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State v Kondo [2017] PGNC 351; N7037 (14 December 2017)

N7037

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1130 OF 2017

THE STATE

V

KEVIN KONDO

Kimbe: Miviri AJ
2017 : 13^th December

CRIMINAL LAW – PRACTICE AND PROCEDURE – Escaping from lawful custody-plea-minimum penalty-first offender-at large almost 5 years-serious defiance- part suspension of sentence.

Facts
Accused was in custody at the Kimbe Police Station over allegation of murder. Others detained in there tampered with the lock to the cell and opened it. Together with all he escaped and was at large for 4 years 11 months when rearrested.

Held
Plea
First offender
At large for four years eleven months
Serious defiance of law
5 years IHL
1 year suspended
4 years IHL.

Cases:
Gima v. The Independent State of Papua New Guinea [2003] PGSC 3: SC730
Jack Kumul v. The State SCRA NO. 06 OF 2005
Public Prosecutor v Done Hale [1998] SC 564

State v Tiapu [2007] PGNC 274; N3182
State v. Thomas Waim, Tala Gena and Alois wanpis (1998) N1750
SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996)

Counsel:

A. Bray, for the State
D. Kari, for the Defendant

SENTENCE

14^th December, 2017

1. MIVIRI AJ: This is the sentence upon Kevin Kondo of Visikum, Wosera East Sepik Province; you escaped from the Kimbe Police Cells on the 25^th May 2012 whilst you were detained for an allegation of murder. The lock to the cell was tampered with by others also in the cells at that time and you all escaped. You were at large for 4 years 11 months and were rearrested on the 19^th May 2017.
   

Charge Escaping from lawful custody S139 CCA

2. The charge has been laid pursuant to section 139 that you were lawful in custody at the Kimbe police cells here when you escaped. The sentence prescribed is imprisonment of not less than five years.
   
3. You admitted to the charge upon arraignment and after reading the depositions that were tendered, I confirmed the guilty plea of escaping from lawful custody. Firstly you were a detainee or prisoner within that definition in Gima v. The Independent State of Papua New Guinea [2003] PGSC 3: SC730. And secondly your confinement or detention was in accordance with law: State v Tiapu [2007] PGNC 274; N3182. You were detained by the process of law. And you did not come out on the 25^th May 2012 by process of law in that you were discharged of the obligations in law there and then and therefore released out. You came out in defiance of the law and remained at large in continued defiance until the 19^th of May 2017 when the long arm of the law finally caught up with you and now you appear before me after pleading guilty for sentence.
   

Allocutus

4. In allocutus you asked for the suspension of your sentence and apologised to the court for the crime committed.
   

Mitigation

5. Counsel defending urged that a term of 2 years be imposed drawing analogy with the summary offences act of escaping, that the remainder be suspended as he had pleaded guilty. He had committed the offence because at that time in the cells there was no water and food, and it could not be contained any longer with the others and together they took the opportunity and escaped as they did. He was a married man with three children aged 5, 3 and 1 year old. He had no prior convictions known to the law and was in custody at that time over allegation that he had murdered his own brother. Which was the subject to be of a committal hearing, but did not proceed because of the escape?
   

Aggravation

6. Escaping from lawful custody is defiance of the rule of law, yes the reasons were genuine in that all escaped together because of basic human needs of food and water for survival. But he did not come back but remained at large over 4 years 11 months which was wrong and aggravated against. It is in your favour that you did not hurt any law officers in the course of that escape, or any properties of the State. By the same it cannot be taken that food and water continued to be scarce in the Kimbe Police Cells for four years eleven months the period you were at large.
   
