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Vunareo v Pauls [1993] PNGLR 398 (20 December 1993)

PNG Law Reports 1993

[1993] PNGLR 398 - Lucas Vunareo v Jonathan Pauls 

[1993] PNGLR 398

N1198

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LUCAS VUNAREO

V

JONATHAN PAULS

Rabaul

Doherty J

20 December 1993

CRIMINAL LAW - Summary offences - Escaping - Maximum penalty under Summary Offences Act - Whether sentence of one year permissible.

CRIMINAL LAW - Sentencing - Different sentencing guide between National Courts and District Courts - Incongruous situation.

Facts

The appellant escaped from lawful custody and was sentenced by the District Court to one year in hard labour. He asked the National Court to reduce the term, claiming, inter alia, that it was excessive.

Held

The sentence was in excess of jurisdiction under the Summary Offences Act; the maximum is 6 months.

Counsel

The appellant, in person.

N Miviri, for the respondent.

20 December 1993

DOHERTY J: The appellant appeals from a decision of the Rabaul District Court, which convicted him on 2 October 1991 on a plea of guilty to escaping from lawful custody, contrary to s 22(1) of the Summary Offences Act, and sentenced him to one year in hard labour, to be served cumulatively on the sentence he was then serving.

The defendant's grounds of appeal can be put as "the sentence was excessive". He puts forward various facts that:

1.       he voluntarily surrendered; and

2.       he was kept in confinement for nine months after he was returned to Corrective Institution Services; and

3.       he was very badly beaten up by the Corrective Institution Services warders.

Of these three grounds, only one could have been before the learned Magistrate at the date of sentence. It is apparent from the statement of facts annexed to the information that the defendant did surrender. It says:

"... search was conducted but was unable to locate him. Defendant, however, gave himself up to village elders upon further negotiations by police and prison warders with the village elders. Defendant then was brought to the Police Station where he was questioned in regard to the alleged offence. The defendant freely admitted the offence of escaping".

Section 22(1) of the Summary Offences Act provides for a maximum penalty of K200 fine, or six months in hard labour, or both. The last amendment to the Summary Offences Act was passed in 1986, long before the 2 October 1991 date this matter was heard and determined. It was the Summary Offences (Amendment) Act (No 36 of 1986). A prior amendment, No 14 of 1985, changed the sentence provisions of several sections of the Summary Offences Act.

Earlier, in act No 17 of 1983, the principal act was amended to abolish the penalty provisions commonly referred to as "the minimum penalties", and to replace and increase the maximum provisions of some sections.

Section 22 had not been subject to a minimum penalty when the principal act was passed in 1977, and it was not amended in 1983, 1985 or 1986. I would add that it has not been amended in the most recent amendment to the Summary Offences Act (No 13 of 1993).

Hence, the maximum penalty provision remains six months in hard labour. This has been conceded by counsel for the State.

It is apparent on the face of the record in 1991 that the learned Magistrate acted in excess of his jurisdiction by imposing a one-year cumulative sentence upon the appellant.

Although this has not been specifically referred to by the appellant, who appears in person, it is the duty of the Court to note that the District Court acted in excess of its jurisdiction, as counsel for the State has properly conceded.

I, therefore, quash the sentence of one year in hard labour and substitute six months. Since the appellant has served six months, I order his release.

I share with my brother judges their concern over the low penalty provision in the Summary Offences Act for escaping. As Justice Hinchliffe has said, there is a considerable amount of time, energy, and manpower expended in chasing escapees, and the maximum penalty under the Summary Offences Act does not reflect the seriousness involved. An amendment to the Criminal Code, passed in May 1993, increases the penalty provisions under s 139, the provision on escaping, to a minimum of five years in hard labour. This must be dealt with by the National Court.

In practical terms, the vast majority of escape cases are dealt with by the District Court. We, therefore, have an incongruous situation that, if the police bring the matter before the District Court, the maximum sentence that can be imposed is six months, but if they bring the matter before the National Court, the minimum that can be imposed is five years. I wonder if this is what the Parliament really intended when they passed the most recent amendment.

Lawyer for the respondent: Public Prosecutor.