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State v Jerry [2018] PGNC 71; N7127 (27 February 2018)

N7127

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 530 of 2017

THE STATE

V

SIMON JERRY

Lae: Kaumi AJ

2018: 13, 22, 27 February

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 hospital by prisoner serving 18 years sentence for Murder and Grievous Bodily Harm-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).

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Facts

The offender pleaded guilty to escaping from a lawful custody where he was serving an 18 years sentence for Murder and Grievous Bodily Harm. He was at large for a long time before being recaptured.

Held:

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

[2] A five year term of imprisonment was imposed. Part of the sentence was suspended conditionally.

Cases Cited:

Joseph Balalau v The State (Unreported and unnumbered Supreme Court judgment delivered on the 29/11/97).

Saperus Yalibakut v The State (2006) SC890

State v Apau (2007) N5497

SCR1 of 1994 Re Aruve Waiba (Unreported and unnumbered Supreme Court judgment delivered on the 04/04/96).

The State v Inema Yawok (1998) N1766

The Acting Public Prosecutor v Don Hale (1998) SC564

The State v Thomas Waim, Tala Gena and Alois Wanpis[1998] PNGGLR 360

The State v Jason Dungioa (2000) N2038

The State v James Tei Wena and Gend Yanisa Thomas (2000) N2304

The Gima v Independent State of Papua New Guinea [2003] PGSC3, SC730 (3 October 2003)

The State v Irox Winston [2003] N2347

Tom Longman Yaul v The State (2005) SC 803

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

The State v Thomas Pinela [2005] N2920

The State v James Negol CR No. 871/2005

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 Eric Tene (2008) N3951

The State v Joseph Kagl Imbo (2008) N3954

The State v Nemo (2010) N4098

The State v Koroiwe (2010) N4154

The State v Rudy Haiveta (2012) N4677

The State v Roy Feleti CR No. 567/2012

The State v Rangi [2013] N5251

The State v Raymond Kokora (2013) N5283

The State v Hezaka [2015] N6032

Legislation Cited:

Constitution of Papua New Guinea

Criminal Code 1974

Criminal Justice (Sentencing) Act 1986
Counsel

Ms. Mercy Tamate, for the State
Ms. Katurowe, for the offender

SENTENCE

27^th February, 2018

1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 13^th February 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 in his case?
   

AGREED BRIEF FACTS

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

On the 15^th of November 2010, the accused/prisoner having being convicted of the offences of murder and grievous bodily harm, was sentenced by the National Court in Bulolo to 18 years imprisonment in hard labor.

About 4 months after he was sentenced, the accused/prisoner fell ill and was taken to Angau Memorial Hospital in Lae, Morobe province to receive medical treatment.

The State alleges that on the 03rd of March 2011, at about 1:30pm the accused/prisoner escaped from the hospital ward unnoticed. Since then he has remained at large until the 08^th of January 2017 when he was spotted and apprehended by members of the Bumbu Community and the Defence Force Military Police at Igam here in Lae.

4. State says that the accused actions contravened section 139(1) of the Criminal Code Act.
   
5. After having read the committal depositions and being satisfied that the evidence therein supported the elements of the charge and that his plea of guilt was in order I proceeded to confirm his plea and convicted him as charged.
   

ANTECEDENT

6. The Antecedent Report provided to the Court by the State on paragraph 9 states that he has two prior convictions for murder and grievous bodily harm and was sentenced to 18 years, 8 months and 25 days by the Bulolo National Court. It was at the time of serving this sentence that he committed the offence.
   

ALLOCATUS

7. 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:
   

“At the time when I escaped in 2010, there was an outbreak of cholera at the Buimo Prison, I was admitted for 3 months at Angau Hospital. There was no guardian to look after me, so when I felt okay I escaped. I stayed out for 7 years and surrendered to community leaders. For that I say sorry to God, the State and the Correctional Service and I am very sorry for what I did since what I did was wrong. So I ask the Court for leniency for a lighter sentence”.

OTHER MATTERS OF FACT

8. 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 hospital where he was receiving medical treatment after a cholera outbreak at Buimo Correctional Institution and I accept this reason.
   

SUBMISSION BY DEFENCE COUNSEL

9. Ms Katurowe highlighted the offender’s plea of guilty and further that by the time he is discharged, he would be about 80 years old. That applying the totality principal, she submitted that the sentence would be too crushing on the prisoner as he would be very old by the time of his discharge. She therefore submitted that his sentence should be reduced to 5 years.
   
10. The prisoner explained his reason for escaping from lawful custody.
    

SUBMISSION BY THE STATE

11. Ms Tamate stressed that the prisoner was not a first time offender and had been at large for seven years, until he was recaptured and this showed his disregard for the law and community and further that the prisoner had taken advantage of his right to be given medical treatment and escaped and this was a prevalent offence. She referred the court to the case of State v Apau (2007) PGNC 254 and submitted that the court should impose a 5 year sentence as a deterrent and if it was minded to suspend the sentence it should do so with conditions.
    

RELEVANT LAW AND SUPREME AND NATIONAL COURT AUTHORITIES.

12. I will now refer to the pertinent law and Supreme Court and National Court authorities which will assist me in arriving at a penalty that befits the crime.
    
13. The prisoner pleaded guilty to one count of escaping from lawful custody contrary to section 139 (1) of the Criminal Code Act.
14. The Supreme Court in Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC 730 stated that:
    

(i) 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).

ii) 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 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

iii) Relevant factors for consideration before arriving at the sentence without limiting the list include:

1. receipt of information by the escapee of a retaliatory killing of a close relative supported by prison officers;
2. any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;

100. whether escapee is en mass;

4. whether any weapons were used;
5. where weapons are used whether any personal or property damage or injury has been occasioned;
6. the expenses to which the State has been put to, to recapture the escapee,
7. how and when the recaptured occurred; and
8. 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)
   

iv) 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. 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

15. In arriving at a penalty that befits the offence for which the prisoner has pleaded guilty to I adopt and apply parts of the process His Honour Cannings. J adopted in State v Francis Wangi (2007) N5057 in determining the appropriate penalty at paragraph 8:
    

“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 sentence 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?

16. 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?

17. The proper starting point is five years.
    

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

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

NATIONAL COURT SENTENCES FOR ESCAPE, 2002-2013

19. 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 note also where the circumstances dictate the head sentence of five years has not been suspended.
    

STEP 4: WHAT IS THE HEAD SENTENCE?

20. 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.
    
21. His Honour Cannings. J in State v Francis Wangi (2007) N5057 at paragraph 14 set out a number of considerations in a series of questions, which I find encapsulating in a sense that it gives structure to the factors enunciated in Gima v The Independent State of Papua New Guinea (supra) and which I adopt:
    

[1] Did the offender not use violence in the escape, actual or threatened? Yes.

[2] Did the offender not put anybody in real danger of being injured or killed? Yes.
[3] Did he escape by himself? Yes.

[4] Did the offender not cause damage to property of great value? Yes.

[5] Was there something happening inside the jail that provoked a good reason to escape? Yes, there had been an outbreak of cholera.

[6] Was there something happening outside, eg. with his family that gave him good reason to escape? No

[7] Did the offender give himself up after the escape? No

[8] Was he at large for only a short time? No. The offender was at large for almost seven years.

[9] Did the offender cooperate with the police in their investigations? Neutral

[10] Has the offender done anything tangible towards repairing his wrong, eg, personally or publicly apologise for what he did? No.

[11] Has the offender pleaded guilty? Yes.

[12] Has the offender genuinely expressed remorse? Yes.

[13] Is this his first offence? No, he has two prior convictions.

[14] Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Yes, he is not a youthful offender but an elderly one.

[15] Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence? No, he walked away unnoticed from the hospital where he had received medical treatment.

RATIONALE

22. The rationale behind the above considerations is that, an affirmative (yes) answer equals a mitigation factor whilst a negative (no) answer equals an aggravating factor.
    
23. The higher number of mitigating factors the likely reduction of the head sentence whilst the higher the number of aggravating factors the likely lifting of the head sentence above the starting point.
    
24. Both mitigation and aggravating factors may be mild or strong and weighed accordingly: The State v Raka Benson (2006) N4481.
    
25. There are seven aggravating factors and seven mitigating factors and one neutral factor.
    
26. The circumstances of this matter dictate to me that there should be no lifting of the head sentence above the starting point of five years so the head sentence will therefore be five years imprisonment.
    

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

27. 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.

28. 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.
    
29. 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?

30. 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”.
    
31. 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”.

32. Both the Supreme and National Courts have stated that not only is sentencing a community responsibility but that it is incumbent upon the sentencing Courts in the discharge of this duty when exercising this people’s power to reflect their attitude towards a particular offence and impose a sentence that is correspondent to it: Acting Public Prosecutor v Don Hale (1998) SC564, The State v Irox Winston (2003) PNGLR 5, State v Jason Dongoia (2000) N2038, Edmund Gima v The State & Siune Arnold v The State (2003) SC730.
    
33. Kandakasi .J in State v Jason Dungoia (2000) N2038 stated that:
    

“The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her.”

34. Toliken. AJ (as he then was) in The State v Raymond Kokora (2013) N5283 at paragraph 32 stated:
    

“As we have seen, escaping from lawful custody is a wilful and deliberate disrespect or upfront to the judicial system and law enforcement. Naturally then, the object for such a sentence must firstly be to punish the offender with a view to denouncing this unlawful conduct, and secondly to deter him and others who might be similarly inclined. That this is the case is clearly reflected by Parliament’s prescription of the minimum penalty of 5 years imprisonment for the offence”.

35. I note with alarm the prevalence of prisoners and inmates escaping from lawful custody. This occurrence has become the norm rather than the exception nationwide.
    
36. I note with greater trepidation the increase of incidences of prisoners making use of and abusing loopholes and the laxity of our laws to enjoy life outside of prison under the pretext of receiving medical treatment from hospitals or furthering their education.
    
37. The offender in this matter was allowed to receive medical treatment at the Angau Hospital after an outbreak of cholera at the Buimo prison and he breached the trust and good-will accorded to him when he felt strong enough to escape unnoticed.
    
38. I agree with the State Prosecutor that he took advantage of his right to be given medical treatment and escaped and was at large for close to 7 years and this aggravates his case.
    
39. And further I note that he was recaptured by Igam Barracks military police and some people at Igam and did not surrender a further factor of aggravation.
    
40. However despite these aggravating factors, I have found them to be of a mild nature and the offender’s offence not in the worst category of cases. The offender told that the Court that there had been a cholera outbreak at Buimo and was hospitalized for 3 months until he had recovered. I also note that the offender used no weapons nor was any personal or property damage or injury occasioned when he escaped. These are significant mitigating factors.
    
41. I have considered the aforementioned factors and decided in the present case to suspend only a part of the sentence as if I was to accede to the submission by the offender’s counsel to suspend all of the sentence that would not in my view serve the purposes of personal and general deterrence and would be a disservice to society.
    
42. I suspend four (4) years of the sentence subject to the following conditions:

[i] Upon release the offender will keep the peace and be of good behaviour for the period of the suspended portion of his sentence (4 years);

[ii] The offender shall reside at his block at Igam, Morobe Province;

[iii] The offender shall not leave Morobe Province without the written approval of the National Court;

[iv] The offender shall attend his local church for service every Sunday;

[v] 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

43. The orders of the Court are as follows:
    

44. Sentence accordingly.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender