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State v Irakau [2016] PGNC 544; N9111 (22 November 2016)

N9111

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1058, 1076, 1077, 1078, 1079, 1080 & 1127 OF 2016

THE STATE

V

JOHN PAIA IRAKAU, DAVID GEORGE,
JOEL OTARIV, RALF DUSAL RIBMA,
ASS MEDRON NAGIR, JIMMY MOGOI & JOHN KATAN TALIL

Madang: Cannings J
2016: 25^th August, 19^th October, 3^rd, 17^th, 22^nd November

CRIMINAL LAW – sentence – escape from lawful custody – escape from jail – mass escape – seven prisoners convicted after pleading guilty.

Seven prisoners involved in a mass escape from a provincial jail pleaded guilty to escaping from lawful custody. They were at large for periods ranging from less than 24 hours to over two years and they were returned to custody in varied circumstances, some surrendered and some had to be forcibly arrested.

Held:

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

(2) Each case was assessed on its merits, however there were some mitigating factors common to the seven cases in that: no violence was committed in the course of escape; all offenders cooperated with police after being returned to custody; all pleaded guilty; all expressed remorse; all were to some extent mistreated on their return to custody. There were also common aggravating factors: mass escape; they all had prior convictions.

(3) Mitigating factors peculiar to some cases were: where the offender was at large for only a short period; where the offender surrendered, as distinct being arrested.

(4) An aggravating factor in some cases was that the offender had prior conviction(s) for escape.

(5) The presence of mitigating or aggravating factors was relevant to both determination of the head sentence and determination of whether any part of the head sentence ought to be suspended.

(6) In each case, a head sentence of five years was imposed, some of which was suspended. The period of suspension varied from case to case, ranging from one year to four years.

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
The State v Francis Wangi CR No 1388 of 1999, 17.08.07
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for seven prisoners who escaped from lawful custody.

Counsel

F K Popeu, for the State
A Meten, for the Offenders

22^nd November, 2016

1. CANNINGS J: This is a decision on sentence for seven prisoners convicted of one count each of escaping from lawful custody contrary to Section 139(1) of the Criminal Code. They were prisoners at Beon Correctional Institution serving sentences for various offences. On 21 March 2013 they were involved in a mass escape by 49 prisoners. They were at large for periods ranging from less than 24 hours to over two years and they were returned to custody in varied circumstances, some surrendered and some had to be arrested. They all pleaded guilty to the charge of escape.

ANTECEDENTS

2. The offenders have the following prior convictions.

RETURN TO CUSTODY

3. Each offender was returned to custody in different circumstances, as set out in the table blow.

ALLOCUTUS

4. The offenders were given the opportunity to address the Court on the question of sentence. They each, except for Joel Otariv (who might have mental health issues) expressed remorse. They raised issues of concern such as welfare issues not being addressed, they were frustrated with administration of the jail, they were not ringleaders, there was no planning, it just happened.

OTHER MATTERS OF FACT

5. As the offenders have pleaded guilty they 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).

6. They cooperated with the police and made admissions in their police interviews.

PRE-SENTENCE REPORT

7. One PSR giving their personal details.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mrs Meten highlighted the guilty pleas. As to the escape itself, the offenders were not ringleaders; non-violent escape; early G please; explanation of administrative problems; rehabilitation programs deficient. Asked for five years suspended.

SUBMISSIONS BY THE STATE

9. Mr Popeu highlighted that most of the offenders did not surrender. Each one should be sentenced on his merits – main distinguishing factor is the period spent at large.

DECISION MAKING PROCESS

10. 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 other sentences have been imposed recently 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?

11. 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.

12. 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 (Edmund Gima and Siune Arnold v The State (2003) SC730).

STEP 2: WHAT IS A PROPER STARTING POINT?

13. 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?

14. I have passed sentence in many escape cases. In most cases I have imposed the minimum penalty of five years imprisonment but suspended part (or in two cases, all) of the sentence, having regard to the circumstances of each case.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. Each case was assessed on its merits, however there were some mitigating factors common to the seven cases in that: no violence was committed in the course of escape; all offenders cooperated with police after being returned to custody; all pleaded guilty; all expressed remorse; all were to some extent mistreated on their return to custody. There were also common aggravating factors: mass escape; they all had prior convictions.

16. Mitigating factors peculiar to some cases were: where the offender was at large for only a short period; where the offender surrendered, as distinct being arrested.

17. An aggravating factor in some cases was that the offender had prior conviction(s) for escape.

18. The presence of mitigating or aggravating factors was relevant to both determination of the head sentence and determination of whether any part of the head sentence ought to be suspended.

19. Mitigating factors are:

• no violence used;
• no risk of injury to others;
• cooperated with police;
• guilty plea;
• remorse
• surrendered
  

20. The aggravating factor is that it was a mass escape.

21. After weighing all these factors, I have decided to fix a head sentence of five years imprisonment for each offender.

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

22. When sentencing an offender it is conventional to deduct from the head sentence the period that has been spent in custody in remand, also known as wet kot, awaiting trial. The offender does not have a right to have this period deducted. It is a matter for the discretion of the court under Section 3(2) of the Criminal Justice (Sentences) Act 1986. In this case, the period is zero, as each offender was not in custody in connection with this offence: he was in prison, not in remand.

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

23. 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. In the present case I have decided to suspend part of the sentence for each offender, subject to the condition that for the suspended period of the sentence the offender keeps the peace and is of good behaviour. That condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

24. The periods of suspension are as follows:

SENTENCES

25. The offenders, having been convicted of one count of escape, are sentenced as follows:

* subject to the condition that for the suspended period of the sentence the offender keeps the peace and is of good behaviour.

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offenders