N3199

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1576 OF 2005

STATE

-v-

COLLIN PAINO
-Prisoner-

AND

CR 1578 OF 2005

STATE

-v-

DAVID PAINO
-Prisoner-

AND

CR 1580 OF 2005

STATE

-v-

MICHAEL PAINO
-Prisoner-

AND

CR 1582 OF 2005

STATE

-v-

ROSE TODI PAINO
-Prisoner-

Kimbe: Davani J
2007: 19 & 20 April

CRIMINAL LAW – sentencing – guilty plea to harbouring escaped prisoner – s. 141 of Criminal Code Act.

CRIMINAL LAW – sentencing – pre-sentence report presented – a pre-sentence report from all sectors of the community – purpose of pre-sentence report is to measure public’s views against what is in the interest of justice.

CRIMINAL LAW – sentencing – harbouring escapees, an offence that affects all sectors of the community – whole family involved – penalty must act as a deterrent - aggravating factors more serious than mitigating factors – six months custodial sentence is a deterrence.

Counsel

A. Kupmain, for the State
P. Kapi, for the Accused

SENTENCE

20 April, 2007 

1. DAVANI .J: Collin, David, Michael and Rose Todi Paino (the prisoners) are all charged with harbouring escapees, charge laid under s. 141 of the Criminal Code Act. Section 141 of the Criminal Code Act (‘CCA’. 
This section reads; 

"A person who harbours, maintains or employs a person who is, to his knowledge, a prisoner who has escaped from custody, and is illegally at large, is guilty of a misdemeanour.

Penalty:	A fine not exceeding K400.00, or imprisonment for a term not exceeding two years". 

2. On 9 April, 2007, all prisoners were arraigned and they pleaded guilty to these facts being that they had harboured a prison escapee in their home, whom to their knowledge, had escaped from custody and was illegally at large and had been for some 10 years.

3. On allocutus, all the prisoners, expressed remorse and regretted having committed the offence.

Pre-Sentence report 

4. Mr Kapi for the prisoners, requested the court for a pre-sentence report (‘PSR’) to assist it in the sentencing process, because as he submitted, sentence should be non-custodial or if a custodial sentence is imposed, that it should be suspended. But he emphasized, that in relation to a custodial sentence, the court should consider ordering a fine rather than incarceration, considering that is provided for in the penalty provision.

5. Mr Kupmain for the State submitted otherwise. He asked that the court consider the deterrence aspect and that the court impose a custodial sentence rather than non-custodial. He also submitted that a PSR is not necessary because of the nature of the offence. 

6. On 11 April, 2007, I handed down a brief ruling where I ordered the presentation of a pre-sentence report. I did so because I was of the view that harbouring escapees, although a misdemeanour, is an offence that affects all sectors of the community. The escapee, whilst on the run, is costing the State thousands of kinas, a resource it can ill-afford, in the conduct of searches. Whilst on the run, the escapee may be planning other offences or may be committing other offences. 

7. I also was of the view that all sectors of the community must have a say in the manner in which the Courts deal with these offenders, bearing in mind and balancing against the limits within the penalty provisions and the high cost paid by this country for people who continuously flout the laws of this land, in this case, harbouring escapees, knowing full well that they are illegally at large. I emphasized in my brief ruling that the PSR must be fair and well balanced because it will be used to serve the interests of justice and the community at large and will assist the court in the sentencing process. This is because the public’s views must be measured against what is in the interests of justice. 

8. The PSR contained interviews with the following people, as I ordered;

1.	Provincial Police Commander; 
2.	a member of the provincial government’s administration; 
3.	a member of a women’s group; 
4.	a church representative; 
5.	a member of a youth group; 
6.	a member of the Provincial Education Department; 
7.	the Correctional Service Commander; 
8.	a leading member of the settlements located within Kimbe;
9.	two citizens of Kimbe town, one an high income earner and the other, an average income earner

9. The people interviewed said this;

Provincial Police Commander, Kimbe Police Station – He was unavailable so Sergeant Wakuri and Chief Euga were interviewed. They said that Courts should impose the maximum penalty on persons found guilty of harbouring escapees because;

-	escapees create a lot of logistical and monetary difficulties for the Police;
-	escapees create fear in the communities;
-	escapees are dangerous and that they may commit serious crimes whilst on the run and also benefit from these activities.

10. A member of the provincial government’s administration – Mr Grevesius Rovi, the Public Relations Officer and Joshua Giru, Provincial administrator both say that conviction and harsh penalties should be imposed on persons caught harbouring escapees. As an alternative penalty, the court should also consider repatriating the offenders to their home provinces. They both said that the West New Britain Provincial Government or the Department of West New Britain has budgeted for this exercise. 

11. They expressed concern that the practice of harbouring escapees occurs widely in the villages, oil palm blocks and settlements in West New Britain. They both referred to a case in 2002 where the Gigo Laleki settlement was raided by police because a number of escapees resided there. As a result, a senior police officer was shot and houses at the settlement burnt down.

12. They said the West New Britain must lead by example, by the imposition of tougher penalties in cases of this nature. They emphasized again that West New Britain Provincial government almost always expends a lot in money and resources in the recapture of these escapees which has also resulted in the deaths of many people.

13. A member of a Women’s group – Maria Loi, Women’s representative from Kulungi village, Kimbe, said that escapees would normally seek refuge in people’s homes. But she also said that they should be reported immediately to the police if they are known to be armed and dangerous. She said further that if ordinary citizens are harbouring escapees because of the fear of what the escapees may do to them if reported, that they should immediately report the matter to community leaders, who will then liaise with the police and the escapees after which the police can exercise whatever powers are available to them. 

She said it was up to the court to decide on penalty but that it should send to jail those who "intentionally" commit the offence or should give offenders a rehabilitative sentence if the matter was "circumstantial". The PST did not state what "circumstantial" or "intentional" meant.

14. Church representative – Saint Mary’s Kimbe Catholic Church - Ms Bidgitte Waloloki said harbouring escapees was not good because escapees exerted fear upon ordinary people. She said escapees also commit serious crimes whilst on the run. She said if people continue to harbour escapees, they are in effect encouraging them and are actually seen to be taking part in the illegal activities being perpetrated by the escapees whilst they are at large. She said the court can choose to impose a penalty that will deter others from committing this offence which will, at the same time, teach the offender a lesson. 

15. Youth representative, Kimbe Town - Randol Shiong said those who harbour escapees may have their reasons and these reasons may be that they feel for them and that they are not sheltering the escapees for personal gain. He said these people should not be severely punished. However, he said there are those who "intentionally" keep them, that they are those who should be punished. The PSR does not state what he meant by "intentionally".

He said further that escapees are dangerous and should be kept out of the community because they are a bad influence to the youth and they could also be planning to commit serious crimes.

16. A member of the provincial department – Mr John Glengme, advisor education office, Kimbe said that courts should impose a penalty that should act as a deterrence because the offence of harbouring escapees is serious. He said this was because school children are likely to emulate other people’s behaviour and are placed in a very vulnerable position where they can be easily influenced by such activities. However, he said the court can use other sentencing options if the matter is not serious. But he prefers that sentence to be imposed will deter others from committing the same offence especially children who are likely to suffer from these bad influences or emulate these bad influences.

17. High income earner, Kimbe town – Mr Fred Raka said that as a high income earner, he is often targeted by criminals and escapees. He said that citizens who harbour escapees, are actually taking part and benefiting from escapees activities unless they are protecting them for other reasons.

18. Average income earner, Kimbe town – Ms Timmy Supin, said such activities places the offending families at risk as well as the whole community and that this practice must stop.

19. Correctional Service, Gaol Commander of Lakiamata CIS – Mr Marcus Mandau said those charged with harbouring prisoners and criminals should be severely punished. He said this was because he had received numerous complaints in the past, that this practice has encouraged citizens to continue to harbour prisoners. He said there are those citizens who do not report these activities to the police because they feel the police will not properly handle the matter because they have been known to release suspected persons.

Aggravating and Mitigating factors

20. The aggravating factors in this case is that the escapee who took refuge with the prisoners had been on the run for more than 10 years. Whilst on the run, he committed offences ranging from murders to armed robberies. The prisoners knew of the escapee’s background yet provided refuge for him at their home for about 2 months and 17 days.

21. The accused are all from one family, with David Paino and Rose Paino being the parents of Collin and Michael. 

22. I set out below all prisoners personnel particulars.

23. David Paino – He is from Maramba village in the Angoram District of East Sepik. He is an employee of the Department of Lands and Physical Planning and currently resides at s. 21 Allotment 78, sixth Street, Kimbe. He resides in a three-bedroom high covenant house with a total of 11 people who are his seven children, his adopted son, his wife and himself. He is a graduate from the University of Technology, graduating in 1985 with a degree in Surveying.

24. Colin Paino – He is the adopted son of David and Rose Paino. He is married and has a child. His wife and him together with the child reside with David and Rose Paino and their family. He is educated to grade 11 and has a certificate in Sales and Marketing.

25. Michael Paino – He resides with his parents, David and Rose at the same address. He is educated up to grade 8 only.

26. Rose Paino – She is David Paino’s wife. She only completed grade 6 and is presently unemployed. She is a house wife and resides at home.

27. The PSR recommends probation for all prisoners. The report states that they are low risk persons and which is proven by the fact that they continued to attend court over a period of time when on bail. 

28. The report states that the prisoners are all first-time offenders and not a threat to persons in the community.

Analysis of all factors

29. All citizens of Papua New Guinea have a duty to uphold the law and the rule of law in this country. In this case, an escapee who was on the run sought refuge, was given that refuge and at the same time was planning other offences. Every man, woman, youth, boys and girls and youth must know when to say no. In this case, prisoners allowed an escapee to take refuge in their home. 

30. The harbouring of escapees is happening in a lot of communities in this country which often is either not reported or if reported, is later withdrawn for one reason or another. There are too many instances of escapees seeking and being provided shelter by families. This must stop. 

31. I have had to balance all these mitigating factors against aggravating factors. The very aggravating factor in this case is that the escapee who took refuge with all prisoners in their home was somebody who had been on the run for more than 10 years. A policeman was also killed in the confrontation leading up to the escapees recapture. He was wanted for offences ranging from murders to armed robberies. All prisoners knew who he was, yet provided refuge for him for about 2 months and 17 days.

32. In this case, the aggravating factors are more serious than the mitigating factors. Although the probation report recommends probation, I am not bound by the recommendations contained therein. I am very much swayed by the representations made by the majority of the representatives from various sectors of the community in Kimbe. The representatives state in no uncertain terms that offences of this nature must not go unpunished because of the many reasons they have raised and which I have already outlined. 

Conclusion 

33. In this case, I am of the view that the prisoners must serve a custodial sentence. They will each serve a term of 6 months in prison. Because they have been in custody on remand for a period of 5 months, they will now serve a reduced term of 5 months and 3 weeks in hard labour.

34. I note in the PSR, that if incarcerated, there is nobody to care for the prisoners children. Unfortunately, neither the Department of Youth and Home affairs, nor the government of the day have enacted legislation catering for situations of this nature. Last but not least, all Governments must place the welfare of children and youth in this country, as paramount and begin by allocating funds and resources, both humanitarian and monetary, into the protection and care of children who are destitute and/or displaced. I say this also because the wardship provisions in the Child Welfare Act have remained unutilized for the last 25 years because the governments of the day have never considered this issue to be of any importance.

35. It is time the department of Youth and Home Affairs through the office of the Director of Child Welfare, took some serious steps towards addressing situations of this nature. I have voiced similar concerns in other cases where children have become the victims of their parents criminal activities. (see CR 1161 of 2004, State v John Peril; State v Erika M. Lucas dated 22 August 2005 Davani .J; State v Rose Situa, CR 520 of 2005 dated 23 November, 2005 Davani J).

36. The prisoners knew what they were in for when they took the escapee into their home. The court should not succumb to such reasons when, in a case such as this, the gravity of the offence far overrides any other issues. 

_____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the prisoners