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State v Nemo [2010] PGNC 89; N4098 (9 August 2010)

N4098

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 979 OF 2010

THE STATE

V

ALLAN NEMO

Vanimo: Makail, J
2010: 03rd & 09th August

CRIMINAL LAW - Plea - Sentence - Escape from lawful custody - Convicted prisoner - Serving time for prior offence of rape - Aggravating factors and mitigating factors considered - Cumulative custodial sentence appropriate - Partly suspended with conditions - Prescribed minimum sentence of 5 years imprisonment imposed - 4 years suspended - 1 year to be served cumulatively with prior sentence for rape - Criminal Code, Ch 262 - Sections 19 & 139(1).

Cases cited:

The State -v- Jack Moge [1995] PNGLR 246
The State -v- Inema Yawok (1998) N1766
The State -v- Aruve Waiba: SCR No 1 of 1994 (Unnumbered and Unreported Judgment of 04th April 1996)
The State -v- Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750
The State -v- Richard Oslo Kumis (1997) N1517
The State -v- Irox Winston (2003) N2347
Edmund Gima & Siune Arnold -v- The State (2003) SC730
The State -v- Linus Rebo Dakoa (2008) N3427
The State -v- James Gurave Guba (2000) N2020
The Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205
Public Prosecutor -v- Michael Kerua & Ors [1985] PNGLR 85

Counsel:

Mr K Umpake, for the State
Mr S Raneva, for Prisoner

SENTENCE

09th August, 2010

1. MAKAIL, J: The State presented an indictment against you charging you with one count of escaping from lawful custody at Vanimo CIS prison compound at 1 O'clock in the afternoon on 15th November 2009 while serving a 20 years jail sentence for rape. At the time of escape, you were attending to a water pump unattended outside the prison compound. Escaping from lawful custody is an offence under section 139(1) of the Criminal Code, Ch 262. You pleaded guilty to the charge and were convicted accordingly. What is left for me to decide now is an appropriate punishment for you.

2. This offence carries a minimum penalty of 5 years imprisonment. That means, you can expect to be sentenced to not less than 5 years in prison for this offence. I believe Parliament has placed a minimum limit of 5 years for this offence to reflect the seriousness of the offence. It is also to show that once, a person is in lawful detention, it is expected, that person will remain there until the time of release in cases of fixed prison sentence or if it is a life imprisonment sentence, that person will remain there until death. So, as you can see, you can expect to be sentenced to 5 years or more in prison.

3. However, there has been divergence of opinion in relation to whether the Court is bound to impose the minimum penalty of 5 years imprisonment on persons convicted of this offence given the Court's discretionary power to impose a lesser penalty under section 19 of the Criminal Code, Ch 262. Some judges have held that there is no discretion given to the Court to impose a penalty below the minimum penalty of 5 years imprisonment as was the case in The State -v- Jack Moge [1995] PNGLR 246, per Jalina, J and The State -v- Inema Yawok (1998) N1766, per Kirriwon, J.

4. Others have held the contrary view as was the case in The State -v- Aruve Waiba: SCR No 1 of 1994 (Unnumbered and Unreported Judgment of 04th April 1996) where the Supreme Court held that the Court may suspend a sentence in whole or in part after imposing the minimum sentence prescribed. That was the position Injia, J (as he then was) also took in The State -v- Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750 where he imposed the minimum penalty prescribed of 5 years imprisonment and also suspended 2 years leaving a balance of 3 years for each prisoner to serve in that case.

5. I am inclined to follow the latter view because in my firm opinion, section 19 vests discretion in the Court to impose a lesser penalty on an offender unless it is expressly removed in a given case. In this case, section 139 does not expressly remove the Court's discretion under section 19. I am thus, satisfied that there is discretion to impose a lesser penalty for this offence. Further, not all cases of escaping from lawful custody are serious and it would be too harsh to impose 5 years imprisonment in a case where it is not a serious one. I am, thus persuaded to follow the view that there is discretion to impose a lesser penalty for a section 139 offence. I shall consider your sentence on that basis.

6. On your allocutus, you told the Court that you escaped from custody because you were upset with the CIS officers for not granting you permission to visit your sick wife. This was after your sister visited you and informed you that your wife was sick. You became more upset when you noticed one of the remandees whom you claimed was a high risk detainee given permission by the CIS officers to visit his wife while your request was declined. When this occurred, you felt the CIS officers were being unfair to you, especially when you were one of the most trusted and reliable prisoner at Vanimo CIS prison, hence you decided to escape. When you escaped, you went straight to see your sick wife and after that, you returned to prison.

7. You were sorry for what you did and asked for leniency. Your lawyer had nothing further to add to what you told the Court.

8. According to the State, you escaped at 1 o'clock in the afternoon on 15th November 2009 and returned to the prison at 6 o'clock in the morning of 16th November 2009. This is about a day and a half. The State did not seriously ask for a penalty that would be too crushing on you as it considered that your escape was a "simple one". By that it suggested, there was no State property destroyed or damaged and injuries or death caused to anyone during the time you escaped. It pointed to one prior conviction you had and that is in relation to a charge of rape following conviction and sentence by the National Court in 2004 where you were serving 20 years imprisonment when you escaped. Indeed, it submitted, it is entirely up to the Court to consider an appropriate sentence for you including suspension of any custodial sentence that the Court may impose and the question of cumulative sentence.

9. What is an appropriate sentence to impose on you? A quick review of past cases on escaping from lawful custody is important to also guide the Court to arrive at a decision that will be fair in the circumstances and consistent with past cases. In The State -v- Richard Oslo Kumis (1997) N1517, a decision of Lenalia, AJ (as he then was), the prisoner escaped from lawful custody after he had just been sentenced to 6 months imprisonment for stealing by the Mendi District Court. He deliberately avoided contact with the police until he was re-captured some 1 year and 6 months later. He pleaded guilty to a charge of escaping from lawful custody. His Honour said where a prisoner escapes from lawful custody and voluntarily surrenders, in such a case, the voluntary surrender would be a mitigating factor. As the prisoner escaped and avoided the police for a period of 1 year and 6 months, His Honour held that it was an aggravating feature of the case and sentenced him to 5 years imprisonment. His Honour then suspended 3 years and ordered him to serve only 2 years in prison.

10. In The State -v- Irox Winston (2003) N2347, the prisoner pleaded guilty to one count of escaping from lawful custody at Bihute Corrective Institute Service in Goroka. Kandakasi, J gave the following reasons for sentencing the prisoner to 5 years imprisonment without any reduction:

"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 as to be contrast with 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."

11. In the Supreme Court judgment of Edmund Gima & Siune Arnold -v- The State (2003) SC730, the Supreme Court in adopting the principles on sentencing in cases of escaping from lawful custody by prisoners in Irox Winston's case (supra) said at pp 19 and 20 of the judgment:

"As we have just observed, escaping from lawful custody at any level is a deliberate decision not to comply with the orders of the Court if already convicted and sentenced. In other cases, it amounts an unlawful demonstration of a decision not to submit to the jurisdiction of the Courts and demands of the law. This does not however, mean an automatic imposition of the prescribed minimum sentence of 5 years and or suspending it, without more. Instead, the Court still has a duty and obligation coupled with a discretion under s. 19 (1)(d) of the Criminal Code, to impose a sentence that is either lower or above the minimum prescribe sentence depending on the particular circumstances of each case and on proper principles.26

The third aspect that we wish to have settled is the relevant factors that must be considered when it comes to considering an appropriate sentence for this offence. We are of the view that the Court must have regard to a number of factors. Without necessarily limiting the list, this includes the existence of any exceptional circumstances. That could include for example the receipt of information of retaliatory killing of a close relative supported by prison officers. It could also include any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in the prison compound supported by evidence for example from the prison officers.27 Other factors include whether the escape is en-mass, whether any weapons were used and if so, whether any personal or property injuries or damages have been cause and the extent of any such injury or damage. The expenses to which the State may have been put to recapture the offender, when and how he has been recaptured are also relevant.28 A guilty plea may be a relevant factor but this has to be view in the context of how the offender could have escaped or succeed in a denial of the charge against him or her.29

12. In your case, I accept your escape is a "simple one" because you did not destroy or damage any State property during the time you escaped. I also accept that you did not injure or kill anyone, let alone the CIS officers during the escape. These matters operate in your favour and make your case less serious: see Richard Olso Kumis's case (supra). It was not a mass escape and I take that into account. You also surrendered to the CIS officers following your escape and that was after a night out with your sick wife. I will hold this in your favour. I also take into account your early guilty plea to the charge. This has saved the Court considerable time and money to determine your guilt. Further, I take into account that you co-orporated with police during their investigations. You have also apologized to the Court and expressed remorse for what you have done and I accept them.

13. But I do not accept your explanation for your escape. It is simply unacceptable. You were a prisoner of the State, serving time for a very serious offence, namely rape and you were supposed to remain in custody and not to wander off as and when you feel like it. I must remind you that your detention and well being are in the hands of the CIS officers. If you had asked for permission to go and visit your sick wife and it was declined, that is the end of the matter. Of course, you may be upset and bitter about it but that is the decision you must live with until such time you are allowed to visit her. After all, you are not a free man; you are a prisoner of the State. As such, you have no right to wander off and when you did, you have not only committed an offence but have also shown disrespect to the CIS authority. As observed by Injia, J (as he then was) in the case of Thomas Waim & Ors (supra) and Kandakasi, J in Irox Winston's case (supra), 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.

14. If I accept your claim you were one of the most trusted and reliable prisoners at Vanimo CIS prison, you should not have wandered off that day. Since you did, you have not only breached that trust they had in you but also betrayed them. I must also remind you that a prison is not a place where you may leave and return as and when you feel like it. It seems that it is now becoming a trend that prisoners escape from prison to attend to their personal needs and return whenever they like as if it is a boarding school where students go to school and leave when it is holiday time. I find these matters aggravate your case.

15. The prevalence of the offence is another aggravating feature of your case. Escaping from lawful custody has been a common occurrence. It has captured our attention almost on a daily basis. It is common knowledge, in recent times jail break outs has become too frequent in jails around the country. We have heard, seen and read in the daily newspapers and TV news of mass jail break outs in Port Moresby's Bomana CIS prison, Lae's Buimo CIS prison, Mt Hagen's Baisu CIS prison, and many others. Some have been well planned with assistance of CIS officers while others occurred when opportunity arises. It would seem, prisoners and remandees alike do not respect the law anymore. When will all these mass jail break outs stop? I believe when the Court comes down hard on such law breakers.

You and your lawyer have not told the Court about your personal background. This is a relevant matter to assist me to determine an appropriate sentence for you. The only information about you is in the Antecedent Report which showed that you are 25 years old and come from Sumararo village in Vanimo District. You completed Grade 10 at Aitape High School and resided in Vanimo. From the information, I can safely say that you have attained a fairly reasonable level of education and that placed you in a position to appreciate and differentiate between what is wrong and what is right. As you are 25 years old, I can also say that you are old enough to make responsible decisions for your own good. That means, you knew that what you embarked on and accomplished on 15th November 2009 was wrong. It was a deliberate act of defiance of the law, so I must hold this against you.

16. In relation to the period of time you were away from prison, I find that your case slightly similar to the case of The State -v- Linus Rebo Dakoa (2008) N3427, a decision of Cannings, J where he imposed a sentence of 5 years imprisonment and suspended 4 years and 6 months leaving a balance of 6 months for the prisoner to serve following an early guilty plea by the prisoner for escaping from lawful custody. In that case, the prisoner was a remandee, in custody at Lakiemata CIS prison on two charges of wilful murder. On Saturday 15th March 2008, he and other detainees were escorted to a church service within the jail boundaries. When he noticed that the warders were not paying attention, he ran off. The alarm was raised soon after he went missing and he was apprehended shortly afterwards at the back of the female compound.

17. In your case, you walked out of prison on the afternoon of 15th November 2009 and returned on the morning of 16th November 2009. You spent the afternoon and night of 15th November 2009 and the early part of the morning of 16th November 2009 away from prison. The period of time in your case is much longer than the period of time in Linus Rebo Dakoa's case (supra). That means, the sentence I will impose on you will be higher than the one imposed in that case. Finally, you are not a first offender. You are a convicted prisoner serving a 20 years jail sentence for rape following conviction and sentence by an earlier Court on 26th March 2004. The purpose for sending you to jail is two fold. First, to keep you away from the community and punish you for the wrong you have done and secondly, to correct you so that when you come out, you will be a better person. As you have escaped, it seems you still have not accepted the reasons for your imprisonment. It also appears you still have a long way to go to make peace with yourself. This is another aggravating feature of your case which I must hold against you.

18. Having considered the matters operating in your favour and those against you, I am of the opinion that a custodial sentence is appropriate for you. The next question is whether it should be suspended wholly or partially. In the Supreme Court decision of Edmund Gima & Siune Arnold (supra), the Supreme Court insisted on a pre sentence report before any consideration can be given to the question of suspension of a custodial sentence. It observed at pp 19 and 20 of the judgment that:

The final aspect we turn to is the fact that the sentencing practice has been one of starting with the prescribed minimum of 5 years with some wholly suspended as in The State v Inema Yawok30 while others refusing to reduce it as in The State v. Kerowa Kana31. In all of the cases where there was a suspension whether in whole or in part, the Court considered the particular circumstances of each of the cases and proceeded to suspend the respective sentences almost without more.

In this regard, we are persuaded by Kandakasi J.'s observation in The State v Irox Winston,32 that this Court's judgement in SCR 1 of 1994 in Re Aruve Waiba,33 appears to come into conflict with the Court's judgement in Acting Public Prosecutor v. Don Hale.34 In the later case, this Court said:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... 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."

Then in the case before it, this Court observed that the trial judge had no pre-sentence report or a report from the community. The Court also found that the learned trial judge had not sought any help from the community in the supervision of the suspended sentence it imposed. The Court therefore found that the trial judge fell into error.

After considering the effect of these two judgements, Kandakasi J. was of the view that there was no conflict between the two. Instead he was of the view that, they complemented each other. This effectively means according to that view:

"... 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 can not arrive at such a sentence."

19. I am bound to follow the Supreme Court judgment of Edmund Gima & Siune Arnold's case (supra) and insist on a pre sentence report when considering the question of suspension of sentence in cases of escaping from lawful custody. However, I note some judges have decided to suspend custodial sentences without a pre sentence report as was the case in Aruve Waiba (supra), Thomas Waim & Ors (supra) and Linus Rebo Dakoa (supra). I am prepared to suspend part of any custodial sentence I may impose on you even though there is no pre sentence report because there are sufficient mitigating factors before me as highlighted above satisfying me that your case is not a serious or worst one which would call for a higher sentence.

20. I have also given consideration to the question of whether your sentence should be made concurrent or cumulative with the sentence you are currently serving for rape. I adopt and apply the principles discussed by Kandakasi, J in The State -v- James Gurave Guba (2000) N2020 where his Honour followed the principles set out in the cases of The Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205 and Public Prosecutor -v- Michael Kerua & Ors [1985] PNGLR 85. In summary, these principles are:

"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, sexual assaults on different victims; and

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

21. In your case, there is no doubt that the sentence of 20 years was for rape. You were ordered to serve that sentence by an earlier Court on 26th March 2004. You escaped on 15th November 2009, more than 5 and a half years later. This offence of escaping from lawful custody was not committed in the course of committing rape. It is completely different as it arose after you were serving time in prison for the offence of rape. Thus, I consider a cumulative sentence appropriate in your case.

22. In the end, I have decided that you should be sentenced to the minimum sentence prescribed of 5 years imprisonment in hard labour in line with the Supreme Court decision of Aruve Waiba (supra). Four (4) years shall be suspended with conditions and you will serve 1 year cumulatively with the prior sentence for rape. As you have spent time in pre sentence custody since 16th November 2009, I shall also deduct 8 months and 23 days for that, leaving a balance of 3 months and 7 days for you to serve. The conditions of the suspended sentence are:

1. You shall reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

2. You shall not leave West Sepik Province without the written approval of the National Court;

3. You shall perform at least 6 hours of unpaid community work every Mondays, Wednesdays and Fridays of each week at a place notified to the Probation office under the supervision of a Probation Officer;

4. You shall report to the Probation Officer on the first Monday of each month between 9:00 am and 3:00 pm;

5. You shall not consume alcohol or drugs;

6. You shall keep the peace and be of good behavior;

7. You shall have a satisfactory probation report submitted to the National Court Registry whenever there is a National Court circuit to Vanimo after the date of sentence; and

8. If you breach any one or more of the above conditions, you shall be brought before the National Court to show cause why you should not be detained in custody to serve the rest of the sentence.

Sentence accordingly.

_______________________________________
Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for Prisoner