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State v Amos [2023] PGNC 432; N10576 (21 November 2023)

N10576

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 2122 OF 2023

THE STATE

V

RENDY AMOS

Kimbe: Miviri J
2023: 20^th & 21^st November

CRIMINAL LAW – PRACTICE AND PROCEDURE –Escape from lawful custody – Detention for Grievous Bodily Harm – Court Appearance Vanimo District Court – Escaped From Court Premises Over the Court Fence – Serious Defiance of Law – Guilty Plea – First Offender – deterrent sentence.

Facts
Accused was remanded in Custody at Vanimo Corrective Institution for Grievous bodily harm. He was taken down to the Vanimo District Court for court appearance. He scaled the fence of the court and fled for freedom. Was captured by Police after dawn raid.

Held
First Offender.
Guilty Plea.
Serious defiance of law.
Escape from Court Premises.
Strong deterrent Sentence.

Cases Cited:
Dambui v The State [2003] PGSC 20; SC724
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730
State v Haiveta [2012] PGNC 71; N4677
Aua v The State [1997] PGSC 17 SC535
Golu v The State [1979] PNGLR 653
State v Waim [1998] PGNC 73; N1750

Counsel:
F. Popeu, for the State
O. Himore, for the Defendant

SENTENCE

21^st November 2023

1. MIVIRI J: This is the sentence of Rendy Amos who escaped from the Vanimo District Court when he was taken down for appearance in Court for grievous bodily harm charges for which he was remanded at the Vanimo Corrective Institution.
   
2. Between 10am and 11am on the 28^th September 2020 accused was remanded at the Vanimo Corrective Institution on a charge of being in possession of illicit/illegal alcohol. He was taken by police officers to the Vanimo District Court for processing of that case. Whilst there he escaped from that lawful custody by climbing over the Court house fence and running away. But was eventually arrested by Police in a dawn raid on the 26^th January 2021 at the Wesan Camp whilst he was sleeping. And was taken into custody.
   
3. The charge has been laid pursuant to 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.

(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.

4. The prisoner has pleaded guilty to the charge and expressed remorse saying he was sorry for committing the offence and pleaded for mercy. He is a first offender aged in his late 20s going into early 30s. He is an unemployed person supported by his parents. He was educated to primary school Damili Primary School. And has done some training with the Mapex Training Institute in Vanimo.
   
5. It is a very serious offence especially in view of the fact that he jumped over the fence and fled at the District Court Premises and parameter fence Vanimo. It shows disrespect and contempt against the Court. Because he did not air his grievance in court but took to escaping aggravating his cause. It must be condemned in the strongest terms that defiance of the law leaves no room for those who see fit to derail. Observance submission to the rule of law must be sourced and sentences passed here must reflect that fact. In the case of the prisoner, he has pleaded guilty saving time and resources in running a trial. That will be accommodated in the sentence that is passed upon him. He is not a convicted prisoner who was serving time and then escaped from the continued service of that sentence. And it is not a case where he has been at large for quite a substantial time. He is a first-time offender by this offence because the offence for which he was lawfully in custody was an allegation, a charge only until conviction. It was a charge of illicit/illegal alcohol. By his conduct he has turned his life into worse from bad. But he has admitted his wrong against the law. That ought to draw some benefits in the sentence that is passed upon him.
   
6. The sentence prescribed is a minimum sentence therefore that is a sentence of five years prescribed, but the courts have in other cases that have come before it imposed sentences other than five years: Dambui v The State [2003] PGSC 20; SC724 (26 November 2003). It was determined by the Supreme Court there was an error in the sentence imposed, and the Court considered another sentence other than the minimum sentence. It upheld the appeal against the sentence and sent back the sentence to be considered other than the minimum sentence. This is not new where a sentence of 2 years for escaping from lawful custody was confirmed on appeal: Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730 (3 October 2003). This Court has followed likewise to impose other than the minimum prescribed, State v Haiveta [2012] PGNC 71; N4677 (18 May 2012), 5 years was imposed but of which 4 years was suspended and the prisoner was ordered to serve only a year in jail. He was serving time for other criminal offences when he escaped by getting K300 from an accomplice that he used to bribe the cell guard with and escaped. He was at large for over two years before being captured.
   
7. In my view those are serious facts and circumstances calling for what was served and imposed. Before me is a first-time offender charged with a summary offence of illicit/illegal alcohol which cannot be equated with Haiveta (supra) who was serving time for armed robbery and unlawful use of motor vehicle. Both offences carrying the maximum penalty of life imprisonment in armed robbery. It is therefore a serious case of escaping. And this is consistent with the trend that this Court has exercised its discretion in. On a charge of aiding escape by a reserve policeman the appeal was dismissed against the sentence at first instance. Five years imprisonment was confirmed in Aua v The State [1997] PGSC 17 SC 535 (28 November 1997) the appellant was a reserve policeman who aided two prisoners to escape from the Boroko police Station cells. He also had prior conviction for stealing and that he had been paid K150 to facilitate the escape. This is serious circumstances even though aiding prisoners to escape but relevant here in that serious facts draw stern sentences.
   
8. It is also trite that the maximum penalty should be reserved for the worst offence: Golu v The State [1979] PNGLR 653. This is not the worst offence of escaping from lawful custody. It is not what is described by this Court in State v Waim [1998] PGNC 73; N1750 (24 July 1998), “... although this was a mass breakout, this was an ordinary escape, in that the 3 accused and others simply climbed over the security fence and escaped. There is no evidence that these 3 accused were the main perpetrators. No weapon was used. No CIS staff member was threatened or injured. And no additional effort and expenses were involved in their re-capture as they were rounded off close to the CIS compound and recaptured the same day shortly after their escape. For these reasons, I consider that to impose the minimum sentence of 5 years per se would be manifestly excessive in the circumstances. Nevertheless, a strong punitive sentence is warranted because this offence is becoming far too prevalent in this country. Escapes from lawful custody are an affront to the judicial system and law enforcement and it must be met with an equally stern punishment. I consider that an effective custodial sentence of 3 years for each accused is appropriate in this case. Accordingly, I sentence each accused to a minimum of 5 years imprisonment as required by law, of which I suspend 2 years in respect of each accused on the condition that when each accused comes out of jail after serving their respective terms, they will be of good behaviour for 12 months."
   
9. This is a run for freedom exercised over the fence of the Court house which in itself is very serious. It should be a place where all will air out their injustice and woes, so that life is reverted to exceptional.
   
10. In the aggregate except for that defiance of the rule of law, the Mitigating features outweigh the aggravating features, therefore the sentence is 12 months IHL. Time in custody is deducted he will serve the balance in jail.
    

Ordered Accordingly,

__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Defendant