National Court of Papua New Guinea

The following cases are cited in judgement:

The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110

The State v Aruwe Waiba - Unreported SCR 11 of 1994

The State v Danny Sunura [1983] PNGLR 396

Paul Mase and Kopa Lore John v The State [1991] PNGLR 88

Counsel:

J Kesan for the State

P Pagne for the Accused

JUDGEMENT ON SENTENCE

14 February 1997

LENALIA AJ: The prisoner pleaded guilty to a charge that on 11th of December, 1994 at the Mendi Police Station, while being a prisoner in the lawful custody of one Eugen Manguva, the then Provincial Police Commander escaped from such custody. This is fence against S. 1 S. 139 (1) of the Criminal Code.

The facts of your case are very short. You had just been nced on 9tDeof December 1994 by the Mendi District Court to a term of 6 months imprisonmentnment for a charge of stealing. No wt of sonmed been made made after two days and you were then remanded at the Mendi Poli Police cece cells awaiting your warrant of commitme160; Whilst you were waiting which I think should not have been the case, you escaped togettogether with 10 other remandees through a back window which those who were in your cells had forced open. The facts of your case reteal that you escaped on 11th of December 1994, made no attempts to surrender yourself to police or prison authorities until you were recaptured by police on 7tJune 1996. This was approximatee year year six monthsonths.

You told the Court in allocutus that you are sorry you had tted this trouble.uble. You sai actually did not pnot plan with hard-core criminals like Rex Noki and others who masterminhe escape. You say now that you wereeforced by others to run away and fearing police lice might hurt you, you also escaped with the rest of other remandees from your cells. You have urged the cou be o be lenient with you because you are a small businessmen operating a tradestore, a chicken project and a coffee plantation. You said you have a wife and two children to care for.

Your lawyer in mitigation suon submitted in addition to what you had told the Court that, you had pleauilty thereby saving costs and time. When you were arrested for escaping you co-operaoperated well with police. Mr Pagne referhis Court tort to the case of The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110. There turt held that whesewhesecutentences are impo imposed a final review of the sentence should be made by the court to enso ensure that the total is not excessive.

The totality principles have no applicability in your casr case now since Mr Kesan informed the Court that your 6 months imprisonment term expired on Wednesday 12th of this month the date on which you pleaded to this charge. The effect of the totality principle is that it requires a sentencer who has passed a series of sentences, each properly calculated in relation to the offenr which it is imposed and each of those sentence is properly made consecutive in accordancedance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether or not the aggregate is just. This principle applieall sall situations in which an offender may become subject to more than one sentence. An instaf this is where sere sentenre passed on different counts in an indictment or on different indictments. It is alss also applicab i in instances where an ofr is subjected to a suspended sentence or a probation orderorder where he is already serving a sentence of imprisonment or makes appees in different courts in a short space of time. It i It is a df the judge udge or magistrate to make sure that the totality of the consecutive sentence is not excessive: Mase and Another v tate [1te [1991] PNGLR 88.

In August last year, you also sentenced to a term ofrm of six months imprisonment by this Court on a charge of assaulting your wife. That sentence was s conctlrently upon the orig original sentence of 6 months from which you absconded so that the totality principle does not now apply ur case since the term of six months expired on 12th of this month.

The penalty pres prescribed for this offence under S. 139 (1) is 5 years imprisonment. It is the legislative intent that people who escape from custody be sentenced to terms of not less than 5 years. Whether or hat is a right ight approach to sentence an escapee to a minimum term of not less than 5 yes not a question for this Chis Court to determine. Your case cns escaping frog from lawful custody you were under a vr a valid order to serve a term of six months.

Since you escaped (11.12.94) you did nothing to surrender yourself either to olicerisonoritiesities.&#16. It is unlike case where anre an esan escapee escapes and sometimes later he or she surrenders to the police or prison administration. I finm the facts of your cour case that you determined to escape otherwise you would have surrendered within that period of one year six months. You determinately ad policpolice contact until you were recaptured. You well knew you were unde under a valid sentence but kept on avoiding police.

The effect of S. 139 (1) of the Code is that, thist hasower to sentence ence you to a lesser term than the period prescribed there. Authorithority for view isew is the case of The Sv Aruwe Waiba - UnrepUnreported SCR No. 1 of 1994. There the Su Court held thld that the National Court has no power ntenca lesser term than what is prescribed by the sect section. The minimrm prescribecribecribed there does not however affect the C#8217;s power under S. 19 o 19 of the Code: The State v Aruwe Waiba; see also The State v Danney Sunura & Ors [1983] PNGLR 396.Your case must be distingutinguished from a case where a prisoner escapes then voluntarily surrenders. In such a case that shoe t be taken as a mitigation. Yase involves a situation tion where you escaped and kept avoiding the police for a period oear 6 months. This in my view shouldakentaken as an aggravating factor. Your anur antecedents show that the highest educational institution you reached was Grade 10 at the Nipa High School. How an educated person beon be so naived about the requirementaw that when one is sentenced to a term of imprisonment, het, he must abide by the terms specified by such an order. When he issatishe has the the appealppeal process to utilise. Having said thiust sentencntence you to a term of 5 years imprisonment witd labour. I further order that 3 years of this sentence shall be suspended and you shou shall serve the remaining term of 2 yea hard labour.

Lawyerawyer for the State: The Public Prosecutor

Lawyer for the Accused: The Public Solicitor