State v Tairo [1998] PGNC 74; N1830 (24 July 1998)

Unreported National Court Decisions

N1830

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 830 OF 1998
THE STATE
-V-
TUI KILA TAIRO

Goroka

Sawong J
24 July 1998

Counsel

C. Ashton-Lewis, for the State

M. Apie’e, for the Accused

24 July 1998

SAWONG J: This morning you pleaded guilty to a charge of escaping from lawful custody on 8 October 1997 from the Bundaira Jail where you were serving a term of four years for armed robbery. The offence of escaping from lawful custody is created by s. 139 of the Criminal Code.

The facts of your case is short. You were a prisoner serving a jail term at the Bundaira Jail for armed robbery. The evidence shows that on the morning of 8 October 1997, you and several other prisoners and detainees, cut through the iron bar on the door of your cell, forced the main door open, then went through the inner wire fence, and then through the outer main wire fence and escaped.

YOUR PERSONAL BACKGROUND.

There is nothing much in your Antecedent report but I take note of its contents. I have no or very little information about your personal background so I do not take this point any further.

When I gave you an opportunity to speak to me, you ask me to make the sentence concurrent with the sentence you are presently serving . Your lawyer has made a similar submission.

I have considered the submissions. Apart from the fact that you pleaded guilty, there are really no other mitigating factors to be taken into your favour.

There are several factors which are against you and which I must as a judge take into account. The first is that you have several prior criminal records which I must take note of. The particulars of these previous records, which have not been disputed are:

· 4 July 1996, District Court convicted you and sentenced you to 18 months IHL for having in possession a dangerous drugs, namely marijuana

· 4 July 1996, the District Court also convicted you and sentenced you to 6 months IHL for escaping from lawful custody.

· 4 August 1996, the District Court convicted and sentenced you to 2 months imprisonment for having in possession police uniform.

· 26 February 1997, National Court convicted and sentenced you to 4 years IHL for armed robbery.

The other factor is that, you together with the other prisoners and detainees who escaped that night had deliberately set out to escape. The facts of your case show that this was well planned and executed escape. This was not a spur of a moment incident.

After you escaped, you were at large until you were recaptured by police and warders. In these circumstances, what then is the appropriate sentence.

The first thing to note is that, under s. 139 (1) of the Code, the sentence is “a term of imprisonment not less than five years”. This is a minimum sentence offence, that is that, the minimum starting point is five years imprisonment, nothing less. However there is a Supreme Court decision which in effect says that in an appropriate case, this court may suspend part or whole of the sentence.

In all the circumstances of your case, I do not consider any part of your sentence should be suspended. You are sentenced to 5 years IHL.

The next issue is whether your sentence should be made cumulative or concurrent to the sentence you are serving. The National Court has a discretion as to whether a sentence should be concurrent or cumulative. However, that discretion must be exercised in accordance with well known principles. Generally speaking these principles are that where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be made concurrent.

Secondly, where the offences are so differently in character or in relation to different victims, cumulative sentences would be appropriate.

Finally, the totality principles. What this means is that when the sentencer has arrived at the appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just sentence.

Applying these principles to this case, several factors are obvious. The first is that you have not been charged with and convicted of series of offences. You have been charged and convicted with only one offence, that of escaping from lawful custody.

Secondly, the offence for which you have been convicted of today is different. It is not connected to any manner with the offence for which you are serving sentence.

In these circumstances, I do not accept your submission. I consider that the sentence I have imposed must be made cumulative.

Accordingly, you are convicted and sentenced to 5 years IHL. I do not consider any of it to be suspended. This sentence is to be made cumulative upon the sentence of 4 years you are currently serving for armed robbery.

Lawyers for the State: Public Prosecutors

Lawyers for the Accused: Public Solicitors