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State v Tokau [2009] PGNC 293; N3875 (29 June 2009)

N3875

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 463 of 2008

THE STATE

-V-

PETER TOKAU

Kimbe: Kandakasi, J.
2008:27th May
2009: 29th June

CRIMINAL LAW - PRACTICE & PROCEDURE – Escape from lawful custody – Factors for consideration as determined by Supreme Court in Edmund Gima v. The State and Arnold Siune v. The State (2003) SC730 –Need to also take into account status ofand reason for lawful custody at first place and prejudice in prosecution of serious mitigating factor - Court has discretion to impose a sentence below the prescribed minimum –When that can 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 – Remanded in lawful custody for serious offence of willful murder – Forced mess prison break out – Injury to prison officer - Re-capture after almost 10 years - Guilty plea – Serious case of escape from lawful custody possible prejudice to successful prosecuting on pending charge - Prevalence of the offence considered – A deterrent sentence called for – Sentence of 6 years imposed – Criminal Code s.139 (1).

Cases cited:

The State v. Jack Moge [1995] PNGLR 246
The State v Inema Yawok (1998) N1766
SCR 1 of 1994 in Re Aruve Waiba (1996) SCR No.1 of 1994
The State v. Irox Winston (2003) N2347
Acting Public Prosecutor v. Don Hale (1998) SC564
Edmund Gima v. The State; Siune Arnold v. The State (2003) SC730

Counsel

R.Kupmain, for the State
T.Gene, for the Prisoner

DECISION ON SENTENCE

29th June, 2009

1, KANDAKASI J: You pleaded guilty to one charge of escaping from lawful custody out of Lakiamata, here in Kimbe, West New Britain Province on 28th November 1999. That was contrary to s.139 (1) of the Criminal Code, which prescribes a minimum penalty of 5 years.

Submissions

2. Having due regard to the prescribed minimum penalty of 5 years and the particular circumstances of your case, you through your lawyer, Mr. Gene ask for a sentence between 3 – 4 years. The lawyer for the State Mr. Kupmain however argued for a sentence of up to the maximum of 5 years.
   

Issue

3. The issue obviously for me to decide is whether you should receive a sentence of 3 to 4 years or the prescribed minimum of 5 years or something else.
   

Facts

4. The facts giving rise to the charge and your guilty plea are these. You were initially remanded in custody pending a hearing of a charge of you willfully murdering your father in law. Whilst awaiting your trial a group of remandees numbering 9, including you, forcefully broke out of the Lakeamata prison at about 4:00am and dashed for freedom. In the course of your escape and in order to secure your escape, the group which you escaped with, injured a prison officer. Since escaping, you were at large and would have remained so had it not been for a good tip off. Following the tip off, the police had you recaptured on 24th January 2008.
   

The Relevant Law

5. 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."

6. As has been repeatedly noted by both the Supreme and National Courts, the Court must start with a sentence of not less than 5 years and there is no discretion in that.[1] But that is not where it stops. The Supreme Court decision in SCR 1 of 1994 in Re Aruve Waiba (1996) SCR No. 1 of 1994, held that it is 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. Imposing a sentence lower than the prescribed minimum is only possible by way of suspension of sentence. Since that judgment, the National Court has imposed sentences below the 5 years prescribed minimum.
   
7. It is well accepted that, escape from lawful custody is a serious affront to law enforcement and is counter productive to all of the law enforcement efforts. Also, the offence sees to waste police manpower and resources including finance and others that goes into making the initial arrest and lawful incarceration which gets repeated following an escape. Unless there is voluntary surrender, further costs and resources are often deployed to re-capture an escapee. There is also the risk that, if escapees are not re-captured or they are captured and are very leniently dealt with, it encourages others in lawful custody to think of and go for their own escapes.
   
8. Given this, I have advocated in The State v. Irox Winston (2003) N2347, that the Courts should not readily suspend sentences in escape cases unless a case has been made out for any suspension. That was based on the decision of the Supreme Court in Acting Public Prosecutor v. Don Hale (1998) SC564, which spoke in those terms. In its subsequent decision in Edmund Gima v. The State; Siune Arnold v. The State (2003) SC730 the Supreme Court, amongst others, re-affirmed the need for a pre-sentence report supporting a suspension of sentence before there can be any suspension. Otherwise any suspension of sentence is not to occur as a matter of course.
   
9. The Supreme Court in the Edmund Gima and Siune Arnlod case also provided a list of matters the Court can take into account to assist in a determination of an appropriate sentence. It includes the following:
   
   • receipt of any information by escapee of a retaliatory killing of a close relative supported by a prison officer;
   • any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;
   • whether the escape is en mass;
   • whether any weapons were used;
   • where weapons are used whether any person or property damaged or injury occasioned;
   • expenses of re-capture;
   • when and how re-capture occurred;
   • whether there is a guilty plea but contrasted against chances of a successful not guilty plea.
     

11. I consider it is appropriate to add considerations of what is the status of the reasons for the escapee's lawful custody at the first place. If the escapee was held in custody pending investigations or prosecution of any charges against the escapee, any prejudice to the State in terms of securing any of its witnesses and eventually a possible conviction. If there is such prejudice by reason of the escapee's escape from lawful custody, that should be a serious factor in aggravation against the escapee. This is serious and important because, an escape is usually aimed at avoiding a possible successful prosecution and or serving ones penalty for committing an offence. If by their conduct, escapees are allowed to achieve that end without penalty it will clearly defeat the purpose of our criminal justice system and we will loose respect in the eyes of our people and become irrelevant, ineffective and of no use to our people. Consequently, this promotes the risk of more self helps and more and more lawlessness,

Application of Law to Present Case

10. I now need to apply the law I have just outlined to your case. For that purpose, I note that you were charged and remanded in custody for a serious offence of willful murder of your father in law. Before that matter took its proper course and concluded, you decide to escape from the reach of the law well after it caught you. You were successful for a period of almost 10 years. The authorities could have easily forgotten how you looked like and that you had escaped from lawful custody. You were therefore, effectively defying the law and giving the wrong message to people in your community that you were above the law or that the law was too weak to have you recaptured and rearrested. Unfortunately for you but fortunately for the good of the community, some very good law abiding and cooperative citizens tipped off the police of your whereabouts. That resulted in a successful police raid conducted specifically to have you recaptured and rearrested.
    
11. There is no evidence before the Court of what has become of the original charge against you. It is also not clear whether the witnesses in that case are still around with a freshness of their memories and that they will be able to come and testify against you. The lapse of almost ten years may have resulted in the death or otherwise loss of some of the witnesses and their memory of the relevant facts. If there has been no such loss, the onus was on you to demonstrate that there has been no such loss. You did not provide this Court with any such evidence. Accordingly I note that, there is the risk that, the State may not be able to successfully prosecute the original charge against you. I consider this is a serious aggravating factor against you.
    
12. Further, I note that, the break out was en mass. This means each of those who carried out the mass break out and escape, had it all planed out and carefully executed the plan. That also means that, those involved in the plan and its execution, performed their respective parts including being involved in the break out resulting in the successful break out and escape from lawful custody. It is well settled law that, people committing offences in the company of others ought to be punished more than an offender who acts alone because a group accomplishes more than an individual.
    
13. There is no evidence of anything that might have happened in the prison that was seriously endangering your life or safety which was beyond the ability of the prison system to adequately take care of and that the only option open to you was a break out of prison and escape. Clearly therefore, this was a break out and escape carried out purely to escape the due process of the law after you had initially took matters into your own hands and killed your father in law.
    
14. The evidence available before the Court shows that, you and your fellow prison breakout and escapees used some metallic object to conduct the break out and escape. The evidence also shows that, you used the same if not similar objects, to attack prison officers who were on guard at the relevant time to secure your escape. That attack resulted in one of the prisoner officers being attacked and sustaining injuries. That was in addition to damages being done to the prison facilities purposely for your break out. The State is left to meet the costs of the damages you and your fellow escapees have caused.
    
15. Finally as noted, you did not voluntarily surrender to the lawful authorities following your prison break out and escape. You were out and at large for almost 10 years. It required a tip off and a police raid to have you recaptured and rearrested. Although there is no clear evidence on the details of the police raid, I am sure, the State through the Police Force, incurred some costs in fuel and other material and other resources the police may have employed and used for the successful raid. These costs were additional to those the State had incurred in your first arrest and incarceration for willfully murdering you father in-law. There would have been no such costs if you did not escape.
    
16. All of these factors operate against you. Against them, there are only two factors that are in your favour. The first is your guilty plea. As the Supreme Court said in the Edmund Gima and Siune Arnlod case, this has to be weighed against what chances if any you had in pleading not guilty and avoid conviction. In your chase, the Correction Services, have had records of you being charged and being remanded in custody awaiting your trial. Immediately after the break out, the prison officers carried out an audit and were able to ascertain you had escaped. People who knew you were a prison escapee reported you to the police who conducted a raid and recaptured you and rearrested you. Given this, I doubt whether you could have successfully pleaded not guilt and escape being found guilty and convicted.
    
17. The second factor in your favour is the fact that, you have no prior conviction. This means you have not been in trouble with the law before until the commission of this offence and possibly the commission of the offence that led to your initial arrest and incarceration. Usually, people with no prior conviction get a lesser sentence than one who has a prior conviction. In your case however, I note that what you did is a clear demonstration of you not having any respect for the system of law and order in our country. The community expects people like you to be dealt with severely to send a deterrent message to others who might contemplate breaking the law and try to escape the reach of the law.
    
18. In addition to taking into account the above factors, I also take into account your person background. In that regard, I note that you originally come from the Morobe Province and you are about 40 years old now. You are married with 2 wives and 3 children. You lived with your family at Section 4, Block No. 348 in Tama. Education wise, you have been up to grade 10 out of Hoskins High School. Thereafter you were employed by the PNG Defence Force for 6 years from 1990 to 1996. Your mother is alive while you father is deceased. You are the only child to your parents.
    
19. Carefully noting and taking into account your personal and family backgrounds as well as the factors operating both for and against you as outlined above, I note that, the factors against you far outweigh those in your favour. You are no ordinary citizen. You have been educated up to grade 10. You have worked with our Defence Force for 6 years. You live not far from the township of Kimbe. You joined forces with 8 other prisoners or remandees at the relevant time at Lakeamata Correction Services and successfully broke out of prison. Since your successful escape you have been at large for 10 years. You did not surrender and it required a special police operation to recapture and rearrest you. You committed an offence that is a serious affront or and offence against the system of law and order itself. As an adult person and given you background, you knew before you set out to do what you did, was wrong but proceeded nonetheless with your plan. You and your friends attacked and injured innocent prison officer who was only doing his job to keep the country save. You seriously endanger his life for your own, thereby bringing home one of the fears I believe every prison officer would often hold in their line of duty. Further, I note that you committed an offence that is becoming quite prevalent and despite Parliament enacting the minimum penalty of 5 years.
    
20. As the Courts have said to date, sentence must start at 5 years and adjustments must be made upwards or downwards depending on the particular circumstances of each case. The decisions of the Courts are also very clear that, there can be no downward adjustment except by way of suspension of sentence. The Supreme Court in the Edmund Gima and Siune Arnold case, made it very clear that, unless very good mitigating factors exist with a pre-sentence report supporting a more lenient sentence, there can be no suspension of sentence with a view to bringing the actual sentence below the 5 years prescribed minimum in appropriate cases.
    
21. In your case, I find there is no factor in your favour that warrants an exercise of leniency and more importantly a sentence below the prescribed minimum of 5 years. Instead, a careful weighing of the factors for and against you weighs in favour of a sentence beyond the prescribed minimum of 5 years. This is necessary to serve as a personal as well as a general deterrence against people who might be contemplating breaking out of prison, causing damage to public property and injury and harm to prison officers in the process. Having regard to the particular circumstances of your case, I consider a sentence of 7 years is appropriate and I impose that sentence.
    
22. I have of course given some consideration to a suspension of the whole or part of the sentence. I find however, that there is no basis for me to undertake such an exercise. Accordingly, I decline to suspend either the whole or part of the sentence. I will however, deduct the period you have spend in custody while waiting for your sentence in this case. This will leave you with the balance to serve. I order that you serve that period in hard labour at the Lakeamat Correction Services. A warrant of commitment will issue in those terms forthwith.

___________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Prisoner

^[1] See The State v. Jack Moge [1995] PNGLR 246 and The State v Inema Yawok (1998) N1766 for examples of authorities on point.