The State v Allan Nemo (2010) N4098

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

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

National Court: Makail J

Judgment Delivered: 9 August 2010

N4098

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 979 OF 2010

THE STATE

V

ALLAN NEMO

Vanimo: Makail, J

2010: 03rd & 09th August

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 - Sections 19 & 139(1).

Cases cited:

The State -v- Jack Moge [1995] PNGLR 246

The State -v- Inema Yawok (1998) N1766

The State -v- Aruve Waiba: SCR No 1 of 1994 (Unnumbered and Unreported Judgment of 04th April 1996)

The State -v- Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750

The State -v- Richard Oslo Kumis (1997) N1517

The State -v- Irox Winston (2003) N2347

Edmund Gima & Siune Arnold -v- The State (2003) SC730

The State -v- Linus Rebo Dakoa (2008) N3427

The State -v- James Gurave Guba (2000) N2020

The Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205

Public Prosecutor -v- Michael Kerua & Ors [1985] PNGLR 85

Counsel:

Mr K Umpake, for the State

Mr S Raneva, for Prisoner

SENTENCE

09th 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 and reliable prisoner at Vanimo CIS prison, hence you decided to escape. When you escaped, you went straight to see your sick wife and after that, you returned to prison.

7. You were sorry for what you did and asked for leniency. Your lawyer had nothing further to add to what you told the Court.

8. According to the State, you escaped at 1 o’clock in the afternoon on 15th November 2009 and returned to the prison at 6 o’clock in the morning of 16th November 2009. This is about a day and a half. The State did not seriously ask for a penalty that would be too crushing on you as it considered that your escape was a “simple one”. By that it suggested, there was no State property destroyed or damaged and injuries or death caused to anyone during the time you escaped. It pointed to one prior conviction you had and that is in relation to a charge of rape following conviction and sentence by the National Court in 2004 where you were serving 20 years imprisonment when you escaped. Indeed, it submitted, it is entirely up to the Court to consider an appropriate sentence for you including suspension of any custodial sentence that the Court may impose and the question of cumulative sentence.

9. What is an appropriate sentence to impose on you? A quick review of past cases on escaping from lawful custody is important to also guide the Court to arrive at a decision that will be fair in the circumstances and consistent with past cases. In The State -v- Richard Oslo Kumis (1997) N1517, a decision of Lenalia, AJ (as he then was), the prisoner escaped from lawful custody after he had just been sentenced to 6 months imprisonment for stealing by the Mendi District Court. He deliberately avoided contact with the police until he was re-captured some 1 year and 6 months later. He pleaded guilty to a charge of escaping from lawful custody. His Honour said where a prisoner escapes from lawful custody and voluntarily surrenders, in such a case, the voluntary surrender would be a mitigating factor. As the prisoner escaped and avoided the police for a period of 1 year and 6 months, His Honour held that it was an aggravating feature of the case and sentenced him to 5 years imprisonment. His Honour then suspended 3 years and ordered him to serve only 2 years in prison.

10. In The State -v- Irox Winston (2003) N2347, the prisoner pleaded guilty to one count of escaping from lawful custody at Bihute Corrective Institute Service in Goroka. Kandakasi, J gave the following reasons for sentencing the prisoner to 5 years imprisonment without any reduction:

“You were instead at large for more than a year. If police did not recapture you, you could have been at large even to this date.

As noted by Injia J., escaping from prison to avoid serving your sentence is an affront to the criminal justice system. Unless such behaviour is sternly dealt with, escapes will make a mockery of the system of justice we have adopted since independence.

Another factor that operates against you is the fact that you have a prior conviction. You escaped to avoid serving time under that. This as to be contrast with a case of a person held in the custody of the police awaiting a formal charge or before he is appropriately dealt with by a court.”

11. In the Supreme Court judgment of Edmund Gima & Siune Arnold -v- The State (2003) SC730, the Supreme Court in adopting the principles on sentencing in cases of escaping from lawful custody by prisoners in Irox Winston’s case (supra) said at pp 19 and 20 of the judgment:

“As we have just observed, escaping from lawful custody at any level is a deliberate decision not to comply with the orders of the Court if already convicted and sentenced. In other cases, it amounts an unlawful demonstration of a decision not to submit to the jurisdiction of the Courts and demands of the law. This does not however, mean an automatic imposition of the prescribed minimum sentence of 5 years and or suspending it, without more. Instead, the Court still has a duty and obligation coupled with a discretion under s. 19 (1)(d) of the Criminal Code, to impose a sentence that is either lower or above the minimum prescribe sentence depending on the particular circumstances of each case and on proper principles.26

The third aspect that we wish to have settled is the relevant factors that must be...