State v Walbo [1982] PGNC 13; N382(M) (7 June 1982)

N382(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V.

BEIB WALBO

Mendi: Pratt J
7 June 1982

CUMULATIVE AND CONCURRENT SENTENCES - imprisonment for offences committed under Corrective Institutions Act - Section 40 makes such sentences cumulative - previous decision (The State v. Aur Sivi N364(M)) distinguished.

PRATT J: In assessing this young man’s sentence I must take into account the fact that he is serving a period of time for escape from custody.

Since publishing the roneod judgment entitled The State v. Aur Sivi^[1], I have been made aware of the fact that some passing comments by me on page 3 of the judgment to offences committed under the Corrective Institutions Act, Section 25, and an omission to refer to Section 40 of that Act has understandably created confusion. In Aur Sivi, nearly all the additional sentences related to escape from custody charges under the Summary Offences Act or its equivalent. Section 40 of the Corrective Institutions Act reads:

"Unless otherwise directed at the time of imposition, a sentence of imprisonment imposed under this Act upon a detainee is cumulative upon any sentence which the detainee is then serving and upon any other uncompleted sentence to which the detainee has been sentenced."

Escape from custody is not an offence under the Corrective Institutions Act. It is only in respect of sentences for offences under that Act which run cumulative to any other sentence. Therefore, contrary to the general provisions contained in Section 20 of the Criminal Code, such sentences must be stipulated as being concurrent before they run concurrently.

To summarize the situation then -

(1) With one exception, unless a sentence is expressed to be cumulative to another sentence, it will automatically run concurrently. In such cases the cumulative sentence must specify with utmost particularity the existing sentence which is to be extended by adding on the new sentence.

(2) The exception arises from Section 40 of the Corrective Institutions Act. Such sentence will automatically become cumulative to any other sentence which the detainee is then serving or any other uncompleted sentence. An example of any other uncompleted sentence would be as follows. On the 13th May the prisoner has served four months of a period of six months for assault. He is convicted on the 13th May of an offence under Section 25 of the Corrective Institutions Act and given one month’s imprisonment but escapes on the afternoon of the 13th May. He is recaptured on the 13th July. He will then serve the remaining two months for assault plus the one month for the conviction under Section 25 of the Corrective Institutions Act. If he is also charged and convicted of escape from custody and sentenced to two month’s imprisonment with hard labour and if that sentence is expressed to run cumulative to the sentence for assault and the sentence imposed under Section 25 of the Act, he will then not be released from custody until the 13th November.

I turn now to the sentence appropriate to the circumstances of this case.

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor
Counsel: F. Damen
Solicitor for the Defence: A. Amet, Public Solicitor
Counsel: M. Tamutai

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^[1] Unreported National Court Judgment N364(M) dated 8th December 1981