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State v Apau [2007] PGNC 254; N5497 (18 October 2007)

N5497

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 994 0F 2007

THE STATE

V

ALLAN APAU

Madang: Cannings J
2007: 15, 18 October

CRIMINAL LAW – sentence – escape from lawful custody – escape from jail – at large for 20 months – guilty plea – sentence of 5 years; 4 years suspended.

A man pleaded guilty to escaping from a jail, while serving a sentence for a previous escape. It was a non-violent escape. He was at large for 20 months and badly assaulted upon being recaptured.

Held:

(1) The minimum sentence for the offence of escaping from lawful custody is five years imprisonment.

(2) Mitigating factors are: non-violent escape; no risk of injury; sole escapee; no property damage; co-operated with police; guilty plea; remorse; breach of constitutional rights. Aggravating factors are: nothing happening inside jail; nothing happening outside jail; did not surrender; at large for a long time; no apology; not a first-time offender.

(3) A sentence of five years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Aruve Waiba SCR No 1 of 1994, 04.04.96, unreported
The State v Francis Wangi CR No 1388 of 1999, 17.08.07
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for escape.

Counsel

M Ruarri, for the State
A Turi, for the offender

18th October, 2007

1. CANNINGS J: This is a decision on sentence for a man, Allan Apau, who pleaded guilty to one count of escaping from lawful custody. He was first arrested and placed in custody in January 2004. He was suspected of committing an armed robbery on Karkar Island the previous year. He was in custody for seven months before escaping in August 2004. in January 2005 he was recaptured and sentenced by the District Court for the offence of escape. He was given a three-month sentence. Two months into that sentence he escaped again from Beon jail. That was in March 2005 and that is the escape for which he is now being sentenced. He was at large for 20 months before being recaptured in November 2006. When he escaped in 2005 he was in a work party that was cutting kunai grass within the boundaries of the jail. He took off without permission and was recaptured at Talidik Primary School.

2. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction under Section 139 of the Criminal Code in relation to the escape from jail in March 2005.

ANTECEDENTS

3. The offender has a prior conviction for escape.

ALLOCUTUS

4. I administered the allocutus, ie the offender 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 would like the court to know the full background to my escape. I was suspected of committing an armed robbery at Karkar Island in 2003. I was arrested and put into custody in 2004 in January. I did not commit any armed robbery. I was in remand for seven solid months without a court file or any evidence. My constitutional rights were breached and I was concerned about disease spreading rapidly within the jail. I was recaptured in January 2005 and sentenced to three months imprisonment. I was taken out for a work party in March 2005 and that is when I escaped again. I was recaptured at Talidik Primary School on 17 November 2006. I was assaulted by the Police and chopped on my left side with a bushknife and I had to go to hospital for treatment. I would like to apologise for what I have done. I apologise to the Correctional Service and the Police and the citizens of this country. I am sorry for what I have done and I promise that I will not commit the offence of escape or any offence ever again. I am married with one child. I have a business to run. I grow cash crops such as kaukau and coconut. I am now disabled and I am not fit to stay in jail. The Police chopped me on my left foot. I am humbly asking this honourable court to have sympathetic consideration upon me and kindly grant me probation.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). He cooperated with the police and made admissions in his police interview. I also accept at face value the allegations that he has made about being assaulted badly upon his recapture in November 2006.

PERSONAL PARTICULARS

6. Allan Apau is from Kairuku District of Central Province. He is 29 years old and was educated at Gerehu Community School and De La Salle High School, Bomana to grade 9. He has since made his home in Madang Province.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Turi highlighted the guilty plea. As to the escape itself, the offender has given the reasons that he escaped. The escape itself had no aggravating features.

SUBMISSIONS BY THE STATE

8. Mr Ruarri highlighted that the offender did not surrender and he is not a first-time offender.

DECISION MAKING PROCESS

9. 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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.

11. 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. (SCR No 1 of 1994; The State v Aruve Waiba, Supreme Court, 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 A PROPER STARTING POINT?

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

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. I have passed sentences in 21 escape cases in West New Britain since 2005, which are summarised in the recent case of The State v Francis Wangi CR No 1388 of 1999, 17.08.07. In all cases I have imposed the minimum penalty of five years imprisonment but suspended part (or in two cases, all) of the sentence, having regard to the circumstances of each case.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will remain at the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point. Three categories of considerations are listed. 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.

1. Did the offender not use violence in the escape, actual or threatened? Yes.
   
2. Did the offender not put anybody in real danger of being injured or killed? Yes.
   
3. Did he escape by himself? Yes.
   
4. Did the offender not cause damage to property of great value? Yes.
   
5. Was there something happening inside the jail that provided a good reason to escape? No.
   
6. Was there something happening outside eg with his family that gave him good reason to escape? No.
   
7. Did the offender give himself up after the escape? No.
   
8. Was he at large for only a short time? No. The offender was at large for 20 months.
   
9. Did the offender cooperate with the police in their investigations? Yes.
   
10. Has the offender done anything tangible towards repairing his wrong, eg, personally or publicly apologising for what he did? No.
    
11. Has the offender pleaded guilty? Yes.
    
12. Has the offender genuinely expressed remorse? Yes.
    
13. Is this his first offence? No.
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence? Yes. He has never been properly dealt with over the suspected armed robbery that dates back to 2003. He was in remand for seven months without charge. He was badly assaulted upon his recapture.
    

15. To recap, mitigating factors are:

• No 1 – non-violent escape;
• No 2 – no risk of injury;
• No 3 – sole escapee;
• No 4 – no property damage;
• No 9 – cooperated with police;
• No 11 – guilty plea;
• No 12 – remorse;
• No 15 – breach of constitutional rights.
  

16. Aggravating factors are:

• No 5 – nothing happening inside jail;
• No 6 – nothing happening outside jail;
• No 7 – did not surrender;
• No 8 – at large for long time;
• No 10 – no apology;
• No 13 – not a first-time offender.
  

17. The other factor (No 14) is neutral. After weighing all these factors and bearing in mind that there are nine mitigating factors compared to six aggravating factors, there is no case for lifting the head sentence above the starting point of five years. I accordingly fix a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. When sentencing an offender it is conventional to deduct from the head sentence the period that has been spent in custody in remand, also known as wet kot, awaiting trial. The offender does not have a right to have this period deducted. It is a matter for the discretion of the court under Section 3(2) of the Criminal Justice (Sentences) Act 1986, which states:

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.

19. When the offender was returned to custody on 17 November 2006, he spent his first month in custody finishing off the previous escape sentence which he interrupted when he escaped in March 2005. Then he been back in wet kot; this time in relation to the current escape offence for which he is now being sentenced. I am therefore going to deduct a pre-sentence period in custody of ten months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In the present case I have decided to suspend part of the sentence, given the complex history of the offender's incarceration and the fact that he has never actually been committed to stand trial, let alone been convicted of any offence other than escape. I will give him the chance to stay out of the prison system and it is up to him whether he makes the most of this chance. Four years of the sentence is suspended subject to the following conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave Madang Province without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d) must attend his local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

21. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

22. Allan Apau, having been convicted of one count of escape, is sentenced as follows:

Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender