State v Wangi [2007] PGNC 223; N5057 (17 August 2007)

N5057

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1388 0F 1999

THE STATE

V

FRANCIS WANGI

Kimbe: Cannings J
2007: 10 July, 7, 17 August

CRIMINAL LAW – sentence – escape from lawful custody – escape from police lock-up, while on remand – guilty plea – sentence of 5 years; 4 years suspended.

A man pleaded guilty to escaping from a police lock-up, while on remand for an indictable offence. He escaped with a group of others after overpowering a police officer who entered the cell to give them food.

Held:

(1) The minimum sentence for the offence of escaping from lawful custody is five years imprisonment.

(2) Mitigating factors are: something happening inside the jail; no property damaged; guilty plea; remorse; first time offender. Aggravating factors are: violence used; no risk of injury to others; others involved in escape; nothing happening outside jail; did not surrender; at large for long time.

(3) A sentence of five years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730
In the Matter of Enforcement of Basic Rights under the Constitution, Section 57 re conditions of detention at Lakiemata Correctional Institution MP No 813 of 2006, 09.10.06
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022
Saperus Yalibakut v The State (2006) SC890
SCR No 1 of 1994; The State v Aruve Waiba, 04.04.96, unreported
The State v A Juvenile "TAA" (2006) N3017, 23.03.06
The State v Chris Willie Dii CR No 1235/2004, 20.04.05
The State v David Jackson Gawi Timbuk CR No 1618/2005, 27.10.05
The State v Francis Vau Kamo CR No 1938/2005, 03.08.06
The State v Herman Kaparui CR No 689/2006, 13.07.07
The State v James Negol CR No 871/2005, 12.08.05
The State v John Damien Aumal CR No 161/2006, 17.03.06
The State v John Nute Poto Andro (2005) N3020
The State v Kaki Kialo CR No 837/2005, 27.10.05
The State v Kelly Bunbun CR No 787/2005, 12.08.05
The State v Kito Aso CR No 774/2005, 27.10.05
The State v Korak Mekorie CR No 1624/2005, 12.02.06
The State v Linden Alphonse CR No 155/2006, 23.03.06
The State v Michael Nagile CR No 775/2005, 21.07.05
The State v Noutim Mausen CR No 871/2005, 23.03.06
The State v Paul Pei Peni CR No 1332/2004, 19.04.05
The State v Paul Pei Peni CR No 690/2006, 22.09.06
The State v Simon Avu CR No 979/2006, 22.09.06
The State v Stanis Gala CR No 788/2005, 21.07.05
The State v Thomas Pinda (2005) N2920, 27.10.05

SENTENCE

This was a judgment on sentence for escape.

Counsel

F Popeu, for the State
R Beli, for the offender

17th August, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody arising from the following facts. On 29 July 1997 he was being held in the Kimbe police lock-up on a charge of rape. At 8.15 pm a police officer opened the cell door to give food to him and other detainees. The offender and five others pushed the door against the officer and he fell to the floor. The offender and the others then escaped.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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 apologise for escaping and ask for mercy. I have a wife and children and a block to look after and an outstanding loan. My parents are old. Life will be difficult for them and my family if I spend a long time in jail.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). He co-operated with the police and made admissions in his police interview. He told the police that he was on remand at Lakiemata Jail on a charge of rape and was brought into the Kimbe lock-up the day before committal proceedings in the District Court. There was a fight in the lock-up and one of the other detainees stabbed him in the hand. The other detainees then made their plan to escape and told him he must assist them to escape and guard them.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

FRANCIS WANGI: male, aged 35 years.
Residence: Galai 1 OPS, near Kimbe.
Family background: both parents from ESP – parents alive – offender brought up in WNBP – third born in family of seven.
Marital status: married with three children – happily married.
Education: grade 6, Galai 1 primary school, 1980.
Employment: never formally employed.
Health: OK.
Financial status: relies on oil palm receipts – also runs a mini-trade store.
Plans: he and his brother have obtained a bank loan of K20,000.00 to develop a new oil palm block – wants to focus on that project and build a PMV business.
Offender's family's attitude: has good family support.
Attitude of community: well regarded in the community – the victim of the rape incident that occurred ten years ago has reconciled with the offender.
Assessment: no longer a threat to the community.
Recommendation: Suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Beli submitted that a sentence of no more than five years was warranted and much of it should be suspended in view of the favourable pre-sentence report.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed that a sentence of five years was appropriate but submitted that the offender should be required to spend a considerable time in custody. It was a serious escape case as a police officer was assaulted.

DECISION MAKING PROCESS

8. 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. 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.

10. 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; Edmund Gima and Siune Arnold v The State (2003) SC730).

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The starting point is five years.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider other sentences I have handed down recently in West New Britain. These cases are shown in the following table.

NATIONAL COURT SENTENCES FOR ESCAPE, WNB, 2005-2006

No	Case	Details	Date of sentence	Head sentence	Period suspended	Time in custody
1	The State v Paul Pei Peni CR No 1332/2004	Guilty plea – escaped from Lakiemata – 20.08.04	19.04.05	5 years	4 years	1 year
2	The State v Chris Willie Dii CR No 1235/2004	Guilty plea – escaped from Lakiemata – juvenile – 06.01.02	20.04.05	5 years	5 years	0
3	The State v Stanis Gala CR No 788/2005	Guilty plea – escaped from Lakiemata – 20.08.04	21.07.05	5 years	4 years	1 year
4	The State v Michael Nagile CR No 775/2005	Guilty plea – juvenile remandee – victim of sexual assaults in custody	21.07.05	5 years	4 years	1 year
5	The State v Thomas Pinda (2005) N2920	Guilty plea – escaped from Lakiemata – 20.08.04	27.10.05	5 years	4 years	1 year
6	The State v David Jackson Gawi Timbuk CR No 1618/2005	Guilty plea – escaped from Kimbe PLU – 13.05.04	27.10.05	5 years	4 years	1 year
7	The State v Kito Aso CR No 774/2005	Guilty plea – escaped from Lakiemata – 20.08.04	27.10.05	5 years	3 years 5 months	1 year, 7 months
8	The State v Kelly Bunbun CR No 787/2005	Guilty plea – escaped from Kimbe PLU	12.08.05	5 years	4 years	1 year
9	The State v James Negol CR No 871/2005	Guilty plea – escaped from Lakiemata – 20.08.04	12.08.05	5 years	4 years	1 year
10	The State v Kaki Kialo CR No 837/2005	Guilty plea – escaped from Lakiemata – 20.08.04	27.10.05	5 years	4 years	1 year
11	The State v Korak Mekorie CR No 1624/2005	Guilty plea – escaped from Lakiemata – 20.08.04	17.02.06	5 years	4 years	1 year
12	The State v Francis Vau Kamo CR No 1938/2005	Guilty plea – escaped from Lakiemata – 21.09.98	03.08.06	5 years	4 years	1 year
13	The State v John Damien Aumal CR No 161/2006	Guilty plea – escaped from Lakiemata – 20.08.04	17.03.06	5 years	4 years	1 year
14	The State v Noutim Mausen CR No 871/2005	Guilty plea – escaped from Lakiemata – 14.08.05	23.03.06	5 years	5 years	0
15	The State v A Juvenile "TAA" (2006) N3017	Guilty plea – escaped from Lakiemata – 14.08.05	23.03.06	5 years	3 years	2 years
16	The State v John Nute Poto Andro (2005) N3020	Guilty plea – escaped from Lakiemata – 20.08.04	23.03.06	5 years	4 years	1 year
17	The State v Linden Alphonse CR No 155/2006	Guilty plea – escaped from Lakiemata – 14.08.05	23.03.06	5 years	4 years	1 year
18	The State v Simon Avu CR No 979/2006	Guilty plea – walked off from the gardens at Lakiemata – 04.10.04	22.09.06	5 years	4 years 6 months	6 months
19	The State v Paul Pei Peni CR No 690/2006	Guilty plea – walked off at Lakiemata – 30.06.05	22.09.06	5 years	3 years	2 years
20	The State v Herman Kaparui CR No 689/2006	Guilty plea – escaped from Kimbe PLU – 29.10.03	13.07.07	5 years	0	5 years

13. It will be observed that in most of the cases I have suspended a considerable part of the sentence. I have done that after taking account of the poor conditions in which detainees were being held in this province, both at Lakiemata Jail and Kimbe Police Lockup; and the long periods in which remandees were kept in wet kot without trial. I will adopt a similar approach to the present case, as the offence was committed in 1997.

STEP 4: 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? No.
   
2. Did the offender not put anybody in real danger of being injured or killed? No.
   
3. Did he escape by himself? No, there were five 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, there was a fight and he was stabbed in the hand.
   
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 almost ten years.
   
9. Did the offender cooperate with the police in their investigations? Neutral.
   
10. Has the offender done anything tangible towards repairing his wrong, eg, 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? Yes.
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence? Yes, he was, to some extent, forced to escape. Also it appears that the rape charge, which led to him being in custody in the first place, might not be pursued. The offender has a favourable pre-sentence report.
    

15. After weighing these factors and bearing in mind that there are six 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 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. When sentencing an offender it is conventional to deduct from the head sentence the period that has been spent in custody in remand, also known as wet kot, awaiting trial. The offender does not have a right to have this period deducted. It is a matter for the discretion of the court under Section 3(2) of the Criminal Justice (Sentences) Act 1986, which states:

There may be deducted from the length or any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

17. In the present case there are two periods to be considered:

• from 29 October 1996 (date of arrest) to 29 July 1997 (date of escape), a period of nine months during which the offender was in remand on the rape charge; and
• from 9 June 2007 (date of arrest) to 17 August 2007 (date of sentence), a period of 2 months and one week during which the offender was in remand on the escape charge.
  

18. The second period is clearly one in which the offender has been in custody in direct connection with the offence of escape for which sentence is now being imposed. The first period is more contentious. Was he in custody then "in connection with" the escape offence? On the one hand, no – the only reason he was in custody was that he was charged with rape. On the other hand, yes – as it was the act of being in custody that led to him being convicted of escape. I consider that the latter interpretation of Section 3(2), while it might be available on a literal reading of the provision, is not consistent with its purpose, which is to allow prisoners to be given a deduction of the sentence due to the period that they have spent in wet kot waiting for their trial of the offence for which they have been sentenced. I do not think it would be proper in this case to allow a deduction for the first period. If the offender is ultimately convicted and sentenced over the rape charge that he was in custody for, he would have a good case for then, but only then, deducting the nine months he spent in custody before escaping. Therefore the time to be deducted under Section 3(2) of the Criminal Justice (Sentences) Act is two months, one week.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. The offender has received a favourable pre-sentence report, which shows he is a good family man and well regarded in the community. Four years of the sentence will be suspended on the following conditions:

(a) must reside at Galai and nowhere else except with the written approval of the National Court;

(b) must not leave WNB Province without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(e) must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(f) must not consume alcohol or drugs;

(g) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(h) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

REMARKS

20. Some people may think that this decision, which suspends four years of a five year sentence for escape, is too lenient. However, as I indicated earlier, this is the approach I have been taking in most of the 20 escape cases I have dealt with in this province in the last three years. It reflects what I have discovered in numerous Visiting Justice visits to correctional institutions: very poor and sometimes inhuman conditions of detention, which provide an encouragement to escape. However, since 2005 substantial improvements have been made to conditions of detention as a result of orders I have made for enforcement of human rights under Section 57 of the Constitution. For example:

• In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022;
  
• In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06;
  
• In the Matter of Enforcement of Basic Rights under the Constitution, Section 57 re conditions of detention at Lakiemata Correctional Institution, MP No 813 of 2006, 09.10.06.
  

21. Detainees are spending much shorter periods in remand than in previous years. Also, bail applications have been easy to make. In most cases I do not insist on written bail applications. It could be said therefore that these days, in this province, there is no excuse to escape. What that means in practice is that those who do escape in the current environment should not expect the apparently lenient treatment that has been given in this case and the 20 others I have referred to.

SENTENCE

22. Francis Wangi, having been convicted of one count of escape, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	2 months, 1 week
Resultant length of sentence to be served	4 years, 9 months, 3 weeks
Amount of sentence suspended	4 years
Time to be served in custody	9 months, 3 weeks

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender