The State v Okuk Seke (1998) N1826

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 24 July 1998
• Citation: (1998) N1826
• Court: National Court
• Year: 1998
• Judgement Number: N1826

National Court: Sawong J

Judgment Delivered: 24 July 1998

N1826

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PAPUA NEW GUINEA

(In the National Court of Justice)

CR No. 620 OF 1998

THE STATE

-v-

OKUK SEKE

GOROKA: SAWONG J

1998: 24 July

Counsels:

C. Ashton-Lewis, for the State

M. Apie’e, for the Accused

24 July 1998

SAWONG J: You have pleaded guilty to one count of escaping from lawful custody, at the Bundaira jail on 8 January 1995. At the time of your escape you were a prisoner serving a term of 4 years imprisonment for armed robbery. At that time you and 5 others were escorted by Warder to the area where the livestock were, and you were left out at the place where the sheep were to look after these animals. While you were there you escaped, and you were at large until you were recaptured.

There is not much information regarding your own personal background put before me and so I do not make much comment on that. However, I note in your favour that you pleaded guilty before me and you also expressed remorseness for what you did.

When I gave you an opportunity to talk to me, you told me that you had

been wrongly sent to jail initially because you claim you were innocent. In that regard, I say that you could have lodged an appeal to Supreme Court, if you felt that the decision and sentence were wrong.

Secondly your escape was that the Corrective Institute did not supply you with proper uniform and that the only civilian clothing you had were worn out and torn.

Third reason, which is related to the second reason, was that as you had no brother and sister, no one could provide any help to you when your father died, he being the only one able to help you and when he died there was no-one to help you.

You also told me about what you did after you escape, that of going to the police and go further. I also take note of the other matters you told me.

As a judge, I must also take into account those matters which are against you so as to arrive at a balanced and appropriate sentence.

The first factor is that you have a prior conviction - that of armed robbery. You were serving the sentence for that offence when you escaped.

Secondly, I note that since you escaped you had been at large until you were recaptured. However, I note what you said, that you had surrendered to police at Henganofi, but they did not do anything about it. Despite that and your good intention, the fact remains that you escaped from lawful custody.

The first thing to note is that, under s. 139 (1) of the Code, is “a term of imprisonment of not less than five years”. This is a minimum sentence offence,

that is that the minimum starting point is five years imprisonment, nothing less. However there is a Supreme Court case, the name of which escapes my memory, at the moment which in effect says that in an appropriate case, this court may suspend part or whole of the sentence.

The next issue is whether your sentence should be made cumulative or concurrent to the sentence you are serving. The National Court has a discretion as to whether a sentence should be concurrent or cumulative. However, that discretion must be exercised in accordance with well known principles. Generally speaking these principles are that where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be made concurrent.

Secondly, where the offences are so differently in character or in relation to different victims, cumulative sentences would be appropriate.

Finally, the totality principles. What this means is that when the sentencer has arrived at the appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just sentence.

Applying these principles to this case, several factors are obvious. The first is that you have not been charged with and convicted of second offences. You have been charged and convicted with only one offence, that of escaping from lawful custody.

Secondly, the offence for which you have been convicted of today is different. It is not connected to any manner with the offence for which you are serving sentence.

In these circumstances, I do not accept your submission. I consider that the sentence I have imposed must be made cumulative.

Accordingly, you are convicted and sentenced to 5 years IHL. Do not consider any of it to be suspended. This sentence is to be made cumulative upon the sentence of 4 years you are currently serving for armed robbery.

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