduct and the command structure and therefore a serious offence against the overall defence of the country, which is the sole duty of the Defence Force. Therefore, all soldiers upon enlistment take up an oath to abide by the military code of conduct and uphold the Constitution for the security of the nation. An act of mutiny amounts to a serious breach of that oath and the trust and confidence placed in the military by the country.

It follows therefore that it is a serious offence for a person to incite a mutiny by a soldier. In this context, it is important to note that, in some cases, an offender may not be inclined toward the commission of an offence on his own. Such a person may be encouraged if not forced to commit an offence by another person. In a case like that, the encourager deserves a more severe punishment than the one who actually commits the offence.

However, this does not warrant an automatic imposition of the maximum prescribed sentence of life imprisonment against you. Instead, the Court is duty bound to consider whether the offence you committed is in the worse category or something less than that. As noted, this Court is without a clear and direct guidance to arrive at an appropriate sentence against you. In particular, there is no guidance on the categories of the offence under consideration. In the circumstances, I accept all of the counsels’ submission that I should do what I did in a number of cases such as the, The State v. Albina Sinowi[10], The State v. Robert Kawin [11] and The State v Timothy Tio[12].

In those cases, I observed that all offences have their respective categories. Up on the top of each offence, are offences that are more serious. Then at the lower end of the scale would be cases that a less serious. In between these two, would be cases that are neither serious nor less serious. Applying these to the case before me today, it would mean there can be a serious case of inciting mutiny and there can be a less serious case, with others falling in between.

In my view, a serious case of inciting mutiny would be one in which the incitement is by more than one person and that translates into action with a form of mutiny taking place with the inciter participating. The mutiny may run over a period with threats and actual use of physical violence against commanding officers, their families, deprivation of their liberty, destruction to property and the use of firearms, which would in their own amount to a commission of other offences too. I would regard that category as the first and the worse case. A second and next category would be a case in which a form of mutiny does take place but only for a very shorter period, with only some of the factors falling in the first category existing. A further and third category would be a case in which a form of mutiny does take place, with only one or two of the factors mentioned in the first category existing. A final and fourth category would be one in which there is an act of inciting mutiny by an individual with no actual mutiny or if there is, it does not last long and nothing serious happens against other persons or properties.

I would then follow the guidance provided by authorities like that of Gimble v The State,[13] and the sentences imposed in similar case and suggest the following range of sentences for each of the categories:

First category - 20 years to life imprisonment;

Second category – 15 years to 20 years imprisonment;

Third category – 5 years to 15 years;

Fourth category – a few months to 5 years.

Of course, by no means this suggestion is intended to be rigid. Instead, depending on the factors in mitigation and in aggravation, the actual sentence in any one case could be either above or below the sentences suggested. For example, a first time young offender with a good record pleading guilty to an offence that falls in the first category may receive a sentence that is lower than 20 years. The converse of that might apply where there is an establishment of guilt after a trial and or that the offender as a prior conviction.

In arriving at the above suggestion, I had regard to my brother, Salika J.’s decision on sentence in The State v. Private Nebare Dege & 26 Ors.[14] Apart from the particular facts of the case itself, His Honour noted and I do likewise that, four previous instances of rebellion by PNGDF members had occurred. Therefore, this is not the first time such a rebellious act has occurred. His Honour then in the case before him, which was a case of actual mutiny, imposed sentences ranging from 9 months to 15 years depending on the degree of the prisoner’s involvement in the mutiny. Those who played a led role received 15 years while those who were merely present or assisting, received sentences of 9 months, 12 months and 5 years. The prisoners were all first time offenders, who had previously given their respective loyal services to the nation through the PNGDF. The Court also noted that, each of the prisoners stood the risk of losing their jobs, which was in itself, a form of punishment.

With respect however, the decision in the above case did not discuss any of the principles, I have tried to discuss in this judgment. Also with respect, that decision did not clearly indicate why the widely varying sentences where given quite apart from the degree of each of the prisoner’s involvement. Further, I remind myself that, that was a case of mutiny and not a case of inciting mutiny and that an inciter ought to receive a punishment higher than the one received by the person who commits the act of mutiny because that act could not have been committed had it not being for the incitement. For these reasons, I find that this judgment is of no direct assistance in determining an appropriate sentence for each of you. The only exception to that is the imposition of the varying sentences depending on the degree of involvement in an actual mutiny, incited by you men.

Bearing all of the above in mind, this Court now needs to arrive at an appropriate sentence for each of you. This requires a taking into account of the both factors for and against you. I start that process with the factors against you first. The first factor to note against all of you is the fact that, all of you were discharged members of the PNGDF. You claim that you were unhappy with the way in which the PNGDF hierarchy was handling your retrenchment, discharge and repatriation and that caused you to do what you did. However, you did not demonstrate how the unhappiness arose and when. This is a factor against you in addition to the other aggravating features in this offence as already outlined in a restatement of the relevant facts.

Secondly, you all pleaded not guilty to the charge. That necessitated a trial over a number of days, resulting in further unnecessary costs to the State in successfully mounting the trial against you. Not only that, by pleading not guilty, you forced the witnesses who were mainly the victims of your offence to come into Court and relive the ordeals you put them through.

Thirdly, you are all educated, mature and grown up men. You were therefore in a better position to know and appreciate that, what you set out to do was wrong but did it any way

In view of these factors, I find that your case falls in the first or worse category of the offence of mutiny. This attracts a sentence between 20 years and life imprisonment, subject only to any factors in mitigation.

You have only two factors in your mitigation. The first is that you are all first time offenders, meaning you have never been in trouble with the law before. The second is that, you all have given loyal service to the State through the PNGDF up to the point of your respective discharges. Weighing this factor against those in aggravation there can be no argument that the factors in aggravation outweigh the factors in mitigation.

Of course, the Court notes and takes into account each of your respective personal and family backgrounds, expression of remorse and pleas for leniency. In particular, I note that Ben Wafia, you are from Nuimoken village here in Wewak, East Sepik Province and aged 35 years. You are married two a woman from Sinasina District in the Simbu Province. Out of that marriage you have 4 children aged 12, 10, 7 and 5 years respectively. The first three are in school and the fourth child is at home with the mother. Your wife and children are resident in Lae because of your wife’s employment with the Angau Memorial Hospital.

You are a Roman Catholic by religion and educated up to grade 12. After your grade 12, you joined the PNGDF and became a specialist in the radio communication section of the PNGDF after undergoing relevant training. In February 2002, you were retrenched on medical grounds and were in the process of preparing you and your family for life in the village at the time of the offence. I note your plea that your family will be affected adversely if you are sent to prison. You have been in custody for almost two years now. There is no report or evidence of how this has affected your family if there is any basis for your address.

As for you George Wena, I note you are 33 years old and married with 5 children. You originally come from Temba village in the Kerowagi District of Simbu Province. Following your discharge from the PNGDF, you took up residence at the Menai settlement whilst waiting for your repatriation by the State. Your wife and children are still at the settlement, and they will be adversely affected if you are sent to prison. You have also been in custody for almost two years now. There is no evidence or report of how this has affected your family.

I also note that, you are a confirmed TB patient. You have received treatment from the Boram Hospital. Medical evidence before this Court shows that, it is necessary for the purposes of managing your health condition you need to be on a proper nutritional diet and be isolated. The report does not however, state that you will not receive a proper diet and that you could not be isolated at the Boram CS or any other prison. At the same time, I note that you have been in custody for almost 2 years. There is no report of what has occurred in prison during this period.

With regard to Simon Konga, I note you are a single man. You come from a poor family of three sisters and one brother. Your mother passed away in 1986 but your father is alive. When you were in the employ of the PNGDF, you used to support your father and other members of your family. They will be affected if you are given a custodial sentence. Again, I observe that, you have been in custody for almost two years. As is the case with your co-prisoners, there is no report of how this affected your family, if there is any basis for your address on sentence.

Finally, Leslie Puka, you are about 24 years old and married with one child. If you are given a custodial sentence, you say your young family will of course be adversely affected. Along with your co-prisoners, you have been in custody for about two years now. If there is any basis for your address on sentence, there should be a report or evidence of how your family has been affected, but there is none.

