Dambui v The State [2003] PGSC 20; SC724 (26 November 2003)

SC724

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 25 of 2002

ALPHONSE DAMBUI

v

THE STATE

LAE: Hinchliffe, Davani, Lenalia, JJ
2003: 24th & 26th November

APPEAL FROM NATIONAL COURT – Escaping from lawful custody – s.139 of the Criminal Code – Minimum term of imprisonment is five years – Trial Judge must consider whether full or part suspension of the prison term is appropriate – Judge failed to consider suspension – Returned to trial Judge for rehearing on penalty.

Counsel:
Appellant in Person

Mr Miviri for the Respondent

26th November, 2003

DECISION

BY THE COURT: The Appellant, on the 12th March, 2002, was convicted by the National Court for the offence of escaping from lawful custody and sentenced to five (5) years imprisonment in hard labour. Four months was deducted for time already served in custody.

The relevant section in the Criminal Code is 139 which provides as follows:

"139 – Escape by Prisoner

(i) A person who, being a prisoner in lawful custody, escapes from that custody is guilty of a crime.

Penalty: a term of imprisonment of not less than five years.

(ii) An offender under subsection (1) may be tried, convicted and punished, notwithstanding that at the time of his apprehension or trial the term of his original sentence (if any) has expired".

The said section is quite clear in that the Court cannot hand down a sentence of less than five years imprisonment when dealing with a person under the said section 139. What it can do, since the Supreme Court decided in The State v. Aruve Waiba [1994] CR1/94, is to suspend the sentence in whole or in part after imposing the minimum sentence prescribed. It is not obliged to take such a course but it is open to the Court if the Court thinks that it is appropriate in a particular case.

The Appellant in this matter pleaded to the National Court in Madang to be lenient with him and presented reasons to the Judge in support of his submission. The Judge, in his decision at pp. 20 and 21 of the Appeal Book said numerous things about sentence but at no stage did he mention that it was open for him to consider whole or partial suspension of the minimum five year term. He also certainly did not mention a sentence in excess of five years imprisonment. At p.20 of the Appeal Book, the Judge said, inter alia, as follows:

"The law says that anyone who is convicted of escaping from lawful custody will receive the minimum sentence of five years imprisonment. That is not decided by me or by the Judges of the Court. That law is made by members of Parliament. My job including other Judges is to interpret and apply the Law. Members of Parliament have said that anyone convicted of escaping must receive a minimum sentence of five years. That is the starting point. The Court has no discretion to go below that. Members of Parliament several years ago decided to make that law because there were many people who were escaping from police custody and CIS custody. They had hoped that by prescribing a minimum sentence prisoners and remandees would be stopped from going and escaping."

We are of the view, after reading the contents of the Appeal Book, that the trial Judge fell into error in that he did not appear to have considered any kind of suspension in relation to the minimum five year term. It would seem that he was not aware of his power to suspend in whole or in part or else he had forgotten about it. We are of the view, in the interest of justice and what was said in the said Supreme Court decision, that the trial Judge should have considered whether or not any suspension was warranted. He did not. All he did was to say that the term of imprisonment for escape is a minimum of five years and that is what he must hand out.

To that extent we are satisfied that His Honour fell into serious error which this Court must correct.

We therefore make the following order:

1. The conviction of the 12th March 2002 is confirmed
   
2. The sentence of five years imprisonment is confirmed in part.
   
3. The matter be returned to Justice Sawong in Madang to rehear the submissions relating to penalty and in particular whether or not there should be any suspension of the said five year term.
   
4. The Assistant Registrar, Lae National Court, return the file to the National Court Registry in Madang to be mentioned at the first possible Call-over.
   

Orders accordingly.
________________________________________________________________________
Appellant in Person
Lawyer for the Respondent : The Public Prosecutor