SC730

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No. 28 of 2001

Between:

EDMUND GIMA
Appellant

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

AND

SCA No. 32 of 2002

Between:

SIUNE ARNOLD
Appellant

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kokopo: Kirriwom, Kandakasi & Batari, JJJ.
2003: 	29th September 30
3rd of October

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court can not interfere unless a clear case of error is demonstrated – Sentence within range does not amount to any error which vitiates the trial judge’s exercise of discretion.

CRIMINAL LAW – PRACTICE & PROCEDURE – Escape from lawful custody – Offence created both under the Criminal Code and Summary Offences Act (SOA) – Policy behind that and its practical meaning – Escapes by summary offences prisoners ought to be charged under the Summary Offences Act and indictable offences prisoners ought to be charged under the Criminal Code – Police has no choice but to go by the policy behind the legislation - Summary Offences Act (Chp.) (SOA) 264 s.22 and Criminal Code s.139. 

CRIMINAL LAW – PRACTICE & PROCEDURE - Sentence - Escape from lawful custody – Minimum prescribed sentence – Suspension of – Need for community in put – Unless there is material supporting the suspension or reduction the minimum prescribed sentence can not be reduced – Ss.139 and 19(1)(d) Criminal Code.

CRIMINAL LAW – Sentence – Escape from lawful custody – Guilty plea – Breach of admitted trust as low risk prisoner – Serving time for serious offence - No other aggravating factor – An effective sentence of two years considered within range – Appeal against sentence dismissed – Ss. 139 and 19 (1)(d) of Criminal Code.

WORDS & PHRASES – "Prisoner" – Meaning of – A captive, hostage, detainee, criminal, inmate, jailbird or a convict who is deprived of his liberty or one who is kept against his will in confinement or custody in a prison, penitentiary, jail, or other correctional institution, as a result of conviction of a crime or awaiting trial – Criminal Code s. 139 – SOA s. 22.

WORDS & PHRASES – "lawful custody" – Means some form of custody or imprisonment authorised by law whether such a person is in custody awaiting trial or serving a sentence – SOA s. 22, 139 – Criminal Code s.139 and 141.

Facts:

The National Court imposed an effective sentence of 2 years each against the appellants, who were part of a group of convicted prisoners that escaped whilst on work line outside the prison. No threats or actual violence was used to secure their escape. Both prisoners were considered low risk prisoners. They were recapture following a successful search conducted by the authorities. They appealed against their conviction claim that the sentence was excessive and that the "learned trial judge failed to consider his own words that there was no law for low risk prisoners to wonder off outside the prison gates.

Held:

1.	Escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment.
Affirmed The State v. James Tei Wana & Gend Yanisa Thomas (N2304) and The State v. Irox Winston (N2347).

2.	This does not mean that the prescribed minimum sentence of 5 years should be automatically imposed and or suspend either wholly or part of it without more. Instead the Court still as a discretion and a duty to impose a sentence that is either lower or above the minimum sentence depending on the particular circumstances of each case and on proper principles after starting with the prescribed minimum.

Affirmed and followed SCR 1 of 1994: Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996; James Takus v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97 and Joseph Balalau v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97.

3.	Relevant factors for consideration before arriving at a sentence without limiting the list include:

(a)	receipt of information by the escapee of a retaliatory killing of a close relative supported by prison officers;
(b)	any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;
(c)	whether the escape is en mass;
(d)	whether any weapons are used;
(e)	where weapons are used whether any personal or property damage or injury has been occasioned;
(f)	the expenses to which the State has been put to, to recapture the escapee;
(g)	when and how the recaptured occurred; and
(h)	whether there is a guilty plea but this has to be contrasted against the chances of a successful denial.

Followed The State v. Inema Yawok (N1766); The State v. Irox Winston (N2347); and The State v. Thomas Waim, Tala Gena and Alois Wanpis (N1750).

4.	The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by a pre-sentence report either from the community or where that is difficult to obtain, it must come from the prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it can not be suspended or reduced.
Affirmed and followed The State v. Irox Winston (N2347) and The Acting Public Prosecutor v. Don Hale (SC564).

5.	Given difference of opinions, the case calls for a proper consideration of the construction of s.139 of the Criminal Code and s.22 of the Summary Offences Act Chp. 264 (SOA).