It is clear that all of you a pleading to this Court on your personal and family background and based on that ask this Court to be merciful toward you. You have also expressed remorse and have promised not to get into any trouble with the law in future.

It is clear law now that an offender should first consider his or personal and family background before committing an offence. Indeed, what the Supreme Court said in Allan Peter Utieng v. The State[15] is relevant. In that case, the Court said an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender’s personal and family background and in particular, the needs of his family, once found guilty according to law. Such concerns should have little or no weight against the need to impose a sentence or punishment that best befits the offence having regard only to the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2)[16]. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you and your respective families has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you. Consequently, it is too late and of no consequence to plead for a consideration of the effects your sentences might have on you and your family. For that will be the consequence of your crime.

In relation to your respective expression of remorse, I note that there is nothing tangible accompanying it. In Ala Peter Utieng v. The State,[17] the Supreme Court made it clear that an expression of sorrow or remorse without anything tangible such as paying compensation or saying sorry directly to the victims of one’s offence means nothing. I applied this principle in a number of cases already and have found such pleas without more as meaningless and rejected them. An example of that being done is the case of, The State v. Timothy Tio.[18]

Taking all of these into account I find that, there is nothing to justify a sentence below 20 years, given the seriousness of the offence, the nature of the offence itself and the serious aggravating features in the particular circumstances of this case and your conviction after a trial. You should therefore, be all given a sentence of 20 years or over. However, because you did not perform exactly the same role, it is necessary to note what each of you did, as this might justify varying sentences.

As already noted, Ben Wafia, you played a key role in the commission of the offence. You not only incited the mutiny by being there but also participated in it. According to the witnesses, you were running the whole show. You led in the meetings and discussions. You unlawfully used a military vehicle and attend the Wewak Police Station trying to recover weapons that were confiscated by the police at the time of arresting one of the soldiers who was trying to smuggle guns out of the Province. In the circumstances, I consider a sentence beyond 20 years but and closer to life imprisonment appropriate.

However, because of the parity principle in view of the decision on sentence in the actual mutiny case in The State v. Private Nebare Dege & 26 Ors[19], I reluctantly consider a sentence of 15 years in hard labour is appropriate. You were in the same transaction differentiated only by the fact that you were no longer a member of the PNGDF. This sentence reflects the fact that you might have had a good reason to commit the offence but that was not a proper and legal response to your concerns. It also reflects, in my view, the fact that you are a first time offender and that you have rendered prior good services to the State during the currency of your employment with the PNGDF.

Of that sentence, the period of 1 year 11 months and 10 days, you have already spent in custody awaiting your trial and sentence is deducted. That leaves you with a balance of 13 years and 20 days yet to serve. I recommend in accordance with your request that you serve that term at the Buimo CS where your family can easily visit you.

I make similar observations as above in relation to the rest of you and reluctantly consider a sentence similar to the one I have just imposed against Ben Wafia appropriate for both George Wena and Simon Konga as the same considerations apply. George Wena, you too played a major role in the commission of the offence. The fact that you were already discharge from the PNGDF and that you had a dispute over that did not deter you. Several of the State’s witnesses identify you as one of the leaders of the mutiny.

As for Simon Konga, you did the most serious act of cutting locks to the armory thereby making entry to the armory possible and a stealing of a large number of weapons and ammunition, most of which are to this day still at large and in the hands of unauthorized hands. The weapons and ammunition you enabled to be stolen were used to carry out and maintain the mutiny for 13 days. It could have continued had it not being for armed intervention by faithful elements of the PNGDF.

Of course, from the head sentence of 15 years, the period of 1 year and 11 months and 5 days, you have both spent in custody already awaiting your trial and sentence is deducted. That will leave you both with a balance of 13 years and 25 days yet to serve. Based on your respective requests, I recommend that George Wena, serve the balance of your term in Barawagi. Likewise, I recommend that you Simon Konga serve the balance of your sentence at the Baisu CS.

In arriving at the above sentence, I note additionally in the case of George Wena that you have a medical condition. That condition pre-existed the commission of the offence. Counsel did not assist the Court as to what the Court should make out of this. I was faced with a similar situation in The State v Raphael Kimba Aki (No 2).[20] In that case, I decided not to have that reflected in the sentence and said:

"Besides, no authority has been drawn to the Court's attention, which says medical conditions and needs of a prisoner and his or her family are factors that should be taken into account in the prisoner's mitigation.

A more recent Supreme Court decision in the matter of Allan Peter Utieng v. The State (Unreported and unnumbered judgment delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000, observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little to late to talk about an offenders personal background and concerns once he is proven guilty according to law. His background and concerns should have little or no weigh against the need to impose a sentence or punishment that best be fits an offence and the particular circumstances in which the offence was committed."

In the present case, I note that the medical report from the Boram General Hospital states that your medical condition can be managed with appropriate medication and nutrition. It does not say how it was managed over the almost 2 years of your incarceration at the Boram CS. It is therefore only speculative at this stage. If and when the need arises in future, it can be appropriately addressed at that time.

The Court also notes, without any contest from the State that your family have been waiting for their repatriation to your home province. Presently, your wife and children are residing at the Menai settlement here in Wewak. With your imprisonment, they would be hard placed to fend for themselves as opposed to being in your own village. This situation has been forced on them by the State’s failure to repatriate you and your family upon your discharge. Even if you were not involved in the mutiny and or not found guilty of the offence of inciting that mutiny, the State would still be under an obligation to repatriate you and your family.

In these circumstances, I order the State to meet the full costs of repatriating you and your family when the Correction Service is ready and able to give effect to the recommendation of this Court for you to serve your sentence at the Barawagi CS. In addition, I order that, until the State is able to repatriate and facilitate a transfer of you to Barawagi and your family to your home village, the State shall meet your family’s reasonable living expenses in Wewak.

Turning now to Leslie Puka, the Court also finds that you did play a key role in the commission of the offence and the mutiny that followed. You were uniformed and were armed with a SLR gun and guarded the gate for a day. However, you did not take any lead role as did Ben Wafia, George Wena and Simon Konga. Given the aggravating factors, I would have imposed a sentence short of life imprisonment but I am restraint by the parity principle, in view of the kind of sentences that were given to the prisoners that performed similar roles in The Statev. Private Nebare Dege & 26 Ors[21] in particular Benson Robert, Bisian Nimol, Karam Linge, Lelea Kegwale, Evara Mohavilla. All of these persons were in uniform and armed in pursuance of the mutiny. Of these prisoners, Benson Robert performed exactly the same task as you performed. They all received a sentence of 5 years each less the time they already spent in custody awaiting trial.

In the circumstances, I consider a sentence of 5 years less the 1 year 11 months and 5 days you have already spent in custody awaiting your trial and sentence is appropriate. You have also requested that you be allowed to serve your sentence at the Buimo CS, where your family can easily visit you. I therefore recommend that the balance of 3 years and 25 days be served at the Buimo CS.

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Lawyers for State: The Public Prosecutor
Lawyers for the Accused Ben Wafia: The Public Prosecutor
Lawyers for the other Accused: Tonge Lawyers

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^[1] (Unreported judgment delivered on 20/12/02) N2333.
^[2] (Unreported judgment delivered 12/12/00) N2036.
^[3] (Unreported judgment delivered on 27/08/98) SC564.

^[4] [1982] 1979 PNGLR 92.
^[5] The State v. Fabian Kenny (Unreported judgment delivered 16/05/02) N2237.
^[6] R v Davey [1980] FCA 134; [1980] 2 A Crim R 254 per Muirhead .J in The State v Abel Airi (Unreported judgment delivered on 28/11/00)N2007 at p.10.
^[7] [1988-89] PNGLR 271, at p. 273.
^[8] (unreported judgment delivered on /02/02) N2186.
^[9] (unreported judgment delivered on 11/12/02) N2312.
^[10] (Unreported judgment delivered on 13/12/01) N2175.
^[11] (Unreported judgment delivered on 24/12/01) N2167.
^[12] (Unreported judgment delivered on 21/05/02) N2265.
^[13] Supra note 5.
^[14] Op ct n.
^[15] (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
^[16] (Unreported judgment delivered on 28/03/01) N2082.
^[17] Supra note 12.
^[18] Op ct n 12.

^[19] Op ct n 1.
^[20] Supra note .
^[21] Supra note 1.