State v Gilkam [2007] PGNC 249; N5495 (16 October 2007)

N5495

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 771 0F 2007

THE STATE

V

JOE GILKAM

Madang: Cannings J
2007: 3, 16 October

CRIMINAL LAW – sentence – escape from lawful custody – escape from jail – at large for seven years – guilty plea – sentence of 5 years; 2 years suspended.

A man pleaded guilty to escaping from a jail, while serving a sentence for armed robbery. It was a mass escape, involving 27 detainees, warders were overpowered and guns and a walkie-talkie stolen. The offender was at large for seven years.

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; cooperated with police; guilty plea; favourable PSR. Aggravating factors are: violence used; risk of injury to others; others involved in escape; stole State property; nothing happening outside jail; did not surrender; at large for long time; no apology; no remorse; not a first offence.

(3) A sentence of five years was imposed. The pre-sentence period in custody was deducted and two 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
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Aruve Waiba SCR No 1 of 1994, 04.04.96
The State v Francis Wangi CR No 1388 of 1999, 17.08.07
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for escape.

Counsel

M Ruarri, for the State
A Turi, for the offender

16th October, 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. The offender, Joe Gilkam, was in custody at Beon Jail near Madang in May 1999. He was serving a four year sentence for armed robbery which had been imposed in July 1998. At 4.00 pm on 4 May 1999 the offender was at the main compound, waiting for dinner. Two warders were attending to the detainees at the gate to the main compound. Suddenly a group of 27 detainees including Joe Gilkam, overpowered the warders, stole three guns and one walkie-talkie and escaped. Joe Gilkam was at large for seven years before being recaptured on 28 June 2006 at his village, Arowar.

ANTECEDENTS

2. The offender has a prior conviction for armed robbery.

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:

When I escaped it was my first time to be in prison. Life in the jail was very hard. There were plenty of illnesses and some prisoners were dying. I was sure that I would get sick and maybe die if I stayed inside. I escaped with many others and went straight to my village. I did not associate with the prisoners who escaped. When I went to the place where I was born I remained under the watch and care of the community. I was not involved in any trouble. I respected the law. I got married and had children and helped the community, assisting with mediation where required and used my experience to help others. I was involved in community work programs and established my garden, planting kaukau and vanilla and other crops. In my mind I knew I had stopped doing what I had done. So I now ask for mercy so that I can go back and look after my family and my business.

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 SCRA No 52 of 2005, 27.04.06). He cooperated with the police and made admissions in his police interview. The Court also has before it a community report from the Yoidig Community of Sumgilbar Local Level Government, which attest to the fact that the offender has been living peacefully in the village and participating in community work service programs and sports.

PERSONAL PARTICULARS

5. Joe Gilkam is aged 35, married with four children. He is educated to grade 6.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted that the offender pleaded guilty and has rehabilitated himself while he has been at large. He has not involved himself in any criminal activities. The actual escape though it was a serious one, was not one in which anybody was injured and the offender was a follower, not a leader.

SUBMISSIONS BY THE STATE

7. Mr Ruarri argued that it was a serious case of escape as the warders were assaulted and correctional service property was stolen. Escape is a prevalent offence, requiring a deterrent sentence. Whatever penalty is imposed it should be made cumulative to the existing sentence for armed robbery.

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. A part of or all the sentence can be suspended. (The State v Aruve Waiba SCR No 1 of 1994, 04.04.96, Supreme Court, 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?

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

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

12. I have passed sentence in 21 escape cases in West New Britain since 2005, which are summarised in the recent case of The State v Francis Wangi CR No 1388 of 1999, 17.08.07. In all cases I have imposed the minimum penalty of five years imprisonment but suspended part (or in two cases, all) of the sentences, having regard to the circumstances of each case.

STEP 4: 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. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors. 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, it was a mass escape of 27 detainees.
   
4. Did the offender not cause damage to property of great value? No, Correctional Service property was stolen.
   
5. Was there something happening inside the jail that provided a good reason to escape? Yes, the offender was very concerned about his personal health and wellbeing.
   
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 more than seven years.
   
9. Did the offender cooperate with the police in their investigations? Yes.
   
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? No.
    
13. Is this his first offence? No.
    
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 has to a large extent rehabilitated himself and he has strong community support.
    

14. To recap, mitigating factors are:

• No 5 – something happening inside the jail;
• No 9 – cooperated with police;
• No 11 – guilty plea;
• No 15 – favourable PSR.
  

15. Aggravating factors are:

• No 1 – violence used;
• No 2 – risk of injury to others;
• No 3 – others involved in escape;
• No 4 – stole State property;
• No 6 – nothing happening outside jail;
• No 7 – did not surrender;
• No 8 – at large for long time;
• No 10 – no apology;
• No 12 – no remorse;
• No 13 – not a first offence.
  

16. I have weighed all these factors and bear in mind that there are 4 mitigating factors compared to 10 aggravating factors. In applying all the considerations, particularly No 15 where the offender has been given a good PSR, 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?

17. 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.

18. In the present case the offender has since the date of his recapture been serving the sentence for armed robbery which he interrupted when he escaped in 1999. There is therefore no pre sentence period in custody which can be deducted from his sentence for the escape.

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

19. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court.

20. In the present case I have decided to suspend two years of the sentence, given the strong community support that the offender has, subject to the following conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave Madang Province without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d) must attend his local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(i) 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.

21. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

22. Joe Gilkam, having been convicted of one count of escape, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	5 years
Amount of sentence suspended	2 years
Time to be served in custody	3 years

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