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State v Kumis [1997] PGNC 13; N1517 (14 February 1997)

Unreported National Court Decisions

N1517

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. NO. 1280 OF 1996
THE STATE
V
RICHARD OLSO KUMIS

Mendi

Lenalia AJ
12 February 1997
14 February 1997

CRIMINAL LAW - Escaping lawful custody - Plea - Sentence - Criminal Code S. 139 (1) (Ch. No. 262).

CRIMINAL LAW - Escaping from lawful custody - Sentencing guidelines - Determined escape an aggravating factor - Matters for consideration.

The accused escaped from lawful custody after he had just been sentenced to 6 months imprisonment. He deliberately avoided contact with police until he was recaptured some 1 year six months. The full facts of the case appear on the body of my judgement.

Held:

(1) A determinate escape ought to be differentiated from an escape where an escapee absconds and voluntarily surrenders to either police or C.I.S. administration.

(2) Where a prisoner escapes and deliberately avoids contact with police and does not surrender himself to prison or police authorities and depending on the length of time, must be treated as an aggravating factor on sentence.

Cases Cited:

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 an offence against S. 139 (1) of the Criminal Code.

The facts of your case are very short. You had just been sentenced on 9th of December 1994 by the Mendi District Court to a term of 6 months imprisonment for a charge of stealing. No warrant of imprisonment had been made after two days and you were then remanded at the Mendi Police cells awaiting your warrant of commitment. Whilst you were waiting which I think should not have been the case, you escaped together with 10 other remandees through a back window which those who were in your cells had forced open. The facts of your case reveal 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 7th of June 1996. This was approximately one year six months.

You told the Court in allocutus that you are sorry you had committed this trouble. You said you actually did not plan with hard-core criminals like Rex Noki and others who masterminded the escape. You say now that you were forced by others to run away and fearing police might hurt you, you also escaped with the rest of other remandees from your cells. You have urged the court to 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.

You also said I should impose a concurrent sentence upon you or a probation order should be given so you could go home and take care of your business.

Your lawyer in mitigation submitted in addition to what you had told the Court that, you had pleaded guilty thereby saving costs and time. When you were arrested for escaping you co-operated well with police. Mr Pagne referred this Court to the case of The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110. There the court held that when consecutive sentences are imposed a final review of the sentence should be made by the court to ensure that the total is not excessive.

The totality principles have no applicability in your 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 offence for which it is imposed and each of those sentence is properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether or not the aggregate is just. This principle applies to all situations in which an offender may become subject to more than one sentence. An instance of this is where sentences are passed on different counts in an indictment or on different indictments. It is also applicable in instances where an offender is subjected to a suspended sentence or a probation order where he is already serving a sentence of imprisonment or makes appearances in different courts in a short space of time. It is a duty of the judge or magistrate to make sure that the totality of the consecutive sentence is not excessive: Mase and Another v The State [1991] PNGLR 88.

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

The penalty 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 not that is a right approach to sentence an escapee to a minimum term of not less than 5 years is not a question for this Court to determine. Your case concerns escaping from lawful custody when you were under a valid order to serve a term of six months.

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

The effect of S. 139 (1) of the Code is that, this Court has no power to sentence you to a lesser term than the period prescribed there. Authority for this view is the case of The State v Aruwe Waiba - Unreported SCR No. 1 of 1994. There the Supreme Court held that the National Court has no power to sentence to a lesser term than what is prescribed by the section. The minimum term prescribed there does not however affect the Court’s power under S. 19 of the Code: The State v Aruwe Waiba; see also The State v Danney Sunura & Ors [1983] PNGLR 396.

Your case must be distinguished from a case where a prisoner escapes then voluntarily surrenders. In such a case that should be taken as a mitigation. Your case involves a situation where you escaped and kept avoiding the police for a period of 1 year 6 months. This in my view should be taken as an aggravating factor. Your antecedents show that the highest educational institution you reached was Grade 10 at the Nipa High School. How could an educated person be so naived about the requirement of law that when one is sentenced to a term of imprisonment, he must abide by the terms specified by such an order. When he is not satisfied he has the appeal process to utilise. Having said this I must sentence you to a term of 5 years imprisonment with hard labour. I further order that 3 years of this sentence shall be suspended and you shall serve the remaining term of 2 years in hard labour.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: The Public Solicitor