N1955

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

DFCR NO. 1 OF 1997

THE STATE

-v-

87929, CAPTAIN BOLA RENAGI
of KEMABOLO Village, Kwikila, Central Province

AND:

80051, Captain BELDEN NAMAH
of SOMBOI Village, Vanimo, Sandaun Province

AND:

811511, Second Lieutenant LINUS OSOBA
of Wihan Village, Yangoru, East Sepik, Province

Waigani: Hinchliffe J
2000: July, 10

Defence Act, Ch No 74  Mutiny  Found guilty after trial  Prisoners had placed the Commander of the Defence Force and another high ranking Officer under House Arrest  Sentence.

J. Kesan, for the State
P. Parkop, for the Accused

10th July 2000

Hinchliffe J: You have been found guilty that on the 28th July, 1997 at Murray Barracks, being persons subject to the Code of Military Discipline you each and severally took part in a Mutiny. Pursuant to Sec. 55 of the Defence Act, Ch. No. 74.

The said Section provides as follows:

"55. Mutiny

(1)	A person subject to the Code of Military Discipline who takes part in a mutiny is guilty of an offence.

Penalty: Imprisonment for life or a lesser term."

At the commencement of the trial on the 4th August, 1999 the State alleged the following facts: -

"On the 28 July, 1997 in the early hours of the morning the accused Walter Enuma was in lawful custody at the Boroko police cells on a matter unrelated to this trial. He was forcefully released by the four other accused with the assistance of others. All the soldiers were members of the Special Force Unit (S.F.U) and all of them were persons subject to the Code of Military Discipline.

The State alleges they mounted an illegal operation by taking control of the Defence Force Operation Centre at Military Headquarters, Murray Barracks.

They also took control of the main gate into Murray Barracks which is located at Wards Road. The state also alleges they went to the house of the Commander at the married officers quarters at Murray Barracks. They unlawfully detained the Commander and held him under house arrest.

The State also alleges that at the Defence Force Operations Centre they detained or prevented officers who were on duty from performing their normal duties.

The State also alleges that a Senior Officer of the Defence Force Col. Marlpo was also detained and placed under house arrest. Also that the accused Captain Renagi was the leader of the illegal operation and he had the full cooperation of the accused Captain Namah, Lieutenant David and 2nd Lieutenant Osoba.

The State further alleges that when the mutinous acts were in progress, Major Enuma came to know that the meeting was taking place and did not use his utmost endeavours to prevent it.

The State also alleges that they took over from the officers who were on duty at the gate. They prevented them from performing their normal duties.

Also the State alleges that all the accused were dressed in military uniforms and armed with military weapons. Those accused were supported by other soldiers but who were not identified.

It is alleged that the accused conducting themselves in the way that they did, defied lawful authority and impaired the performance of service in the Defence Force. Finally that at the time of the alleged mutiny the five accused assisted each other in the commission of the said mutiny pursuant to Section 7 of the Criminal Code."

At the completion of the trial the said facts in relation to the three of you were found to be substantially correct, whilst the two other accused were found not guilty.

Your lawyer, Mr. Parkop, during the plea on sentence asked me to take a number of matters into account when considering penalty. Amongst other things he asked me to consider a suspended, rather than a custodial, sentence. Before I could consider a suspended sentence I was of the view that Pre-Sentence Reports were necessary. I now have those three reports before me from Probation and Parole and I thank the people who prepared them because they have been of considerable assistance to me in coming to a decision. I say that because quite a few people were interviewed, some in favour of the prisoners, some against. I was given a full history of the prisoners family and work situation, and in all I got a well balanced picture. From the said by various people on Bougainville.

When considering points in your favour I must also consider points that are not in your favour. I then weigh it all up and come to a decision. Not in your favour are the following:

1.	Mutiny is a very serious offence, it carries a maximum penalty of life imprisonment. That is the same maximum penalty as for murder, rape and robbery. Quite clearly the Parliament, when it fixed the maximum penalty it saw Mutiny as a very serious offence, which of course it is.

2.	Your pleas of "not guilty" have denied you of the usual deductions one gets on a plea of guilty. I am sure your lawyer would have explained that to you before you decided on the plea of "not guilty."

