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State v Alphonse [2006] PGNC 233; 2006-3-23 (23 March 2006)

N3021

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 155 OF 2006

THE STATE

V

LINDEN ALPHONSE

Kimbe: Cannings J
2006: 14 February, 23 March

SENTENCE

CRIMINAL LAW – sentencing – indictable offence – Criminal Code, Division III.6 (escapes: rescues: obstructing officers of courts) – Section 139 (escape by prisoner) – sentence on plea of guilty – escape from correctional institution – offender at large for short period before surrendering –identification of relevant considerations – application of relevant considerations – sentence of 5 years – prisoner must serve minimum sentence of one year – balance of four years suspended on conditions.

A young man who was remanded in custody at Lakiemata Gaol, WNB, on a charge of armed robbery, escaped. It was a mass escape. He was at large for a short period before surrendering. He was subjected to inhuman treatment after surrendering.

Held:

The offender was sentenced to the statutory minimum of five years imprisonment, four years of which was suspended on conditions.

Cases Cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730
In the matter of enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57, on the own initiative of the National Court, Re Conditions of Detention at Beon Correctional Institution, Madang Province (2006) N2969
The State v Aaron Lahu (2005) N2798
The State v Mark Kanupio and Others (2005) N2800
SCR No 1 of 1994, The State v Aruve Waiba 04.04.96, unreported

Abbreviations

The following abbreviations appear in the judgment:

AOG – Assemblies of God
Aug – August
CR – Criminal trial
CS – Correctional Service – also referred to as CIS
J – Justice
Mar – March
N – National Court judgment
No – number
Nov – November
OK – okay
PNG – Papua New Guinea
SC – Supreme Court judgment
SCR – Supreme Court Review

PLEA

The accused pleaded guilty to escaping from lawful custody and the reasons for the sentence are given below.

Counsel

F Popeu, for the State
O Oiveka, for the Accused

23^rd March, 2006

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a person who pleaded guilty to escape from lawful custody.

BACKGROUND

Incident

2. The incident giving rise to the charge took place on 14 August 2005. It was alleged that the accused escaped from the Lakiemata Gaol, West New Britain.

3. The accused had been arrested and remanded in custody, since 15 November 2004 on a charge of armed robbery. His trial was held in November 2005 before Sawong J. He was acquitted.

Indictment

4. On 14 February 2006 the accused was brought before the National Court and faced the following indictment:

Linden Alphonse of Harua, Kubalia, East Sepik Province, stands charged that he on the 14^th day of August 2005 at Lakiemata ... whilst being a prisoner in lawful custody of the Correctional Service Commander escaped from such custody.

5. The indictment was presented under Section 139 of the Criminal Code.

FACTS

6. The following allegations were put to the accused for the purpose of obtaining a plea.

7. In August 2005 the accused was being held in remand (‘wait-court’) at Lakiemata Gaol awaiting trial on an armed robbery charge. On Sunday 14 August 2005 a number of Correctional Service personnel were on escort duty, taking detainees to the sittings of the National Court at Bialla. The accused knew that the gaol did not have enough manpower, so he and eight other detainees cut the security wire fencing and dashed into the nearby bush. One of them was shot dead. The accused surrendered.

CONVICTION

8. The accused stated that it was true that he escaped. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

9. I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I was in the prison waiting for my case to be heard. I was eating rice and had no idea of any escape plan. I saw that the fence was cut so I just followed them. They shot Kuman, so we surrendered. Then the correctional officers assaulted us. They kicked me, causing great pain. Then they sent me back to carry Kuman. He was very heavy and it was hard for me to carry him. They hit me with timber. They told me to lie down and then they stood on me. Then they put us in the detention cell. They did not dress our sores. God helped us. No one else helped us. I say sorry to the CIS and the court for what I have done. I have joined a Christian Ministry while in prison. I ask for probation.

OTHER MATTERS OF FACT

10. Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence.

11. In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor’s summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The allocutus discloses a number of mitigating factors that are not disputed by the prosecution:

• mistreatment by warders after surrender; and
• kept in dark cell.
  

RELEVANT LAW

12. Section 139 of the Criminal Code states:

(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.

SUBMISSIONS BY DEFENCE COUNSEL

13. Mr Oiveka reiterated the following mitigating factors:

• he has been acquitted of his substantive charge – case similar therefore to Kito Aso, Stanis Gala, Korak Mekore;
  
• he has already been in custody for 15 months.
  

14. Mr Oiveka submitted that the court should suspend the whole sentence.

SUBMISSIONS BY THE STATE

15. Mr Popeu for the State did not press for a heavy sentence and did not dispute the major mitigating factors set out in the prisoner’s allocutus: the circumstances in which he escaped; the lengthy period on remand; mistreatment after surrender.

PRE-SENTENCE REPORT

16. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

Brought up in Laleki settlement, Kimbe – lives with his father – mother has remarried – educated to grade 3 – no formal employment – single – no income – relies on father for support – health OK.

He has changed his life while in gaol – has joined “God’s 21^st Ministry”.

Pastor Paul Manda of AOG Church Kimbe knows the prisoner’s family and is prepared to support them to help the prisoner become a worthwhile citizen – Pastor Paul is starting a new church at Numondo plantation and need help in building and maintaining the new church building – would like to support the prisoner.

David Nomane, a ward development committee member for Laleki knows the offender very well – asks that the offender be given a chance.

The report concludes that he is a most suitable candidate for probation supervision.

DECISION MAKING PROCESS

17. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what are the considerations that should be taken into account in determining the head sentence, in terms of years?
  
• step 4: what is the head sentence?
  
• step 5: should all or part of the sentence be suspended?
  
• step 6: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

18. No maximum is prescribed. The minimum penalty is five years imprisonment. However, 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 sentence can be suspended provided that the judge obtains a pre-sentence report, gives it careful consideration and spells out the reason for allowing a suspension of all or part of the sentence. (SCR No 1 of 1994; The State v Aruve Waiba 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.)

STEP 2: WHAT IS THE STARTING POINT?

19. The starting point is five years. The head sentence can be above that but not below it.

STEP 3: WHAT ARE THE RELEVANT CONSIDERATIONS?

20. The things I consider should be taken into account when determining whether to increase the head sentence or leave it at the starting point are:

1. Did the offender not use violence in the escape, actual or threatened?
   
2. Did the offender not put anybody in real danger of being injured or killed?
   
3. Did he escape by himself?
   
4. Did the offender not cause damage to property of great value?
   
5. Was there something happening inside the gaol that provided a good reason to escape?
   
6. Was there something happening outside eg with his family that gave him good reason to escape?
   
7. Did the offender give himself up after the escape?
   
8. Was he at large for only a short time?
   
9. Did the offender cooperate with the police in their investigations?
   
10. Has the offender done anything tangible towards repairing his wrong, personally or publicly apologising for what he did?
    
11. Has the offender pleaded guilty?
    
12. Has the offender genuinely expressed remorse?
    
13. Is this his first offence?
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence?
    

Rationale

21. The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will remain at five years. The more aggravating factors, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

22. Another thing to note is that there are, in general, three categories of considerations listed.

23. Numbers 1 to 7 focus on the circumstances of the escape. Numbers 8 to 12 focus on what the offender has done since the escape and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

STEP 4: WHAT IS THE HEAD SENTENCE?

24. I apply the various considerations to arrive at the head sentence:

1. Yes the offender did not use violence in the escape.
   
2. No the offender did put people in real danger of being injured or killed, as one of his colleagues was shot dead during the course of the escape.
   
3. No he was involved in a mass escape.
   
4. Yes he caused no damage to property.
   
5. No he had not been mistreated inside the gaol.
   
6. No he was not concerned about things happening outside.
   
7. Yes the offender gave himself up after the escape.
   
8. Yes he was at large for only a short period.
   
9. Yes the offender cooperated with the police.
   
10. No he has not done anything to right his wrong.
    
11. Yes the offender has pleaded guilty.
    
12. Yes the offender genuinely expressed remorse – to the extent necessary in the circumstances.
    
13. Yes this was his first offence.
    
14. Yes he is a youthful offender.
    
15. Yes special circumstances exist:
    
    • he was assaulted by correctional officers upon being recaptured;
    • he was not given appropriate medical treatment; and
    • he was kept in the dark cells. The dark cells at Lakiemata have been closed due to my intervention during a Visiting Justice visit to the gaol in September 2005. They are literally dark, confined cells in which two or three detainees were detained for periods up to three months for doing something wrong, eg escaping or attempting to escape. The Lakiemata dark cells were similar to those at Beon Correctional Institution which I ordered be closed in February 2006 after concluding that detaining prisoners in them amounted to physical and mental torture and inhuman treatment contrary to Sections 36 and 37 of the Constitution (In the matter of enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57, on the own initiative of the National Court, Re Conditions of Detention at Beon Correctional Institution, Madang Province (2006) N2969). The Lakiemata dark cells were still operating in August 2005 when the offender in the present case escaped and surrendered. He was in a dark cell with two other detainees on 22 September 2005 and on that day I observed the putrid and unconstitutional conditions in which he had been detained for more than a month.
      

Recap

25. I regard the following as strong mitigating factors:

• No 1 – no violence;
  
• No 7 – surrendered;
  
• No 8 – at large for a short period;
  
• No 11 – pleaded guilty;
  
• No 12 – expressed remorse;
  
• No 13 – first offender;
  
• No 15 – assaulted and treated inhumanely after surrendering.
  

26. I regard the following as strong aggravating factors:

• No 2 – a fellow detainee was killed;
  
• No 3 – mass escape.
  

27. The other factors are not significantly mitigating (No 4) or not significantly aggravating (Nos 5, 6, 9, 10 and 14).

Head sentence

28. After weighing all these factors and bearing in mind that there are seven strong mitigating factors compared to two strong aggravating factors, there is no case for lifting the head sentence above the starting point of five years.

29. I accordingly fix a head sentence of five years imprisonment.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

30. This is a case where it was appropriate to consider suspending part of the sentence, given the many mitigating circumstances.

31. The pre-sentence report indicates that the offender does not pose a danger to the community.

32. I am satisfied that in the special circumstances of this case it is appropriate to immediately suspend four years of the sentence, subject to conditions.

STEP 6: WHAT CONDITIONS SHOULD BE IMPOSED?

33. Four years of the sentence will be suspended, subject to the following conditions, which shall apply for the whole of the period of the sentence, commencing today:

1. The offender shall comply with a church activity program, which shall be ratified by the National Court within one month after today.
   
2. The offender shall comply with a community work program which shall be ratified by the National Court within one month after today.
   
3. There shall be a probation report submitted by the Community Corrections and Rehabilitation Service to the National Court at Kimbe every three months after today.
   
4. The offender shall not consume alcohol or smoke tobacco or any other substance.
   
5. The offender shall not leave West New Britain without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Kimbe office of the Community Corrections and Rehabilitation Service.
   
6. The offender shall co-operate with the Kimbe office of the Community Corrections and Rehabilitation Service and with all persons nominated to supervise his compliance with the church activity program and the community work program.
   
7. The offender shall keep the peace and be of good behaviour.
   
8. Breach of any of these conditions will mean that the prison sentence will crystallise, ie the offender will go to gaol for the balance of the period of probation.
   

PRE-SENTENCE PERIOD IN CUSTODY

34. I now have to consider whether all or any part of the period that the prisoner has spent in custody prior to the handing down of the sentence should be deducted from the head sentence of five years.

35. The relevant law is Section 3 (length of sentences) of the Criminal Justice (Sentences) Act 1986, which states:

(1) A sentence imposed by a court in the National Judicial System shall take effect from the beginning of the day on which it is imposed, unless a law otherwise provides.

(2) There may be deducted from the length or any term of imprisonment imposed by the sentence 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.

36. In applying these provisions the following dates are important:

37. Without taking account of any pre-sentence period in custody or the suspension of any part of the sentence, the prisoner’s sentence would be for five years, from 23 March 2006 to 23 March 2011.

38. However, he has already spent a pre-sentence period in custody of one year four months and eight days. This comprises the period:

• 15 November 2004 to 23 March 2006.
  

39. All of the pre-sentence period in custody is available to be deducted from the five-year sentence. In the exercise of my discretion under Section 3(2) of the Criminal Justice (Sentences) Act, I will deduct one year, four months and eight days.

40. I calculate the period of the sentence as follows:

23/3/06 to 23/3/11 minus 1 year = 23/3/10 – 4 months = 23/11/09 – 8 days = 15/11/09.

41. As the offender has already spent more than the minimum period of 12 months in custody, he is eligible for immediate release and I will make an order accordingly.

SENTENCE

42. The court makes the following order:

1. the offender, Linden Alphonse, having been convicted of the crime of escape, is sentenced to 5 years imprisonment, 4 years of which is suspended subject to compliance with the conditions prescribed above;
   
2. one year and four months and eight days of the five-year sentence is deducted under Section 3(2) of the Criminal Justice (Sentences) Act;
   
3. the term of the sentence will run from 23 March 2006 to 15 November 2009, subject to the conditions prescribed above; and
   
4. the offender, having already spent more than the minimum period of one year in custody, shall be released from custody forthwith.
   

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused