State v Kana [2002] PGNC 10; N2376 (16 August 2002)

N2376

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1280 of 2002

THE STATE

-V-

KEROWA KANA

Mt. Hagen: Jalina J
14 and 16 August 2002

CRIMINAL LAW – Sentence – Escape by Remandee- Plea of guilty – Imprisonment to 5 years mandatory minimum penalty necessary as deterrent – Criminal Code s.139.

Counsel:
J. Waine for the State,
M. Kupul for the Prisoner.

16 August 2002

JALINA J: You have pleaded guilty to a charge that you escaped from lawful custody at Baisu Corrective Institution on 29th November 2000 while you were awaiting trial for willful murder. You escaped with 17 others during a mass break out. Evidence shows that you and 17 other remandees rushed at the lone prison officer when he opened the gate for 2 pastors to preach the word of God as is usually done on Wednesday each week. You were arrested by police near your village in the Baiyer River area more than a year later on 28th March, 2002.

This offence carries a mandatory minimum sentence of 5 years imprisonment pursuant to s.139 of the Criminal Code Act. The penalty used to be a discretionary penalty of up to 3 years but in view of the prevalence of escapes in prisons and police stations throughout the country, Parliament amended that provision in 1993 and not only increased the penalty from 3 years to 5 years but also removed the discretion from the Court in the length of time it can impose. In other words, previously the Court could impose a penalty of up to 3 years imprisonment or even impose a non-custodial sentence but now the Court does not have the discretion. It must impose 5 years. It can then decide whether to suspend the whole or part of that sentence depending on the circumstances of the case.

In your statement on the allocutus you said that you had been a remandee at Baisu for a long time and because your case took too long to be heard and you became sick and when you saw four gates open and the other remandees were escaping that time so you availed yourself of the opportunity and escaped to your village.

Your Lawyer, Ms. Kupul, apart from reference to your personal antecedents which I have noted, has submitted that whilst the court can impose the minimum mandatory period of 5 years, the sentence be suspended and that you be released on good behaviour bond. The basis for her submissions were your plea of guilty which saved this court time and expense in conducting a trial as well as your expression of remorse, your co-operation in admitting the offence when interviewed by police, your promise not to do it again and that your case had not been brought to trial for a long time.

I can accept that you co-operated with police because I read your admission in the record of interview but I cannot accept that you regret what you have done and promise not to do it again and also that you are sorry for what you did as you never mentioned that during your statement on the allocutus. I would have preferred your expression of remorse coming directly from you. I also do not accept your statement during the allocutus that four gates were open because there is no evidence from the Warder who opened the gate for the two pastors that four gates or other gates were open at the time.

You stated that you waited for a long time for your case but according to your lawyer you had been in custody for only 4 months and 12 days prior to your escape. That to my mind is not a long time compared to others who have been in custody sometimes to a period of 2 years but did not escape. I cannot accept persons charged with escaping from lawful custody saying that because others were escaping and he saw the opportunity so he escaped. The question of whether or not one should escape when there is opportunity is a matter of personal choice. But once a person decides to escape and does so, he cannot come to court and seek a lenient sentence by way of suspended sentence just because he saw an opportunity which was created by someone else so he escaped or that he escaped because others were escaping.

I also cannot accept Ms. Kupul’s submission that a suspended sentence be imposed because the 5 years would be crushing on you since you are yet to be tried for wilful murder. That submission, with respect, has been misconceived. It has been misconceived because firstly it cannot be certain whether you are going to be acquitted or convicted of wilful murder. Even if you are convicted, the fact that this offence and the offence of wilful murder were committed at different times and at different locations, the totality principle would not apply. Again for the same reason, even the question of whether the sentence for wilful murder should be concurrent would not apply. The two offences being different in nature and also being different as to place and circumstances of commission, the wilful murder sentence has to be made cumulative to the sentence for escaping.

With regard to your plea of guilty, I do not think that you had room for any other plea but one of guilty because all that the prosecution had to prove was that you were in lawful custody and that you left the confines of the area where you were kept without permission or other circumstances that are not authorised by law. The prosecution had overwhelming evidence against you in this case so you had no choice but to plead guilty. You also made no effort to surrender for more than a year.

In all the circumstances of this case and taking into account all factors put to me by you during your allocutus and the submissions by your lawyer, I sentence you to 5 years imprisonment in hard labour.

As you did not have any good reason in law to escape and also to ensure that this sentence acts as a deterrent to others and yourself, I refuse the request to suspend the whole or part of the 5 years. So you will have to serve the whole of the 5 years in hard labour.
_____________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor