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State v Wakore [2017] PGNC 119; N6760 (25 May 2017)

N6760

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1725 OF 2017

THE STATE

V

BARTHOLOMEW WAKORE

Kimbe: Miviri AJ
2017 : 24^th & 25^th May

CRIMINAL LAW - Escaping from Lawful custody-plea- prisoner armed robbery 1997- escaped 1997- 18 years at large-concurrent sentence-cumulative sentence-totality principle-prior conviction

Cases cited:

Gima v The State [2003] SC 730

SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996),

State v. Thomas Waim, Tala Gena and Alois wanpis N1750 delivered 24th July 1998

Counsel:
R. Luman, for the State
F. Kua, for the Defendant

DECISION ON SENTENCE

25^th May, 2017

1. MIVIRI AJ: Bartholomew Wakore you were sentenced to seven years in hard labour for armed robbery in 1992 by the National Court presided by Justice Jalina. You were serving your term at Lakiemata Corrective Institution but escaped on the date unknown in 1997. You were at large and in October 2015 the police shot you in the leg and you were hospitalised at the Kimbe General Hospital. The Corrective Institution came to the hospital and confirmed that you were an escapee and took you into custody and you have been in custody since your recapture for a period of 1 year 7 months and 6 days now.

2. Upon reading the committal depositions tendered against you, I confirmed your guilty plea and convicted you of the charge presented of escaping from lawful custody contrary to section 139 (1) of the Criminal Code.

The Law

3. “Section 139 Escape by Prisoner.

(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.”

Evidence

4. The State evidence consisted of your record of interview conducted on the 17^th June 2016 in pidgin where you did not make any admissions to the allegation of escaping from lawful custody.

5. Correctional Services officer Sonny Uva gave a statement that he heard in the news that you were shot by police on the 11^th October 2015 and were in custody at the Kimbe General Hospital. He checked with the records kept after your file was located and in it there was a notice of escape you had escaped on an unknown date in 1997 and were at large since.

6. I confirmed your provisional plea of guilty and confirmed a verdict of guilty on the indictment to escaping from lawful custody contrary to section 139 of the Criminal Code. That you were a prisoner of the state sentenced by the court per Justice Jalina for armed robbery for seven years in 1992 and you had escaped in the currency of that sentence in1997. I confirmed the provisional plea of guilty and returned a guilty verdict on the indictment of escaping from lawful custody.

Allocutus

7. True I ran away in 1992, escaped and was at large. I was outside the burnt reception of Lakiemata, I did not have warrant. I served my five years and ran away. Police Shot me and I surrendered, if only warrant there I would not have run away. Commander released me as I did not have a warrant. 1^st June 2015 I was charged”.

Mitigation

8. Prisoner pleaded guilty to the charge under section 139 of the Code. The minimum penalty was 5 years IHL. He was aged 23 years old at the time that he escaped then now he is 43 years old. He is from Datuwore in Talasea West New Britain Province. He is married with five children. He is the fifth of seven children and is educated to grade 6. He has been in custody now for 1 year 7 months 6 days. He was shot by police and was in hospital and is now physically handicapped and therefore is no longer a threat to the community.

Prosecution submission

9. He was at large for 20 years which is a demonstration of disregard for the criminal justice system. He was wounded by police to bring him to the law. He did not voluntarily surrender to the law. On 30^th June 2016 he was released as there was no warrant at the discretion of the commander of the Jail.

Sentence

10. You must know that the hands of the law are long. The memory of the law is long, years may lapse into oblivion but the memory of the law is as fresh as this morning. You will realize that only the truth will set you free. Lies and deceit will build up nothing. No doubt you have grown with the years and have become mature in your life as there is nothing of any criminal behaviour in the18 years that you have been at large. You are commended for that and of coming to the court and admitting your guilt, again it is sign of your maturity in life and acceptance that crime has no part in your life. In any case you have learnt the hard way with an injury that will be a permanent reminder of what the law is unto you. It will no doubt be passed onto your children and close to you of what the law is.

11. In the State v. Thomas Waim, Tala Gena and Alois Wanpis N1750 delivered on 24^th July 1998 by Justice Injia (as he then was), an effective sentence of 3 years after suspending 2 years from the head sentence of 5 years. In so doing his honour considered the following:

“"... although this was a mass breakout, this was an ordinary escape, in that the 3 accused and others simply climbed over the security fence and escaped. There is no evidence that these 3 accused were the main perpetrators. No weapon was used. No CIS staff member was threatened or injured. And no additional effort and expenses were involved in their re-capture as they were rounded off close to the CIS compound and recaptured the same day shortly after their escape. For these reasons, I consider that to impose the minimum sentence of 5 years per se would be manifestly excessive in the circumstances. Nevertheless, a strong punitive sentence is warranted because this offence is becoming far too prevalent in this country. Escapes from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment. I consider that an effective custodial sentence of 3 years for each accused is appropriate in this case. Accordingly, I sentence each accused to a minimum of 5 years imprisonment as required by law, of which I suspend 2 years in respect of each accused on the condition that when each accused comes out of jail after serving their respective terms, they will be of good behaviour for 12 months."

12. I adopt these principles here as they are good principles of sentencing and good law because compatibility of totality is here, I do not have the circumstances of how you escaped and were at large. But a strong and punitive sentence is called for in view of the fact that the offence is prevalent and is an affront to the judicial system and law enforcement and must be met with stern punishment. On the other hand the facts and circumstances of your case must be dealt individually with its sentence peculiar to your own setting and facts.

13. I am bound by Section 139 (1) of the Code in the penalty prescribed a minimum of five (5) years but by the case of SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996), I have discretion to suspend part or whole of the sentence against you. In so doing, I am mindful of the principles of totality in the sentence that is passed upon you. I also consider in full the submissions of your lawyer and the lawyer for the State and the general circumstances of the case in particular your antecedents and society’s abhorrence of crime where it is repeated aggravating. Justice in sentencing must not only serve you but also the state as sentencing is not a formula tied but dependent on each individual case. Gima v The State [2003] SC730.

14. I must consider that you are not crushed by the sentence passed but must always bear that the State and society must not be deprived by crime and criminals are properly addressed and sentenced to deter prospective persons intent on similar crime. Society must be protected from those who have a propensity to commit crimes one after the other and who do not have respect for society and the law. That is if one graduates from one offence to another within a short space of time without any regard for society and the pillar of the law, it is the duty of this court not to ignore but to pass sentence taking account and stressing in the sentence passed. I am duty bound to consider these as relevant against you and I do so here.

15. In all the circumstances considering the facts the circumstances and the law prevailing and relevant with respect to the offence of escaping from lawful custody and your particular circumstances, I make the following orders:

16. You are convicted for the crime of escaping from lawful custody pursuant to Section 139 (1) of the Criminal Code and sentenced to 5 years IHL:

1. 1 year 7 months 1 week deducted for time in custody.
   
2. 3 years 4 months 3 weeks IHL is suspended on 12 months GBB.
   

Orders accordingly,

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant