Edmund Gima v The State; SCA No 32 of 2002; Siune Arnold v The State (2003) SC730

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Kandakasi J, Batari J
• Judgment Date: 03 October 2003
• Citation: (2003) SC730
• Docket Number: SCA No 28 of 2001
• Court: Supreme Court
• Year: 2003
• Judgement Number: SC730

Full Title: SCA No 28 of 2001; Edmund Gima v The State; SCA No 32 of 2002; Siune Arnold v The State (2003) SC730

Supreme Court: Kirriwom J, Kandakasi J, Batari J

Judgment Delivered: 3 October 2003

1 APPEAL—PRACTICE AND 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.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Escape from lawful custody—Offence created both under the Criminal Code and Summary Offences Act (Ch264) (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 have no choice but to go by the policy behind the legislation—Summary Offences Act (Ch264) s22 and Criminal Code s139.

3 CRIMINAL LAW—PRACTICE AND PROCEDURE—Sentence—Escape from lawful custody—Minimum prescribed sentence—Suspension of—Need for community input—Unless there is material supporting the suspension or reduction the minimum prescribed sentence cannot be reduced—s139 and s19(1)(d) Criminal Code.

4 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—s139 and s19(1)(d) of Criminal Code.

5 WORDS AND 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 s139—Summary Offences Act (Ch264) s22.

6 WORDS AND 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—Summary Offences Act (Ch264) s22, s139—Criminal Code s139 and s141.

7 SCR 1 of 1994; The State v Aruve Waiba (Unnumbered and unreported judgment of the Supreme Court (Los J and Salika J) delivered on 4 April 1996), James Tukus [Takas] v The State (Unreported and unnumbered judgment delivered on 29 November 1997), Joseph Balalau v The State (Unreported and unnumbered judgment delivered on 31 August 2001; SCRA 52 of 2000), The State v James Tei Wena (2000) N2304, The State v Inema Yawok (1998) N1766, The State v Thomas Waim [1988] PNGLR 360, The State v Richard Olso Kumis (1997) N1517, The State v Okuk Seke (1998) N1826, The State v Irox Winston (2003) N2347, The State v Kerowa Kana (2003) N2376, The State v Solomon Philip (Unreported and unnumbered judgment delivered on 21 June 2001, CR 579 of 2001), The State v Nicholas John (Unreported and unnumbered judgment delivered on 22 February 2002; CR 461 of 2001), The State v Alan Bekau [1982] PNGLR 119, The State v Danny Sunu [1983] PNGLR 396, McKenzie v The State (1998) SC596, Public Prosecutor v Don Hale (1998) SC564, Peter Aigilo v The Independent State of Papua New Guinea (No 1) (2001) N2103, Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, Patterson v NCDC (2001) N2145, Wanosa v R [1971–72] PNGLR 90, Ian Napoleon Setep v The State (2001) SC666, Norris v The State [1979] PNGLR 605 referred to

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.

The State v James Tei Wena (2000) N2304 and The State v Irox Winston (2003) N2347 affirmed

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.

SCR 1 of 1994; The State v Aruve Waiba (Unnumbered and unreported judgment of the Supreme Court (Los J and Salika J) delivered on 4 April 1996); James Tukus [Takas] v The State (Unreported and unnumbered judgment delivered on 29 November 1997) and Joseph Balalau v The State (Unreported and unnumbered judgment delivered on 31 August 2001; SCRA 52 of 2000) affirmed and followed

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.

The State v Inema Yawok (1998) N1766, The State v Irox Winston (2003) N2347, The State v Thomas Waim [1988] PNGLR 360 followed

1. 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.

The State v Irox Winston (2003) N2347 and Public Prosecutor v Don Hale (1998) SC564...