State v Gulein [2007] PGNC 250; N5496 (16 October 2007)

N5496

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 999 0F 2007

THE STATE

V

JESSIE GULEIN

Madang: Cannings J
2007: 4, 16 October

CRIMINAL LAW – sentence – escape from lawful custody – escape from jail – at large for three years – guilty plea – sentence of 5 years; 3 years suspended.

A man pleaded guilty to escaping from a jail, while serving a 15-year sentence for murder. It was a mass escape committed during daylight hours. He was at large for three years.

Held:

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

(2) Mitigating factors are: no violence used; no risk of injury to others; no property damage; something happening inside the jail; cooperated with police; guilty plea; remorse; youthful offender.

(3) Aggravating factors are: others involved in escape; nothing happening outside jail; did not surrender; at large for long time; no apology; not a first offence.

(4) A sentence of five years was imposed. The pre-sentence period in custody was deducted and three 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, Jessie Gulein, was a prisoner at Beon Correctional Institution serving a 15-year sentence for murder, which had been imposed on him by the National Court in July 1998. On 19 July 2004 at 2.00 pm the offender was with a group of detainees in the main prison area. At the changing of the guards there happen to be no guards present at the watch tower. The offender and 16 others climbed over the security fence and escaped into the bush. He was at large for three years before being recaptured in July 2007.

ANTECEDENTS

2. The offender has the prior conviction for murder.

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:

It is true that I escaped but I was only 16 years old when I was sentenced and I was badly treated in the jail in the time that I was there, both by other prisoners and by Correctional Officers. The National Court sentenced me to 14 years imprisonment with hard labour but I was not given any work to do and I got fed up and ran away. My village is very close to the jail and from time to time I hear stories about things going on in the village and people that I know. This gives me the temptation to escape so I think the best thing for me is if I be transferred to another jail such as Kainantu. I spent some time in the dark cells and I was assaulted by the warders. I apologise to this honourable court for escaping and ask for mercy so that my sentence can be made concurrent with the present term that I am serving.

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. I also accept at face value the allegations that he has made about being mistreated by other detainees and by prison officers.

PERSONAL PARTICULARS

5. Jessie Gulein is 25 years old, educated to grade 7 and his village, Brahim, is close to Madang town.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted the guilty plea. As to the escape itself, the offender has given the reasons that he escaped. He was a young prisoner and he was mistreated. The escape itself had no aggravating features. Those who escaped did not commit any violence against Correctional Officers or Correctional Service property. Jessie was a follower, not a leader. The court should consider suspending the whole of the sentence, Ms Turi submitted.

SUBMISSIONS BY THE STATE

7. Mr Ruarri highlighted that the offender did not surrender. He was arrested in a joint operation during the election period this year. Mr Ruarri concedes however that the escape itself was not a violent one.

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 other sentences have been imposed recently 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. (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 sentence, 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. 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 16 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, the offender was mistreated.
   
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 three 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? Yes.
    
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? Yes.
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence? Neutral.
    

14. To recap, mitigating factors are:

• No 1 – no violence used;
• No 2 – no risk of injury to others;
• No 4 – no property damage;
• No 5 – something happening inside the jail;
• No 9 – cooperated with police;
• No 11 – guilty plea;
• No 12 – remorse;
• No 14 – youthful offender.
  

15. Aggravating factors are:

• No 3 – others involved in escape;
• No 6 – nothing happening outside jail;
• No 7 – did not surrender;
• No 8 – at large for long time;
• No 10 – no apology;
• No 13 – not a first offence.
  

16. After weighing all these factors and bearing in mind that there are 8 mitigating factors compared to 6 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?

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 serving the sentence for murder 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. In some cases the offenders have been unable to comply with the conditions and have been committed to custody to serve the rest of their sentences. In the present case I have decided to suspend three years of the sentence, given the strength of the mitigating factors, particularly No 5, subject to the following strict 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.

20. 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

21. Jessie Gulein, 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	3 years
Time to be served in custody	2 years

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