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State v Karol [2019] PGNC 231; N7908 (11 July 2019)

N7908

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1072 of 2018

THE STATE

-v-

MILTON KAROL

Lorengau: Geita J
2019: July 10, 11

CRIMINAL LAW – Guilty plea – Escape from Lorengau Goal - Criminal Code Section 139 (1).

CRIMINAL LAW – Sentence - Sentenced to 5 years – wholly suspended with conditions.

Cases Cited

Gimble v The State (1988-89) PGLR 271 at 275;
Public Prosecutor v Thomas Vola [1981] PNGLR 412;
Public Prosecutor v William Bruce Tardrew [1981] PNGLR 205
State v Inema Yawok (1998) N1766
The State v Frank Kagai [1987] PNGLR 320;
The State v James Kapin Cr.20 of 2019 12-20 June 2019

Counsel

Mr. Paul Tusais, for the Public Prosecutor
Mr. Kusunan Pokiton, for the Prisoner

11 July, 2019

DECISION ON SENTENCE

1. GEITA J: The accused pleaded guilty to unlawfully escaping from Lorengau Correction Service thereby contravening section 139 (1) 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 to by Prosecution and Defence on the depositions for the guilty plea are these: Whilst serving a 3 years sentence for probation order breaches since August 2017 he escaped on 9 September 2018. At the material time he was also serving a four months goal term by the Lorengau District Court for escaping. The accused is said to have escaped under the pretext of attending Sunday prison chapel services with other inmates. He surrendered himself to prison officials a day later. The practise of inmates escaping from Lorengau goal and turning themselves days later is a common occurrence due to shortages of prison officers in Lorengau.

3. Mitigating factors in his favour include his voluntary return to the goal, no one was harmed at the time of his escape and that he feared reprisals from prison guards. When the opportunity presented itself with relaxed security measures he slipped out from their watch and disappeared into the nearby settlement. He is single and comes from a family of five siblings. He was living at Ward 7 prior to his incarceration. An Evangelical Church member in Manus and now leads devotions in prison.

4. His prior conviction of breaking and entering a dwelling house in March 2015 and the first escape from lawful custody must go against him. The accused is well past his release dates for the two prior offences i.e. 21 October 2018 and 21 June 2018. He has been in pre-trial custody for 9 months now.

5. Mr. Pokiton for the accused referred me to two case authorities on the exercise of Court’s discretion on suspension of sentence available under Section 19 Criminal Code. (State v Inema Yawok (1998) N1766 and The State v James Kapin Cr.20 of 2019 12-20 June 2019). Defence Counsel submitted that the accused feared reprisals from prison guards after his fellow inmates were not found. A wholly suspended sentence was called for on behalf of his client.

6. Mr. Paul Tusais for the State however submitted that the minimum sentence of 5 years was mandatory and should be imposed in view of the fact that the accused is a habitual escapee. Since suspension orders were discretionary in nature for the Courts Mr Tusais left it to the Court to exercise its discretion in sentencing the accused.

7. Having considered all points favourable to the accused and those against him together with submissions for and against from both Counsels I make findings as follows. 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 is considered serious. 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.)

8. As can be seen from the above facts 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. The facts reveal that no weapons were used and no harm was caused to prison guards. Notwithstanding the seriousness of the crime, compassion in human nature in my view also contributed to their escape. 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.

9. 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 with the 9 months pre-trial custody period deducted. The accused is convicted and sentenced to 5 years of which I will suspend 4 years. The accused is to enter into his own recognizance to keep the peace and to be on good behaviour for 2 years. His remaining sentence will be served to the rising of this Court with conditions.

Orders accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused