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State v Jacob [2013] PGNC 247; N5376 (19 September 2013)

N5376

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR. 412 of 2013

THE STATE

V

BONNY JACOB

Kimbe: Geita AJ
2013: 19 September

CRIMINAL LAW – Sentence – Escape from Police custody – Criminal Code Section 139 – Suspension of minimum sentence – discretionary -CID officers complacency contributed to escape

CRIMINAL LAW – Section 139 Criminal Code-Sentenced to 5 yrs with suspension – 12 months to be served- Section 19 Code-Exercise of suspension discretionary with some firm basis

Cases Cited
The State vs. Thomas Waim & Ors [1998] PNGLR 360, N1750
Public Prosecutor v Thomas Vola [1981] PNGLR 412;
Gimble v The State [1988-89] PNGLR 271 at 275;
The State v Frank Kagai [1987] PNGLR 320;
Public Prosecutor v William Bruce Tardrew [1981] PNGLR 205

Counsel:
Mr. Augustine Bray, for the State
Mr. Paul Moses, for the Prisoner

DECISION ON SENTENCE

19 September, 2013

1. GEITA AJ: The accused pleaded guilty to unlawfully escaping from Kimbe Police Station on 26 May 2012 around 3am and 4 am in the morning in company of other prisoners thereby contravening section 139 Criminal Code. This offence carries a maximum punishment of 5 years imprisonment however Section 19 of the Criminal Code also gives courts discretionary powers to impose lesser punishments.

2. The facts as agreed by the Prosecution and the Defence on the depositions for the guilty plea are these: The accused appeared before Kimbe District Court on 25 May 2012 in the morning and was returned to Kimbe Police Station to await the processing of his remand warrant for his detention at Lakiamata Prison. However he together with other prisoners allegedly unlocked the cell door locks and made their getaway during the early morning hours the next day on 26th May 2012. He was on the run for 9 months until his recaptured on 14 February 2013 in Kimbe.

3. The accused was serving 15 years for armed robbery on 18 June 2009 when he escaped. He has several probation breaches and was rearrested.

4. Mitigating factors in his favour include the non use of violence nor offensive weapons in his escape. When the opportunity presented itself as a result of a commotion within the cells he took advantage and dashed for freedom with others. He is single, lives at Section 15 Settlement Kimbe and is an SDA follower. He is 20 years old and comes from Sopas village, Wabag Enga Province.

5. His act of escaping from lawful custody and being on the run for 9 months must go against him in my view. He has shown remorse for his actions and asks for leniency advancing his youthful age as a reason. He also asks for good behaviour bond and or probation to be considered as part of his punishment.

6. Mr. Moses for the accused referred me to the case authority on the exercise of court's discretion on suspension available under Section 19 Criminal Code (State v Thomas Waim & Ors 1988 [PNGLR] 360, N1750.) He submitted that the whole of the sentence be suspended and the accused continue with his prior sentence, adding that additional sentence would be too crushing on the accused.

7. Mr. Bray for the State however submitted that the minimum sentence of 5 years be imposed in light of State's meagre recourses used to apprehend and put through the criminal justice system again. Further adding that the accused had been on the run for 9 months and should not expect any leniency from the court. Since suspension orders were discretionary in nature for the courts Mr Bray left it to the court to consider.

8. I have considered all those points favourable to the accused and those against him together with submissions for and against from both Counsel. First State submission is noted as it reflects the intentions of Parliament. Second Defence submission on total suspension of sentence must be treated with caution as the accused prior conviction and probation breaches are considered serious. He has been accorded that opportunity for a reduced original sentence, now abused. In my view he must now be denied that opportunity. Third Defence call for court to exercise its discretion with reduced sentence. Such exercise of courts discretionary powers must be legitimised for instance first time young offenders, good character and good family background or on medical grounds etc. (Public Prosecutor v Thomas Vola [1981] PNGLR 412; Gimble v The State ( 1988-89) PGLR 271 at 275;The State v Frank Kagai [1987] PNGLR 320; Public Prosecutor v William Bruce Tardrew [1981] PNGLR 205.)

9. It would appear that none of those considerations favour the accused save for his apprehension and early guilty plea, thus saving State meagre resources from being expended in his prosecution, trial etc. committed. The facts reveal that no weapons were used and no harm was caused to police personnel at Kimbe Police Station. If anything police complacency in my view also contributed to their escape by unlocking the cell door. To this end I am of the view that this case does not warrant the imposition of the maximum 5 year prison sentence which would be too crushing a sentence on the accused.

10. It follows that in the exercise of my discretion under Section 19 Criminal Code, I consider 12 months to be the appropriate sentence under the circumstances. The accused is convicted and sentenced to 5 years of which I will suspend 4 years. This sentence will be served cumulatively with the current sentence as no case authority nor proper basis was advanced to the satisfaction of this court.

Orders accordingly.
__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused