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State v Mora [2013] PGNC 99; N5309 (22 July 2013)

N5309

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 454 OF 2012

THE STATE

V

JOHN MORA

Vanimo: Kirriwom, J.
2013: 18 & 22 July

CRIMINAL LAW – Sentence – Prisoner escaping from lawful custody – Meaning of prisoner – Escape while on remand for an indictable offence – Charge for escape as an indictable offence – Appropriate charge under section 139 of the Criminal Code – Prisoner to be dealt with by indictment – Mandatory minimum of five years imposed - Suspended 4 ½ years and ordered to serve six months in prison which is to commence on completion of sentence currently served before probation sentence comes into effect.

Facts

The prisoner escaped from court house while awaiting committal hearing on attempted rape. He was recaptured and returned to custody. He has since been dealt with for the attempted rape and convicted and sentenced to seven years. After period spent in custody awaiting trail was deducted, ordered to serve 12 months in prison and rest to serve on probation.

He now appeared and pleaded guilty for escaping from lawful custody. Court expressed criticism of the piecemeal approach in the prosecution of the prisoner when the escape ought to have been heard and dealt with before the substantive case which was the reason for his detention when he escaped.

He was sentenced accordingly taking into account sentence imposed in respect of the attempted rape charge.

Detail facts in the judgment.

Cases cited

The State v James Tei Wena [2000] N2304
Edmund Gima and Siune Arnold v The State (2003) SC730
Brian Laki v The State (2005) SC783
The State v Tovey Lukeson Gaunede [2005] N2049
The State v Ali Karis Wasiura (2008) N3425

Counsel:

V. Mauta, for the State
R. Yayabu, for the Prisoner

REASONS FOR SENTENCE

22nd July, 2013

1. KIRRIWOM, J.: The prisoner pleaded guilty to escaping from lawful custody whilst a prisoner in the custody of Sgt Kevin Weapka on 6th February 2012. The charge was laid under section 139 of the Criminal Code which provides as punishment, a mandatory minimum term of five years imprisonment.

2. At the time of his escape the prisoner was in remand on allegation of attempted rape and was taken to Vanimo district Court for committal hearing and placed in the custody of Sgt Weapka who was the police prosecutor. While the prisoner sat behind the court and the prosecutor was dealing with other matters that preceded his case, the prisoner walked out of the courtroom and disappeared. He was nowhere to be found and a warrant for his arrest was issued.

3. Two weeks later the prisoner was seen walking across the Vanimo sporting field by a policeman and he was apprehended and taken into custody again. He was committed to stand trial for this escape charge in April 2012.

4. Since his apprehension and re-arrest, he was committed to trial on the attempted rape charge and that case was determined last March in which the prisoner was convicted and sentenced to imprisonment of seven years less time spent in custody. He was ordered to serve 12 months and the balance was ordered to be served on probation.

5. I raised a preliminary issue with Mrs Mauta on the appropriateness of the charge preferred under section 139 of the Code when the prisoner was not a convicted prisoner at the time of the escape but a remandee awaiting trial. Mrs Mauta while appreciating my position as I expressed in The State v James Tei Wena [2000] N2304 submitted that the charge laid is in accordance with the view expressed by the Supreme Court in Edmund Gima and Siune Arnold v The State (2003) SC730 and Brian Laki v The State (2005) SC783, two cases in which I was a member of the bench and was the President in one of them. She was supported by Miss Yayabu for the prisoner who also made similar submission.

6. While I have my own misgivings about the final outcome in Edmund Gima and Siune Arnold v The State (supra) over time I have had to reflect on the position I took in The State v James Tei Wena (supra) and it seems my stance has wavered based on the views expressed by the two Supreme Court decisions and individual judges' judgments who joined in the discussions in their respective judgments, in particular The State v Tovey Lukeson Gaunede [2005] N2049 and the helpful discussion in it by my brother Gavara-Nanu, J. I think it is common sense to adopt the view that if the person who escapes from lawful custody while on remand on a charge for committing an indictable offence, he must be tried on indictment under section 139 of the Code. And this is the position confirmed by the Supreme Court in Brian Laki v The State (supra) which is now a settled law on this issue.

7. In this case, the prisoner was on remand for attempted rape which is an indictable offence and his legal counsel had decided that his client pleads guilty to the charge as presented in the light of the discussions in the various decisions alluded to above, so I accept the plea of guilty by the prisoner.

8. The prisoner is 25 years old and comes from Uritai village, Kerema Gulf Province. At the time of this offence he was residing in Lido village, Vanimo. He is single and first born of two children. Both parents are still alive and he is a member of the United Church. He completed Grade 10 at Kilakila High School in Port Moresby. He has not held any formal employment.

9. In mitigation of penalty it was submitted that the court take into account his plea of guilty, expression of remorse, no resistance when recaptured and no offence used or property damaged to effect the escape. Counsel described the offence as a simple escape.

10. This submission drew immediate response from Mrs Mauta on behalf of the State who contended that it may be a simple escape but one that is prevalent and demonstrates disrespect of the judicial process and the courts. She argued that Vanimo is only a small town and he made no attempt to turn himself in.

11. Counsel referred to the case of The State v Ali Karis Wasiura (2008) N3425 where the prisoner was serving time for armed robbery and escaped. It was a non-violent escape in that while out on a work parade, the prisoner simply walked away from the group and escaped. He was sentenced to five years minimum and three years was deducted.

12. Ms Yayabu prayed for a fully suspended sentence and counsel for the State urged the Court for 1 – 2 years imprisonment.

13. Sentencing even in this only remaining minimum penalty offence is still a discretionary matter for the court. I have not read the judgment in relation to the attempted rape to acquaint myself fully of the reasoning in the trial judge's decision to impose the sentence in that conviction. Usually when such a sentence is imposed, the sentencing authority must have seen exceptional circumstances in the case and placed greater emphasis on rehabilitation as opposed to deterrence and retribution. The problem that another sentencing authority finds itself is when an offence committed earlier in time to the subsequent conviction of an offence the full circumstances of which was fully taken into account when sentence in that case was imposed. What justification would I be doing in this case if I am to impose a sentence that runs against the grain of that earlier sentence and rather than enforcing that sentencing objective it does the opposite.

14. I would have thought that this case ought to have been prosecuted before the substantive trial of attempted rape rather than wait until after the conclusion of the substantive charge. I do not entertain the submission that this case be treated separately and independently from the charge of attempted rape. That is true. But if it was not for that complaint, the prisoner would not have found himself in custody of the police at the time of his escape.

15. The practice of piecemeal prosecution of a person in custody facing multiple charges when nearing term of his release of an earlier conviction so that his hopes of release are dashed by more prosecutions has been held to be persecutory and contrary to international conventions on human rights which are also incorporated into the domestic laws of many member Nations.

16. In the light of the sentence he is presently serving I sentence him to five years imprisonment, and order that he serve six months of this term in prison, the balance is suspended on condition that he keeps peace and good behaviour for three years. The six months sentence shall commence on completion of the 12 months he was ordered to serve for the attempted rape conviction. In other words, the sentence is to be served cumulative to the earlier sentence of attempted rape. By this sentence I am not overly delaying the commencement of the probation sentence ordered earlier in that matter but adding to it an element of deterrence to show that instead of going on probation after twelve months, it will now be after 18 months, emphasising that escaping from lawful custody is a serious offence punishable by imprisonment.

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