State v Dakoa [2008] PGNC 112; N3427 (24 July 2008)

N3427

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 600 0F 2008

THE STATE

V

LINUS REBO DAKOA

Kimbe: Cannings J
2008: 11, 24 July

SENTENCE

CRIMINAL LAW – sentence – escape from lawful custody (a jail) by a remandee caught immediately after escape – guilty plea – sentence of 5 years; 4.5 years suspended.

A man pleaded guilty to escaping from jail while he was a remandee awaiting trial on wilful murder charges. It was a non-violent escape. He was at large for only a few minutes before being recaptured.

Held:

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

(2) A sentence of five years was imposed and four years and six months 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

Abbreviations

The following abbreviations appear in the judgment:
CR – Criminal
J – Justice
N – National Court judgment
No – number
SC – Supreme Court judgment
SCR – Supreme Court Reference
SCRA – Supreme Court Criminal Appeal
v – versus
WNB – West New Britain

SENTENCE

This is a judgment on sentence for escape.

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

24 July, 2008

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody.

2. He was a remandee, in custody at Lakiemata Jail on two charges of wilful murder. On Saturday 15 March 2008 he and other detainees were escorted to a church service within the jail boundaries. When he noticed that the warders were not paying attention he ran off. The alarm was raised soon after he went missing and he was apprehended shortly afterwards at the back of the female compound.

ANTECEDENTS

3. He has no prior convictions.

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. He stated:

It is true that I escaped but my mind was not right. The day before, the Public Solicitor lawyer came to see me at the jail and I asked him to help me with a bail application. But all he said was ‘Why do you want to apply for bail? You are facing the death penalty’. That made me upset and suicidal. When I saw the chance to escape I ran near two warders hoping that they would see me and shoot me. When they captured me I told them not to assault me, just shoot me dead. But they did not do that, they just put me in the detention cell for a month and a week and I lived with my own pekpek and pispis for all that time

OTHER MATTERS OF FACT

5. 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).

6. It is noteworthy that the defence counsel, Mr Beli, did not take issue with what the offender said about the legal advice that was given to him. Nor did the prosecutor, Mr Popeu. I am therefore going to accept that he was given poor legal advice and no moral support and that this made him suicidal and temporarily insane.

PERSONAL PARTICULARS

7. The offender is 20 years old. He is from Penatabotong, Bali Island, WNB. He has for some time been residing in Kimbe. He is educated to grade 7. He was employed at Hamamas Trading as a carpenter at the time of his initial detention. He is married and his wife is expecting their first child soon.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Beli highlighted the guilty plea. As to the escape itself, it was a simple escape. Nobody was hurt and no property was damaged. He was at large for a very short time. So he should be given a fully suspended sentence of five years, he submitted.

SUBMISSIONS BY THE STATE

9. Mr Popeu agreed that in the circumstances this was a less serious case of escape than most that have been before the court in recent times.

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 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?

11. 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.

12. 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?

13. 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?

14. I have passed sentence in more than 20 escape cases in West New Britain since 2005, which are summarised in the 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?

15. Mitigating factors are:

• no violence used;
• not a mass escape;
• no risk of injury to others;
• the offender was suicidal and temporarily insane at the time due to being given poor and negligent legal advice;
• co-operated with the police and made early admissions;
• guilty plea;
• first-time offender.
  

16. Aggravating factors are:

• did not surrender directly to the jail authorities.
  

17. After weighing all these factors, I have decided to fix a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. I will deduct the period in custody since the escape, four months, one week and three days.

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

19. The number of mitigating factors means that some of the sentence should be suspended. The question is how much. The offender is facing extremely serious charges but everyone – his lawyer included – needs reminding that he has a constitutional right to be presumed innocent. He also has a right to be treated with dignity and inherent respect for the human person, during all the time that he is in custody.

20. I have decided to suspend four years and six months of the sentence. The period of the suspended sentence will be 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 the Province in which he resides 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 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;
(h) must have a satisfactory probation report submitted to the National Court Registry 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.

SENTENCE

21. Linus Rebo Dakoa, having been convicted of one count of escape, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	4 months, 1 week, 3 days
Resultant length of sentence to be served	4 years, 7 months, 2 weeks, 4 days
Amount of sentence suspended	4 years, 6 months
Time to be served in custody	1 month, 2 weeks, 4 days
Place of custody	Lakiemata Correctional Institution, until further order of the National Court.

Sentenced accordingly.

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