Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Maima [2012] PGNC 193; N4752 (22 June 2012)

N4752

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 326 OF 2012

STATE

V

PAUL MAIMA

Prisoner

Goroka: Ipang AJ
2012: 15 & 22 June

CRIMINAL LAW – Sentence – Criminal Code Act – Escape by Prisoner – s.139 – minimum sentence of 5 years imprisonment – circumstances of escape taken in to considerations – mitigating and aggravating factors – 5 years imprisonment imposed – 3 years for arm robbery – that is 11 years, 3 months and 3 days.

Cases Cited

State v Etane Toto (2009) N3749
State v Ali Karis Wasiura (2008) N3425
State v John Nute Poto Andro (2006) N3020
State v Allan Nemo (2010) N4098
State v Linus Rebo Dakoa (2008) N3427

Counsel

Mr. T.Ai, for the State

Ms. R.Kukari, for the Prisoner

22 June, 2012

1. IPANG AJ: The prisoner pleaded guilty to one count of escaping from lawful custody contrary to s.139 of the Criminal Code Act. I confirmed the plea and this is the decision on his sentence.

Brief Facts

2. The brief relevant facts as I found are these; on the 9th of February, 2008, the prisoner was caring for another sick detainee at Goroka Base General Hospital when he escaped. At that time, the prisoner was a low-risk prisoner residing at the Maximum Security Unit at Bihute Correction Institution serving his jail term of eleven years, 3 months and 3 days for armed robbery.
   

Allocutus

3. In allocutus, the prisoner said while taking care of another prisoner at the Goroka Base General Hospital, he heard that his father and brother were killed during tribal fight so he escaped. He said he is sorry for what he has done and asked for mercy.
   

Antecedent

4. Prisoner was serving a prison sentence of eleven (11) years, 3 month and 3 days for armed robbery. At the time of escape, he had served four years, and one month and 9 days.
   

Personal Particulars

5. I noted that prisoner's personal particulars; he comes from Girio village, Chuave District, Chimbu Province and he is age 27 years old. He is married and has a child. He resides at 5 mile in Goroka District, Eastern Highlands Province. He was educated up to grade 3 at Gireho Primary School and he is unemployed and was living a subsistence life style. He is a member of the Revival Faith.
   

Pre- Sentence Report (PSR)

6. The Pre-Sentence report covers the prisoners back grounds, attitude towards the offence committed, the Community Leaders views on the prisoner and gave recommendation for a suspended sentence.
   

The Law

7. The penalty for the offence of unlawful escape under s.139 of the Criminal Code Act is as follows;
   

Section 139. Escape by

"(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".

Case Laws

8. The minimum penalty for offence of escape by a prisoner is five (5) years under s.139 of the Criminal Code Act. The examples below demonstrated how Courts in the past had decided on the penalties under s.139 of the Criminal Code Act.
   
9. In State v Etane Toto (2009) N3746, the prisoner escaped while serving a sentence of 4 years for sexual touching. He served 1 year, 4 months and had 2 years and 8 months left to be served. While at large, the prisoner committed another similar offence. The Prisoner pleaded guilty, expressed remorse and was placed in 3 months detention in solitary confinement. Kirriwom, J sentenced the prisoner to 5 years imprisonment in hard labour.
   
10. Cannings, J in Ali Karis Wasura (2008) N3425 sentenced a prisoner to 5 years imprisonment of which 2 years was suspended and the prisoner had only 3 years to serve. In this case Cannings, J noted that the prisoner escaped while serving sentence for armed robbery and 2 counts of escape, expressed no remorse, did not surrender directly to jail authorities and was at large for a long time. The prisoner pleaded guilty, no violence was used, jail was in bad condition and prisoner was given 2 months in detention cell.
    
11. In State v John Nute Poto Andro (2006) N3020, Cannings, J sentenced the prisoner to 5 years imprisonment and suspended 4 years. Prisoner was to serve only one (1) year jail term. Cannings, J took in to account that the prisoner escaped while awaiting trial for armed robbery. It was a mass –escape and the prisoner was at large for a long period of time. Prisoner pleaded guilty, prisoner was shot by police and locked up in detention cell after been re-captured.
    
12. Makail, J in State v Allan Nemo (2010) N4098 sentenced the prisoner to 5 years imprisonment in hard labour. Of which 4 years was suspended and the prisoner was imposed with one (1) year imprisonment to be served cumulatively to the previous sentence of rape. Makail,J took into account the 20 years sentence for the offence of rape, the prisoner's plea of guilty, expression of remorse, co-operation with the police and prisoners voluntary surrender. In another case of State v Linus Rebo Dakoa (2008) N3427, Cannings, J sentenced the prisoner to 5 years imprisonment. Of which 4 years 6 months were suspended and the prisoner was to serve only 6 months. Cannings, J took note that prisoner escaped while awaiting trial for willful murder. Prisoner did not report back directly to the Jail authorities. The prisoner pleaded guilty and early admission.
    

Mitigating and aggravating factors

13. In this present case the prisoner has pleaded guilty, has expressed remorse. I also noted that the prisoner was at large for 2 years, 7 months and 8 days, he was locked up in Detention Cell for 3 months. I noted the following aggravating factors against him; he had a prior conviction of armed robbery, and the prevalence of this offence.
    
14. In Ali Karis Wasiura's case (supra) and Allan Nemo's case (supra) both prisoners were at large for longer periods which are similar to this present case. I also noted that the escape in this case was a simple one in that while looking after a detainee at the hospital, the prisoner just walked out of the hospital.
    
15. Taking the mitigating and the aggravating factors in to account, I consider 5 years imprisonment would be the appropriate head sentence. I would then suspend 3 years. Prisoner will serve 2 years imprisonment to be served cumulatively to the sentence imposed on armed robbery which is 11 years 3 months and 3 days. No deduction will be made on pre-sentence period served in custody as the prisoner was a serving prisoner at the time of his escape and recapture.

____________________________________

Public Prosecutor: Lawyer for the State

Paraka Lawyers: Lawyer for the Respondent