The State v Allan Nemo (2010) N4098

• Jurisdiction: Papua New Guinea
• Date: 09 August 2010
• Citation: (2010) N4098
• Docket Number: CR NO 979 OF 2010
• Court: National Court
• Year: 2010

Full Title: CR NO 979 OF 2010; The State v Allan Nemo (2010) N4098

National Court: Makail J

Judgment Delivered: 9 August 2010

CRIMINAL LAW - Plea - Sentence - Escape from lawful custody - Convicted prisoner - Serving time for prior offence of rape - Aggravating factors and mitigating factors considered - Cumulative custodial sentence appropriate - Partly suspended with conditions - Prescribed minimum sentence of 5 years imprisonment imposed - 4 years suspended - 1 year to be served cumulatively with prior sentence for rape - Criminal Code, Ch 262 - s19 & s139 (1).

Cases cited:

The State v Jack Moge [1995] PNGLR 246; The State v Inema Yawok (1998) N1766; The State v Aruve Waiba (1996); SCR No 1 of 1994; The State v Thomas Waim [1998] PNGLR 360; The State v Richard Olso Kumis (1997) N1517; The State v Irox Winston [2003] PNGLR 331; Edmund Gima and Siune Arnold v The State (2003) SC730; The State v Linus Rebo Dakoa (2008) N3427; The State v James Gurave Guba (2000) N2020; Acting Public Prosecutor v Konis Haha [1981] PNGLR 205; Public Prosecutor v Sidney Kerua [1985] PNGLR 85

SENTENCE

9 August, 2010

1. MAKAIL, J: The State presented an indictment against you charging you with one count of escaping from lawful custody at Vanimo CIS prison compound at 1 O’clock in the afternoon on 15th November 2009 while serving a 20 years jail sentence for rape. At the time of escape, you were attending to a water pump unattended outside the prison compound. Escaping from lawful custody is an offence under section 139(1) of the Criminal Code, Ch 262. You pleaded guilty to the charge and were convicted accordingly. What is left for me to decide now is an appropriate punishment for you.

2. This offence carries a minimum penalty of 5 years imprisonment. That means, you can expect to be sentenced to not less than 5 years in prison for this offence. I believe Parliament has placed a minimum limit of 5 years for this offence to reflect the seriousness of the offence. It is also to show that once, a person is in lawful detention, it is expected, that person will remain there until the time of release in cases of fixed prison sentence or if it is a life imprisonment sentence, that person will remain there until death. So, as you can see, you can expect to be sentenced to 5 years or more in prison.

3. However, there has been divergence of opinion in relation to whether the Court is bound to impose the minimum penalty of 5 years imprisonment on persons convicted of this offence given the Court’s discretionary power to impose a lesser penalty under section 19 of the Criminal Code, Ch 262. Some judges have held that there is no discretion given to the Court to impose a penalty below the minimum penalty of 5 years imprisonment as was the case in The State -v- Jack Moge [1995] PNGLR 246, per Jalina, J and The State -v- Inema Yawok (1998) N1766, per Kirriwon, J.

4. Others have held the contrary view as was the case in The State -v- Aruve Waiba: SCR No 1 of 1994 (Unnumbered and Unreported Judgment of 04th April 1996) where the Supreme Court held that the Court may suspend a sentence in whole or in part after imposing the minimum sentence prescribed. That was the position Injia, J (as he then was) also took in The State -v- Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750 where he imposed the minimum penalty prescribed of 5 years imprisonment and also suspended 2 years leaving a balance of 3 years for each prisoner to serve in that case.

5. I am inclined to follow the latter view because in my firm opinion, section 19 vests discretion in the Court to impose a lesser penalty on an offender unless it is expressly removed in a given case. In this case, section 139 does not expressly remove the Court’s discretion under section 19. I am thus, satisfied that there is discretion to impose a lesser penalty for this offence. Further, not all cases of escaping from lawful custody are serious and it would be too harsh to impose 5 years imprisonment in a case where it is not a serious one. I am, thus persuaded to follow the view that there is discretion to impose a lesser penalty for a section 139 offence. I shall consider your sentence on that basis.

6. On your allocutus, you told the Court that you escaped from custody because you were upset with the CIS officers for not granting you permission to visit your sick wife. This was after your sister visited you and informed you that your wife was sick. You became more upset when you noticed one of the remandees whom you claimed was a high risk detainee given permission by the CIS officers to visit his wife while your request was declined. When this occurred, you felt the CIS officers were being unfair to you, especially when you were one of the most trusted...