7. I consider in all fairness to adopt the reasoning in State v. Thomas Waim, Tala Gena and Alois wanpis (1998) N1750 delivered 24^th July 1998 by Justice Injia ( as he then was), an effective sentence of 3 years after suspending 2 years from the head sentence of 5 years. In so doing his honour considered the following:
   

“"... although this was a mass breakout, this was an ordinary escape, in that the 3 accused and others simply climbed over the security fence and escaped. There is no evidence that these 3 accused were the main perpetrators. No weapon was used. No CIS staff member was threatened or injured. And no additional effort and expenses were involved in their re-capture as they were rounded off close to the CIS compound and recaptured the same day shortly after their escape. For these reasons, I consider that to impose the minimum sentence of 5 years per se would be manifestly excessive in the circumstances. Nevertheless, a strong punitive sentence is warranted because this offence is becoming far too prevalent in this country. Escapes from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment. I consider that an effective custodial sentence of 3 years for each accused is appropriate in this case. Accordingly, I sentence each accused to a minimum of 5 years imprisonment as required by law, of which I suspend 2 years in respect of each accused on the condition that when each accused comes out of jail after serving their respective terms, they will be of good behaviour for 12 months."

8. These considerations are fitting with SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996), which I determine as applicable to the facts and circumstances here. You were fortunate to have stayed within the law whilst you were out and that you did not resist rearrest and submitted yourself to the wrong and before me today. But it could not be accepted that the police cells continued to have water and food problems for four years eleven months and so your continued justification to be at large up to 19^th May 2017 when you were taken in and now before me. It is a prevalent offence that is always congesting in-fluxing the criminal list here in Kimbe and elsewhere in the country. Your murder committal is being added to by this escape.
   
9. You simply defied the law and continued to remain at large in defiance. This sentence will show you and others with similar inclinations that the law does not forget it has a long memory and long arms that can come after you even though years have lapsed. By this too you must know that the law is written on slabs of stone that were handed to Moses on the mountain and still remain up to now and beyond. You may cover it with dust and concealment in defiance but it is always there and will come to meet you and dish out its just dues with your name on it if you have not erased its memory by its process. Here that the charge for which you were in custody was not determined or discharged according to law and it remains now.
   

10. I accept your guilty plea. Whether remorse or contrition is shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused. Remorse and contrition expressed at the trial weighs very lightly. It is easier to believe remorse expressed earlier than remorse expressed at the time of the trial, especially in serious cases like this one: State v. Tumu Luna (2002) N2205. You will be accorded that benefit in the sentence passed even though the period at large is almost equal to the maximum prescribed sentence under that section.

11. Mathematically 5 years is the minimum sentence and you were out at large for 4 years 11 months a month and you would have been at large for almost the same period as the sentence prescribed. You therefore owe the law for that period which you must make up to even the balance. Work in law that could have been disposed off there and then is carried over because of escapes protracting or lengthening our criminal justice process. Time and money is wasted, you eat into the time taken to dispose off criminal cases that are on the list and in the line. Simply put, you were charged in custody for murder of your brother, if you had allowed that process its natural course in law you would not be before court now: Jack Kumul v. The State SCRA NO. 06 OF 2005. You have pleaded to have suspended sentence imposed upon you, which is entirely invoked upon the basis of your guilty plea which on its own is insufficient and disproportionate to weigh against your continued being at large and in defiance: Public Prosecutor v Don Hale (1998) SC 564.
12. I determine that the sentence reasonably proportionate given your facts and circumstances would be 5 years IHL and I so impose upon you for the crime of escaping from lawful custody. I order 1 year to be suspended from that head sentence on a Good behaviour bond with pledge of surety in the sum of K1000 should you breach the suspended sentence. You will not only serve the suspended sentence but will pay K1000 should you breach suspension of that sentence.

13. It is a prevalent offence and is not a light matter because adherence observation of the law is paramount for orderly and just society. I order any time on remand to be deducted forthwith from that sentence.

14. I sentence you to 5 years IHL. However, 1 year is suspended and you are placed on 1 year Good behaviour bond with pledge of surety in the sum of K1000. You are to serve the balance of (4) years IHL minus time spent in remand forthwith.

Ordered Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant