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State v Winston [2003] PNGLR 5 (13 March 2003)

NATIONAL COURT OF JUSTICE

THE STATE

V

IROX WINSTON

GOROKA: KANDAKASI J

12, 13 March 2003

CRIMINAL LAW - PRACTICE & PROCEDURE – Escape from lawful custody – Court has discretion to impose a sentence below the prescribed minimum – On what basis can this be done? – Only where there are good mitigating factors and a pre-sentence report supporting such sentence – Criminal Code s.139 (1).

CRIMINAL LAW - Sentence – Escape from lawful custody - Serving time for a serious offence – Guilty plea - Circumstances in which offence was committed not clear – On available evidence a case of simple escape - Prevalence of the offence considered – Prisoner with a prior conviction – A deterrent sentence called for – Sentence of 5 years imposed – Criminal Code s.139 (1).

Facts

On 16 January 2001, the accused was amongst a group of other prisoners serving their time at the Bihute Corrective Institution. The accused was taken out to work on a new building site at Bihute. The time was around. 9:30 am. Whilst at that site, the accused escaped. The prison officers who were watching over the accused and the other prisoners neither saw him escape, nor did they know how he escaped. But they learned of the accused escape when they took a head count later that day and found out that the accused was missing. The accused wass charged for unlawfully escaping from lawful custody.

Held

1. There is nothing before the Court in the form of a pre-sentencing report or anything else to justify or warrant any suspension of your sentence.

2. Proper consideration to the question of whether the sentence should be made concurrent or cumulative with the sentence accused is now serving for armed robbery. For the proper principles on escaping from lawful custody the case of The State v James Gurave Guba (2000) unreported N2020 and The Acting Public Prosecutor v Haha [1981] PNGLR 20 and Public Prosecutor v Kerua & Ors [1985] PNGLR 85 are considered.

Papua New Guinea cases cited

Acting Public Prosecutor v Don Hale (1998) unreported judgement delivered 27/08/98 SC564.
Acting Public Prosecutor v Haha [1981] PNGLR 20.
Public Prosecutor v Kerua & Ors [1985] PNGLR 85.
SCR 1 of 1994 in Re Aruve Waiba (1996) unreported Supreme Court judgment of Los J and Salika J handed down in 1996).
The State v Inema Yawok (unreported judgement delivered on 16/06/98) N1766.
The State v Jack Moge [1995] PNGLR 246.
The State v James Gurave Guba (unreported judgement) N2020.
The State v Okuk Seke (1998) unreported judgement deliver on 24/07/98 N1826.
The State v Richard Olso Kumis (1997) unreported judgement delivered 14/02/97 N1517.
The State v Thomas Waim, Tala Gena and Alois Wanpis (1998) unreported judgement delivered on 24/07/98 N1750.

Counsel

Ms R. Johnston, for the State.
Ms O Tiria, for the prisoner.

13 March 2003

Kandakasi j. You pleaded guilty to one charge of escaping from lawful custody at Bihute here in Goroka on 16 January 2001. That was contrary to s139 (1) of the Criminal Code. Upon reading the material in the deposition, which was admitted into evidence with your consent, I was satisfied that there was enough evidence to support your guilty plea. I therefore accepted your guilty plea and convicted you on the charge as presented.

Address on sentence

I then asked you to address me on sentence and you said it was true that you committed the offence and asked for mercy from the Court. Your lawyer addressed the Court further on that. She submitted that you have pleaded guilty, you are married with one child, and your parents are alive. At the time of committing the offence, you were serving a sentence for armed robbery initially for life and subsequently reduced by the Supreme Court on appeal to 18 years.

Your lawyer also submitted that you committed the offence upon receipt of information from an unspecified relative or family member that your wife had run away with your child because you had been sentenced to life imprisonment. There is neither any evidence nor is there any suggestion from you as to when you received that information and who in particular from. Likewise, there is no evidence or any suggestion that you raised with the prison officers the claim of your wife running away with your child and you wishing to do something about it. Besides it took the police more than a year to recapture you. If indeed it is true that you escaped from lawful custody to get your child and wife, you could have freely surrendered as soon as you attended to that problem. You did not do that. Given this, I find it difficult to accept your claim through your lawyer that you escaped to go after your wife and child. Further, in your antecedent report, it is noted at item 8 (g) that you claimed to be married with one child aged 2 years but refused to give the name of your wife. In these circumstances, I find that, the reason you advance for escaping has no factual basis. Instead it is an after thought in a bid to justify the commission of the offence. It means therefore that you intended to escape purposely to avoid serving fully your term of 18 years for armed robbery.

The State argues that you were serving a term for a serious offence of armed robbery. You intentionally escaped to avoid serving your sentence in full for that offence. Parliament has prescribed a minimum of 5 years imprisonment for the offence. This was in response to a prevalence of the offence, which is still the case today. Counsel for the State urged this Court to take this into account when considering an appropriate sentence for you. She also asked me to make whatever sentence this Court decides is appropriate, to be served cumulatively with the sentence you are already serving.

Facts

There is not much evidence as to the circumstances surrounding the commission of the offence. All there is, is that on the 16 January 2001, you were amongst a group of other prisoners serving their time at the Bihute Corrective Institution. You were taken out to work on a new building site at Bihute. The time was around. 9:30 am. Whilst at that site, you escaped. The prison officers who were watching over you and the other prisoners neither saw you escape, nor did they know how you escaped. But they learned of your escape when they took a head count later that day and found out that you were missing.

Your escape was reported to police soon thereafter but you were not arrested until the 18 April 2002. Lae police arrested you on that day in Lae. You were then brought back to Bihute where you are currently serving your 18 years sentence for armed robbery. You were formally charged for the offence on the 18 August 2002 and committed on the 12 December 2002 to stand trial before this Court.

On the material available before me I find that this was not an aggravated escape. Instead it was a simple escape with no harm or injury to any person or property.

The Law

Section 139 (1) of the Criminal Code defines and prescribes the penalty for the offence of escape from lawful custody in the following terms:

"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."

It is well accepted that the penalty provision makes it clear that the minimum prescribed sentence for escaping from lawful custody is 5 years. It is also well accepted that a judge or Court does not have any discretion but to start with a minimum sentence of 5 years. See The State v Jack Moge [1995] PNGLR 246 and The State v Inema Yawok (unreported judgement delivered on 16/06/98) N1766 for examples of authorities on point. But that is not where it stops. The Supreme Court in SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996), held that it is still within the discretion of the Court to start with the minimum prescribed sentence of 5 years and then move up wards or down wards as the particular circumstances of the case may dictate. A sentence lower than the minimum of 5 years could be imposed by way of suspension. Since that judgment the National Court has imposed sentences in effect less than 5 years.

Injia J., imposed an effective sentence of 3 years after suspending 2 years from an head sentence of 5 years in The State v Thomas Waim, Tala Gena and Alois Wanpis (unreported judgement delivered on 24/07/98) N 1750. In so doing his Honour noted that:

"... 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 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."

Kirriwom J., imposed a wholly suspended sentence of 5 years in The State v Inema Yawok (supra). His Honour reasoned after noting and referring to the judgement and reasons for judgement in SCR 1 of 1994 in Re Aruve Waiba (supra) that:

"The case before me is an exceptional one. I have seen the demeanor of the accused as he gave his statement on the allocutus and I have no reason to doubt a word of what he said. I accept his explanation regarding the retaliatory killing of his nephew, his elder brother's son. I am told that this story is confirmed by the warders who delivered the news to the accused. I also accept this story about violent sexual attacks upon weaker and young inmates by those aggressive ones in the prison compounds. These activities go on behind closed gates of the prison and it really begs the question of whether or not justice is done to those who are sent to prison for breaking the laws."

Lenalia AJ., (as he then was) imposed an effective term of 3 years from an head sentence of 5 years and after suspending 2 years of the head sentence in The State v Richard Olso Kumis (unreported judgement delivered 14/02/97) N1517. No apparent reason was given for the suspension save for citing the Supreme Court judgement in the SCR 1 of 1994 in Re Aruve Waiba (supra). That was despite noting that the prisoner had escaped from lawful custody and avoided being caught for over a year, which His Honour found was an aggravating factor.

Sawong J., however decided not to suspend any part of the minimum prescribed sentence of 5 years in The State v Okuk Seke (unreported judgement deliver on 24/07/98) N1826. That was also in a case where there was a simple escape with no aggravation.

What the Supreme Court said in SCR 1 of 1994 in Re Aruve Waiba (supra) appears to be in conflict with its judgement in Acting Public Prosecutor v Don Hale (unreported judgement delivered 27/08/98) SC564, particularly in relation to question of suspension of sentences. The Court in that case said:

"If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.

However in this case before us now the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence. This is a clear error if he was to suspend a sentence for this kind of aggravated robbery."

