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Kumul v State [2006] PGSC 3; SC839 (30 June 2006)

SC839

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 06 OF 2005

BETWEEN

JACK KUMUL
Appellant

AND

THE STATE
Respondent

Lae: Hinchliffe, Gavara-Nanu & Lenalia, JJ
2006: 27 & 30 June

CRIMINAL LAW: Escaping from lawful custody - Plea of Guilty - Sentence - Criminal Code Act, S.139.

CRIMINAL LAW: Escaping from Lawful custody - Criminal Code Act, s.139 - Discretion of the Court - Prisoner escaping while serving sentence for robbery - Prisoner at large for long period - prisoner recaptured after a police raid.

CRIMINAL LAW - Escaping from lawful custody - Criminal Code Act, s.139 - Length of time being at large - Relevant factor - Penalty - Circumstances in which prescribed minimum penalty may be imposed without part of the term being suspended.

Cases cited:
The State v Richard Olso Kumis N1517.
William Norris v-The State [1979] PNGLR 605.

Counsel:
Appellant in person
J Pambel, for the respondent

1. BY THE COURT: The appellant was convicted and sentenced to five (5) years imprisonment by the National Court in Madang on 18 November, 2004 on a charge of escaping from lawful custody contrary to s.139 of the Criminal Code Act. He pleaded guilty to the charge.

2. The brief facts were that on 12 September, 1999, the appellant was admitted to the Modilon General Hospital in Madang for medical treatment. At that time, the appellant was an inmate at the Beon CIS, serving 12 years for armed robbery. His sentence of 12 years for armed robbery was given in 1998.

3. He was being guarded by prison officers at Modilon General Hospital on 12 September, 1999 when he walked off his sick bed and escaped. After walking out of the hospital, he walked to his house at the Bukbuk settlement just outside the Madang town. Later, he boarded a PMV to his village in Chimbu. He stayed there for sometime before returning again to Bukbuk settlement. He was recaptured on 24 June, 2004 during a police raid in the settlement. At the time of his recapture, he had been at large for 4 years 9 months and 3 days. For his 12 years imprisonment for armed robbery, he had only served 1 year.

4. The appeal here is only against sentence.

5. The grounds of appeal are:-

i Grounds or reasons for the offence committed (were) not properly considered.
ii Grounds presented to the Court (were) not taken into account.
iii Was not given ample time to appear before the Court.

6. In his judgment, the trial judge noted that s.139 of the Criminal Code Act, prescribes a minimum mandatory penalty of 5 years imprisonment, which must be imposed; but the court has the discretion to suspend either whole or part of the minimum prescribed term depending on the facts of the case.

6. The trial judge also noted that the offence was a prevalent one, and it called for a deterrent sentence. His Honour discussed escapes by prisoners with circumstances of aggravation which may warrant the imposition of the prescribed minimum penalty of 5 years imprisonment without any reduction in term and escapes by prisoners with mitigating circumstances, which may warrant reduction or suspension of part of the minimum prescribed penalty.

7. In the appellant's case, his Honour said that there were circumstances of aggravation and therefore, it warranted the imposition of the prescribed minimum penalty of 5 years imprisonment with no reduction to the term.

8. The gist of his Honour's reasons for decision appears at p.23 of the Appeal Book, where his Honour said:

"...In mitigation, I accept you have pleaded guilty and that your escape was a simple one. That is that, you merely walked out of the hospital and escaped. Whilst you were at large, you did not commit any offence. But, I consider that there are aggravating factors against you which far out weigh the mitigating factors which I have raised. The more significant one is that you were at large for four years and nine months. You lived at Bukbuk settlement on the outskirts of Madang town which is not far from the law enforcement agencies in Madang town and the prison. In other words, you had an opportunity to surrender yourself. You chose not to. You made no attempts to surrender yourself. You were apprehended in a police raid. These are aggravating factors against you.

In the circumstances, I consider that none of the minimum sentence ought to be suspended. In coming to that conclusion, I take into account your lawyer's submission that the sentence should not be crushing one. But given the circumstances of your case, I consider that it will be inappropriate to suspend any part of the sentence. You are therefore committed and sentenced to five years imprisonment in hard labour. That sentence is to be served cumulatively upon the current sentence for robbery you are now serving..."

9. In his allocutus, the appellant explained that he escaped because there was no one to look after him in the hospital. That is all he said.

10. But before us, the appellant said in his written submission that he was severely brutalized by the prison officers while he was in jail which led him being hospitalized with swollen testicles which he described were the size of a rugby ball. He said this has permanently affected his sex life. He also said that because of the ill treatment he received from the prison officers in jail, he felt that his Constitutional rights were violated. He said he suffered severe stress as a result and said that the prison officers who were guarding him at the hospital also did not assist him to go to the toilet, to the shower and to get food. He was therefore forced to escape. He said the pain, the injuries, the sufferings and the ill treatment he felt and received from the prison officers were very disappointing to him.

