N7471

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 760 of 2017

THE STATE

V

NEMAS HANGU

Lae:  Kaumi AJ
2018: 24th May
2nd, 3rd, 6th June,
24th July

CRIMINAL LAW – Criminal Code Act 1974, Part III-Offences Against the Administration of Law and Justice and Against Public Authority, Division 6-Escapes: Rescues: Obstruction Officers of Courts-Section 139 subsection (1)-Plea of Guilt-Offender escaped from lawful custody-Mitigating and Aggravating Factors – Expression of Remorse–Prevalent Offence.

CRIMINAL LAW-Sentence-Guilty Plea-Escape unnoticed from prison piggery by prisoner serving 7 years 3 months sentence for Armed Robbery-Prescribed minimum penalty-Term of 5 years imprisonment-Breach of trust-Serving time for serious offences

CRIMINAL LAW- Sentence-Escaping from lawful custody is an affront to the judicial system and law enforcement and must be met with an equally stern punishment-Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered. 

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Not worst type of offence-Mild aggravating factors-Strong mitigating factors plea and reason for escape considered-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

Facts

The offender pleaded guilty to escaping from a lawful custody where he was serving a 7 years 3 months sentence for Armed Robbery. He was at large for a long time before surrendering.

Held:

[1] The minimum sentence for the offence of escaping from lawful custody is five years imprisonment.
[2] A cumulative five year term of imprisonment was imposed. Part of the sentence was suspended conditionally.

Cases Cited:

The State v Jack Moge [1995] PNGLR 246
SCR1 of 1994 Re Aruve Waiba (Unreported and unnumbered Supreme Court judgment delivered on the 04/04/96).
Joseph Balalau v The State (Unreported and unnumbered Supreme Court judgment delivered on the 29/11/97.
James Takus v The State (Unreported and unnumbered Supreme Court judgment delivered on the (29/11/97).
The State v Inema Yawok (1998) N1766 Kirriwom. J
The Acting Public Prosecutor v Don Hale (1998) SC564
The State v Thomas Waim, Tala Gena and Alois Wanpis [1998] PNGLR 360 
The State v James Tei Wena and Gend Yanisa Thomas (2000) N2304 
Gima v Independent State of Papua New Guinea [2003] PGSC3, SC730 
The State v Irox Winston [2003] N2347
Tom Longman Yaul v The State (2005) SC803
The State v Paul Pei Peni CR No. 1332/2004
The State v Kito Ase CR No. 774/2005
The State v Stanis Gala CR No. 788/2005
Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006
The State v Herman Kapuvi CR No. 689/2006
The State v Raka Benson (2006) CR 447, 445
The State v Allan Apau CR No. 994/2007 Cannings. J
The State v Koroiwe (2010) N4154
State v Apau (2007) N5497
The State v Raymond Kokora (2013) N5283 
The State v Simon Jerry (2018) N7127 

Legislation Cited: 

Constitution of Papua New Guinea 
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel

Ms Comfort Langtry, for the State
Mr. Isaac Tjipet, for the offender

SENTENCE 
21st September, 2018

1.	KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 24th May 2018 was found guilty of one count of escaping from lawful custody contrary to Section 139 (1) of the Criminal Code Act Chapter 262.

ISSUE

2.	The relevant issue is what the appropriate sentence is.

AGREED BRIEF FACTS

3.	The brief facts giving rise to the charge are as follows.

4.	The State alleges that the accused was convicted of armed robbery by the Lae National Court and sentenced to 8 years imprisonment on 24th of March 2010. While serving the custodial term of imprisonment of 7 years and 3 months he was trusted by the Buimo Correctional Institution officers so he was assigned to look after pigs at the Buimo CIS Piggery.

5.	The State alleges that between 4:00am and 5:00am on the 7th of October 2012, the accused escaped from Buimo Correctional Institution. He was discovered missing when roll call was taken in the afternoon. He eventually surrendered and was arrested on 26th February 2017.

6.	The State alleges that when the accused, being a prisoner in lawful custody, escaped from such custody he contravened section 139 (1) of the Criminal Code Act.

ANTECEDENT

7.	The Antecedent Report provided to the Court by the State on paragraph 10 states that he has one prior conviction for Armed Robbery and was sentenced to a total of 7 years, 3 months by the Lae National Court. It was at the time of serving this sentence that he committed the offence.

ALLOCATUS

8.	When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him; the following is a paraphrased summary of his response:

“When the police arrested me for the trouble I committed and whilst in custody at Buimo, I recognized that I have done is wrong. Whilst serving my term there were two mass breakouts but I thought of remaining there and come to court and finish my jail term. I didn’t escape because I wanted to serve my full term and go out a free person. This is my first time to do this bad thing to my CIS officers. I say sorry to God, to the court. I say sorry to CIS Commander Judy Tara and people in court listening to my case. I swear in the eyes of the court that this will be my first and last to commit this kind of trouble. And I ask for the mercy of the court to consider me for concurrent sentence to the sentence the National Court gave me so that I can complete it. When I complete my term of imprisonment I will look after my mother and father and children, Thank you and God bless”.  

OTHER MATTERS OF FACT

9.	The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating  matters raised in the committal depositions, the allocatus in submission  that are not contested by the prosecution (Saperus Yalibakut v. The State (2008) SC890). In his allocatus the prisoner stated that he escaped from the prison after being informed of his wife’s infidelity and I accept this reason as it was not challenged by the prosecution.

SUBMISSION BY DEFENCE COUNSEL

10.	The counsel for the offender, Mr Tsipet highlighted matters that went to his mitigation as well as the aggravating factors in the case.

11.	He submitted that despite the offence attracting a minimum penalty of 5 years the court still had considerable discretion in suspending whole or part of the head sentence and referred it to the cases of (SCR No 1 of 1994; The State v Aruve Waiba, Supreme Court, 04.04.96, unreported, Los J, Salika J; Edmund Gima and Siune Arnorld v The State (2003) SC 760, Supreme Court, Kirriwom J, Kandakasi J, Batari J.) and The State v Apau [2007] PGNC 254; N5497 (Cannings J)

12.	With respect to the sentence to be imposed he submitted that the mitigating factors far outweighed any aggravating factors hence from the minimum of five years, the period in remand is to be deducted, and the balance to be wholly suspended on terms. 

SUBMISSION BY THE STATE

13.	At the outset of her submission Ms. Langtry for the State submitted that the minimum sentence is five years and that on this basis a Court does not have any discretion but to start with a minimum sentence of 5 years: The State v Jack Moge [1995] PNGLR 246. However that it could impose a sentence lower than 5 years imprisonment as the particular circumstances of the case may dictate i.e. it is still within the discretion of the Court to start with the minimum prescribed sentence of 5 years and then move up wards or down wards: Re Aruve Waiba SCR 1 of 1994.

14.	She highlighted that the aggravating factors in the case. 

15.	She referred the court to sentences imposed by the court involving equivalent offences State v Winston [2003] PNGLR 5 Kandakasi J and State v Koroiwe N4154 (12 November 2010) Cannings. J. 

16.	Ms. Langtry for the State highlighted that the circumstances of the offence warranted a custodial term of imprisonment between the ranges of 4 years to 6 years. 

17.	On the question of whether the sentence should be cumulative or concurrent she submitted that since the offender’s two convictions related to two different charges the sentences should be cumulative and with respect to suspension of sentence she submitted that there should be only partial suspension as a wholly suspended sentence would not adequately reflect the gravity of the offence.

RELEVANT CASE LAW 

18.	The Supreme Court in Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC 730 (3 October 2003) stated that:

(a) 	Escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment and affirmed The State v. James Tei Wanna & Gend Yanisa Thomas (N2304) and The State v. Irox Winston (N2347).
(b) 	This does not mean that the prescribed minimum sentence of 5 years should be automatically imposed and or suspended either wholly or part of it without more. Instead the Court still has a discretion and a duty to impose a sentence that is either lower or above the minimum sentence depending on the particular circumstances of each case and on proper principles after starting with the prescribed minimum and affirmed and followed SCR 1 of 1994: Re Aruve Waiba (unreported and unnumbered Supreme Court judgement delivered 1996; James Takus v. The State (unreported and unnumbered Supreme Court judgement delivered on the 29/11/97 and Joseph Balalau v. The State (unreported and unnumbered Supreme Court judgement delivered on 29/11/97.
(c) 	Relevant factors for consideration before arriving at the sentence without limiting the list include:
i.	         receipt of information by the escapee of a retaliatory killing  of a close relative supported by prison officers;
ii.	        any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;
iii.	        whether escape is en mass;
iv.	        whether any weapons were used;
v.	         where weapons are used whether any personal or property damage or injury has been occasioned;
vi.	         the expenses to which the State has been put to, to recapture the escapee,
vii.	        how and when the recaptured occurred; and 
viii.	        whether there is a guilty plea but this has to be contrasted against the chances of a successful denial. Followed The State v. Inema Yawok (N1766); The State v. Irox Winston (N2347); and The State v. Thomas Waim, Tala Gena and Alois Wanpis (N1750)
(d) 	The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by a pre-sentence report either from the community or where that is difficult to obtain, it must come from prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it cannot be reduced. Affirmed and followed The State v. Irox Winston (supra) and The Acting Public Prosecutor v. Don Hale (SC564).

DECISION MAKING PROCESS

19.	In arriving at a penalty that befits the offence for which the prisoner has pleaded guilty to, I apply the following parts of the process:
(a) 	Step 1: what is the maximum penalty?
(b) 	Step 2: what is a proper starting point?
(c) 	Step 3: what sentence have been imposed for equivalent offences?
(d) 	Step 4: what is the head sentence?
(e) 	Step 5: should the pre-sentence period in custody be deducted?
(f) 	Step 6: should all or part of the sentence be suspended?
STEP 1: WHAT IS THE MAXIMUM PENALTY?

20.	 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 more than 5 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.

STEP 2: WHAT IS THE STARTING POINT?

21.	The proper starting point is five years.

STEP 3: WHAT SENTENCE HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

22.	I will now consider the sentencing trends in recent history.

NATIONAL COURT SENTENCES FOR ESCAPE, 2002-2013

23.	In Gima v Indepenedent State of Papua New Guinea SC730 (3 October 2003) the Supreme Court confirmed National Court sentence. The date of the sentence was on the 22nd March 2002 and the head sentence was 5 years. A period of 3 years was suspended and time to be spent in custody was 2 years.

24.	In State v Winston [2003] PNGLR 5 the offender was serving 18 years for armed robbery and escaped while working on a new building site and was sentenced to 5 years imprisonment to be served cumulatively to his 18 years. No period was suspended.

25.	In The State v Paul Pei Peni CR No 1332/2004, the offender pleaded guilty to escaping from the Lakiemata prison on 20th August 2004. The date of sentence was on the 19th April 2005 which the head sentence was 5 years. A period of 4 years was suspended and the time to be served was 1 year.

26.	In The State v Stanis Gala CR No 788/2005, the offender pleaded guilty to escaping from the Lakiemata prison on 20th August 2004. The date of sentence was on the 21st July 2005 to which the head sentence was 5 years. There was a period of 4 years suspended and the time to be served was 1 year.

27.	In The State v Kito Aso CR No 774/2005, the offender pleaded guilty to escaping from the Lakiemata prison on 20th August 2004 and was sentenced on the 21st July 2005. The head sentence was 5 years. A period of 3 years, 5 months was suspended which left a time in custody of 1 year, 7 months to be served by the prisoner.

28.	In The State v Herman Kapuri CR No 689/2006, the offender pleaded guilty to escaping from Kimbe Police lockup on 29th October 2003 and was sentenced on the 13th July 2007 with a head sentence of 5 years. No period was suspended and the time to be served was 5 years.

29.	In The State v Koroiwe (2010) N4154, the offender pleaded guilty to escaping from lawful custody and was sentenced on the 12th November, 2010 with a head sentence of 5 years. A period of 4 years, 6 months was suspended which left 6 months to be served. 

30.	In The State v Raymond Kokora (2013) N5283 the offender pleaded guilty to escaping from lawful custody and was sentenced on the 17th May 2013 with a head sentence of 5 years. A period of 3 years was suspended and 2 years was to be served.

31.	I note from the cases above that the head sentence is five years and suspension of these periods have been 2 to 4 years depending on the peculiar circumstances of the matter. I also note that where the circumstances dictate the head sentence of five years has not been suspended.

STEP 4: WHAT IS THE HEAD SENTENCE?

32.	In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.

33.	Both mitigation and aggravating factors may be mild or strong and weighed accordingly. The State v Raka Benson (2006) CR 447 and 445.

MITIGATING FACTORS

34.	The escape was non-violent and the offender did not put anyone in real danger of  being injured or killed during the escape, he did not damage any property of great value, he heard that his wife was having extra marital affairs and that forced him to escape, he surrendered to community leaders relating to a separate incident in the community, he pleaded guilty to the charge, he co-operated with police during investigations, the offender has shown remorse and that the offence of escape was his first after being charged and convicted for armed robbery.

AGGRAVATING FACTORS

35.	There are three aggravating factors of this matter, firstly, that the offender was serving a sentence for a prior offence. He was not a person simply held in custody awaiting a formal charge or a person awaiting his time in court and secondly, the offender was a trusted prisoner at the time he escaped. He breached the trust that the Correctional Officers had in him. In a prison there are positions of privilege that are given to prisoners who are categorized by prison officers as low risk and have earned their trust so that they are allowed more movement in and out of the prison before and after lock up times such as those on a work parties who leave prison premises during the day to work on community projects out in the community, prison cooks and those taking care of piggeries. In these instances instead of being locked up with the rest of the prison population at regulated times, these trusted prisoners are actually allowed the privilege to come out and to return after prisoners are locked.  For prisoners looking after piggeries they can sleep at the piggeries and not in the cell blocks with minimum supervision and in this matter the offender was allowed that privilege and he breached the trust placed in him by the prison officers. I consider this to be a substantial aggravating factor. Thirdly, the prisoner was at large for over five years which is a long period of time.

36.	In this matter although I note that there are eight mitigating factors and three aggravating factors I note that the offender was a trusted  prisoner and was at large for a long period of time and for the reasons I have alluded to I consider it to be particular significance. 

37.	In this matter prisoner was charged with one count of unlawful escape to which he pleaded guilty.  The penalty for this offence is a minimum penalty of 5 years subject to section 19. The starting point is 5 years and a consideration of what a head sentence might be a court may go upwards or downwards from the starting point of 5 years.

38.	I considered twenty one sentences imposed by the courts for equivalent offences in the case of The State v Simon Jerry (2018) N7127, a decision I delivered on the 27 February 2018. In that matter I noted that the penalty for escaping from lawful custody was a minimum of 5 years and that it was from this point that the court must start from in terms of sentencing and from that case I adopt my discussion of the law with respect to the offence of escape from lawful custody for purposes of the instant case. 

39.	When I have considered all of these factors put together, a head sentence of 5 years is appropriate in this matter.  

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

40.	Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

41.	This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

42.	 The offender was serving a term of imprisonment when he escaped so I will not deduct anything for his pre-trial period.

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

43.	Any consideration as to whether all or part of a sentence should be suspended for the offence of escaping from lawful custody must start from the premise held in Gima v Independent State of Papua New Guinea (supra) that “escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment”.

44.	Of equal importance is also what Gima v Independent State of Papua New Guinea (supra) further held that “this does not mean that the prescribed minimum sentence of 5 years should be automatically imposed and or suspend either wholly or part of it without more. Instead the Court still has a discretion and a duty to impose a sentence that is either lower or above the minimum sentence depending on the particular circumstances of each case and on proper principles after starting with the prescribed minimum”.

45.	 I have referred to a number of cases dealt by the National Court and I note from them that the head sentence was always 5 years.  Suspensions of these periods have been between 2 to 4 years depending on the peculiar circumstances of the matter.  I have also noted from these cases that there were the circumstances detected the head sentence of 5 years was not suspended. I have considered the mitigating factors in this matter and consider them to be of some significance and note that they out weight those that are in his aggravation.  And this was a non-violent escape, nobody was at risk, he did not break out, he did not cut the bars of the cell with an axe saw and come out.  He simply he took his blanket off at the piggery where he was sleeping and walked away and I don’t think the blanket was damaged in any way. He pleaded guilty. A significant factor in his favour is the fact that he surrendered.  The police did not go and arrest him at Speed Way where his father lives.  He actually surrendered to the community leaders who brought him in for police, knowing very well that he was an escapee. 

46.	 I have considered the aforementioned factors and decided in the present case to suspend only a part of the sentence which in my view serves the purposes of personal and general deterrence. 

47.	The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by pre-sentence report either from the community or where that is difficult to obtain, it must come from prison or the institution from where the escape took place and the arresting officer. In the instant case there is a Pre- Sentence Report with a recommendation for suspension and this recommendation has been substantiated.

48.	I suspend four (4) years of the sentence subject to the following conditions:
(a) 	Upon being released the offender shall keep the peace and be of good behaviour for the period of the suspended portion of his sentence of 4 years.
(b) 	The offender shall reside at his residential address known as Block One, West Taraka, Lae, Morobe Province.
(c) 	The offender shall not leave Morobe Province without the written approval of the National Court.
(d) 	The Offender shall attend his local church for service every Sunday.  
(e) 	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. (see Tom Longman Yaul v The State (2005) SC 803)
SENTENCE
49.	The orders of the Court are as follows:
(a) 	Length of sentence imposed is 5 years cumulatively to the current sentence for Armed Robbery.
(b) 	Nil amount of time deducted for pre-sentence period.
(c) 	Period of sentence suspended is 4 years under section 19 of the Criminal Code Act.
(d) 	Period to be served is 1 year cumulatively to the 7 years and 3 months currently being served at Buimo Correctional Institution, Lae, Morobe Province, Papua New Guinea.

Sentence accordingly.

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