State v Feleti [2013] PGNC 103; N5285 (23 May 2013)

N5285

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 567 OF 2012

THE STATE

V

ROY FELETI

Alotau: Toliken, AJ
2013: 21st March
23rd May

CRIMINAL LAW – SENTENCE – Plea – Escaping from custody – Prior conviction for escaping – Reasons for escape not acceptable – Head Sentence of 3 years less period in pre-sentence custody – Criminal Code Ch. 262, s 139

Cases Cited

The State v Eric Tene (2008) N3951
The State v Joseph Kagl Imbo (2008) N3954
The State v Allan Nemo (2010) N4098
Edmund Gima & Anor v The State (2003) SC 730

Counsel

R. Auka, for the State
M. Arua, for the accused

JUDGEMENT OF SENTENCE

23rd May, 2013

1. TOLIKEN AJ: On the 21st of March 2001, the prisoner, Roy Feleti pleaded guilty to one count of escaping from lawful custody, an offence under Section 139(1) of the Criminal Code Act chapter 262 (the code).

THE OFFENCE

2. Section 139 provides for the offence of escaping in the following terms:

139. Escape by prisoner

(1) A person 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) ...

THE INDICTMENT

3. The indictment alleges as follows:

ROY FELETI of UPULAI village, Alotau, Milne Bay Province, is charged that, he on 17th day of October 2011 at Giligili Corrective Institution, Alotau in Papua New Guinea while serving a prison term for armed robbery under the lawful custody of CIS Officer, Philip Sabaia Dotana unlawfully escaped from such custody.

THE FACTS

4. The brief facts upon which the prisoner is being sentenced are as follows. On the 17th of October 2011, the prisoner who was serving a prison term for armed robbery at Giligili Corrective Institution, was taken out with others on a work parade by Major Philip Dotana. The prisoner left the work parade and escaped. His escape was not authorized.

5. I perused the District Court depositions and was satisfied that the evidence supported the charge and the prisoner's plea. I accordingly confirmed his plea and convicted him.

ADDRESSES ON SENTENCE

6. In allocutus, the prisoner had this to say:

"I have reason for escaping. First reason is in regard to my Court Order. Secondly, when I was in prison two other prisoners escaped. The warders ordered us to capture them. We caught them in the bush. We called the warders and they escorted them down to the compound.

After that [the warders] got our names. They told us that they will assist us with our parole [applications]. That didn't happen.

Thirdly, my mother had died and so, when I heard the news I ran away"

7. Mr. Arua for the prisoner submitted that this was not the worst case of this type and therefore, does not warrant a higher sentence than the maximum penalty.

8. He conceded though that the prisoner has prior convictions – two (2) for armed robbery and one (1) for escaping. He also conceded that the prisoner did not surrender and that he demonstrated contempt for the law when he escaped.

9. However, Counsel pointed the Court to mitigating factors which he said should see a suspension of 1 – 2 years.

10. Counsel said the prisoner was frustrated because he had not been transferred to Bomana when there was an Order in place and that he was used to capture other escapees. Then there was the death of his mother which further fuelled his desire to escape.

11. Mr. Auka for the State, on the other hand submitted that the prisoner is a repeat offender who had no respect for the law. His reasons for escaping are not difficult to take up with the CS authorities. He chose not to do that hence the Court should come down hard on him. There should not be any suspension.

THE ISSUE

12. The issue before the Court is what will be an appropriate sentence on this matter.

THE LAW

13. As we have seen above the penalty prescribed for this offence under S.139 is a term of imprisonment of no less than 5 years.

14. The Supreme Court in Edmund Gima & Anor (2003) SC 730, (Kirriwom, Kandakasi, Batari, JJ) among other things, (1) affirmed that escaping from custody is an affront to the Judicial System and law enforcement that must be met with equally stern punishment, (2) this, however, does not mean that the prescribed minimum penalty of 5 years imprisonment should be automatically imposed and or suspended either wholly or in part without more. Instead, the court still has a discretion and a duty to impose a sentence that is either lower or higher than the minimum sentence depending on the particular circumstances of each case and on proper principles after starting with the prescribed minimum.

15. Without limiting the relevant factors that may be taken into account in arriving at an appropriate sentence, the court said that the following may be taken into account:

(i) receipt of information of a retaliating killing of a close relative supported by prison officers.

(ii) violent sexual attacks upon weaken and younger inmates by more aggressive inmates with support from prison officers.

(iii) whether escape is en mass

(iv) whether weapons were used in escape

(v) where weapons are used whether personal injury or damage to property was occasioned.

(vi) the cost of recapture to the State

(vii) when and how the prisoner was recaptured

(viii) whether there was a guilty plea

16. The important point to note from the Supreme Court's deliberations in this case is that the minimum penalty provided by s.139 is effectively the starting point. The sentencing court then, in the exercise of its discretion under Section 19 of the Code, can adjust the actual sentence either lower or higher or suspend the sentence, partly or wholly, depending on the peculiar circumstances of a particular case.

17. So with that in mind, what has been the sentencing trend?

SENTENCING TREND

18. I am grateful for both counsel for the cases that they cited to the Court to help it to arrive at an appropriate sentence.

19. In The State –v- Eric Tane (2008) N3951, the prisoner was convicted for two (2) counts of escaping from custody while serving 2 sentences for summary offences. Both were non-violent escapes. Cannings, J imposed 5 years for each offence for a total of 10 years to be served cumulatively. He then suspended 8 years.

20. In The State –v- Joseph Kagl Imbo (2008) N3954, (Cannings, J) the prisoner pleaded guilty to escaping from custody while serving a 24 years sentence for murder and armed robbery. He had two previous convictions for escaping. He was sentenced to 5 years imprisonment of which 3 years were suspended. Effective sentence was 2 years.

21. In The State –v- Allan Namo (2010) N4098 (Makail, J), the prisoner pleaded guilty to escaping from CIS Vanimo while serving a sentence for rape of 20 years. He was sentenced to 5 years of which 4 years were suspended with conditions. He was to serve 1 year which was to run cumulatively with his sentence for rape.

CURRENT CASE

22. I take the following factors into account as mitigating the offence.

• Plea of guilty
• Expression of some remorse
• No use of violence or weapon in effect escape
• Prisoner acted alone
• Did not injure anybody or destroyed property
  

23. There are, however, a couple of aggravating factors. These are:

• Prior conviction for escaping
• Escapes becoming very prevalent
  

24. Now, I have considered the prisoner's reasons for escaping and I agree with Mr. Auka, that they were things that ought to have been raised administratively with the CS Authorities at Giligili.

25. On the face of it, the mitigating factors seem to outweigh the aggravating factors. That may indeed be the case but the fact that the prisoner displayed contempt for the law and law enforcement cannot be taken light.

26. The prisoner is not a first offender. He was previously convicted for the same offence.

27. There can, therefore, be no doubt that he must be sentenced to the minimum penalty prescribed by Section 139 i.e. five years imprisonment.

28. This case seems to have same similarities with The State –v- Joseph Kagl Imbo (supra) except that in that case, the prisoner had two previous escaping convictions. He was sentenced to 5 years of which 3 years were suspended.

29. There is no questions that I have the power to suspend part of the sentence pursuant to Section 19 (1)(d)(6) of the Code, with or without surety. However, the Court must attach conditions. These provisions do not merely allow for a suspension. Conditions must be attached.

30. It seems to me, however, that the authorities seem to have taken two approaches to sentencing for escapees.

31. One view is that the court has no discretion to impose a lesser sentence than the prescribed minimum penalty of 5 years which may then be suspended under S.19 of the Code (The State v Jack Moge [1998] PNGLR 246).

32. The other view - expressed by the Supreme Court in Edmund Gima & Anor v The State (supra) is that the prescribed minimum is the starting point. The sentencing court is at liberty to adjust the head sentence either up or down depending on the circumstances of the case. And of course, the court retains its discretion under Section 19 of the Code.

33. In my humble opinion, the practical effect of the latter position is that once the sentencing court settles on a head sentence, whether below or above the starting point (here the prescribed minimum), it can either leave the sentence to stand or proceed further and suspend the sentence wholly or partially pursuant to its powers under Section 19 of the Code.

34. This is a utilitarian approach that recognizes the fact that not all escapes are the same. Some may be serious calling for head sentences above the starting point but others may not be that serious and these will obviously warrant sentences below the starting point.

35. An escape that displays several aggravating factors such as, mass breakout, injury to some other persons or damage to property, use of violence or when it requires substantial State resources to re-capture the escapee or where the escapee remains at large for an extended period of time, must necessarily attract a sentence above the minimum.

36. However, an escape where for instance, the escapee surrenders almost immediately or captured within a short period of time, or the escapee escapes because of threats to his life by other inmates with complicity by prison guards may not warrant the minimum penalty but a sentence below it.

37. The former position is the strict and literal construction of s.139. While the court retains its discretion under Section 19, the danger there is that minor offenders may end up receiving the same sentences as serial offenders thus denying them "equality of justice" and that it offends against the principle of equivalence or proportionality – that punishment must fit the crime.

38. So having said that, I would like to take the utilitarian approach laid down in Edmund Gima & Anor.

39. Hence, I fix the starting point for this matter at 5 years.

40. The prisoner escaped on 17th October 2012 by simply walking away from the work party. He remained at large until his capture on 21/01/13 – total of 3 months and 4 days.

41. No violence was used nor was anyone injured nor was any property destroyed. The prisoner also acted alone.

42. However, this is the 2nd time that the prisoner had escaped and it is obvious that he has no respect for the law and its enforcement agencies.

43. Hence any benefit of a substantially lenient sentence is vitiated by his prior convictions.

44. In the circumstances, I, therefore, impose a head sentence of 3 years, none of which will be suspended.

45. This sentence will run consecutively with his sentence for robbery.

46. I shall, however, deduct 1 year, 4 months and 4 days for pre-sentence custody period.

47. The resultant sentence will be 1 year 7 months and 26 days.

ORDERS:

48. I therefore order as follows:

Head Sentence	3 years
Deduction for pre-sentence custody period	1 year 4 months 4 days
Suspension	Nil
Resultant Sentence	1 year 7 months 26 days
Sentence to be served	1 year 7 months 26 days to be served at Giligili

49. Sentenced accordingly.

__________________________________________________
The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the accused