N3425

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 764 0F 2008

THE STATE

V

ALI KARIS WASIURA

Kimbe: Cannings J
2008: 14, 24 July

SENTENCE

CRIMINAL LAW – sentence – escape from lawful custody by prisoner serving sentence for armed robbery – guilty plea – previous escape – sentence of 5 years; 2 years suspended.

A man pleaded guilty to escaping from lawful custody while he was a prisoner serving a sentence for armed robbery. He absconded from a work detail. It was a non-violent escape. He was at large for three years before being recaptured.

Held:

(1)	The minimum sentence for the offence of escaping from lawful custody is five years imprisonment.

(2)	A sentence of five years was imposed and two years was suspended.

Cases cited

The following cases are cited in the judgment:
Danny Pirino v The State (2006) N3111
Edmund Gima and Siune Arnold v The State (2003) SC730
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Aruve Waiba SCR No 1 of 1994, 04.04.96
The State v Francis Wangi CR No 1388 of 1999, 17.08.07

Abbreviations

The following abbreviations appear in the judgment:
CR – Criminal
J – Justice
N – National Court judgment
No – number
SC – Supreme Court judgment
SCR – Supreme Court Reference
SCRA – Supreme Court Criminal Appeal
SDA – Seventh Day Adventist
v – versus

SENTENCE

This is a judgment on sentence for escape.

Counsel

F Popeu, for the State
T Gene, for the offender

24 July, 2008 

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody. 

2. He was a prisoner at Lakiemata Correctional Institution serving sentences for armed robbery and two previous escapes. On 20 May 2004 he was on a work detail attending to the sewage system close to the prison. While the warder supervising him was not looking he ran away. He was at large for three years and eight months before being recaptured on 29 January 2008 at Tamba, near Lakiemata.

ANTECEDENTS

3. The offender has prior convictions for armed robbery (1997) and two counts of escape (1998 and 2002).

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

At the time they say that I escaped the jail was in fact closed as there had been an outbreak of typhoid and detainees were dying. The officer supervising me on the day that I left the jail actually told me that I could go home. So I went home and stayed all this time without causing any trouble and then they decided to come and get me and they assaulted me and put me in the detention cell for two months. I really do not know why I am before the court as I did not break any cell or cause any trouble when I left the jail. I was sick at the time and I could have died if I stayed. Detainees are still dying at Lakiemata and the jail is still the same.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).

6. Mr Popeu has objected to a number of the claims the prisoner made in his allocutus and I agree that much of what he said is not within the bounds of reasonableness and must be rejected. In particular, the claim that he was given permission to leave is not believable. Likewise, the claim that nothing at Lakiemata Jail has changed. Conditions at the jail have improved considerably over the last three years and that is a widely acknowledged fact.

7. However, I do take into account as mitigating factors his claim that he was assaulted and put in the detention cell for two months. 

PERSONAL PARTICULARS 

8. The prisoner is 27 years old. He has for some time been residing at Tamba, Section 10. He is educated to grade 8 and has never been formally employed. His religion is SDA and he is married. His parents are alive and living at Tamba. 

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Gene highlighted the guilty plea. As to the escape itself, it was a simple escape. Nobody was hurt and no property was damaged. The offender has been punished already by being in solitary confinement for a long time. It would be appropriate to suspend three or four years of the sentence. 

SUBMISSIONS BY THE STATE

10. Mr Popeu highlighted the two previous escapes, which means that little of the sentence should be suspended. 

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Section 139 of the Criminal Code states:

(1)	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.

(2)	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.

13. No maximum is prescribed. The minimum penalty is five years imprisonment. However, the court still has a considerable discretion whether to require a convicted escapee to serve the whole of the head sentence in custody. Some or all the sentence can be suspended. (The State v Aruve Waiba SCR No 1 of 1994; 04.04.96, Supreme Court, Los J, Salika J; Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J.)

STEP 2: WHAT IS A PROPER STARTING POINT?

14. The starting point is five years. The head sentence can be above that but not below it.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

15. I have passed sentence in more than 20 escape cases in West New Britain since 2005, which are summarised in the case of The State v Francis Wangi CR No 1388 of 1999, 17.08.07. In all cases I have imposed the minimum penalty of five years imprisonment but suspended part (or in two cases, all) of the sentence, having regard to the circumstances of each case.

STEP 4: WHAT IS THE HEAD SENTENCE?

16. Mitigating factors are:

•	no violence used;
•	not a mass escape;
•	no risk of injury to others;
•	jail was in bad condition at the time of escape and provided some motivation for escaping;
•	he was given stern punishment upon his return to custody (assaulted and given two months in the detention cell);
•	guilty plea. 

17. Aggravating factors are:

•	not a first-time offender;
•	no remorse; 
•	did not surrender directly to the jail authorities; 
•	he was at large for a long time. 

18. After weighing all these factors, I have decided to fix a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. No, there is nothing to be deducted.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

20. The number of mitigating factors means that some of the sentence should be suspended. The question is how much. In many of the previous escape cases in West New Britain I suspended big chunks of the sentences largely because of the very poor condition of Lakiemata Jail and Kimbe Police lock-up, the correctional institutions where most of the escapes took place. Over the last two years conditions at those places have improved markedly because of orders I have made under Section 57 of the Constitution. 

21. The prisoner makes a good point by saying that he was treated harshly by being placed in detention for two months. The maximum period a prisoner can be placed in a separate detention cell is 28 days and, though there can be one extension of 28 days, this must be done under written separation orders under Section 108 of the Correctional Service Act (Danny Pirino v The State (2006) N3111). No separation orders have been produced to the court, which would legitimise the detention of two months in this case. As a Visiting Justice I have regularly inspected the detention cells at Lakiemata. Though they provide more humane conditions now than their predecessors did up until 2005 when the notorious ‘dark cell’ regime was in place, it still represents a severe punishment to be placed in such a cell for a period of two months.

22. So, taking account of the mitigating factors, I have decided to suspend two years of the sentence. The period of the suspended sentence will be subject to the following conditions:

(a)	must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b)	must not leave the Province in which he resides without the written approval of the National Court;
(c)	must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d)	must attend his local Church every weekend for service and worship and submit to counselling;
(e)	must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(f)	must not consume alcohol or drugs;
(g)	must keep the peace and be of good behaviour;
(h)	must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;
(i)	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

23. Ali Karis Wasiura, having been convicted of one count of escape, is sentenced as follows:

Length of sentence imposed	5 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	5 years	
Amount of sentence suspended	2 years	
Time to be served in custody	3 years	
Place of custody	Lakiemata Correctional Institution, until further order of the National Court.	

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender