N2823

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NOS.1250/04,10/05,15/05, 16/05, 17/05,160/05

THE STATE

-v-

ASS MEDRON NANGIL, PIUS MORO, BATLA MAHEN,
JACOB PENI, WEITE BUMARI, PAULUS BILL

Madang: Manuhu, AJ
2005: February 22 & 25.

SENTENCE

Criminal law – Particular offence - Escaping – Power to suspend – Totality principle – Concurrent and cumulative sentences – Recommendation for investigation into mistreatment of prisoners.

Cases cited in the judgment:
The State v Aruve Waiba (SCR 1 of 1994).
The State v Danny Sunu & Others [1983] PNGLR 396.
The State v. Thomas Waim [1988] PNGLR 
Public Prosecutor v Kerua [1985] PNGLR 85.
The State v Thomas Waim [1995] PNGLR 187.

Counsel:
Mr. M. Ruarri, for the State.
Ms. A. Turi, for the Prisoners.

25 February 2005.

MANUHU, AJ: All of the Prisoners were indicted and dealt with separately. For convenience, I have decided to sentence them together but I must bear in mind that the facts of their respective cases are not the same. 

The charge against each of the Prisoners is laid pursuant to s. 139 of the Criminal Code, Ch. No.262, which carries a "term of imprisonment of not less than five years." Clearly, Parliament intended that no lesser than five years sentence should be imposed on a prisoner who escapes. However, the Supreme Court in The State v Aruve Waiba (SCR 1 of 1994) considered a special reference by India AJ (as he the was) and was of the view that the limitations imposed by the minimum penalty has already been settled in the Supreme Court case of The State v Danny Sunu & Others [1983] PNGLR 396. The relevant passage from the head notes of that case is as follows:

"Although s. 389 of the Criminal Code (Ch 262) provides a minimum penalty for an offence contrary thereto the discretionary powers of the court under s 19 are not affected except to the extent that under s 19(1)(a) a court cannot impose less than the minimum penalty where it considers a term of imprisonment appropriate but may suspend the sentence or a portion thereof under s 19(6)." 

Accordingly, this court can suspend the sentence in whole or in part after imposing the prescribed minimum sentence of five years.

I have not read the latest judgment of the Supreme Court so I am not sure if the varying sentencing issues in the two references were discussed. The Supreme Court in The State v Danny Sunu was dealing with a prisoner who was before the court for the first time. The only issue then was whether a judge still had the discretion under s. 19 to impose sentences other than the prescribed minimum penalty. In The State v Aruve Waiba, however, the same question is posed in a significantly different context. The trial judge in the latter case had to also deal with whether to impose a concurrent or cumulative sentence; and, if cumulative, how the totality principle could be applied and be reconciled with the minimum penalty to avoid imposing a sentence too crushing on a prisoner. 

In any event, on the basis of the decision in The State v. Aruve Waiba, the various aspects of sentencing I have just referred to is well explained in the escape case of The State v. Thomas Waim [1988] PNGLR 360, in the following manner: 

"On the question of suspension of the whole or part of the minimum sentence, this power is conferred by section 19(1)(d). The power to suspend a sentence must be exercised on some proper basis: Public Prosecutor -v- Thomas Vola [1981] PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble -v- The State (1988-89) PNGLR 271 at 275; Good character and good family background: The State -v- Frank Kagai [1987] PNGLR 320; State -v- Justin Nyama [1991] PNGLR at 127; or on medical grounds: Public Prosecutor -v- William Bruce Tardrew [1986] PNGLR 91. On the question concurrent sentences, it is imposed where a series of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205. These principles are well settled. In the present case, if one were to follow the principles outlined above, there is no proper basis for suspending part of the sentence or making the sentences concurrent with sentences they are currently serving. However, the court would still have the discretion to suspend the whole of the minimum sentence or a part thereof for reasons associated with the particular circumstances of the offence in order to ensure that the overall sentence is not manifestly excessive in the particular circumstances of the case." (my emphasis)

What this means is that the courts may be forced into the following undesirable situations. Firstly, a court may, on the basis of the totality principle (see Public Prosecutor v Kerua [1985] PNGLR 85), suspend part of a sentence even when the prisoner is not able to comply with the conditions of the suspension. Secondly, a court may part suspend a sentence, which is then made cumulative on a very long sentence. This is a situation which does not serve any useful purpose at all. It is not desirable, for instance, to have a suspended sentence at the end of a thirty year sentence. 

A prisoner is a human being and whatever sentence he receives must be nothing less than appropriate. It seems to me, however, that the penalty for escape, if not considered with care, and if not reviewed as suggested elsewhere, could be unjustly oppressive on a prisoner. Until a review occurs, one way of avoiding a crushing sentence is to part with tradition and have two or more sentences made concurrent even if the offences are unrelated. Ten years ago, Sevua J proceeded in such manner in The State v Thomas Waim [1995] PNGLR 187 when his Honour said:

"Although, these offences were committed the same night, they were committed at different locations and at different times. In my view, sentences for the four counts should be cumulative. However, upon considering the totality principle and the sentences I have decided to impose, I consider that the sentences should be concurrent." 

Given the limitations imposed by the minimum penalty for escaping, the approach in the cited case, which essentially is a more liberal interpretation of the totality principle, is useful for handling the restrictions of the minimum penalty. Where circumstances have changed, the ultimate goal of arriving at a sentence that is just and appropriate should not be hindered by tradition. In relation to the cases before me, therefore, the desire to impose a sentence that is just and appropriate will influence how I will apply the totality principle. Where necessary, a sentence for escape will be made concurrent with another sentence. 

Bearing in mind all of the relevant principles and the powers I have, I take into account firstly that all of the Prisoners have pleaded guilty. They have cooperated with their respective arresting officers during the interviews. No major crimes were associated with their escapes. Their escapes were without incident. 

Secondly, all of the Prisoners have various reasons for the escape. Some did not like the type of treatment they were receiving from the warders as well as other inmates. There is a complaint about a "dark cell" at Beon Jail where prisoners are said to be subjected to inhumane treatment, including exposure to their own wastes because of lack of proper toilet facilities. I strongly recommend that the Office of the Public Solicitor take appropriate steps to investigate the complaints on the dark cell and take all appropriate measures to address the complaints raised by the prisoners. 

Thirdly, some Prisoners were worried about what was happening outside. One of the Prisoners complained about his wife getting married. Some Prisoners have complained about the eviction exercise which affected their relatives. 

In addition, except one, some of the prisoners have requested transfer but they did not nominate any jail for them to be transferred to. Consequently, I cannot order any transfers for the Prisoners concerned.

ASS MEDRON NANGIL

In relation to Prisoner Nangil, at the time of the escape, the Prisoner was serving a sentence of three years and nine months for rape, and two cumulative sentences of five years for escaping. He was thus serving a total sentence of thirteen years and nine months. The Prisoner first escaped in 1996 from Erap Boys Town when he had just served about one year and six months of his initial sentence imposed in 1994. It seems that he has served or is just about to complete his initial sentence for rape, but ahead of him is total of ten years for two escapes. 

It seems that on two occasions, the totality principle and, consequently, the power to suspend sentence was not exercised in relation to the Prisoner. Thus, the Prisoner is serving a total sentence of thirteen years and nine months. I am of the view that such a long period is sufficient to accommodate the criminality of the current escape. In the circumstances, I impose a sentence of five years but suspend all of them and place the Prisoner on a good behaviour bond for twelve months whenever he is released from prison.

PIUS MORO

The Prisoner pleaded guilty to one count of escaping from lawful custody on 19th July 2004. At the time of the escape, the Prisoner was serving fifteen years for murder and three lots of five years sentence for escaping on three occasions. All of these sentences were made cumulative so that the Prisoner is serving a total sentence of thirty years. 

It seems that on three occasions, the totality principle and, consequently, the power to suspend sentence was not exercised in relation to the Prisoner. I take into account the total sentence of thirty years. I am of the view that such a long period is sufficient to accommodate the criminality of the current escape. In the circumstances, I impose a sentence of five years which will be served concurrently with the current sentence of thirty years.

BATLA MAHEN

The Prisoner pleaded guilty to one count of escaping from lawful custody on 21st April 2004. At the time of escaping, the Prisoner was serving a total sentence of eleven years. Two of his armed robbery sentences of five and six years were ordered to be served concurrently. The Prisoner was however sentenced thereafter for another five years which was made cumulative on his concurrent sentences of six years. 
 
It seems that the totality principle and, consequently, the power to suspend sentence was not exercised in relation to the Prisoner. I take into account the total sentence of eleven years. I am also of the view that such a long period is sufficient to also accommodate the criminality of the current escape. In the circumstances, I impose a sentence of five years but suspend all of them and place the Prisoner on a good behaviour bond for twelve months whenever he is released from prison.

JACOB PENI

The Prisoner pleaded guilty to one count of escaping from lawful custody on 19th July 2004. At the time of the escape, the Prisoner was serving a sentence of nine years and eight months for rape. I appreciate the Prisoner’s plea of guilty and his reasons for escaping. No one was harmed when he escaped. It is however in the Prisoner’s interest to serve his sentence quickly. 

In all the circumstances, I will impose a sentence of five years in hard labour. I will however suspend three years and place the Prisoner on a good behaviour bond for twelve months whenever he is released from prison. The remaining part sentence of two years will be served cumulative on the current sentence. 

WEITE BUMARI

The Prisoner pleaded guilty to one count of escaping from lawful custody on 18th November 1996. At the time of the escape, he was serving a sentence of four years for armed robbery. He has already served that sentence and has been on remand since Monday 21st February 2005 for the present charge. This may be a special case. The Prisoner has served all of his sentences. If sentences are imposed to correct a Prisoner, I am confident that the initial sentence has served its purpose of correcting the Prisoner. Such confidence is boosted by the Prisoner’s clean record of eight years when he was at large. In the circumstances, I will impose a sentence of five years but will have all of them suspended and place the Prisoner on two years good behaviour bond. Should he default, he will be back to serve five years which is longer than the first sentence. 

PAULUS BILL

The Prisoner pleaded guilty to one count of escaping from lawful custody on 23rd September 2004. At the time of the escape, the Prisoner was serving a sentence of eight years for armed robbery. The Prisoner escaped because he disapproved of sodomy and other unwanted practices in prison. He has also requested to be transferred to Kainantu. Taking into account his age and his reason for the escape, I will grant his wish to be transferred. In all the circumstances, I impose a sentence of five years in hard labour. I suspend four years and place the prisoner on a good behaviour bond for twelve months whenever he is released. He shall serve the remaining sentence of one year which will be made cumulative on the current sentence. I further order that he be transferred to Kainantu.

Summary of sentences and recommendations:

ASS MEDRON NANGIL

Five years in hard labour. The sentence is wholly suspended and the Prisoner is placed on a good behaviour bond for twelve months from whenever he is released from prison.

PIUS MORO

Five years in hard labour which will be served concurrently with the current sentence of thirty years. 

BATLA MAHEN

Five years in hard labour. The sentence is wholly suspended and the Prisoner is placed on a good behaviour bond for twelve months from whenever he is released from prison. 

JACOB PENI

Five years in hard labour. I will however suspend three years and place the prisoner on a good behaviour bond for twelve months whenever he is released from custody. The remaining part sentence of two years will be served cumulative on the current sentence.

WEITE BUMARI

Five years in hard labour, which is wholly suspended and place the Prisoner is placed on a two years good behaviour bond. 

PAULUS BILL

Five years in hard labour. I suspend four years and place the Prisoner on a good behaviour bond for twelve months whenever he is released. He shall serve the remaining sentence of one year which will be made cumulative on the current sentence. I further order that he be transferred to Kainantu.

Recommendation: That the Office of the Public Solicitor take appropriate steps to investigate the complaints on the dark cell at Beon Jail and take all appropriate measures to address the complaints raised by the Prisoners.

Sentenced accordingly.
_______________________________________________________________________

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