N10527

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 272 OF 2021

THE STATE

V

GIDEON RONGO KOROMOS

Lae:  Kangwia J
2022: 12th August

CRIMINAL LAW – Sentence – Escape from lawful custody – penalty under s 139 not less than 5 years - sentencing for escape from lawful custody subject to s 139 - no discretion for any suspension, deduction, or lesser sentence - escape from lawful custody an affront to the Criminal Justice System - prevalence of the offence – sentenced to 5 years imprisonment to be served cumulative to the remaining period from the earlier sentence.

Cases Cited
State v Nemas Hangu (2018) N7471
Gima v the State (2003) SC730
State v Winston [2003] PNGLR 5

Counsels: 
P. Matana, for the State 
C. Kisambo, for the Defence

12th August 2022

1.     KANGWIA J:  This is the decision on sentence. The prisoner was convicted on his guilty plea to escaping from lawful custody pursuant to s 139 of the Criminal Code.
2.    The facts to which he pleaded guilty to, which were consistent with admissions in the District Court Deposition and instructions to counsel were that the prisoner was serving a jail term of 27 years imprisonment for murder pursuant to s 300 of the Criminal Code.  
3.    While being incarcerated at CIS Buimo, he helped other inmates to carry a fellow inmate who sought medical attention. 
4.    In the process he and 45 others dashed for freedom. He was at large until his capture some months later and charged for escaping from lawful custody. 
5.    He is believed to be 35 years old and single. He was a state prisoner when he escaped from Buimo CIS.
6.    On his allocutus he apologised to God, the Court and CIS for what he had done. He intimated that it will never happen again and sought leniency.
7.    On his behalf Mr Kisambo sought a suspended sentence of 4 years in the exercise of discretion as he had pleaded guilty and expressed remorse. The case of the State v Nemas Hangu (2018) N7471 was referred to as a possible guide in sentencing. 
8.    On behalf of the State Ms Matana sought a sentence of 5 years which was the minimum permitted under s 139 of the Criminal Code. It was intimated that escape from lawful custody was an affront to the Criminal Justice System and escapes are prevalent. He was a repeat offender, and the escape was aggravated by the escape of 45 other inmates. 
9.    The offence of escaping from lawful custody under s 139 states:
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.

10.   The prisoner stands to suffer a minimum head sentence of 5 years pursuant to that section. According to that provision a sentence can only go up in the exercise of discretion.
11.   There is the other proposition that a sentence can come down through suspensions or deduction in the exercise of discretion as suggested by Mr Kisambo in the Nemas Hangu case. 
12.    In that case the Court while relying on the Supreme Court case of Gima v the State (2003) SC730 and s 3 (2) of the Criminal Justice (Sentences) Act 1986, part of the sentence was suspended from a head sentence of 5 years and the balance was ordered to be served. 
13.    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. 

14.     In my view the application of that provision and the sentencing discretion embodied in the Gima case referred to is a devious way of exercising sentencing discretion which is beyond and against the clear intent of s 139 of the Criminal Code. My reading of s 139 offence is that the exercise of discretion to suspend or deduct a sentence from 5 years offends the statutory intent. It would be a dereliction from the intent of s 139 for the obvious reason that the enabling words “not less than 5 years” forbids it. The exercise of sentencing discretion for an offence of escape from lawful custody should be subject to the intent of s 139 and no more because that provision statutorily created a cut-off limit thus removing the exercise of discretion from being imposed to achieve a sentence not less than 5 years.  
15.    Common sense and logic convince me to be more inclined towards the decisions such as the case of State v Winston (2003) PNGLR 5 where a sentence of 5 years imposed was made cumulative to the remainder of the earlier sentence. An escapee from lawful custody should not have the benefit of a deduction for time in custody after recapture. He had the benefit of freedom whilst at large. He cannot benefit again from a deduction after recapture. His right (if any) to any discount in sentencing is by virtue of the escape stands forfeited because it naturally attaches with an affront of the Criminal Justice system. Any discount to a recaptured escapee in my view borders on mediocrity at best. 
16.    In the present case the only factor operating in his favour is that he pleaded guilty and expressed remorse. 
17.    However, the early guilty plea coupled with his expression of remorse is lacking in weight as not genuine in circumstances where he had no other option open to him. 
18.    On the converse, he had not voluntarily surrendered. He had been at large and enjoyed freedom as a State Prisoner after his right to freedom was lawfully removed upon conviction. 
19.     Deterrence must be factored in sentencing as escapes from lawful custody are prevalent. It brings into disrepute the lawful efforts of law enforcement agencies who go out of their ways in trying circumstances to enforce Court Orders.  
20.    The prisoner is sentenced to 5 years imprisonment. The 5 years shall be made cumulative to the remaining period from the earlier sentence for murder. 
Sentenced accordingly.
______________________________________________________________
Public Prosecutor: Lawyers for the State	
Public Solicitor: Lawyers for the Defence