N9510

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1140 OF 2021

BETWEEN:
THE STATE

AND:
THOMAS INARO

Waigani: Ganaii, AJ
2022: 17th, 24th March

CRIMINAL LAW – SENTENCE – Escape from Lawful Custody – Section 139 (1) of the Criminal Code – Guilty Plea – Non-violent offence – Minimum Head Sentence of 5 years Imprisonment – Aggravation and Mitigations – Discount for Guilty Plea – Effect of Crime on Law Enforcement Agency and Society - Prisoner to serve balance of 1 year  

Cases Cited:
Papua New Guinean Cases
Aieni v Tahain [1978] PNGLR 37 
Gima v The State [2003] PGSC 3; SC730 
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v Tardrew [1986] PNGLR 91
Saperus Yalibakut v The State SCRA No 52 of 2005, (27.04.06)
State v Apau [2007] PGNC 254; N5497 (18 October 2007)
State v Aruve Waiba, SCR No 1 of 1994 unreported, Los J, Salika J, (04.04.96)
State v Bernard [2008] PGNC 280; N5461 
State v John Fasi Cr. No. 230 & 1130 of 2020, N9324
State v Kondo [2017] PGNC 351; N7037 
State v Simon Jerry, CR 530 of 2017, N7127

Overseas Cases
Veen v The Queen (No 2) (1988) 164 CLR 465  

Legislation
The Criminal Code Act, Chapter 262 of 1974; Section 139; 19. 

Counsel
Mr. Gubon, for the State
Ms. C.  Koek, for the Defendant

DECISION ON SENTENCE 

24th March, 2022

1.      GANAII, AJ: This is a decision on sentence for a guilty plea to a charge of Escape from Lawful Custody, contrary to section 139 of the Criminal Code. 

Facts

2. 	On the 16th of September 2019, as the country celebrated its 44 years of political independence, the offender walked to his freedom from the custody of the CIS prison guards, by walking out the main prison, from Gate No 24, un-noticed by Correctional Service duty officers. Akin to how PNG got its independence, there were no blood, no sweat and no tears. However, due to its unlawfulness, the freedom was short lived. The offender Thomas Inaro escaped whilst awaiting trial for the offence of armed robbery. He was recaptured nine months later, for other allegations of having committed serious offences whilst on the run. 

3.	Thomas Inaro’s ‘walk to freedom’ may not be as popular for good reasons like Nelson Mandela’s ‘Long Walk to Freedom’, but it would have raised eyebrows and would have made it as a famous prison tale within the Bomana CIS and prison camp community. Interestingly, the escape was enabled by the heavy flow of human traffic during the Independence Day celebrations within the CIS and prison community. This event was attended to by both on and off duty CIS officers and their family members; some members of the public, visitors and inmates including the offender and others who had also escaped that day. The offender mingled through the crowd and unlawfully walked free. The offender’s escape was discovered much later in the evening during roll call.

4.	This court convicted the prisoner after he pleaded guilty to the charge. In the task of appropriating a suitable penalty, the court takes into account these relevant considerations: the statement of facts the offender pleaded guilty to; other facts in the depositions favourable to the offender, his antecedent report, what the offender said in allocatus, the submissions of parties inclusive of the aggravating and mitigating factors; the law, comparable case precedents and general sentencing trend. 

Personal Particulars and Antecedent of the Offender

5.	The offender is 29 years old and hails from Gora Village, Afore, in the Oro Province. He is married with one child, a daughter who is four years old. His mother is alive and his father is deceased. He attends the Revival Church and was residing at ATS, NCD at the time of his arrest. According to his Detainee Records, he was educated up to Grade 8 and was once employed at Laga Industries. 

Pre-Trial Custody Period

6.	The offender was arrested and incarcerated on the 23rd of June 2020.  He had been in pre-trial custody for this offence for a period of one year and nine months. 
7. 	As the offender has pleaded guilty, he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State, SCRA No 52 of 2005, 27.04.06). He cooperated with the police and made admissions in his police interview (ROI).

Allocutus

8.	The offender was given an opportunity to say what matters the court should take into account when considering and imposing a punishment. (Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37 (24 February 1978). He said the following:
“I say sorry to the Court, the State lawyer, my counsel and the CIS officers. It is my first offence in the National Court. I ask this court for leniency. Thank you”
Defence Submission

9.	Ms. Koek, of learned counsel for the offender submitted that the court will take into account all the following mitigating factors present: the offender admitted to the offence in in ROI; he pleaded guilty, he has asked for leniency, and is a first-time offender. A special mitigating factor is that he has a young child who needs him. The aggravating factors are that the offender had serious pending charges and was in lawful custody. He was at large for one year and nine months. He was arrested for other serious offences. She also informed this court that his first charge of armed robbery has been struck out by the committal court. 

10.	Ms. Koek further submitted that the circumstances of the escape are not serious. The offender did not break out of prison. There was no damage done to State property or any other property and no one was threatened, hurt or injured.

11. 	Defence relied on the case of State v Kondo [2017] PGNC 351; N7037 (14 December 2017); and State v John Fasi, Cr. No. 230 & 1130 of 2020, N9324, Goroka: Gora J, 2021: 14th July); and submitted for a reduction of the head sentence and full suspension thereof. In Kodo’s (supra) case, the co-offenders of the offender tampered with the door lock at the police station allowing all to escape. One year was suspended, and the offender was sentenced to four years in hard labour.  In Fasi’s (supra) case, the offender was left unattended to at the Police Station and he walked off. His sentence of five years was wholly suspended and he was placed on probation. 
 States Submission

12.	State conceded with the Defence on the mitigating factors. On the aggravating factors, State submitted that the offender is a threat to the community. The offender did not voluntarily surrender to authorities until his recapture. His pending charges are serious involving allegations of armed robbery and willful murder. 

13.	State also submitted that in imposing the minimum sentence of five years, the court does not have the discretion to exercise the power to reduce the head sentence and or to consider a suspension thereof. 

Application 

14. 	In law, no maximum penalty is prescribed for this offence. The minimum penalty is five years imprisonment. The court still has a considerable discretion whether to require a convicted escapee to serve the whole of the head sentence in custody. Some or all the sentences can be suspended. (SCR No 1 of 1994; The State v Aruve Waiba, Supreme Court, 04.04.96, unreported, Los J, Salika J; Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J.)

The purpose for sentencing

15.	The purpose for sentencing is to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and to the community. (Veen v The Queen (No 2) (1988) 164 CLR 465). 
Circumstances and Effect of the Commission of the Crime
 
16.	The offender abused a privilege that was given to him and other inmates. His behaviour shows disregard for the rule of law and it is an affront to the criminal justice system. Although, there were no damages done to state or personal property and no harm or injury was caused to anyone, the commission of this offence would have costed the state law enforcement agencies time and resources to execute a bench warrant against the offender. 

17.	From the Notification of Escape, and as stated by CIS officers, the offender escaped along with nine other inmates who were considered high risk. Their presence outside of prison and whilst on the run would have been a cause of concern for members of the society who would have learnt about the escape.  The stress and fear in the lives of the citizens is a direct effect of the commission of this offence. 

Sentencing Trend

18. 	In the case of State v Apau [2007] PGNC 254; N5497 (18 October 2007), in imposing the minimum sentence of five years, on a guilty plea, where the offender was at large for 20 months, the Court suspended four years, considering among others that it was a non-violent escape and the offender was badly assaulted upon being recaptured. He had escaped from Beon jail during a work parade. The prisoner served one year. 
19.	In the case of State v Bernard [2008] PGNC 280; N5461 (24 April 2008), in imposing the minimum sentence of five years, on a guilty plea, the court suspended four years. The offender served one year. He was a serving prisoner for offences of grievous bodily harm. He absconded from a work detail. It was a non-violent escape. He was at large for 20 months, then voluntarily surrendered. 
20.	In State v Simon Jerry, CR 530 of 2017, N7127 (2018: February 27th) the court held that the minimum sentence for the offence of escaping from lawful custody is five years imprisonment. Mitigating factors are non-violent escape; no risk of injury; sole escapee; no property damage; co-operated with police; guilty plea; remorse; breach of constitutional rights. Aggravating factors are nothing happening inside jail; nothing happening outside jail; did not surrender; at large for a long time; no apology; not a first-time offender. A sentence of five years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended. The offender took advantage of his right to be given medical treatment and escaped. He was at large for close to seven years and this aggravated his case. He served one year in prison. 

21. 	The courts have considered that 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 The State [2003] PGSC 3; SC730 (3 October 2003), 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". The effect of such a crime is that it shows disrespect and disregard for judicial systems and the government’s law enforcement agencies.

Summary on the comparable cases

22.	In consideration of the cases above cited by counsels and those I alluded to, the courts in the majority of them have imposed on a guilty plea the minimum sentence of five years which were partially or wholly suspended considering the circumstances of the case. Generally, in circumstances where no violence was involved, and properties were not damaged, courts imposed a wholly suspended (Fasi’s case) to partial suspension of the head sentence resulting in a much lesser period of one year imprisonment sentence (Apau, Bernard and Jerry cases). 

Head Sentence

23.	Considering the above, this is a case that fits into the category of cases attracting a head sentence of five years, wholly suspended to partial suspension resulting in a one-year sentence as an appropriate penalty. Consequently, I consider that the minimum sentence of five years with partial suspension is appropriate in this case. 

Suspension

24.	I do not consider that a full suspension is appropriate for the reason that there is no evidence on the offender’s prospects for rehabilitation, supervision and good character, supported by a PRS or other good character references. (The Public Prosecutor v Tardrew [1986] PNGLR 91, and Public Prosecutor v Don Hale (1998) SC 564).

25.	I am mindful that the offender had abused a privilege he had whilst in prison. This punishment is aimed at specific deterrence noting that the prisoner has pending charges and whilst in prison, there is the possibility for reoffending. This punishment is also aimed at generally deterring other likeminded remandees or prisoners who want to abuse the opportunities they are given in prison to escape.

26. 	A further consideration against suspending the sentence wholly is that the action of the prisoner offended against and was disrespectful to the objectives and values of the judicial system and law enforcement and therefore, it must be met with an equally stern punishment, a custodial sentence. (Gima v The State, supra). 

27.	Given the offender’s outstanding charges and serious allegations, the effect this crime no doubt would have had on the community is that it would have caused stress in the lives of ordinary citizens and put fear in their minds as they feel unsafe to move around freely when they hear and learn about the escape. It is for the protection of the community and in recognizing the effect this crime has had on the people in the offender’s immediate surroundings and the community at large, that a custodial sentence be imposed. Such a sentence will demonstrate the court’s denouncement of the crime.  

Sentence

28.	For the foregoing discussions, I consider it appropriate and hereby impose the minimum head sentence of five years imprisonment in hard labour. I deduct the time spent in custody which is one year and nine months, noting that the offender was arrested on the 23rd of June 2020. The offender is to serve a balance of three years and three months imprisonment in hard labour. 

29.	I further deduct two years and three months as discount on the guilty plea and for being a first-time offender. The offender will serve a balance of one year imprisonment in hard labour. 

Final Orders on Sentence

30.	The court imposes the following orders on sentence:

1) 	Offender is sentenced to five years imprisonment in hard labour.

2)	Time spent in pre- trial custody is deducted, i.e., one year and nine months is deducted, leaving the balance of three years and three months to be served, 

3)	Two years and three months is suspended upon further exercise of the court’s discretion in consideration of the offender’s guilty plea and being first-time. 

4)	Offender will serve the balance of one year imprisonment in hard labour. 

Orders accordingly. 
__________________________________________________________________
Public Prosecutors: Lawyer for the State
Public Solicitors: Lawyer for the Defendant