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State v Koroiwe [2010] PGNC 177; N4154 (12 November 2010)

N4154

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 964 0F 2010

THE STATE

v

KAWA KOROIWE

Madang: Cannings J
2010: 21 October, 5, 12 November

SENTENCE

CRIMINAL LAW – sentence – escape from lawful custody by prisoner serving 12-month sentence summary offence – guilty plea – sentence of 5 years; 4 years, 6 months suspended.

A man pleaded guilty to escaping from a jail, where he was a prisoner serving a 12-month sentence for a summary offence, possession of a dangerous weapon. He was at large for a short period before surrendering.

Held:

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

(2) A sentence of five years was imposed. The pre-sentence period in custody was deducted and the balance 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 (2006) SC890
The State v Aruve Waiba SCR No 1 of 1994, 04.04.96

SENTENCE

This is a judgment on sentence for escape.

Counsel

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

12 November, 2010

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody arising from the following facts. The offender, Kawi Koroiwe, was a prisoner at Beon Correctional Institution serving a 12-month sentence for possession of a dangerous weapon, which had been imposed on him by the Madang District Court. On 9 January 2010, during daylight hours the offender took advantage of a change of shift by guards and climbed over the fence and escaped. He was at large for only a short time before going back into custody.

ANTECEDENTS

2. The offender has only the prior conviction for possession of a dangerous weapon.

ALLOCUTUS

3. 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. He said that he escaped as he was being threatened and abused while in custody. A Sepik man had been killed and a man from his village, Yabob had been blamed. He feared for his life. He approached a senior correctional officer for assistance and he was placed in a detention cell for three months for his own protection. He came out in January 2009 but the old problems he faced were still there. He felt the only thing he could do was escape. It was not true that he was recaptured. His sister and other family members encouraged him to surrender, which is what he did. When he went back to jail he was again put in a detention cell for three months.

OTHER MATTERS OF FACT

4. 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 (2006) SC890). I accept the statements made in allocutus about why he escaped, being kept in detention for long periods and the circumstances in which he came back into custody.

PRE-SENTENCE REPORT

5. Kawa Koroiwe is 36 years old and married with two children. He comes from a large family at Yabob village, near Madang town. He is educated to grade eight and has some history of paid employment. He is a person of limited financial means. His health is essentially sound. He has a strong family and community support network. He has no bad record in the local community. He is recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted the guilty plea. As to the escape itself, the offender has given the reasons that he escaped. He has a favourable pre-sentence report. He completed his sentence for the summary offence in May 2010 and since then has been in remand. That period of six months should be deducted from the head sentence for the escape and the balance of the sentence suspended, Ms Turi submitted.

SUBMISSIONS BY THE STATE

7. Mr Pil took issue with the offender's claim that he surrendered, as during arraignment he pleaded guilty to the circumstances of his going back into custody, which were that he was arrested in a dawn raid at his village. Other than that, Mr Pil did not oppose the defence counsel's submissions.

DECISION MAKING PROCESS

8. 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?

9. 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.

10. 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 (The State v Aruve Waiba SCR No 1 of 1994; 04.04.96; Edmund Gima and Siune Arnold v The State (2003) SC730).

STEP 2: WHAT IS A PROPER STARTING POINT?

11. 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?

12. It is well recognised that the usual sentence for the offence of escape under the Criminal Code, Section 139, is five years imprisonment. Sentences in excess of five years are usually reserved for those cases where the offender has committed another offence in the course of escaping (eg where a correctional officer is attacked or firearms are involved) or the offender has a prior conviction for escape.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• no violence used;
• no risk of injury to others;
• something happening inside the jail;
• the offender was kept for long periods, in difficult conditions, in detention cells, ie solitary confinement;
• he surrendered;
• he was only at large for a short period;
• guilty plea;
• no bad record in the community.
  

There are no identifiable aggravating factors.

14. After weighing all these factors, I have decided to fix a head sentence of five years imprisonment.

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

15. Yes. Under Section 3(2) of the Criminal Justice (Sentences) Act 1986 it is appropriate to deduct the period of six months, as contended for by Ms Turi.

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

16. 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 some cases the offenders have been unable to comply with the conditions and have been committed to custody to serve the rest of their sentences.

17. This is an appropriate case in which to suspend the balance of the sentence, for two reasons. First, the favourable pre-sentence report, which suggests that the offender poses no danger to the community if he is released on probation. Secondly, as the offender was serving a sentence for a summary offence, he could have been charged – and probably should have been charged – with the offence of escape under Section 22 of the Summary Offences Act, the maximum penalty for which is six months imprisonment (Edmund Gima and Siune Arnold v The State (2003) SC730).

18. I will suspend the balance of the sentence subject to the following strict conditions:

(a) must reside at Yabob 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 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;
(h) must have a satisfactory probation report submitted to the National Court Madang Registry every six 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.

SENTENCE

19. Kawa Koroiwe, having been convicted of one count of escape contrary to Section 139(1) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.

_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender