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State v Yawok [1998] PGNC 46; N1766 (16 June 1998)

Unreported National Court Decisions

N1766

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 659 OF 1998
THE STATE
-V-
INEMA YAWOK

Madang

Kirriwom J
12 June 1998
16 June 1998

SENTENCE – Escape from lawful custody – Mandatory minimum penalty of five years, s.139 Criminal Code – No discretion to impose lesser sentence – But court has power to suspend all or part of the minimum sentence – Constitution sections 37(1),(3),(7),(11) and 41.

Facts

Prisoner who came from a very remote part of inland Saidor District of Madang pleaded guilty to escaping from the lawful custody of the Jail Commander at Beon Corrective Institution.

He said he was confused by the environment he was thrown into where he witnessed so much violence amongst inmates and sexual attacks upon the young and weak inmates by the stronger ones. He felt quite unsecured and also saddened deeply by the murder of his nephew who became the victim as pay-back for his actions and for which he was serving his term in jail.

Held, sentenced to the minimum five years imprisonment which is wholly suspended on condition prisoner entered into good behaviour bond for a period of 4 years.

Cases cited

State v Aruwe Waiba – SCR 1 of 1994, 4 April 1996.

State v Danny Sunu & Others [1983] PNGLR 396.

Special Reference No.1 of 1984 of the Minimum Penalties Legislation

[1984] PNGLR, 314.

Counsel

J. Wala, for the State

D. Sakumai, for the Accused

16 June 1998

KIRRIWOM J: The accused appeared before me on one count of escape. The charge was laid under s.139 of the Criminal Code which prescribes a mandatory minimum sentence of five (5) years imprisonment. He pleaded guilty to the charge. At the time of his escape, the prisoner was serving a term of three years imprisonment at Beon for killing his wife. The accused is an illiterate and simple villager from Teptep area situated in the mountain ranges of the inland Saidor District of Madang Province. Government influence in most part of this area is still very minimal and many people there live in the same way as their ancestors have lived before discovery by government officers.

On pleading guilty to the charge, the accused gave his reasons for escaping. His first reason was that whilst he was in prison, the relatives of his wife retaliated by killing his brother’s son. This news from home caused him much anxiety and concern for his brother and other members of his family. He was serving sentence for the murder of his own wife and he could not bear the sorrow of his nephew’s death for his own wrong-doing which the law has already taken control of. The second reason was that whilst in prison he witnessed so much violence and fights amongst the prisoners and forced anal sex committed upon weaker inmates by the more aggressive ones. This was not the kind of environment that the accused expected finding himself in after surrendering himself to the authority of the Government for killing his wife. He could not believe nor accept these activities taking place in an institution owned and operated by the Government for the punishment of wrong-doers like him and under the watchful eyes of those that the Government paid to control and maintain order and discipline of those under their care. Coming from a primitive background where the respect for and fear of the law and government authority reigns high, what he was exposed to in the prison sent fear and waves of confusion as he tried to orientated himself in this new culture he was thrown into in the prison. He could find no other way of defending and upholding his moral virtues and dignity in an institution inundated by such violence and immorality or bestiality except return to the safety of his own home in the village.

The offence of escape by prisoner under s.139 of the Criminal Code is triable on indictment. In 1993 the Parliament in its wisdom increased the penalty to a mandatory sentence of not less than five years. This increase was necessary in the light of frequent escapes by hard-core prisoners from the prisons throughout the country and the increase in criminal activities in the communities as the result of these convicted escapees setting upon innocent and peace-loving people whilst at large.

The Supreme Court in The State v Aruve Waiba (SCR 1 of 1994 by special reference of India AJ (as he the was), considered several questions posed to it for its opinion on the legislative intent of the Parliament of Amendment No. 12 of 1993 imposing a new penalty for s.139(1) of the Criminal Code and even considered the constitutional implications of this law in its application as far as s.37 (1), (3), (11) and 41 of the Constitution were concerned. On the question of constitutionality of the law, the Supreme Court found nothing wrong with the minimum penalty imposed by the amendment because this was already a well settled area according to the decision of the Supreme Court in The State v Danny Sunu & Others [1983] PNGLR 396. The Special Reference No.1 of 1984 – Minimum Penalties Legislation [1984] PNGLR 315 and the line of cases that followed these decisions thereafter.

But the Supreme Court in Aruve Waiba (supra) observed that there was an anomaly in this new law because the amendment failed to prescribe a maximum penalty for the offence. The essence of the legislature prescribing both a minimum term and maximum term for an offence is the same as defining the area of a playing field. The Court is required by law to impose punishment within that area, and move upwards or downwards depending on the gravity of the offence and the circumstances of the offender, but within that playground. The minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own merits and impose sentence as the justice of the case requires but not below the minimum. It can be the minimum itself or above but anywhere between the minimum and the maximum or the maximum itself. It would be nonsensical to expect a life sentence or even death as maximum penalty for escaping from custody and Parliament naturally would not have intended this to be so. This would be an absurdity because leaving an open-en maximum offends against the principles of justice and fairness alluded to in the Constitution s.37 (7) where it says that “no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.” Considering this provision in the light of the rest of the sections both before and after s.139, it is obvious that there is an ambiguity in the law that the Parliament must rectify. The Supreme Court thus came to the conclusion that a more lenient interpretation must be given to the law in the light of this ambiguity and decided that the Court can suspend the sentence in whole or in part after imposing the minimum sentence prescribed.

The case before me is an exceptional one. I have seen the demeanor of the accused as he gave his statement on the allocutus and I have no reason to doubt a word of what he said. I accept his explanation regarding the retaliatory killing of his nephew, his elder brother’s son. I am told that this story is confirmed by the warders who delivered the news to the accused. I also accept this story about violent sexual attacks upon weaker and young inmates by those aggressive ones in the prison compounds. These activities go on behind closed gates of the prison and it really begs the question of whether or not justice is done to those who are sent to prison for breaking the laws.

The society’s expectation of those offenders convicted by the Court is that they re sent to prison where they learnt to behave before coming out again into freedom. It is not the expectation of the Society that they be sexually molested and abused or physically threatened and attacked whilst they are in prison. This is a genuine complaint and I don’t brush it aside easily as insignificant. I hope there can be a safer environment for prisoners from fellow prisoner in our prisons where everyone is respected as a human being with dignity and respect of his human person.

I accept the accused plea and the reasons for his escape. He is a first offender and I do not treat this offence as a bad case.

In the light of all the circumstances of this case, I sentence the accused to the minimum term of five (5)years imprisonment but I suspend the entire sentence on the condition that he enters into a recognizance to keep peace and to be of good behaviour for a period of four (4) years.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor