Brian Laki v The State (2005) SC783

• Jurisdiction: Papua New Guinea
• Judge: By the Court:
• Judgment Date: 28 April 2005
• Citation: (2005) SC783
• Docket Number: SCR 6 of 2004
• Court: Supreme Court
• Year: 2005
• Judgement Number: SC783

Full Title: SCR 6 of 2004; Brian Laki v The State (2005) SC783

Supreme Court: Kokopo: Jalina, Kirriwom , Kandakasi, J

Judgment Delivered: 28 April 2005

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 6 of 2004

Between:

BRIAN LAKI

-Appellant-

And:

THE STATE

-Respondent-

KOKOPO: JALINA, KIRRIWOM , KANDAKASI, JJ.

2005: 26th and 28th April

APPEALS – Particular offence – Escape from lawful custody - Parity of sentence – Co-accused dealt with under Summary Offences Act and given lesser sentence – Appellant dealt with under the Criminal Code and given higher sentence – Whether Court can on appeal reduce sentence on the parity principle? – Illegal to proceed with charge of escape from lawful custody under the Summary Offences Act where the detention or imprisonment is in relation to an indictable offence – Subsequent correct proceedings under the Criminal Code can not be down graded to be on par with the illegal proceedings – Appeal dismissed as being without merit.

Facts

The Appellant appealed against both his conviction and sentence of 5 years for escaping from lawful custody. He was held in lawful custody pending trial on two counts of armed robbery and two counts of unlawful detention. The appellant claimed that he escaped with several others, three of whom were recaptured and dealt with under the Summary Offences (Chp. 264) and got of with lighter sentence of 2 months to fines of up to K100.00. He therefore claimed by way of appeal that the proceedings against him were unfair and as such they should be quashed and set aside. However, the Appellant did not produce any evidence confirming that he had co-accused who were in fact dealt with leniently under the Summary Offences Act.

Held

1. The decision of the Supreme Court in Edmund Gima v The State and Siune Arnold v The State (Unreported judgment delivered on 03/10/03) SC730 settled the law as to where an escape from lawful custody charge should be proceeded with, in the light of the identical provisions in the Summary Offences Act and the Criminal Code.

2. Since the judgment in Edmund Gima v. The State and Siune Arnold v. The State (Unreported judgment delivered on 03/10/03) SC730, the law clearly is that, where a person is in lawful custody in relation to an indictable offence he must be dealt with under the Criminal Code while one held in lawful custody in relation to a summary offence, must be dealt with under the Summary Offences Act.

3. It would therefore be illegal to proceed with a charge under the Summary Offences Act if the escapee’s initial detention or imprisonment was in relation to an indictable offence and the same applies to a case in which an escapee was held in custody for a summary offence and he is charged under the Criminal Code. Where an escape charge has been dealt with illegally in either of these ways, a subsequent proceeding that proceeds correctly cannot be set aside or down graded to be on par with the one that had proceeded illegally because of the illegality.

4. In the present case:

(a) The Appellant failed to demonstrate a case of real disparity in the sentence in that he has not produce any convincing evidence confirming that he had co-accused who were held in custody for indictable offences but were dealt with under the Summary Offences Act and got lenient sentences; and

(b) He was correctly dealt with under the Criminal Code as he was held in custody for armed robbery which is an indictable

1. For these reasons the Appellants appeal was dismissed as having no merit.

Papua New Guinea Cases Cited:

Edmund Gima v. The State and Siune Arnold v. The State (Unreported judgment delivered on 03/10/03) SC730.

Rawson Constructions Limited and 238 Ors v. The State (judgment delivered on 04/03/05) SC777.

Counsels:

Appellant In Person

Mr. C. Manek and Ms. T. Berrigan for the Respondent.

28th April 2005

BY THE COURT: You are appealing against a decision of the National Court delivered on 18th December 2003 that decided to impose a 5 years sentence for escape from lawful custody but suspended 3 years on conditions of good behaviour bond. The one and only complaint or ground of appeal is that you were unfairly dealt with in that three of your co-accused were dealt with under the Summary Offences Act (Chp. 264) (SOA) and received sentences far less than you.

The relevant background and facts are straightforward. On 6th January 2002 at about 7:00pm, you and 13 other inmates at Lakiemata Correction Institution (CS) escape by cutting the bar of the cell you were in. You then cut three fences within the CS compound and finally cut the outer fence and escaped. You were on the run for two weeks before police recaptured you on 21st January 2002.

At the time of your escape, you were in lawful custody for two armed robbery charges and two unlawful detention charges all of which were serious and therefore indictable offences.

On 10th December 2003, you were charge for escaping from lawful custody under s. 139 of the Criminal Code. You pleaded guilty to the charge and the National Court sitting in Kimbe convicted and sentenced you against which you are now appealing.

Submissions

At the hearing of your appeal before us, you argued that, it was unfair that you were dealt with under the Criminal Code whilst three of your co-accused were dealt with under the SOA. You did not however, produce any evidence confirming your claims of having co-accused and more importantly, your co-accused being dealt with under the SOA.

The State argued that the onus was on you to produce the required evidence but you failed. It also argued that you were correctly dealt with under the Criminal Code as you were in custody for four serious and therefore indictable offences. Further, the State argued that, even if you did have co-accused who were also in custody for serious indictable offences but they were dealt with under the SOA, that would give you no entitlement to a similar treatment. This is because your co-accused would have been dealt with illegally having regard to the judgment of this Court in Edmund Gima v. The State and Siune Arnold v. The State (Unreported judgment delivered on 03/10/03) SC730 and that no illegality can correct a correct legal position. Only the illegality is open to correction.

Issues

From these submissions the issues for determine by this Court are:

1. Is there evidence confirming you having had co-accused who were in custody for indictable offences but were dealt with under the SOA?

2. Whether a charge for escape from lawful custody in connection with an indictable offence can legally proceed under the SOA?

3. If the answer to the second issue is in the negative can that fact combined with the need to act fairly warrant a reduction in sentence or otherwise a set aside of a subsequent proceeding that has proceed correctly under the Criminal Code?

Consideration and Determination of the Issues

We deal firstly with the first issue. For the purpose of your appeal, all we have is the appeal book and the parties’ submissions in writing that were either, filed with the Court or handed up to us during the hearing of your appeal. The appeal book contains the transcript of proceedings before the National Court. A perusal of all of these materials fails to reveal any direct evidence of you having escaped with several others and that those several others were held in custody in relation to indictable offences. Accordingly, your appeal should fail on this ground.

Turning than to the second issue we note that this Court’s decision in the case of Edmund Gima v. The State and Siune Arnold v. The State (supra), where two members of the present Court, Kirriwom and Kandakasi JJ., were also members of that Court settled an apparent confusion in practice that existed as to an appearance of discretion in the prosecution to choose either to proceed with a charge of escape from lawful custody under the SOAor the Criminal Code. The Court there having considered the state of affairs and the kind of latitude the prosecution seemed to have said:

“Quite appropriately and legitimately, one might ask, does this mean the police can continue to have the kind of latitude, Kirriwom J. was rightly concerned with? The answer to that is quite simple, which can be found in a combined application of a number of settled principles of statutory interpretation. The first of this is the principle that Parliament never makes a mistake … and that there is always a purpose, intent or policy behind each legislation … Thus, proceeding on the basis that Parliament did not make a mistake in enacting s. 22 of the SOA and s. 139 of the Code, what could be the purpose or policy behind the fact that there are two different provisions dealing with the same offence of escape?

What we have here are two different legislations. The first is the SOA and the second is the Code. The former creates and prescribes penalties for summary offences, while the later does that for more serious or indictable offences. The offences under the former are less serious and their sentences are less severe....