6.	A proper construction of s.139 of the Code and s. 22 of the SOA reveals that:

(a)	the term "prisoner" means to include a captive, hostage, detainee, criminal, inmate, jailbird and a convict and such a person is one who is deprived of his liberty or one who is kept against his will in confinement or custody in a prison, penitentiary, jail, or other correctional institution, as a result of conviction of a crime or awaiting trial;
(b)	the phrase "lawful custody means any custody authorised by law; 
(c)	Parliament did not make any mistake in enacting the two provisions for the same offence of escaping from lawful custody. There is a good policy reason behind what Parliament has done;
(d)	Parliament intended that escapes from lawful custody in connection with a summary offence should be dealt with under s. 22 of the SOA whilst escapes from a lawful custody in connection with an indictable offence should be dealt with under s.139 of the Code;
(e)	The police and or the prosecution has no choice but to be guided by the legislative policy and prosecute offenders under the respective provisions depending on the reason for their imprisonment to avoid arguments of disparity, unfairness and the like.

7.	In relation to the appeal against sentence, it is settled law that the Supreme Court can not interfere with the National Court’s decision unless a clear case of the trial judge falling into an identifiable error is demonstrate. The appellants failed to demonstrate such a case and in any event, the effective sentence of 2 years is not excessive and within range. Accordingly, the appeal was dismissed and the sentence of the National Court was affirmed.

Cases Cited:
SCR 1 of 1994 in Re Aruve Waiba, Unreported Supreme Court judgment of Los and Salika J delivered in 1996.
James Tukus v. The State (unreported and unnumbered judgement delivered on 29/11/97). 
Joseph Balalau v. The State (unreported and unnumbered judgement delivered on 31/08/01) SCRA 52 of 2000.
The State v. James Tei Wena and Gend Yanisa Thomas (Unreported judgement delivered 21/09/00) N2304.
The State v Inema Yawok, (Unreported judgement delivered on 16/06/98) N1766.
The State v. Thomas Waim, Tala Gena and Alois Wanpis, (unreported judgement delivered on 24/07/98) N 1750.
The State v. Richard Olso Kumis, unreported judgement delivered 14/02/97) N1517. 
The State v. Okuk Seke, (unreported judgement deliver on 24/07/98) N1826.
The State v Irox Winston (Unreported judgement delivered 21/09/00) N2304.
The State v Kerowa Kana (Unreported judgement delivered on 16/06/98) N23.
The State v. Solomon Philip.
The State v. Nicholas John.
The State v Alan Bekau [1982] PNGLR 119.
Danny Sunu & Ors v. The State [1983] PNGLR 396.
Ronald Alexander McKenzie v. The State (unreported judgement delivered on 30/04/98) SC596.
Public Prosecutor v. Don Hale (Unreported judgement delivered on 27/08/98) SC564.
The State v Alan Bekau [1982] PNGLR 119.
Danny Sunu & Ors v The State [1983] PNGLR 396.
Ronald Alexander McKenzie v The State (unreported judgment delivered on 30/04/98) SC596.
Peter Aigilo v Sir Mekere Morauta & Ors (No 1) (unreported judgment delivered on 03/08/01) N2103.
Fly River Provincial Government v Pioneer Health Services Limited (unreported judgment delivered on 24/03/03) SC705.
Patterson v National Capital District (unreported and unnumbered judgment delivered on 05/10/01) N2145.
Public Prosecutor v Thomas Vola and Acting.
Wanosa & Ors v The Queen [1971-72] PNGLR 90.
The State v Ian Setep Napoleon (unreported judgment delivered on 18/05/01) SC666
Norris v The State [1979] PNGLR 605.

Counsel:
Applicant and Appellant in Person. 
Mr. R. Auka for the State.

3rd October, 2003

BY THE COURT: 	Both of you are appealing against your effective sentences of 2 years for escaping from lawful custody after a deduction of 3 years from an head sentence of 5 years. 

Background and Appeal Grounds

The National Court imposed these sentences on the 22nd of March and you lodged your appeals on the 11th of April 2002. Yet some of the documentation in the appeal book, treat your appeals has reviews. That is obviously an error on the part of the registry. That being the case, we find that there can be no issue on the timing of your appeals. We therefore proceed to consider the merits of your appeals.

In your respective notices of appeal you state the grounds of your appeal. Both of you claim that the learned trial judge did not consider his own words, "the Government or Parliament did not pass any amendment for specialist prisoners wondering beyond the CIS gate" and he sentenced you because you were charged under the Criminal Code. You also claim that you did not plan to escape. Further, Siune Arnold you claim that since you were a trusted prisoner you were usually and on this occasion permitted to wonder outside the CIS. As for Edmund Gima, you additionally claim that, the learned trial judge did not take into account your committal hearings and that the sentence imposed against you is excessive.

The State argues that there is no legal or factual foundation for each of your grounds of appeal. Further it argues that the learned trial judge did not err when he arrived at his decision on your sentences. It therefore, argues for a dismissal of your respective appeals.

Issue

From these, it is clear that the main issue is this. Did the learned trial judge fall into any error when he arrived at his decision on sentence against both of you? An appropriate answer to that question can only be arrived at after considering the relevant facts and the law applying to your case. Hence, we will first give consideration to the relevant facts. Thereafter, we will consider the relevant law. Then we will apply the law to the facts of your case and arrive at a decision on your appeals.

Facts

The relevant facts are straightforward. Siune Arnold, at the time of your escape, you were serving a term of 9 years for murder. You were due to be discharged in May of 2002. Edmund Gima, you were also serving a sentence for murder but for 10 years and were due for discharge in December 2002. Both of you were treated as low risk prisoners.

On the 6th of August 1999, the two of you were amongst a group of prisoners who were taken out of the CIS at Lakemata to work at a small oil palm plantation owned by the CIS. You were under the supervision of two prison officers. Whilst at the small plantation, you walked out with some other prisoners, without the permission of either of the warders. You got to Sarakolok Community Centre and then caught a PMV and got into Kimbe town. There you mingled up with the public and did some shopping. The authorities caught up with you at Kimbe town and recaptured Siune Arnold and another of your accomplishes and returned you to Lakemata. As for Edmund Gima, you soon discovered the arrest of Siune Arnold and another. So you got on a PMV bus and headed back to Lakemata. On the way at Sarakolok settlement, CIS personal who were searching for the escapees saw you in the PMV, recaptured you and took you back to Lakemata CIS.

Eventually the two of you were charged for escaping from lawful custody. In your respective records of interview both of you admitted to escaping. Additionally, both of you admitted to going out and returning to the CIS at Lakemata before with or without the permission of authorities. So this was not the first time.

With this background to your appeals and facts in mind, we now turn to consider to the relevant and applying law.

The Law

The offence of escape by a prisoner is created and its penalty is prescribed by s. 139 (1) of the Criminal Code. It reads:

"139.	Escape by prisoner.

(1)	A person who, being a prisoner in lawful custody, escapes from that custody is guilty of a crime.
Penalty:	A term of imprisonment of not less than five years."

There is no published judgement from this Court on the subject. But we are aware that there are a number of unreported and unnumbered judgements of this Court. One of them is the two men majority judgement in SCR 1 of 1994 in Re Aruve Waiba. This case held that, a sentencing judge has no choice but to start with the minimum prescribed sentence of 5 years. Then depending on the particular circumstances of a case, the final sentence imposed could be below or above that in the exercise of the Courts discretion under s. 19 (1)(d) of the Criminal Code, consistent with another judgement of this Court in James Tukus v. The State. This Court in effect confirmed this principle in its later judgement in Joseph Balalau v. The State. That case corrected an apparent error in the exercise of the discretion under s. 19(1)(d) of the Criminal Code, whereby the National Court in some instances has been suspending sentences without adding conditions. The judgement highlights the point that a failure to add conditions renders the suspension illegal and therefore null and void.

Apart from a few cases, in which, there has been no conditions attached, a number of National Court judgements have followed the principles enunciated in this Court’s judgements. The cases which we were are able to identify are the judgements in The State v. James Tei Wena and Gend Yanisa Thomas,The State v Inema Yawok, The State v. Thomas Waim, Tala Gena and Alois Wanpis, The State v. Richard Olso Kumis, The State v. Okuk Seke, The State v Irox Winston, and The State v Kerowa Kana. 

These judgements in our respectful view highlight a need to settle a number of aspects affecting the law and practice relating to the offence of escape. In this judgement we will endeavour to identify and settle these aspects. The first matter that needs to be resolved in our view is a proper construction of s.139 of the Code, in the light of s. 22 of the Summary Offences Act (SOA). As far as we are able to find, Kirriwom J in The State v. James Tei Wena and Gend Yanisa Thomas, considered the definition of the term "prisoner" as used in s. 139 of the Code for the first time. His Honour then followed his construction in his subsequent judgements in The State v. Solomon Philip and The State v. Nicholas John. 

