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State v Waim [1998] PNGLR 360 (24 July 1998)

[1998] PNGLR 360

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS WAIM, TALA GENA & ALOIS WANPIS

MOUNT HAGEN: INJIA J
8, 24 July 1998

Facts

The three accused each pleaded guilty to unlawfully escaping from custody. By s 139 of the Criminal Code Act (Ch No 262), the punishment for this offence was not less than five years imprisonment, although by s 19 of the Criminal Code, the Court has discretions in determining penalty. The three defendants argued that the sentence should be suspended in whole or in part, or made concurrent with their existing sentences.

Held

1. In determining the appropriate penalty, the court would have regard to factors such as the defendants’ backgrounds, reasons for escape, and their guilty pleas, as well as to their prior convictions, and the community demand for tough punishment for this offence.
   
2. The defendants in this case were not the ringleaders, the escape had been a simple one, no weapon had been used or prison staff member threatened, and they had been easily recaptured the same day. In these circumstances, the defendants were sentenced to five years imprisonment, with two years to be suspended upon their entering into a 12-month good behaviour bond after their release from gaol. The effective sentences of three years were to be served cumulatively with their present sentences.
   

Papua New Guinea cases cited

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.

Gimble v The State [1988-89] PNGLR 271.

Public Prosecutor v Thomas Vola [1981] PNGLR 412.

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.

SCR No 1 of 1994 Re Aruve Waiba (1996) un-numbered.

State v Frank Kagai [1987] PNGLR 320.

State v Justine Nyama [1991] PNGLR 127.

Counsel

J Kesan, for the State.
B Aipe, for the accused.

24 July 1998

INJIA J. The three accused each pleaded guilty to unlawfully escaping from Baisu jail on 23/11/97 contrary to s 139 of the Criminal Code. Although the maximum punishment for this offence is a minimum of 5 years imprisonment, this court has other discretions conferred by s 19 of the Criminal Code: see SCR 1 of 1994 Re Aruve Waiba un-numbered Supreme Court judgment of Los J and Salika J handed down in 1996.

The three accused were part of a group of 14 prisoners who broke out of jail in a mass breakout and dashed for freedom but were recaptured shortly later. Like these 3 accused, they all had their own reasons for escaping. Each accused had his own criminal background. Thomas Waim was serving 18 years for rape and Alois Wanpis was serving 1 year 10 months for dangerous driving causing death. Tala Gena was being held in remand for trial in the National Court on a charge of rape but he also had a prior conviction for escape whereby he was sentenced to 10 months previously by the Local Court.

Their counsel has requested that the minimum sentence be made either concurrent with their present sentences or that the minimum sentence be suspended in whole or in part to ensure that the total sentence is not crushing on the accused. Counsel for the State has sought the minimum penalty in order to give effect to the clear intention of the parliament, which is to prevent and deter the commission of this offence, which has become prevalent over the years.

I have had regard to the accuseds’ personal backgrounds, and their reasons for escape and other mitigating factors such as their guilty plea. I have then balanced them against aggravating factors such as their prior convictions. I have also had regard to the community’s demands for tough punishment for this offence as reflected by the minimum penalty provision.

On the question of suspension of the whole or part of the minimum sentence, this power is conferred by s 19(1)(d). The power to suspend a sentence must be exercised on some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble v The State [1988-89] PNGLR 271 at 275; Good character and good family background: The State v Frank Kagai [1987] PNGLR 320; State v Justin Nyama [1991] PNGLR at 127; or on medical grounds: Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. On the question of concurrent sentences, it is imposed where a series of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. These principles are well settled. In the present case, if one were to follow the principles outlined above, there is no proper basis for suspending part of the sentence or making the sentences concurrent with sentences they are currently serving. However, the Court would still have the discretion to suspend the whole of the minimum sentence or a part thereof for reasons associated with the particular circumstances of the offence in order to ensure that the overall sentence is not manifestly excessive in the particular circumstances of the case.

In the present case, 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. Escape from lawful custody is 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. As there is no proper basis for making the balance of 3 years to be served concurrently with their present sentences, the 3 years sentence is to be served cumulatively to the present sentences served by Alois Wanpis and Thomas Waim. Tala Gena will serve 3 years.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.