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State v Bonny [2020] PGNC 466; N8720 (21 September 2020)

N8720

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 44 OF 2017

THE STATE

V

PETER BONNY

Lae: Dowa AJ
2020: 21^st September

CRIMINAL LAW – sentence – prisoner pleaded guilty to escaping from lawful custody – prisoner was serving sentence for previous offence when he escaped – prisoners mitigating factors out-weight the aggravating factors – prisoner sentenced to 4 years in hard labour – prison term to be served concurrently with the term imposed for previous offence

Cases Cited:

State vs Yawok N1766" title="View LawCiteRecord" class="autolink_findcases">(1998) PNGLR N1766
State v Nemo (2010) N4098 and
State v Hezaka (2015) N6032
State v Apau (2007) N5497
Gima Arnold vs The State (2003) SC 730

Counsel:

S Joseph, for the State
J Huekwahin, for the Defendant

SENTENCE

21^st September, 2020

1. DOWA AJ: This is a decision on sentence. The accused is charged under Section 139(1) of the Criminal Code for escape. He pleaded guilty to the charge. On 17^th September 2020, I heard submissions on sentence and reserved my ruling on sentence which I deliver now.

Facts

2. The State alleges, the accused was convicted in September 2006 for sexual penetration and was serving a two (2) years, seven months sentence when he escaped. The accused escaped on 5^th February 2007.
   
3. The accused, while a prisoner, was brought to Angau Memorial Hospital for treatment. Whilst in the hospital, he escaped.
   
4. The prisoner remained at large, until 13^th January 2020, when he was recaptured, and charged.
   
5. On 2^nd September 2020 he was indicted and he pleaded guilty to the charge.
   

Law

Section 139 – Escape by Prisoner

(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.

Issue

6. What is the appropriate sentence to be imposed on the prisoner?
   

Submission

7. Mr Huekwahin of counsel for the prisoner, after listing all mitigating factors, submitted that this is not the worst case of escape. He submits that the appropriate sentence is four (4) years. Counsel did not elaborate, how and why the Court should consider a four (4) year term.
   
8. In response, Ms Joseph of Counsel for the State submits that the crime of escape is becoming prevalent in the country. Based on a number of positive considerations constituting mitigating factors, the head sentence of five (5) years should remain the starting point. She submitted that five (5) years be served cumulatively.
   

Reasons for Decision

9. Counsel have been helpful in their submissions. The accused is charged with a sentence that carries the penalty of minimum term of five (5) years imprisonment.
   
10. The State has referred to a number of comparable cases in State v Yawok N1766" title="View LawCiteRecord" class="autolink_findcases">(1998) PNGLR N1766, State v Nemo (2010) N4098 and State v Hezaka (2015) N6032.
    
11. In State v Yawok, the prisoner escaped from custody, because he felt weak and intimidated by other inmates. The prisoner pleaded guilty. He was sentenced to five years. The entire sentence was suspended, and he was placed on good behaviour bond for 4 years.
    
12. In State v Nemo, the prisoner whilst serving 20 years jail term escaped from custody. He was given five (5) years imprisonment. Four years was suspended with conditions, and 1 year was to be served cumulatively with the earlier sentence for rape.
    
13. In State v Hezaka, the prisoner whilst serving a term of nine (9) years, for unlawful wounding, escaped while recovering treatment at the Goroka Base hospital. The prisoner was sentenced to five (5) years to be served cumulatively.
    

Head Sentence

14. Counsel for State has helpfully referred to the case of State v Apau (2007) N5497 which sets out the considerations that apply when deciding on the head sentence. I adopt and restate those considerations with the relevant answers:

The State submits and urged this Honourable Court to consider the considerations

(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 provided a good reason to escape? No.
(6) Was there something happening outside eg with his family that gave him good reason to escape? Yes.
(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 13 years.
(9) Did the offender cooperate with the police in their investigations? Yes.
(10) Has the offender done anything tangible towards repairing his wrong, eg, personally or publicly apologising for what he did? Yes
(11) Has the offender pleaded guilty? Yes
(12) Has the offender genuinely expressed remorse? Yes.
(13) Is this his first offence? No.
(14) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No
(15) Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence? No. He was convicted on one count of Sexual Touching and sentenced to 4 years imprisonment in hard labour. He was serving 2 years 7 months and 3 days when he escaped.

15. I agree with both counsels that the mitigating factors are more than the aggravating factors. This is not the worst type of escape. I have fixed the sentence to remain at five (5) years, as the starting point.
    
16. Should the sentence or part of it be suspended. The law is settled. The Court has a discretion to suspend sentence on proper principles. The Supreme Court in Gima Arnold v The State (2003) SC 730 held that:

1. “Escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment.

Affirmed The State v. James Tei Wana & Gend Yanisa Thomas (N2304) and The State v. Irox Winston (N2347).

2. 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 as 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.

Affirmed and followed SCR 1 of 1994: Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996; James Takus v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97 and Joseph Balalau v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97.

3. Relevant factors for consideration before arriving at a sentence without limiting the list include:
   

(a) receipt of information by the escapee of a retaliatory killing of a close relative supported by prison officers;

(b) any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;

(c) whether the escape is en mass;

(d) whether any weapons are used;

(e) where weapons are used whether any personal or property damage or injury has been occasioned;

(f) the expenses to which the State has been put through, to recapture the escapee;

(g) when and how the recapture occurred; and

(h) 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).

4. 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 the 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 can not be suspended or reduced.

Affirmed and followed The State v. Irox Winston (N2347) and The Acting Public Prosecutor v. Don Hale (SC564).

5. Given difference of opinions, the case calls for a proper consideration of the construction of s.139 of the Criminal Code and s.22 of the Summary Offences Act Chp. 264 (SOA).
   
6. A proper construction of s.139 of the Code and s. 22 of the SOA reveals that:
   
   • (a) the term "prisoner" means to include a captive, hostage, detainee, criminal, inmate, jailbird and a convict and such a person is one who is deprived of his liberty or one who is kept against his will in confinement or custody in a prison, penitentiary, jail, or other correctional institution, as a result of conviction of a crime or awaiting trial;

(b) the phrase "lawful custody means any custody authorised by law;

(c) Parliament did not make any mistake in enacting the two provisions for the same offence of escaping from lawful custody. There is a good policy reason behind what Parliament has done;

(d) Parliament intended that escapes from lawful custody in connection with a summary offence should be dealt with under s. 22 of the SOA whilst escapes from a lawful custody in connection with an indictable offence should be dealt with under s.139 of the Code;

(e) The police and or the prosecution has no choice but to be guided by the legislative policy and prosecute offenders under the respective provisions depending on the reason for their imprisonment to avoid arguments of disparity, unfairness and the like.

7. In relation to the appeal against sentence, it is settled law that the Supreme Court can not interfere with the National Court’s decision unless a clear case of the trial judge falling into an identifiable error is demonstrate. The appellants failed to demonstrate such a case and in any event, the effective sentence of 2 years is not excessive and within range. Accordingly, the appeal was dismissed and the sentence of the National Court was affirmed.”
   
17. In the present case, the accused is 52 years, nearing retiring age. He is a father of young children. He pleaded guilty. He has shown remorse. I am prepared to suspend part of his sentence. I will suspend only one (1) year from the head sentence. He will serve a term of imprisonment for four (4) years.
    
18. The prisoner is currently serving sentence of 2 years 7 months for a previous conviction.
    
19. The next issue is whether the prisoner should serve his sentence concurrently with the term he is currently serving or cumulatively.
    
20. I am of the view, the prisoner should serve his sentence concurrently with the current sentence.
    

Orders

21. The prisoner is sentenced to imprisonment for four (4) years to be served concurrently.

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant