Sivi, The State v [1981] PNGLR 514 (8 December 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 514 - The State v Aur Sivi 

[1981] PNGLR 514

N364(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

AUR SIVI

Lae

Pratt J

3-4 December 1981

8 December 1981

CRIMINAL LAW - Sentence - Particular offences - Escape from detention - Period at large irrelevant.

CRIMINAL LAW - Sentencing - Cumulative - Concurrent - Sentence concurrent unless expressed to be cumulative - Need for precision - Criminal Code, s. 20 - Corrective Institutions Act 1957, ss. 26, 27.

In sentencing a convicted person who has escaped from a corrective institution the period spent at large is irrelevant.

Unless a sentence is expressly specified to be cumulative on a sentence already being served it must be regarded as concurrent, and a sentence upon which a subsequent sentence is declared to be cumulative must be precisely detailed; it is not sufficient for the sentence to be expressed merely by the term “cumulative”.

Trial.

This was a trial on a charge of breaking entering and stealing by an accused with a criminal record. The matter is reported on the question of sentence only.

Counsel:

V. Noka, for the State.

S. Lupulrea, for the defendant.

Cur. adv. vult.

8 December 1981

PRATT J:  During the examination of the prisoner’s papers in order to determine an appropriate sentence in respect of the present break and enter charge, two matters have emerged to which I wish to draw the attention of all visiting justices under the Corrective Institutions Act, and to magistrates generally.

The first obvious misconception is that where a person is recaptured it is claimed that in addition to this original sentence plus any period of imprisonment imposed as punishment for the escape, he must also serve the whole of the period at large. This is obviously quite incorrect and is inconsistent with the third paragraph of s. 20 of the Criminal Code. As is pointed out in the Supreme Court decision Wong v. Gannon[dcclxxxvi]¹, were it not for the existence of this third paragraph, the sentence would run despite the fact that the prisoner was not in custody.

In any calculation, it only confuses the issue to introduce the periods at large. If the prisoner was captured before his period of imprisonment expires, then he will remain in prison for such period as was left to be served by him at the date of his escape. For example, if he is sentenced on 1st January, 1981, to twelve months and he escapes from 1st June, 1981, and is recaptured on 1st September, 1981, then at the time of escape he still had six months to serve. Accordingly he will serve that remaining six months on and from 1st September, 1981. If on the other hand he is not recaptured until say 1st March, 1982, he again has six months to serve and such period will commence from 1st March, 1982. In both situations of course he will undoubtedly receive a further penalty as punishment for the escape. This may be added to the remaining period of the six months in my example (that is made cumulative) or it may run together with the six months so that he is still released on the morning of 1st September, 1982 (that is concurrent). Unless the sentence is expressed specifically to be cumulative to the sentence already being served, it must be regarded as concurrent. Under reg. 140(3) of the Corrective Institution Regulations of course, no remissions are granted for the term remaining to be served at the time he escapes, and of course subsequently served following his recapture, nor for any period imposed as punishment for the escape, nor for any punishment which is imposed in respect of Corrective Institution offences found proven by a visiting justice under s. 25 or s. 26 of the Corrective Institutions Act 1957.

A number of the sentences imposed on this prisoner were taken by the authorities to be cumulative but in fact no mention is made in the warrants as to whether they are cumulative or concurrent. For just one example, let me go to the first warrant which was issued in respect of this young man, which is a warrant signed in Kundiawa on 24th April, 1978, imposing three months imprisonment for insulting words under s. 7 of the Summary Offences Act. The second warrant was issued on 12th July, 1978, imposing a period of six months imprisonment for escape from custody. There is no mention whatsoever on that warrant that it is cumulative on the first warrant. As I say, that is just one example of any number that one can pick up in the file of this young detainee. Consequently they must be treated as concurrent. In my view this is so even where a magistrate imposes a period of imprisonment under s. 26 or s. 27 of the Corrective Institutions Act in respect of offences listed under s. 25 of that Act. A cumulative sentence may be imposed under the first paragraph of s. 20 of the Code. But except where such cumulative sentence has been imposed specifically, in all other cases the sentence will run from the first day of the sittings (for the National Court) or from the date of the offender’s custody under that sentence (for courts of summary jurisdiction). Section 20 is quite clear. If the sentence is to be cumulative on a period already being served, the court must say so. The magistrate in the example I have just given probably intended the sentence to be cumulative but if this was the case then he has defeated the purpose by failing to observe the requirements of the law.

In addition, great care must be taken in specifying the details of the previous sentence upon which a subsequent sentence is declared to be cumulative. If ever there was an example of the reason why the law says that is necessary, it is the present one before me. I have no doubt in my mind that a large amount of the confusion has arisen because the warrants have not been properly drawn by the courts. This failure has made it extremely difficult for the corrective authorities to ascertain exactly what is going on, let alone the unfortunate detainee.

It is not enough for the sentence to be expressed merely by the term cumulative. Because the court is construing a penalty provision, the strictest interpretation is required. Thus the provisions of the section must be followed meticulously and to the letter, and reference made to the precise previous offence, the period of imprisonment imposed and the date upon which it was imposed, whenever seeking to make the subsequent sentence cumulative thereon.

Reference may be made to a case unavailable to me in Lae, in which these principles were dealt with. I refer from Andrew’s text to the case of Akai Yama v. McCombe and Drehi[dcclxxxvii]². I make mention of course, just by way of completing the whole aspect, that it is unusual for any more than two cumulative sentences ever to be imposed, at least in respect of a number of matters coming before the court on the one occasion. And I would add finally that a greater particularity in the warrants will undoubtedly make it much easier for the corrective institutions officers to perform their task.

ADDENDUM:

Since returning to Port Moresby I have read judgment No. 666 of 17th February, 1972, by Raine J., in which he refers to the principles set forth in his earlier judgment of Passingan v. Beaton[dcclxxxviii]³. At p. 210 of that report his Honour says:

“There is power to make sentences cumulative and there is power to make more than two sentences cumulative. But the latter power should only be exercised in exceptional cases: R. v. Smith[dcclxxxix]⁴ and R. v. Betteridge[dccxc]⁵.”

Ruled accordingly.

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor.

Solicitor for the defendant: A. Amet, Public Solicitor.

[dcclxxxvi]Unreported Pre-Independence Supreme Court judgment No. 544 of 1969.

[dcclxxxvii]Unreported Pre-Independence Supreme Court judgment No. 666 dated 17th February, 1972.

[dcclxxxviii][1971-1972] P. & N.G.L.R. 206.

[dcclxxxix][1952] S.A.S.R. 297.

[dccxc] [1965] S.A.S.R. 76.