Kirriwom J., as did McDermott AJ., (as he then was) in The State v Alan Bekau, held that the word "prisoner" means to include "a captive, hostage, detainee, criminal, inmate, jailbird and a convict". For as Kirriwom J. noted, such a person "is ‘one who is deprived of his liberty or one who is kept against his will in confinement or custody in a prison, penitentiary, jail, or other correctional institution, as a result of conviction of a crime or awaiting trial’." 

However, notwithstanding that definition, His Honour with respect, decided to adopt a narrow meaning. In so doing, His Honour arrived at the conclusion that the word "prisoner" as used in s. 139 applies only to cases in which the escapee is a "prisoner" as opposed to a "remandee" or one not yet convicted of a crime. This view was arrived at out of a legitimate concern over the kind of latitude the police appear to have in choosing whether to charge an escapee under s. 139 of the Code or under s. 22 of the SOA. This is a serious concern because, the consequences of that choice are drastic. A charge under s. 139 of the Code dictates the prescribed minimum sentence of 5 years, while a charge under s. 22 of the SOA attracts a sentence of up to a maximum of 6 months or a fine of up to K200.

In the process, His Honour, distinguished the case of The State v Alan Bekau. In that case, McDermott, A J., who considered the provisions of s.141of the Code and gave it a wide interpretation particularly to the word "prisoner" to cover all persons held in lawful custody, whether convicted and serving time or awaiting their trials. The distinction was that, a wider interpretation of the word "prisoner" as used in s.141 of the Code was required so as to cover all classes of escapees, which was in His Honours considered view, inappropriate for s. 139 of the Code. His Honour’s reasoning was also influenced by the fact that s.141 of the Code was not a subject of minimum penalty law at the time of the decision in, The State v. Alan Bekan. So McDermott AJ., did not have to grapple with balancing the interest of the prisoner on one hand and the effect of the minimum penalty sentence on him on the other when considering what is a best and fair sentence in the given circumstances of his case. The harshness of the minimum penalty legislation while in force was of great concern to the Courts resulting in Supreme Court reference on the Minimum Penalties Law as foreshadowed in Danny Sunu & Ors v The State. Section 139 of the Code is a remnant of that era that was purposely allowed to stay alive because of the public out-cries against rapid increase in serious crimes of violence and escapes by such offenders.

A careful consideration of the provisions of s. 139 and s.141 of the Code and s. 22 of the SOA reveals that they all talk about a person being held in "custody". The full text of s. 139 was already set out above so we will not repeat that here save only to refer to it. We will thus set out in full the provisions of s. 22 of the SOA and s. 141 of the Code. 

Section 22 reads:

"22.	Escaping from lawful custody.

(1)	A person who, being in the lawful custody of a person under any law, escapes or attempts to escape from custody is guilty of an offence.
Penalty:	A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

(2)	A person who escapes from lawful custody is deemed to be continuing to commit an offence under Subsection (1) until he is arrested for that offence, any other offence, or under any other law."
(Emphasis supplied)

Section 141 reads:

"141.	Harbouring escaped prisoners.

A person who harbours, maintains or employs a person who is, to his knowledge, a prisoner who has escaped from custody, and is illegally at large, is guilty of a misdemeanour.
Penalty:	A fine not exceeding K400.00, or imprisonment for a term not exceeding two years."

(Emphasis supplied)

It is also clear that the word "custody" is qualified by the word "lawful", and hence the phrase "lawful custody." The term "lawful" or its opposite, "unlawful" has been the subject of a number of judicial considerations. It is not necessary for us to go through all of them. We only refer to the judgement of this Court in Ronald Alexander McKenzie v. The State. In that case the Court considered the word "unlawful" as used in s.355 of the Code, and said:

"The use of the word "unlawful" … means a detention is unlawful unless it is authorised or excused by law."

It would be apparent from this that, in order for there to be a lawful detention, it must be authorised by law. Thus, the escape under s. 22 of the SOA or s. 139 or the act of harbouring under s.141 of the Code can only relate to someone who is or has escaped from some form of custody or imprisonment authorised by law. It does not matter whether, the custody is pending trial or in consequence of a conviction and sentence or any other type of custody falling within the meaning of the term "prisoner", as long as the escapee’s custody or imprisonment as been authorised by law. 

Quite appropriately and legitimately, one might ask, does this mean the police can continue to have the kind of latitude, Kirriwom J. was rightly concerned with? The answer to that is quite simple, which can be found in a combined application of a number of settled principles of statutory interpretation. The first of this is the principle that Parliament never makes a mistake and that there is always a purpose, intent or policy behind each legislation. Thus, proceeding on the basis that Parliament did not make a mistake in enacting s. 22 of the SOA and s. 139 of the Code, what could be the purpose or policy behind the fact that there are two different provisions dealing with the same offence of escape?

What we have here are two different legislations. The first is the SOA and the second is the Code. The former creates and prescribes penalties for summary offences, while the later does that for more serious or indictable offences. The offences under the former are less serious and their sentences are less severe. The opposite is the case for offences created and or provided for under the Code. The District Court has jurisdiction over the offences created and provided for under the SOA, while the National Court has jurisdiction over the indictable offences except for the specified indictable offences that can be dealt with summarily.

From this scheme of things, it would be hard to imagine that the District Court would have the necessary jurisdiction to deal with matters that fall within the jurisdiction of the National Court. Following on from that, it would hardly have been the intention of Parliament that the District Court should have jurisdiction over a case of an escape by a person who is convicted or is awaiting trial or such other further steps in connection with an indictable offence. To illustrate the point further, we note the position could be better seen in the context of a judgement or order of a court. In our view, an escape from prison by an offender after being convicted and ordered to serve a term of years is akin to a judgement debtor in a civil case refusing to pay up. In such a situation, the law allows for enforcement proceedings. The enforcement proceedings go before the relevant Court and not one below or above it except in cases where the law permits, as in the context of appeals.

In a criminal case, where there is a conviction and sentence ordered to be served, the serving of the sentence in full is the final step required for completing a criminal process. An escape from prison is a refusal to comply with the orders of the Court. That non-compliance as to be enforced by the offenders’ recapture and being appropriately dealt with for escaping. In the normal scheme of the justice system and in accordance with logic, the Court whose order that have been breached would have to deal with the person in breach. Certainly by no means can a lower Court be allowed to deal with a matter that has been dealt with or is before a higher Court and likewise, no way should the higher Court get down low and deal with a matter that primarily rests with a lower Court. Of course, where legislation specifically allows for this to happen in any given case, it would be an exception rather than the norm. Presently, the only known exception to the above is in relation to the National Court’s appeal and or review powers, when properly invoked.

It would logically follow therefore that, Parliament intended that the District Court would have the necessary jurisdiction to deal with escapes from lawful custody where the custody escaped from relates to a summary matter. Likewise, we are of the view that, Parliament intended that the National Court would have jurisdiction over escapes from lawful custody, where the custody escaped from relates to an indictable offence.

As a necessary consequence of this, we are of the view that, the police and or the prosecution does not have a choice or discretion as to whether to deal with an escapee under s. 22 of the SOA or s. 139 of the Code. Instead, they are under an obligation to proceed under s. 22 if the primary reason to hold the offender in custody is in respect of a summary offence matter. Similarly, they are under an obligation to proceed under s. 139 of the Code if the primary reason to hold the offender in custody is in respect of an indictable offence or is one in which the National Court has the primary jurisdiction.

As we speak, we are aware that, the police and or the prosecution have been in some cases unfairly and without good course, proceeded under s. 139 of the Code. In some cases they have literally divided co-offenders by proceeding with a charge under s. 22 of the SOA for some and the others under s. 139. This has inevitably resulted in an immediate and apparent disparity in the penalty. For under s. 139 of the Code, an offender stands to receive the minimum prescribed sentence of 5 years, which may or may not be reduced by suspension. But for an offender charged under s. 22 of the SOA his or her penalty ranges from a fine of up to K200 or imprisonment of up to 6 months.

We precisely have that situation in one of the matters before us in this circuit, where a group of prisoners escaped from the Kerevat CIS. Upon their recapture some of them have been dealt with under s. 22 of the SOA and others under s.139 of the Code. The appellant in the case we speak of is asking this court to reduce his sentence to the one received by his co-offenders, and we have just done that on the disparity principle.

Given the views just expressed, we feel compelled to direct the kind of practice adopted by the police and or the prosecution we have just highlighted to stop immediately for it has been carried on illegally and possibly in breach of the Constitution’s call for equal treatment of all persons. In its place we would suggest or direct that the procedure out lined above be immediately adopted.

We now turn to the next aspect that needs to be settled. This relates to the nature of the offence under consideration. We agree with both Injia J. (as he then was) in The State v. James Tei Wena and Gend Yanisa Thomasand Kandakasi J. The State v Irox Winston that "escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment."

As we have just observed, escaping from lawful custody at any level is a deliberate decision not to comply with the orders of the Court if already convicted and sentenced. In other cases, it amounts an unlawful demonstration of a decision not to submit to the jurisdiction of the Courts and demands of the law. This does not however, mean an automatic imposition of the prescribed minimum sentence of 5 years and or suspending it, without more. Instead, the Court still has a duty and obligation coupled with a discretion under s. 19 (1)(d) of the Criminal Code, to impose a sentence that is either lower or above the minimum prescribe sentence depending on the particular circumstances of each case and on proper principles.

The third aspect that we wish to have settled is the relevant factors that must be considered when it comes to considering an appropriate sentence for this offence. We are of the view that the Court must have regard to a number of factors. Without necessarily limiting the list, this includes the existence of any exceptional circumstances. That could include for example the receipt of information of retaliatory killing of a close relative supported by prison officers. It could also include any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in the prison compound supported by evidence for example from the prison officers. Other factors include whether the escape is en-mass, whether any weapons were used and if so, whether any personal or property injuries or damages have been cause and the extent of any such injury or damage. The expenses to which the State may have been put to recapture the offender, when and how he has been recaptured are also relevant. A guilty plea may be a relevant factor but this has to be view in the context of how the offender could have escaped or succeed in a denial of the charge against him or her.

The final aspect we turn to is the fact that the sentencing practice has been one of starting with the prescribed minimum of 5 years with some wholly suspended as in The State v Inema Yawok while others refusing to reduce it as in The State v. Kerowa Kana. In all of the cases where there was a suspension whether in whole or in part, the Court considered the particular circumstances of each of the cases and proceeded to suspend the respective sentences almost without more.

In this regard, we are persuaded by Kandakasi J.’s observation in The State v Irox Winston, that this Court’s judgement in SCR 1 of 1994 in Re Aruve Waiba, appears to come into conflict with the Court’s judgement in Acting Public Prosecutor v. Don Hale. In the later case, this Court said:

"If a judge is to consider some leniency on sentence … it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. … Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

Then in the case before it, this Court observed that the trial judge had no pre-sentence report or a report from the community. The Court also found that the learned trial judge had not sought any help from the community in the supervision of the suspended sentence it imposed. The Court therefore found that the trial judge fell into error.

After considering the effect of these two judgements, Kandakasi J. was of the view that there was no conflict between the two. Instead he was of the view that, they complemented each other. This effectively means according to that view:

"… if the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."

It could be argued that, the principles enunciated in Acting Public Prosecutor v. Don Hale, apply in cases other than escape from lawful custody, because the offender is already in prison. As such, it would not be possible to expect a pre-sentencing report from the community. Such an argument would with respect, be correct only to an extent but otherwise it would effectively vest the Court with the communities sentencing powers solely in the hands of the Court to the exclusion of the community itself. This has the risk of running contrary to the well-accepted principle that sentencing is a community responsibility. After all, a reduction of sentence either by suspension or deduction is an exercise of discretion and would mean an early return of the offender to the community. This makes it necessary in our view, for some input of the community in relation to the kind of sentence an escapee should receive given the seriousness of the offence itself. 

We do appreciate however, that any input from the community could be difficult to come, particularly, in a case, where the offender has been in custody for a long time. In such a case, it would be too optimistic to think that the community would be in a better position to comment on the kind of sentence the offender should receive. There is more a likelihood than not that the community might be biased against the offender or the other way around, thus rendering any input from the community not necessarily impartial. Also, where the offender has been convicted and sentenced, a pre-sentencing report might already have been obtained and considered before the sentence. In that case it would be quite unnecessary to call for the same report again. In these kind of setting it would be appropriate in our view to call for and consider a report or input from the relevant Correction Service. The institution would be in a better position based on its records and assessment of the offender as to what kind of a person the offender is, whether he or she is able to reform and generally whether or not he or she is one deserving some leniency.

In all other cases, inputs from the community through the probation service should be called for and considered before the Court can proceed to exercise its sentencing powers. Such inputs could come from the community leaders, the police investigating and or arresting officer, and the Correction Service or the institution from where the escape occurred.

We consider this necessary for the Court to be informed as much as possible about the person before it and before it can exercise its discretion to suspend the minimum prescribe sentence in favour of an offender. The necessity is dictated by the seriousness of the offence itself, which is an affront to the whole law enforcement and criminal justice system.

Your Case

In your case, the National Court started with the head sentence of the prescribed minimum of 5 years. The Court then had that reduced to 2 years only on the condition that upon your release you will enter into a recognizance to keep the peace for 12 months. The learned trial judge has not clearly stated the reasons for suspending the 3 years out of the starting minimum of 5 years.

It is clear however, from the body of the judgement that, His Honour took into account the fact that you pleaded guilt to the charge and that you were recaptured on the same day of your escape.

Both of you were serving time for the serious offence of murder. No independent evidence was presented before the learned trial judge confirming your claims of being low risk prisoners. Indeed, you presented no evidence from the Correction Service at Lakemata demonstrating that, you had reformed and that you were indeed trusted prisoners. There is some evidence of a search being conducted. This would have meant some unnecessary expenditure to the Correction Service and therefore the State. Also, if indeed you were trusted prisoners, you destroyed that trust by getting out of the authorised place of work without lawful authority to do so.

We are of the view that the learned trial judge did not fall into any error when he decided and did impose the effective 2 years sentence against you in the particular circumstances of your case. Your case can be contrasted with the sentences in The State v. Thomas Waim, Tala Gena and Alois Wanpis, where the prisoners received a sentence of 3 years in circumstances similar to those in your case. But your sentences were one year less than what was imposed in that case.

It is settled law that a sentence imposed by a trial judge should not be readily disturbed unless it is shown to be manifestly excessive. A sentence could be manifestly excessive where, for example, the trial judge has acted on a wrong principle or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence. Following on from this, it is settled law that, this Court can not easily interferes with sentences imposed by the National Court, unless it is first satisfied that the learned trial judge fell into some demonstrable error which has the effect of vitiating the trial judge’s discretion on sentence.

In your case, we are not able to find what was it that the learned trial judge clearly overlooked, undervalued, overestimated or what and how His Honour misunderstood some salient features of the evidence before him. If anything, it is not clear what was it that he took into account that warranted a suspension of 3 years out of the minimum starting sentence of 5 years. This is an identifiable error that could have formed a good basis for a cross-appeal by the State. Fortunately for you, the State has not cross-appealed. We will therefore not interfere with the sentence imposed against you by the National Court.

Bearing all of these in mind, we find there is no merit in any of your grounds of your appeal. Briefly, in the first of your grounds of your appeal, you claim that the learned trial judge did not consider his own words, "the Government or Parliament did not pass any amendment for specialist prisoners wondering beyond the CIS gate" but he sentenced you because you were charged under the Criminal Code. The learned trial judge was correct when he said in effect that, Parliament did not pass any law allowing trusted prisoners to wonder off from prisons. He was also correct when he said, the law instead treats any such incident as amounting to escape unless authorised.

In relation to your next ground that you did not plan to escape, we note that, intention to escape is not an element of the offence of escape under s. 139 of the Criminal Code. What matters therefore is a leaving of a prison or an authorised place by a prisoner without any lawful authority. So it does not really matter whether a prisoner had the intention to escape. Hence, it does not matter in you case, whether you had the intention to escape or not.

Siune Arnold, you raise the other ground of being permitted both on this occasion and others before because you were a trusted prisoner to leave the Correction Service, we find that there is no evidence supporting that claim. Assuming however, that there was evidence supporting that claim, that fact does not make your escape lawful, because this is not a prescribed defence and that certainly prior breaches do not correct subsequent breaches.

Edmund Gima, you also raise the additional ground that the learned trial judge did not take into account your committal hearings. In respect of that, we note that the committal proceedings were before the National Court. Then based on the evidence emerging from those, the learned trial judge accepted your guilty plea and imposed the effective sentence of 2 years. Hence this ground also has no basis.

Finally, in relation to both of your claims that the sentence is excessive, we repeat what we already said. The sentence is within the range and in fact better than the sentences in other cases.

The end result of all of these is this. None of your grounds of your appeal have any factual or legal foundation. There is therefore no merit in both of your appeals. Hence, your appeals can not stand. We therefore order a dismissal of your appeals and confirm the National Court’s decision on sentence against both of you.
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Lawyers for the Appellants		:	Appellants in Person.
Lawyers for the State			:	Public Prosecutor