The judgement of the Supreme Court in SCR 1 of 1994 in Re Aruve Waiba (supra) was delivered in 1996. That judgement has not been numbered and is not in a wider circulation. On the other hand, the judgement in Acting Public Prosecutor v Don Hale (supra) has been numbered and it is in wider circulation. That judgement was delivered after the judgement in SCR 1 of 1994 in Re Aruve Waiba (supra). May be because of the fact that the judgement in SCR 1 of 1994 in Re Aruve Waiba (supra) is not in circulation, it was not considered in Acting Public Prosecutor v Don Hale (supra).

I do not have a copy of the judgement in SCR 1 of 1994 in Re Aruve Waiba (supra). As such I do not know exactly what the Supreme Court said in that judgement, particularly as to its reasons for arriving at the conclusion that a Court or a judge has a discretion to suspend sentences for an offence under s. 139 (1) of the Criminal Code. Kirriwom J., appears to have had a copy and discussed in The State v Inema Yawok (supra) at some length as to what the Supreme Court said in SCR 1 of 1994 in Re Aruve Waiba (supra). His Honour observed that:

"[T]he the Supreme Court in Aruve Waiba (supra) observed that there was an anomaly in this new law because the amendment failed to prescribe a maximum penalty for the offence. The essence of the legislature prescribing both a minimum term and maximum term for an offence is the same as defining the area of a playing field. The Court is required by law to impose punishment within that area, and move upwards or downwards depending on the gravity of the offence and the circumstances of the offender, but within that playground. The minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own merits and impose sentence as the justice of the case requires but not below the minimum. It can be the minimum itself or above but anywhere between the minimum and the maximum or the maximum itself. It would be nonsensical to expect a life sentence or even death as maximum penalty for escaping from custody and Parliament naturally would not have intended this to be so. This would be an absurdity because leaving an open-ended maximum offends against the principles of justice and fairness alluded to in the Constitution s 37(7) where it says that "no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed." Considering this provision in the light of the rest of the sections both before and after s.139, it is obvious that there is an ambiguity in the law that the Parliament must rectify. The Supreme Court thus came to the conclusion that a more lenient interpretation must be given to the law in the light of this ambiguity and decided that the Court can suspend the sentence in whole or in part after imposing the minimum sentence prescribed."

From this it appears clear to me that the Supreme Court in SCR 1 of 1994 in Re Aruve Waiba (supra) did not provide any guidelines as to the basis on which a Court or judge could suspend any sentence under s 139 (1) of the Criminal Code. So it seems that issue was left open.

The judgement in Acting Public Prosecutor v Don Hale (supra), took up the issue that was not covered in SCR 1 of 1994 in Re Aruve Waiba (supra). From this perspective, it is clear to me that, there is no conflict between the two judgements. They instead complement each other. The effect of this is that, if the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community's view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court cannot arrive at such a sentence.

Injia J., was correct in my view, when he said in The State v Thomas Waim, Tala Gena and Alois Wanpis (supra):

"... a strong punitive sentence is warranted because this offence is becoming far too prevalent in this country. Escapes from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment."

I agree with Lenalia AJ., (as he then was) in The State v Richard Olso Kumis (supra) that a prisoner who escapes from lawful custody and fails to voluntarily surrender to the police is an aggravating factor. I also agree with Kirriwom J., that where very good reason exists for an escape, there should be leniency toward an offender. But I do not agree that a Court should automatically resort to a suspension of the prescribed minimum sentence for escape. The Court must first have before it a pre-sentencing report or something reflective of the community's position supporting such an exercise of the court's discretion in line with the Supreme Court judgement in the Acting Public Prosecutor v Don Hale (supra). This should particularly be the case, where an escapee had been serving time for a very serious offence such as robbery, murder or rape.

As has been stated and acknowledged in a large number of cases already, the community expects the Courts to appropriately deal with such offenders given the kind of effect these kinds of offences are having on the particular communities where such offences are being committed and the country as a whole. I do not see what kind of purpose a more lenient sentence serves from the community's view point and even from that of the offender who needs to serve fully his penalty for such a crime. If such offenders are dealt with lightly for escaping and not voluntarily surrendering to the police for a long time they need not be dealt with lightly. Any leniency without good reason and the support of a pre-sentencing report could defeat the whole purpose of criminal sentencing. This could even lead to a distrust of the system of justice that we have adopted upon independence and the people might be caused to take the law into their own hands.

The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the people's wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that the kind of sentence they arrive at is reflective of the people's wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations.

Your Case

In your case you were sentence to 18 years for armed robbery. Armed robbery is a very serious and prevalent offence. The offence of escape from lawful custody is also a prevalent offence. Therefore, a strong deterrent sentence is called for. These factors operate against you.

Additionally, you escaped with no apparent good reason. You claimed that you escaped because your unnamed and unspecified wife ran away with your child. You also claimed that you eventually reached your wife and child and got them to your parents in Lae. I found this incredible because you were not prepared to disclose the name of your wife to the authorities, according to your antecedent report. You also failed to give any specifics as to the date when you received the information about your wife running away with your child, its source and the manner in which that information came to you. There is no support of this claim from the warders from the Bihute Corrective Institution. Further, if indeed you went for your family, you could have surrendered to police once you got your wife and child back into the care of your parents but you did not. You were, instead, at large for more than a year. If police did not recapture you, you could have been at large even to this date.

As noted by Injia J., escaping from prison to avoid serving your sentence is an affront to the criminal justice system. Unless such behaviour is sternly dealt with, escapes will make a mockery of the system of justice we have adopted since independence.

Another factor that operates against you is the fact that you have a prior conviction. You escaped to avoid serving time under that. This is in contrast to a case of a person held in the custody of the police awaiting a formal charge or before he is appropriately dealt with by a court.

On the other hand, I find only two factors operating in your favour. First is your guilty plea though I cannot see how you could have succeeded in a not guilty plea. The second is the fact that there is no evidence of violence, threat, intimidation, or injury occasioned to any person or property to facilitate your escape.

I do note your personal background including your claim of having a wife who you were not prepared to disclose, and a child. I also note that if indeed you were married that could been adversely affected by any term of your imprisonment. But that is a direct consequence of committing the serious offence of armed robbery and subsequently escaping from prison to avoid serving your sentence. So that should not be a factor operating in your favour because you should have thought about these consequences before committing the offences.

I therefore consider it appropriate that I should start with the minimum prescribed sentence of 5 years. If it were not for the two factors in your favour I could have started with a sentence higher than the minimum. I have then carefully considered whether I should reduce your sentence by way of suspension. However, on reading of the two Supreme Court judgements I have already discussed above, I find that I have nothing before me in the form of a pre-sentencing report or anything else to justify or warrant any suspension of your sentence.

I have also given consideration to the question of whether your sentence should be made concurrent or cumulative with the sentence you are now serving for armed robbery. I discussed the proper principles on this in the case of The State v James Gurave Guba (unreported judgement) N2020 as set out in the case of The Acting Public Prosecutor v Haha [1981] PNGLR 20 and Public Prosecutor v Kerua & Ors [1985] PNGLR 85. These principles in summary are that:

1. The National Court has a discretion whether or not to make a sentence cumulative or not;

2. An exercise of that discretion is to be guided by well-known principles;

3. The principles are:

a. the "one transaction rule": where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;

b. where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. For example, burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims; and.

c. the "totality rule or principle": when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total.

These principles readily apply in cases where a person is charged, tried and convicted for more than one offence all at the same time. But I am not aware of any requirement to apply these principles in the context of two different charges and two different trials. If they do apply then, the requirements under the third principle "a" and "b" would apply and depending upon their application "c" would also apply.

In your case there is no doubt that the sentence of 18 years is for armed robbery. It was committed some years ago and you have been ordered to serve that sentence already by an earlier Court. There is not much details but it is reasonable to infer from the available material that, that offence involved victims who are totally different from your present offence of escape. The two offences are not part of the one and same transaction occurring at about the same time. Therefore, the sentence has to be cumulative.

This leaves for me to consider the application of the totality principle. For the reasons already given, I do not find that this principle applies. But if it does then, I do not see how the total of the two different sentences will be crushing on you. In fact, you made no submission on this point. Hence, there is nothing from you to assist me on this aspect of your sentence. This supports the view that you do not see the sentence as crushing on you. This is understandable because, you are a relatively young man, with a very young family. Your parents are alive with whom you claimed wife and child are staying. Through your escape you had a good more than one-year break from serving your 18 years sentence. Given these, I do not find it necessary to reduce your sentence on the totality principle.

In the end result, I find the sentence of 5 years appropriate, without any reduction. I therefore order that, you serve that term of 5 years in hard labour, cumulatively with the 18 years sentence you are now serving for armed robbery. I further order that the Correction Services arrange for your transfer from the Bihute prison to the Bundaira prison at their convenience provided the CIS is satisfied that it is safe security wise for you to be so transferred.

Lawyers for the State: The Public Prosecutor.
Lawyers for the State: The Public Solicitor..