Vunareo v Pauls [1993] PGNC 17; N1198 (20 December 1993)

N1198

PAPUA NEW GUINEA
(NATIONAL COURT OF JUSTICE)

AP 07/92

LUCAS VUNAREO

V

JONATHAN PAULS

Rabaul: Doherty, J.
20 December 1993

Maximum penalty for escaping under Summary Offences Act - Appellant appealed against sentence of 1 year imprisonment for escaping.

Held: period in excess of jurisdiction, maximum is 6 months.

The Appellant in person
Mr Miviri for the State

DECISION

DOHERTY, J.: The Appellant appeals from a decision of the Rabaul District Court which convicted him on the 2nd October 1991 on a plea of guilty to escaping from lawful custody contrary to Section 22(1) of the Summary Offences Act and sentenced him to 1 year in hard labour which was to be served cumulatively on the sentence he was then serving.

The Defendant's grounds of appeal can be put as "the sentence was excessive" he puts forward various facts that:-

(1) he voluntarily surrendered; and

(2) he was kept in confinement for 9 months after he was returned to Corrective Institution Services; and

(3) he was very badly beaten up by the Corrective Institution Services wardens.

Of these three (3) grounds only one could have been before the learned Magistrate at the date of sentence and it is apparent from the statement of facts annexed to the information that the defendant did surrender. It says:

"search was conducted but was unable to locate him. Defendant was however, gave himself up to village elders upon further negotiations by police and prison warders with the village elders. Defendant then was brought to the Police Station where he was questioned in regard to the alleged offence. The defendant freely admitted the offence of escaping" (SIC).

Section 22(1) of the Summary Offences Act provides for a maximum penalty of K200.00 fine or 6 months in hard or both. The last Amendment to the Summary Offences Act passed prior to the 2nd October, 1991 (the date this matter was heard and determined) was in 1986. Summary Offences (Amendment Act) No. 36 of 1986. A prior Amendment No. 14 of 1985 amended and change the sentence provisions of several sections of the Summary Offences Act.

The Act was amended to abolish the penalty provisions, commonly referred to as "the minimum penalties" (No. 17 of 1983) and to replace and increase the maximum provisions to some sections of the Summary Offences Act.

Section 22 had not been subject to a minimum penalty when the Act was passed in 1983 and it was not amended in 1985 or in 1986. I would add that it has not been amended in the most recent amendment to the Summary Offences Act (No. 13 of 1993).

Hence, the maximum penalty provisions remains 6 months in hard labour. This has been conceded by counsel for the State.

It is apparent on the face of the record in 1991 that the learned Magistrate acted in excess of his jurisdiction by imposing a 1 year cumulative sentence upon the appellant.

Although this is not been specifically referred to by the appellant, who appears in person, it is the duty of the court to note that the District Court acted in excess of its jurisdiction as Counsel for the State has properly conceded.

I therefore quash the sentence of 1 year in hard labour and I substitute 6 months. Since the appellant has served 6 months I order his release.

I share with my brother judges their concern of the low penalty provision in the Summary Offences for escaping. As Justice Hinchliffe has said there is considerable amount of time, energy and manpower expended in chasing escapees and the maximum penalty under the Summary Offences Act does not reflect the seriousness involved. An amendment to the Criminal Code passed in May 1993 increases the penalty provisions under 139 of the Criminal Code (the Criminal Code provision on escaping) to a minimum of 5 years in hard labour, this must be dealt with by the National Court.

In practical terms the vast majority of escape cases are dealt with by the District Court. We therefore have an incongruous situation that if the police bring the matter before the District court the maximum sentence that can be imposed is 6 months and if they bring the matter before the National Court the minimum that can be imposed is 5 years and I wonder if this is what the Parliament really intended when they passed the most recent amendment.