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State v Moge [1995] PGNC 59; N1318 (13 March 1995)

N1318

PAPUA NEW GUINEA
[In the National Court of Justice]

CR 100 OF 1995

THE STATE

v

JACK MOGE

Rabaul: Jalina, J
9 & 13 March 1995

Criminal Law - Escape by Prisoner from Lawful Custody - Sentence - No discretion to impose lesser sentence - 5 years maximum period mandatory - Criminal Code s 139.

Cases Cited:
There are no cases cited in the judgement.

N Miviri for the State
J Kaumi for the Prisoner

JALINA, J.: You have pleaded guilty to one count of escaping from lawful custody at the Kokopo Police Station cells on 15 November 1994. This was after your re-capture whilst you were on the run from Kerevat Corrective Institution where you were serving sentence of 8 years imposed by the National Court in Kimbe in November 1992 for armed robbery. You are yet to be dealt with over the escape from Kerevat Corrective Institution. This of course is a matter for the police and the Corrective Institution.

The maximum penalty for this offence pursuant to Section 139(1) of the Code used to be 3 years imprisonment but an amendment to that section in 1993 increased the penalty to 5 years. For want of better understanding of decision, I have made in this case as to the appropriate penalty to be imposed upon a prisoner who escapes from lawful custody. I quote both the old and new penalty provisions in section 139(1) in full.

Penalty prior to amendment:

"Penalty: Imprisonment for a term not exceeding three years".

New penalty which repealed the old penalty:

"Penalty: A term of imprisonment of not less than five years".

It can clearly be seen that there is a great difference between the old and the new penalty in my view. In the old penalty the word "imprisonment not exceeding three (3) years" means that a court or judge can impose any period of imprisonment up to three years. It may not exceed three years. But in the new penalty the words "imprisonment of not less than 5 years" means that a court or judge may not impose a period of imprisonment of less than 5 years. A court or a judge has no discretion. The fact that a court or a judge has no discretion is clear from the fact that the penalty prescribed in Section 139(1) as amended is not subject to Section 19 of the Code.

This seems to me to be within the spirit and intent of the amendment by Parliament in view of concern by the members of the public and parliamentarians over numerous escapes in our prisons.

Attempts to re-capture prison escapees have also drained the police and Corrective Institution of financial and manpower resources. The amendment has not even deterred escaping and one of the reasons might be that prisoners think that they would be given light sentences for escaping.

From what I have said above, the intention of Parliament clearly appears to be a non-discretionary penalty of 5 years imprisonment.

You have stated in your allocutus that the police shot you in trying to apprehend you and their failure to take you to hospital has resulted in your right hand being paralysed. All I can say in that regard is that when prisoners escape they take upon themselves the risk of being shot and even being killed or seriously injured. I think it is about time the Courts, the police and the correctional officers stop treating prison escapees like babies. I am not going to reduce your sentence for what the police have done to you. If you feel that your constitutional rights have been breached then you can institute civil proceedings separately to enforce your constitutional rights for the loss of use of your right hand.

The sentence I consider appropriate in this case is five years imprisonment in hard labour. For your plea of guilty, I deduct 4 months which leave 4 years and 8 months. This sentence shall be served cumulatively to the sentence for robbery. This means that you shall serve 4 years and 8 months after you have completed the 8 years imposed by the National Court in November 1992 in Kimbe for armed robbery.

I advise that if you are not happy with this sentence you may appeal to the Supreme Court within 40 days from today.

Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor