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State v Toto [2009] PGNC 127; N3746 (19 August 2009)

N3746

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 392 of 2009

THE STATE

V

ETANE TOTO

Goroka: Kirriwom. J
2009: 19 August

CRIMINAL LAW – Sentence – Escaping from lawful custody – Sex offender – Prisoner arrested for committing similar offence while on escape at large – Minimum penalty – No exceptional circumstances – Serious aggravating factor – Minimum penalty of five years imprisonment without suspension – Criminal Code, s. 139.

Cases Cited

State v Wasiura [2008] Unreported National Court Judgment N3425

Counsel

K. Umpake, for the State
V. Agusave, for the Accused

SENTENCE

19 August, 2009

1. KIRRIWOM. J: The prisoner pleaded guilty to escaping from lawful custody of Bihute Correctional Service while serving a four year term of imprisonment for sexual touching. It was alleged that between 3-4pm on 24 October 2008 at Bihute while engaged in a rehabilitation training program conducted by YCA, the prisoner escaped from the prison compound by slipping out of the premises while no one was watching. When the prisoners were rounded at the compound for roll-call, his absence was discovered and recorded as escaped.

2. Prisoner was arrested and charged for another similar offence while he was at large which is still pending.

3. The charge against the prisoner is brought under section 139 of the Criminal Code which carries a minimum penalty of five years imprisonment. The philosophy of minimum penalties has been discussed in numerous decisions of this Court and the Supreme Court in relation to the retention of this penalty regime with respect to this particular category of crime which I do not intend to dwell into here.

4. As a judicial officer I must deal with the case in accordance with the dictates of the law as far as the given circumstances of the case are concerned.

5. One of the reasons for retention of minimum penalty in escaping from custody is the belief (although no clear statistics are available) that large number of violent crimes committed in the society today are attributed to criminals on the run from the law after escaping from lawful custody. The aim of imposing minimum penalty in the Act was the legislature’s intention to take away the discretion of the Court so that judges impose nothing less than the minimum prescribed by law. The result envisaged is that hard core criminals must remain inside the prison for long time and public can feel safe without them running loose and threatening and even raping womenfolk. The latter is the tragedy that the law tried to safeguard against in this section but sadly it has shown its ugly face again.

6. The prisoner was serving time for sexual touching and given four years. He was sentenced on 28 May 2007 by the National Court Goroka and escaped on 24 October 2008, after serving roughly one year and four months of his sentence. At the time of his escape he still had two years and eight months to serve.

7. Prisoner’s explanation for escaping is that he was upset and angry with the warder who was their supervisor in the rehabilitation program for making him feel humiliated and embarrassed on a false accusation of a missing design that slipped from the folder in the presence of others and women inmates and warders wives present for the course. The design was actually left on his desk in the office which was retrieved by another person and the supervisor failed to acknowledge his mistake and apologise to him. He brooded over this during the course and when they closed, he continued to feel so bad that he walked out of the prison.

8. His reason for escaping from lawful custody does not afford him a legal defence nor does it entitle him any special consideration for leniency of sentence. That is not justification for him to just walk away from jail. He may have felt a sense of satisfaction for the hurt to his feeling but that is not a normal way to address personal concerns. It is like playing fire with fire. There are avenues available for him to seek recompense if he still felt troubled by it. By escaping he was not going to make his supervisor feel the pain, he was only adding more pain to his own misfortune. He was not making the prison suffer by his escape; he was only creating more problems for himself.

9. Advocates for strong penalty for those who escape from lawful custody argue that staff and resources of prison and police are deployed at enormous cost to the Government to mount search operations when someone escapes from custody. This is tax payers’ money that can go to better and worthy causes such as hospitals and medicines and not on trying to apprehend and bring into custody those who have already been sent behind bars who are supposed to remain there until the law says they can go home.

10. Often personnel involved are placed at great risks in carrying out these operations and often spells dangers even for the escapees themselves who create these situations. At the end of the day, the Government has been made to dig deeper to find money to recapture anyone on the run from the law, the prisoner has not benefited one way or another except boost in his ego but what a price to pay for that. It is plain stupid.

11. The prisoner was educated to Grade 8 at West Goroka Primary School and can appreciate what I am saying here. There is no peace and harmony at the end of the road that he is following after escaping because the world is round, not flat, so he will still come-back to where he started which is the prison.

12. What is however of concern here is that the prisoner was arrested just under a month after his escape on 24/10/08 as the result of another offence of a similar kind. This is evidence of recidivism in the making, a propensity to commit sexual offences on females. This is an aggravating factor, the one that legislature contemplated when decided that minimum penalty must remain for escaping from lawful custody.

13. The prisoner is a young man, aged 23 years, single, father is dead, mother is still alive, has two sisters and he is the first born. He comes from Apoka Komegu village, Goroka, Eastern Highlands Province.

14. In mitigation of penalty I take into account those matters his lawyer submitted to me including:

1. Plea of guilty and expression of remorse;

2. One man escape while no one was watching him;

3. No property was damaged in the course of escaping;

4. No injury was caused to anyone to effect his escape; and

5. He was placed in three months detention in solitary confinement after arrested.

15. Mr. Agusave submitted this was not a worse case and I must suspend part of the minimum sentence imposed. I was referred to the State v Wasiura N3425 where the prisoner pleaded guilty to escaping from lawful custody while serving term for arm robbery. Prisoner was in a work parade and escaped and was at large for 3 years. He was sentenced to five years and two years was suspended.

16. I agree that this is not a worst case but it is a very serious case because another crime is committed by a person whom the law wanted to remain behind bars until lawfully released, the very situation that the Parliament wanted to arrest by this very law and reason for retaining minimum penalty for this offence.

17. In my view, when a prisoner escapes from custody and while he is at large, commits another crime, that is a serious aggravating factor, but if he commits another similar offence that originally landed him in prison when he escaped and he was discovered to be an escapee on the run serving time for similar offence, that is even worse. No amount of mitigation can dilute the gravity of his wrong-doing. The prisoner is on the way to becoming a serial sex offender. I am not, when considering this, already punishing the prisoner for the new offence that he is yet to be tried, but I am entitled to take this into consideration in sentencing him for escaping because this is what the law is trying to address under the minimum penalty provision.

18. In all the circumstance, I sentence the prisoner to the minimum penalty of five years imprisonment and I find no exceptional circumstances that would justify me to exercise my discretion in suspending any part of the minimum sentence. This sentence is to be served consecutively to the term of sexual touching that is remaining to be served.

_______________________________________

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