N11337
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO 8 OF 2023

THE STATE

V

KILA AONEKA WARI

WAIGANI: BERRIGAN J
 9 APRIL, 18 JUNE 2025 

CRIMINAL LAW – SENTENCE – DEFAMATORY PUBLICATION – Section 21(2), Cybercrime Code Act, 2016 – Malicious, defamatory publication, alleging criminal conduct against brother-in-law and former Governor of NCD in the course of an online argument with sister during an election campaign – Sentence of 3 years, wholly suspended on conditions. 

The offender was convicted following trial of one count of defamatory publication on Facebook on 30 May 2022 alleging that Mr Wari Vele stole millions of Kina, whilst Governor of NCD. 

Held:

(1)	In aggravation the nature and gravity of the defamatory publication was serious. It alleged serious criminal conduct, namely the stealing of millions of Kina of State monies by the complainant whilst he was Governor of NCD. The publication was made on the offender’s Facebook account to which at least 50 others had access and she encouraged them to pass the word to all Hanuabada families not to vote for the complainant in the upcoming election. The offender was motivated by malice and she had a clear intention to damage the complainant’s election campaign. She was frustrated by the complainant’s use during the election campaign of a catchphrase she regarded as belonging to her uncle, a rival candidate, and in general terms, by what she regarded as a lack of respect by the complainant towards her uncle and her family. Against that background, she was angry with her sister for posting the catch phrase and lashed out in the course of an online argument with her. She did not believe the statement to be true. There was no significant planning.  There was a relationship of trust in the sense both that she was the complainant’s in-law and his former employee whilst he was Governor. The damage caused to the victim was great.  In mitigation this is the offender’s first offence. She is of prior good character. The offender is genuinely remorseful. There are no matters of mitigation special in terms of age or health but there has been some delay.

(2)	The offender is sentenced to three years of imprisonment without hard labour, wholly suspended on conditions, including a fine.

Cases cited
The State v Sebastine Bosco (2025) N11336

Counsel
L Jack for the State 
S Javarti for the offender 

DECISION ON SENTENCE

1.	BERRIGAN J:  The offender was convicted following trial of one count of defamatory publication contrary to s 21(2) of the Cybercrime Code Act, 2016, for which the maximum penalty is a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years, or both.

2.	At the time the complainant, Mr Wari Vele, was a candidate for the National Capital District Governor’s seat in the 2022 National General Elections, a position he held in 2006 and 2007. The offender and Mr Vele’s wife, Kila Vele, are sisters. 

3.	On 30 May 2022 a war of words erupted between the offender and her sister on Facebook, in relation to Mr Vele’s election campaign, in which the offender posted personal insults and allegations of criminal impropriety on the part of Mr Vele, including in particular: “Veki Construction, you used us to steal from NCD na yupla yet kaikai millions mipla sign lo cheque book ya”.  

Allocutus 

4.	On allocutus the offender apologised to the Court and to the complainant. It was not her intention to spoil his reputation. Her statements were in response to the complainant’ wife, her sister. She is a single mother of four children and the only breadwinner for three of her children, including one who has an eight month old child, and her two youngest who are in high school.  She is willing to pay a penalty imposed with assistance from her family who have been supportive of her throughout the court proceedings.

Submissions 
5.	The State submits that the offence was serious given the victim’s position as Paramount Chief, senior Statesman, and former Member of Parliament, the offender made allegations without any foundation, she was fuelled by malice and her dominant motive was to damage his reputation. She urged others not to vote for him which was a direct breach of s 105(1)(d), Criminal Code. It seeks a sentence of five years of imprisonment and does not oppose suspension but submits that any suspension should be accompanied by a fine of about K8500 being one third of the maximum.

6.	Defence counsel submitted that because the victim was unable to establish that he lost the National General election or any business as a direct result of the defamatory publication the matter was not very serious and a fine was appropriate. The offence was not planned. It happened in the midst of an argument with her sister.

Consideration

7.	I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.  Section 19 of the Criminal Code provides the Court with broad discretion on sentence: applying s 3(1)(2), Cybercrime Code Act. Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510. Every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

8.	As suggested in The State v Sebastine Bosco (2025) N11336, the following considerations may be relevant when determining a sentence for an offence of defamatory publication under the Cybercrime Code Act: 

(a)	the nature and gravity of the defamation; 
(b)	the mode and extent of publication; 
(c)	the conduct and intention of the offender, including:
i.	whether publication was intentional or reckless;
ii.	whether the offender knew that the publication was false;
iii.	the offender’s motive, including the nature and extent of injury intended, whether the offender was actuated by malice, or for the purpose of extorting a benefit;
iv.	the planning involved;
v.	whether the publication was made openly or using an alias;
vi.	whether there was a breach of trust;
(d)	the extent to which the offender persisted with the defamation, including any retraction or apology; and
(e)	the impact on the victim, including the extent of harm established. 

9.	In that case the offender was convicted following trial of three counts of defamatory publication on three separate occasions over the course of a year alleging that Fr Jan Czuba, the Secretary of the Department of Higher Education, Research, Science and Technology (DHERST) and Ms Leah Margis, one of three Deputies, had conspired to and did steal millions of Kina of State monies. The offender was driven by malice, resentment and jealousy together with a strong determination to injure the reputations of both victims, have them removed from office and pressure police into laying criminal charges. He did not care whether the publications were true or not. The publications were deliberately made on open forum Facebook accounts with the intention of gaining media attention and pressuring police, and the posts were seen by thousands of people. The publication on Count 1 was made using an alias. The publication on Count 3 condoned theft and encouraged others to take the law into their own hands. All involved some planning. The offender was not in a close position of trust to the victims but did use his position at DHERST to post documents to purportedly bolster his allegations. The impact on each of the victims had been great. In mitigation it was his first offence, he was of previously of good character and there was some delay but there was limited remorse. He was sentenced to seven years, of which three and a half years was suspended on conditions.

10.	Returning to the present case, the nature and gravity of the defamatory publication was serious. It alleged serious criminal conduct, namely the stealing of millions of Kina of public monies by Mr Vele whilst he was Governor of NCD. 

11.	The publication was deliberately made on the offender’s Facebook account to which at least 50 others had access and she encouraged them to pass the word to all Hanuabada families not to vote for the complainant in the upcoming election. 

12.	The offender was motivated by malice. She was frustrated by the complainant’s use during the election campaign of a catchphrase she regarded as “belonging” to her uncle and, in general terms, by what she regarded as a lack of respect by the complainant towards her uncle and her family. Against that background, she was angry with her sister for posting the catch phrase and lashed out in the course of an online argument with her, in which the offender was the principal antagonist, which started at about 756 pm and escalated until about 830 pm when she made the statement that the complainant stole millions of Kina.  She did not believe that statement to be true and the evidence led by her at trial about a payment of K150,000 by NCDC some 15 years earlier failed to establish any wrongdoing on the part of the complainant. The publication did not involve any significant level of planning. There was a relationship of trust. She was both Mr Vele’s sister-in-law and formerly employed by him when he was Governor, matters which, to the persons to whom her post was intended, lent weight to her allegations. She intended to damage the complainant’s reputation and election campaign.

13.	The damage caused to the victim was great. 

14.	Mr Vele has given a victim impact statement in which he says that he has suffered greatly as a result of the offender’s actions. He is a leader, a paramount chief in his village, Hula, a businessman, a former politician and Governor. His personal, professional and business life has been affected. He had invested substantial monies in his campaign. The offender encouraged others not to vote for him and it became obvious during the counting that he lost votes in Hanuabada and North Waigani which are usually his strongholds. His business also suffered. As a result of the allegations of stealing he no longer has any contracts. People refuse to do business with him. The little he earns now is only enough for food and daily expenses for his family. He can no longer afford to live in the city and now lives in the village. He has eight children, four of whom are adults, whilst the four youngest are in primary and high school. He has 12 grandchildren. Due to the loss of his business his children have had to transfer out of private school and are now enrolled in local village schools where their academic performance is suffering. The offence has also impacted his relationship with his family and in-laws. His in-laws no longer respect him and want nothing to do with him.  Even as paramount chief, no-one attends meetings when he calls them. They laugh at him and avoid him. He has suffered emotionally and psychologically. He does not have any grudges against the offender or his other close family members. He does not think that he will contest the elections again because of the offender’s post and the damage to his reputation. 

15.	As I indicated on verdict, I am not in a position to make a finding about whether or not the comments did in fact affect the result at the election or his business. I do accept, however, that the statements had a tendency to do so. I do accept that Mr Vele’s standing as a leader in the community has been greatly diminished and that he is now the subject of ridicule, together with the fact that he has suffered emotionally and psychologically. 

16.	I note the State’s submission that the conduct constituted an offence under s 103, Criminal Code. Putting aside that it is impermissible to take that offence into account on sentence, the fact that the offender urged people not to vote for Mr Vele is not an offence in itself. There is nothing wrong with that. Urging voters not to vote for a rival candidate is at the heart of most political campaigns. It was the allegation of criminal conduct that violated s 21(2), Cybercrime Code Act.  

17.	The offender is 45 years old. She is from Pelagai Village, Abau District Central Province and has lived at North Waigani with her family all her life. She is the eldest of four children, all of whom live in the village. She graduated from high school and subsequently obtained a certificate in office administration. For the past twelve years she has been employed as an administrative assistant with the Department of Labour and Industrial Relations. She is a single mother to four children, aged 25, 24, 19 and 13, and an eight month old grandson, all but one of whom are financially dependent on her. 

18.	In mitigation this is the offender’s first offence. 

19.	I accept that she is of prior good character. She continues to hold a position of trust in the public service. Members of her community in North Waigani spoke in her favour and described her as a respected community leader. 

20.	The impact of the offence on the offender has been significant. There is now serious division within the family as a result of her conduct. The offender has expressed remorse which I accept as genuine. She apologised to the complainant and his wife and hopes they can resolve the matter now.  In response to my query it appears that there has been some attempt at reconciliation but Mr Vele is as yet unprepared to accept it. It is unclear whether the offender has since removed her posts. 

21.	Whilst I acknowledge that imprisonment will have a significant impact on the offender’s family, in particular her young children, the impact on family is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.

22.	She requires fortnightly physiotherapy for her arm but there are no matters of mitigation special to the offender in terms of age or health.  There has been some delay since she was charged in 2022. I note the principles applying. As in any case delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence: The State v Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3) (2021) N9248 at [37].

23.	The delay was in large part due to the fact the matter was referred to the Supreme Court for constitutional consideration which was entirely appropriate: see The State v Kila Aoneka Wari (Referral to the Supreme Court pursuant to s 18, Constitution) (2024) N10706 and Re Section 21(2) of the Cybercrime Code Act 2016 (2024) SC2608.

24.	Some weight should be given to the delay in the circumstances but to avoid giving it undue weight I intend to consider it on the matter of suspension below: The State v Tardrew [1986] PNGLR 91 applied.

25.	The offender exercised her right to trial. Counsel suggested that some judges consider this an aggravating factor. It is not but she is not entitled to any discount that might have been available to him had he pleaded guilty: The State v Solomon Junt Warur (2018) N7545.   

26.	Having regard to the above matters I sentence the offender to three years of imprisonment.  This is only the second such case in the jurisdiction. Whilst this case also concerned allegations of serious criminal conduct against a senior public figure, State v Sebastine Bosco concerned malicious, planned, repeated defamatory publications over a period of more than 12 months, using different accounts and aliases, with the intention of having the victims criminally charged and removed from office, and the posts were viewed by thousands of people.  

27.	I intend to suspend the sentence on conditions, including a fine. Her pre-sentence report is supportive. It has been some time since the offending. It is clear to me that the offender appreciates the seriousness of her conduct and will not reoffend again. It is my view that suspension will best promote the offender’s rehabilitation.

28.	I make the following orders.

Orders

(1)	The offender is sentenced to three years of imprisonment without hard labour.
(2)	The sentence is suspended on condition that the offender:
a.	if not done already, delete the publication and any related comments within 7 days; 
b.	pay a fine of K5000 within three months of today’s date; and
c.	enter into her own recognisance to be of good behaviour for the balance of her sentence. 
(3)	Bail monies are to be refunded. 

Sentence accordingly. 
___________________________________________________________
Lawyer for the State: Public Prosecutor		
Lawyers for the offender:   Javarti Lawyers