State v Avu [2006] PGNC 202; N5006 (22 September 2006)

N5006

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 979 0F 2006

THE STATE

V

SIMON AVU

Kimbe: Cannings J
2006: 3 August, 12, 22 September

CRIMINAL LAW – sentencing – Section 139 (escape by prisoner) – sentence on plea of guilty – escape from correctional institution

A man serving time at Lakiemata Jail, near Kimbe, for murder, escaped while on a work parade in the jail's garden. Nobody was injured and no property was damaged in the course of the escape. He was at large for six months before being apprehended. He said the reason he escaped was he was very sick, he had not been taken to hospital when he requested treatment and he thought he would die if he stayed in jail. He had no previous escape convictions.

Held:

The offender was sentenced to five years imprisonment. He must serve a minimum term in custody of six months; and the balance of four years and six months may be suspended by further order of the National Court.

Cases cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Mark Kanupio and Others (2005) N2800
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
SCR No 1 of 1994; The State v Aruve Waiba, 04.04.96, unreported

PLEA

The accused pleaded guilty to escaping from lawful custody and the reasons for the sentence are given below.

Counsel

F Popeu, for the State
B Tanewan, for the accused

22 September, 2006

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to escape from lawful custody. The accused pleaded guilty to the following facts:

• The accused is a prisoner serving a sentence at Lakiemata Jail, near Kimbe, West New Britain Province, for murder.
  
• On 4 October 2004 he and 20 other prisoners were taken out of the jail to work in the jail garden.
  
• While working, he walked off without the warders noticing.
  
• He was on the run until 19 April 2005 when he was apprehended at Bialla.
  

2. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

3. He has one prior conviction, for murder. In October 2003 he was sentenced to 10 years imprisonment by Bidar AJ.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I had become very sick and I am still very sick and that is why I have almost lost my voice. I cannot talk loud or clear. I believed that if I had stayed in jail any longer, I would die. They did not take me to the hospital when I needed to go. That is why I escaped.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

6. The offender's claim in his allocutus – that he was very sick, he had not been taken to hospital when he requested treatment and he thought he would die if he stayed in jail – was not contested and is not difficult to believe. The offender seems to be in poor health. He is unable to speak properly and looks in need of medical treatment. His claim will be treated as truthful and genuine.

PRE-SENTENCE REPORT

7. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe Office of the Community Corrections and Rehabilitation Service, is summarised below.

Male aged 43 – from Honzekuan village, Kabwum, Morobe Province – had been living at the Morobe settlement, Navo, since 2000, prior to commission of the offence that led to him being sentenced – both parents still alive, in the village – 5th of 5 children – good relationship with family.

Was married with one child – wife deceased (offender convicted of her murder) – his child now being cared for by his sister.

Good family and community support for the offender in the event that he is released. The Morobe community is well aware of the circumstances that led to the murder of his wife. No objection taken to his release back into the community at Navo.

No formal education.

Financial status: poor – no savings or current means of support.

Plans: wants to return to Navo and resume work as a labourer – does not want to return to village for fear of reprisals by his deceased's wife's relatives.

Health: poor – diarrhoea – poor hearing and cannot talk properly.

The report concludes that he is a suitable candidate for probation supervision.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Tanewan highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; he co-operated with the police in their investigation; no firearms or other weapons were used in the course of the escape and nobody was injured and no property was damaged.

SUBMISSIONS BY THE STATE

9. Mr Popeu did not press for a heavy sentence and accepted that the offender's state of health was poor.

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 should the head sentence be?
  
• step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 5: 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. (SCR No 1 of 1994; The State v Aruve Waiba, Supreme Court, 04.04.96, unreported, Los J, Salika J; Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J.)

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 IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will remain at the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point. Three categories of considerations are listed. Numbers 1 to 7 focus on the circumstances of the escape. Numbers 8 to 12 focus on what the offender has done since the escape and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the offender not use violence in the escape, actual or threatened? Yes.
   
2. Did the offender not put anybody in real danger of being injured or killed? Yes.
   
3. Did he escape by himself? Yes.
   
4. Did the offender not cause damage to property of great value? Yes.
   
5. Was there something happening inside the jail that provided a good reason to escape? Yes, he was seriously concerned about his poor health.
   
6. Was there something happening outside eg with his family that gave him good reason to escape? No.
   
7. Did the offender give himself up after the escape? No.
   
8. Was he at large for only a short time? No. The offender was at large for six months.
   
9. Did the offender cooperate with the police in their investigations? Yes.
   
10. Has the offender done anything tangible towards repairing his wrong, personally or publicly apologising for what he did? No.
    
11. Has the offender pleaded guilty? Yes.
    
12. Has the offender genuinely expressed remorse? Yes.
    
13. Is this his first offence? No. He is still serving time for murder.
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Yes. There is a high level of community support for him. Nobody is objecting to his release back into the community.
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence? Yes. He is still in poor health.
    

15. To recap, mitigating factors are:

• No 1 – no violence.
• No 2 – no risk of injury to others.
• No 3 – no others involved in escape.
• No 4 – no damage to Correctional Service property.
• No 5 – concerned about health.
• No 9 – cooperated with the police.
• No 11 – pleaded guilty.
• No 12 – expressed remorse.
• No 14 – high level of community support.
• No 15 – time spent in dark cell.
  

16. Aggravating factors are:

• No 6 – nothing happening outside jail.
• No 7 – did not surrender.
• No 8 – was at large for six months.
• No 10 – no apology.
• No 13 – second conviction.
  

17. After weighing all these factors and bearing in mind that there are ten mitigating factors compared to five aggravating factors, there is no case for lifting the head sentence above the starting point of five years. I accordingly fix a head sentence of five years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. It cannot be said that the offender has spent time in custody already in connexion with this offence, as he has been continuing to serve his original sentence for murder, of 10 years, imposed in 2003.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. It is appropriate to consider suspending part of the sentence given the number of mitigating factors that have been identified and in view of the approach that I have been taking in other escape cases in West New Britain. I have accepted that the offender's reason for escaping was genuine. He was very sick and he thought he might die. He still appears to be sick. He is not considered a danger to the community. I will give the offender the benefit of the doubt and indicate that he should serve a minimum term in custody of six months, after which he will be eligible to have the remaining period of the sentence suspended.

SENTENCE

(1) Simon Avu ("the offender") having been convicted of one count of escape, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	0
Resultant length of sentence to be served	5 years
Minimum time to be served in custody	6 months
Period of sentence that may be suspended	4 years and 6 months

(2) For the avoidance of doubt: suspension of any of the above sentence will only come into effect if and when ordered by the National Court and be subject to conditions, including a community work order, to be approved by the National Court.

(3) The minimum term to be served in custody shall be served cumulatively upon the existing sentence the offender is serving.

Sentenced accordingly.
______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the accused