The State v Ass Medron Nangil, Pius Moro, Batla Mahen, Jacob Peni, Weite Bumari, Paulus Bill (2005) N2823

• Jurisdiction: Papua New Guinea
• Judge: Manuhu AJ:
• Judgment Date: 25 February 2005
• Court: National Court
• Citation: (2005) N2823
• Docket Number: CR Nos 1250/04,10/05,15/05, 16/05, 17/05,160/05
• Year: 2005
• Judgement Number: N2823

Full Title: 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 (2005) N2823

National Court: Manuhu, AJ

Judgment Delivered: 25 February 2005

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...