3.	That you did not take lawful channels to air your complaints. In the Defence Act it is quite clear that in Section 10 (1) (c) that the Commander of the Defence Force "is responsible for the efficient administration and operational readiness of the Defence Force." In Sec. 50 of the said Act it sets out how to redress grievances. I gleaned from your evidence that you got nowhere under that section. Then to my mind you could have taken the whole matter up under Sec 51 and asked the Minister to consider convening a Board of Enquiry. Your allegations against the Special Operations Group were serious and a Board of Enquiry may well have been appropriate. I have already mentioned in my judgment on the evidence and the law that an application to the National Court could also have been considered. What I am really saying here is that the action you took on the 28 July, 1997 was not the last resort for you. It was far from it. What you did was unlawful in a very serious way and it was absolutely unnecessary. To house arrest The Commander of the Defence Force, who also happened to be a Brigadier General, and also house arresting a Lt Colonel is a very serious matter, and to my mind there is no excuse for it in particular when you had other avenues.

4.	You are all members of a Disciplined Force and all I can say is that you did not act in a disciplined manner on that morning. Your behaviour and actions were an extremely bad example to defence members junior to you and even to members equal to you and those who are higher than you. As I said on the 31st May, this year, you had access to a very senior lawyer in Mr. Donigi, but it seems that you did not seek his advice before doing what you did. It was only after the event that you called on him. I feel confident in saying that Mr. Donigi would not have told you to go ahead and place the Commander under House Arrest. Hopefully he would have advised you on the lawful way to approach the problems you were having. If that had been done then it is unlikely that you would be appearing in this Court room today.

So they are basically the points for and against you which I must consider when assessing penalty. Mr. Parkop has referred me to several past cases which I have read and considered. I don't think that I am wrong in saying that the community likes to think that our disciplined forces are just that. They expect the members to be geared and ready when called to service. They expect our soldiers, sailors and airmen to obey their superiors and be well trained and ready for action. To be set up any other way could turn out to be a disaster. Members of the Defence Force have access to high powered weapons and other sophisticated instruments and machinery and if insubordinate behaviour became common then one only shudders to think what could happen. The country would feel insecure and the Force members could lose much of their morale. It is very necessary that all members of a Defence Force are loyal to the Government of the day and that its members not only respect but also that they obey their superior officers. Anything less than that could create havoc.

I have no doubt at all that in 1997 the Defence Force was divided after the Sandline Affair and unfortunately it seems that there is still a division up until today. That should not be so. The Defence Force should be united with one thing on its mind. To be ready and prepared to defend the country when called upon. I am unable to see how that can happen if members are fighting each other.

Even though the Pre-Sentence Reports say that you are suitable for Probation it is still up to the Court to decide whether or not the seriousness of the charge will allow such a result. Even though there is law to say that a suspended sentence is not a "soft option," the truth of it is, is the person does not go to jail.

After considering everything before me, and I assure you I have considered it extremely carefully, I am of the view that the offence and the facts surrounding it, require a term of imprisonment. People who place the Commander of the Defence Force under House Arrest plus another senior officer cannot expect to walk away with a smack on the wrist. A message should go out to all members of the Defence Force and any other disciplined force that such behaviour and blatant breach of the law will not be tolerated and is totally unacceptable. People in lawfully appointed and elected positions are entitled to hold and enjoy those positions without being unlawfully interfered with by people who have no lawful right to do so.

If they do so unlawfully interfere then they shall be dealt with accordingly.

The sentences I am handing down today are lesser then I might have done, in particular because the case is nearly three years old and that all of you have a respectable work record in the Force.

1.	Captain Bola Renagi. You are convicted and sentenced to 8 years imprisonment in hard labour. Less 2 weeks for time spent in custody. Total 7 years 11 month 2 weeks to serve of the 8 year term.

2.	Captain Beldin Namah and Lt. Linus Osoba. You are convicted and sentenced to 6 years imprisonment in hard labour. Less 2 weeks for time spent in custody. Total 5 years 11 months 2 weeks to serve of the 6 year term.