11. As noted, these were not mentioned to the trial judge. We also note that, in the record of interview, he only told the police that after he walked out of the hospital, he walked to his house at Bukbuk settlement then boarded a PMV to his village in Chimbu. Again, there was no mention of the above mentioned matters to the police. Quite clearly, these are new matters he has raised before us which means that we can give no weight to them.

12. It is settled law that for this Court to interfere with the sentencing discretion of the trial judge, the appellant must show that there was a demonstrable error by the trial judge in the exercise of his sentencing discretion. See, William Norris v The State [1979] PNGLR 605.

13. Turning then to the grounds of appeal; as to the first ground, we accept the submission by Mr. Pambel that the trial judge may not have specifically addressed the reason given by the appellant for his escape from the hospital, which was that he had no one to look after him. But in our view, that is not a matter which can vitiate the sentencing discretion of the trial judge because the appellant was a prisoner at the time of his escape and therefore, he could not expect anyone else to care for him, except the prison officers who were already guarding him. This ground therefore has no merit and we dismiss it.

14. As to the second ground of appeal, we also accept Mr Pambel's submission that the trial judge took into account everything the accused said in his allocutus as well as the submissions made by his lawyer. This ground therefore also has no merit and we also dismiss it.

15. As to the third ground of appeal, Mr. Pambel submitted that the accused had more than sufficient time from the date of his arrest, which was 24 June, 2004 to the date of his trial which was 2 November, 2004 to prepare his case. We accept Mr. Pambel's submission on this. It follows that this ground also has no merit and also dismiss it.

16. We note that the most significant aggravating factor considered by the trial judge was that the appellant was at large for 4 years 9 months 3 days. His Honour did note that the appellant's escape was a simple one, in that he simply walked out of the hospital bed. But we note that it was a determined escape because he went to his village in Chimbu straight after his escape from the hospital and stayed there for sometime. He later returned to Bukbuk settlement in the outskirts of the Madang town, which is where he had always lived. The appellant deliberately continued to avoid arrest until his recapture in a police raid. So for 4 years 9 months 3 days, the appellant defied the law and treated the Order of the National Court in which he was sentenced to 12 years imprisonment for armed robbery, with contempt. His Honour described this as an "affront to the judicial process". His Honour found that in those circumstances, the aggravating factors far outweighed the mitigating factors. We agree with his Honour's findings.

17. We also say in approval of the approach taken by the trial judge in this case that, as regards the penalty for a prisoner who escapes from a lawful custody, the period spent by the prisoner to remain at large is a relevant matter to be taken into account by the courts when determining the type of penalty for that offending prisoner. In this regard, we note that it may have been said elsewhere that the period spent by the prisoner to remain at large is irrelevant when deciding the penalty for the prisoner. If indeed this has been the view expressed elsewhere, we would disagree with such a view for the reason that when a prisoner escapes from a lawful custody, for the start, it is a deliberate act to break the law (s.139); and if the prisoner continues to deliberately stay away for a long time and makes no attempt to surrender, he makes a mockery of the criminal justice system. The courts would thus have the duty to impose the type of penalty that should be commensurate to his continuous and deliberate breach and disregard of the law.

18. The approach adopted by his Honour in this regard was the same approach taken in The State v Richard Olto Kumis N1517. There, Lenalia A/J, (as he then was) said that a prisoner who escaped and deliberately avoided arrest and remained at large for a long time with no desire to surrender, would seriously aggravate his offence. In that case, the prisoner was sentenced to 6 months in hard labour. He escaped and was on the run for 1 year 6 months. His escape was from Mendi Police cells with other remandees through a cell window which was forced open. His Honour noted that the prisoner made no attempt to surrender to the police until he was recaptured. His Honour imposed the minimum prescribed 5 years imprisonment then suspended 3 years. Thus leaving 2 years for the prisoner to serve.

19. In this case, the appellant stayed away for 4 years 9 months and 3 days. As we noted earlier, at the time of his escape, he was serving 12 years for armed robbery, which is one of the most serious crimes. The trial judge said the sentence should have the desired deterrent effect not only on the appellant but on other like minded people as well. His Honour also noted that the sentences imposed on prison escapees should reflect the serious view taken by the Parliament in prescribing the minimum penalty of 5 years imprisonment. We endorse his Honour's views.

20. In this regard, we express similar sentiments and note that s.139 of the Criminal Code Act, was intended by the Parliament to deter prisoners from escaping from lawful custody. We note also that the enactment of the law was prompted by constant break outs by prison inmates, some of which were mass break outs. The statistics from circuit reports and the lists of pending matters throughout the country indicate that the offence is still prevalent. It is our view therefore that courts should take a serious approach in sentences for this offence and suggest that apart from other aggravating features which may warrant the imposition of the minimum prescribed penalty without any reduction in the term; in cases where an escapee has deliberately avoided arrest for a very long time, say for 3 years or more and has shown no willingness to surrender, the prescribe minimum penalty of 5 years imprisonment should also be imposed with no reduction in the term, as in this case.

21. We also see no error in the sentence imposed. We, therefore, dismiss the appeal and affirm the sentence.
_______________________________________________________________________
The Appellant appeared in person
Public Prosecutor: Lawyers for the respondent