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Aua v The State [1997] PGSC 17; SC535 (28 November 1997)

Unreported Supreme Court Decisions

SC535

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 51 OF 1997
ISAAC AUA
APPELLANT
V
THE STATE
RESPONDENT

Waigani

Kapi DCJ Woods Injia JJ
27-28 November 1997

CRIMINAL LAW - sentence - particular offence - aiding prisoners to escape accused a reserve policeman - serious breach of trust and confidence in the police - 5 years imprisonment.

Counsel

Appellant in person

C Sambua for the State

28 November 1997

KAPI DCJ WOODS INJIA JJ: The appellant was charged that he on the 13^th July 1996 at Boroko aided one Api Ivara and one Andrew Kairi Yambi then prisoners in lawful custody in escaping from such custody. He was charged pursuant to Criminal Code Section 138. He pleaded guilty to the charge on the 27^th June 1997 and was sentenced to 5 years imprisonment with hard labour. The appellant had spent over 11 months in remand custody and that period was allowed for in the final warrant.

The appellant has appealed against the severity of that sentence. The appellant has submitted that as the maximum provided for the punishment under the section is 7 years, the imposition of a term of 5 years after a plea of guilty is harsh and oppressive. He emphasises the fact he co-operated with the police and the court when he was arrested and charged and there should have been some allowance for that co-operation. He said there was no violence used during the commission of the offence. And also he said that the sentence given is as high as is now being given to convicted prisoners when they escape.

The trial judge took account of certain mitigating factors such as the co-operation and the plea of guilty but he found that there were a number of matters which aggravated the offence. The matters were firstly that the appellant was a reserve policeman and therefore was a man of great responsibility and trust and by acting the way he did he had breached this trust, as he said “it is a gross betrayal of the trust and confidence the community at large has of the police force”. The facts of the case were that the appellant had used his position as a policeman in uniform to secure the release of the prisoners from the police cells at Boroko, he misled a young policeman who was on duty at the cells. The judge found that the offence in this situation was analogous to escape and therefore the same principles should apply. It was also admitted before the trial judge that the appellant had been convicted by the District Court in 1991 of the offence of stealing, so he took account of that as a prior conviction. A further matter of aggravation considered by the judge was the admission that he had been paid K150 in cash prior to aiding the escape.

As the trial judge said after considering all the factors “as the offender is a policeman and I have found circumstances of aggravation, I consider that a stern punishment is warranted”.

We find that the trial judge carefully considered all the factors and we find that he committed no errors of law. We agreed with some of the concern expressed by the trial judge about the serious breach of trust and confidence the appellant displayed by his action whilst he was supposed to be a policeman helping to uphold the law. In the circumstances we agree that this offence called for a stern punishment and we agree with the sentence of 5 years imposed.

We dismiss the appeal.