State v Peni [2006] PGNC 209; N5005 (22 September 2006)

N5005

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 690 0F 2006

THE STATE

V

PAUL PEI PENI

Kimbe: Cannings J
2006: 8, 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 for armed robbery, escaped. He walked out the main gate with two others and took off. Nobody was injured and no property was damaged in the course of the escape. He was at large for seven weeks before being apprehended. He was shot in the leg and kept in a dark cell for a month before a Visiting Justice intervened and he was given medical treatment. He said the reason he escaped was mistreatment by warders. He had two previous escape convictions.

Held:

The offender was sentenced to five years imprisonment. He must serve a minimum term in custody of two years; and the balance of three years 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 person who pleaded guilty to escape from lawful custody. The accused pleaded guilty to the following facts:

• The accused is a prisoner serving time at Lakiemata Jail, near Kimbe, West New Britain Province, for armed robbery and escape.
  
• On 30 June 2005 he and three other detainees were cleaning inside the jail. On the pretext of emptying rubbish he and two of the others walked out the main gate and took off.
  
• He was on the run until 17 August 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 three prior convictions:

• armed robbery – 1997 – sentenced to 13 years imprisonment;
  
• escape – 2004 – sentenced to five years, four years of which was suspended;
  
• escape – 2005 – sentenced to five years with a minimum term of one year and four years available for suspension upon application and by
  

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 say sorry for what I have done. I have been escaping a lot but now I have realised escaping is not a good thing to do. There are reasons for my escapes. First, there are some correctional officers (warders) who charge the detainees for small things, eg when we go out for a walk. They are not consistent with the way in which they treat detainees. I escaped from officer Michael Rambe. He told me that he would not charge me and that he had forgiven me. Sometimes the correctional officers do this. They give preferential treatment to some detainees. Once there was a mass escape and the officers just forgave those who had escaped. One of the prisoners who escaped, Jeffrey Jack, stabbed one of the correctional officers with a spoon. But they still forgave him. Another one is Kola Kore. He was forgiven too. There was another detainee call Simon Sengarumu. He was forgiven. I am suspecting that there is bribery involved and that the correctional officers are willing to forgive only some prisoners. This is wrong and only the Judge should deal with them. It is not for others to deal with. However, if they were forgiving others they should have forgiven me. I should have got the same treatment. Another reason I escaped is because I have been badly treated. In 2005 I spent several months in the detention cells (the dark cells). I asked them to take me to the hospital. They just told me I had an ugly face and to go to sleep. I have also had an ongoing problem getting the correctional officers to listen to my requests for transfer. I wanted to be taken to see my lawyer to make my application for transfer but they just kept telling me I had an ugly face and to forget about it. They talked to me badly. They should speak to me properly. When they speak to me like that it makes me upset. Some things were said to me on one day and the next day I had the opportunity to run away when I was cleaning up the compound. When I went out I was still upset so I decided to take off. I went to Bialla and I stayed with some police officers. I used to go around in their vehicle. When the National Court came to Bialla last year for circuit, the warders found me and apprehended me. I was minding my own business. I had bought some food at the store next to the office, but a street bloke saw me and reported me to the warders. Four of them came down and saw me. I was sitting down eating flour balls. They said they came to arrest me but I told them to wait until I finished my food [mi tok yu wet, mi kaikai pastaim]. But they did not wait. I came out into the market place, then they started to shoot me. They shot me in the kidney but somehow God saved me and I survived. Then they shot me on the leg and they didn't have any authority to do that. I had surrendered. I wasn't causing any trouble. I did not try to run away. I had put my hands up. If God had not saved me it would only be my skeleton here in this box [the dock]. People were laughing at the courthouse about what happened and I was also laughing myself. When the Court circuit finished at Bialla they took me back to Lakiemata and threw me in the dark cells and kept me there until the Visiting Justice asked them to take me out of the cell and take me to the hospital. But they did not do that. They continued to mistreat me. This is why I escaped and I promise that I will not escape again.

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. The offender raised a number of matters in his allocutus that were queried but not contested:

• he was mistreated and abused by correctional officers;
  
• his request to be able to see his lawyers to make an application for transfer to another jail and his request to be admitted at the hospital for medical treatment were not dealt with professionally and he was abused for his troubles;
  
• he was shot after he surrendered at Bialla and he was kept in the dark cells (the detention cells) after he was recaptured.
  

6. I am not prepared to give the benefit of the doubt to the offender on the claims he has made about prisoners being forgiven by some officers for escaping. There is no basis for that claim. As a resident Judge in Kimbe I have dealt with numerous escape matters and there is no evidence to support the assertion that bribery has been involved.

PERSONAL PARTICULARS

7. The offender is aged 45. He comes from Nipa District in Southern Highlands Province. He was educated to Grade 7.

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 highlighted that it was the offender's third time to escape. The reasons he has given for escaping are lame excuses. There have been regular Visiting Justice visits to Lakiemata during the period that he escaped. He had ample opportunity to raise his concerns with the Visiting Justice so he should not be listened to seriously when he says that he was not being listened to. He has made a lot of allegations against police officers and correctional officers without mentioning anyone by name. There is no evidence to suggest that there is any policy or practice of forgiving detainees who escaped. His story about being shot in the kidney parts company with reality as if that had happened he would be dead. He was shot in the foot. Mr Popeu submitted that he should receive a five-year sentence with perhaps allowing some concession by granting a minimum term in custody.

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?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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.

11. 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?

12. The starting point is five years. The head sentence can be above that but not below it.

STEP 3: WHAT IS THE HEAD SENTENCE?

13. 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? No, there were two others involved.
   
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 mistreated and abused.
   
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 weeks and six days – about seven weeks.
   
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 armed robbery and he has two previous convictions for escape. This is a very serious aggravating factor.
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No.
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence? Yes. He was kept in the dark cells [the detention cells] at Lakiemata Jail for a bit over a month after he was put back into custody. I take judicial notice of the fact that I conducted a Visiting Justice visit of Lakiemata Jail on 21 September 2005. The offender was one of six prisoners who were in the dark cells in conditions that I regarded as inhuman and unconstitutional. As a result of my intervention the prisoners including the offender were released from the dark cells and those cells have since been closed. I consider that this is a serious mitigating factor as the conditions of the dark cells meant that the offender and the other prisoners were already suffering a heavy penalty for what they had done. That penalty was imposed upon them administratively without any recourse to the courts and was unconstitutional as it was in breach of the human rights provisions of the Constitution.
    

14. To recap, mitigating factors are:

• No 1 – no violence.
• No 2 – no risk of injury to others.
• No 4 – no damage to Correctional Service property.
• No 5 – mistreated and abused.
• No 9 – cooperated with the police.
• No 11 – pleaded guilty.
• No 12 – expressed remorse.
• No 15 – time spent in dark cell.
  

15. Aggravating factors are:

• No 3 – others involved in escape.
• No 6 – nothing happening outside jail.
• No 7 – did not surrender.
• No 8 – was at large for about seven weeks.
• No 10 – no apology.
• No 13 – he has three prior convictions, including two for escape.
• No 14 – not a young offender.
  

16. After weighing all these factors and bearing in mind that there are eight mitigating factors compared to seven 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?

17. 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 armed robbery, of 13 years, imposed in 1997.

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

18. It is appropriate to consider suspending part of the sentence given that the degree 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. The offender is fortunate that he has pleaded guilty. That has allowed him to be given the benefit of the doubt on those mitigating factors. I have listened carefully to what Mr Popeu has submitted, especially in view of the fact that the offender has two prior escape convictions. However, I will continue to give the offender the benefit of the doubt and indicate that he should serve a minimum term in custody of two years, after which he will be eligible to have the remaining years of the sentence suspended. I am doing this because it provides some incentive for the offender to behave himself while he is in jail. He needs to understand, however, that he is doing very well for someone who has escaped three times. If he escapes again, it is hard to see how he could again get a sentence of only five years.

SENTENCE

(1) Paul Pei Peni ("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	2 years
Period of sentence that may be suspended	3 years

(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 sentences the offender is serving.

Sentenced accordingly.

_____________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the accused