State v Kokora [2013] PGNC 139; N5283 (17 May 2013)

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CRIMINAL LAW – SENTENCE – Escaping from custody – Plea – Prisoner serving 20 years for rape and robbery – Escapes through hole cut in perimeter fence - with 3 other inmates – Typhoid outbreak – Prisoner fears for health and safety – Surrenders voluntarily after 2 years – Criminal Code Ch. 262, s 139.

CRIMINAL LAW – Sentence –Escaping from lawful custody - A wilful and deliberate disrespect or upfront to the judicial system and law enforcement – Object of sentence - Punish the offender with a view to denouncing this unlawful conduct, and to deter him and others - Clearly reflected by Parliament's prescription of the minimum penalty.

CRIMINAL LAW – Appropriate sentence – Prescribed minimum of 5 years imposed - Not worst type of offence – Plea and reason for escape considered - Appropriate case to temper justice with mercy by suspension of a portion of sentence.

CRIMINAL LAW - Appropriate sentence – Suspension - Portion to be served – Must be equivalent or proportionate to the period he had been at large – No suspension where period prisoner at large is equal to or over prescribed minimum penalty – Prisoner to serve 2 years, equivalent to period he was at large – Balance of 3 years suspended with conditions – Criminal Code Ch. 262, s 19(1)(d)(6).

The State v Rudy Haiveta (2012) N4677
The State v Roy Feleti CR 567 of 2012 (unreported and published judgment handed down in Alotau on 23rd of May 2013)
The State v Nemo (2010) N4098
The State v Koroiwe (2010) N4154
The State v Eric Tene (2008) N3951
The State v Joseph Kagl Imbo (2008) N3954
Saperus Yalibakut v The State (2006) SC890
The State v. Irox Winston (2003) N2347
The State v. James Tei Wana & Gend Yanisa Thomas (2000) N2304
Edmund Gima & Siune Arnold v The State (2003) SC 730
The State v. Thomas Waim [1998] PNGLR 360
James Takus v The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97)
Joseph Balalau v The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97)
SCR 1 of 1994, The State v Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996)
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314

1. TOLIKEN, AJ: John Kokora, on the 12th of June 2013 you 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).

2. The brief facts to your case are as follows. At the time of your escape you were serving concurrent sentences of 20 years for rape and 12 years for robbery at the Biru Corrective Institution under the lawful custody of the Gaol Commander.

3. On 10th of February 2003 you and three others cut the fence at the back of the Male Compound next to the ablution block and escaped. You were at large until you voluntarily surrendered to the Gaol Commander on 11th April 2005. You were later referred to the police and formally charged for this offence.

4 I confirmed your plea and convicted you but only after I had perused the committal depositions and having satisfied myself that the evidence supported both your plea and the charge.

5. You have two prior convictions – one for rape where you sentenced to 20 years and the other for robbery where you were sentenced to 12 years. These were to be served concurrently. You were in fact serving these sentences when you escaped.

"In 2003 there was a typhoid outbreak at Biru. Five of us were ill with typhoid. We were not taken to the hospital and as a result four of us died. I saw my fellow inmates cut the fence and that inspired me to escape with them. The other inmates were apprehended but not charged. I am the only one who was charged. I was shot in the leg by the police."

8. Mr. Mamu submitted in your behalf that the court should consider the reason for your escape - you feared for your safety because of the outbreak of typhoid at Biru. He said you are serving an effective term of 19 years and that there is no need to impose a further term on top of that. He further said that no utility or purpose will be served if an additional term is to be added to your current term. He finally asked the court to exercise its discretion and not impose any additional punishment. However, if the court is mindful to impose a penalty then any sentence should be served concurrently with the current term.

9. Mr. Tamate for the State submitted your reason for escaping – outbreak of typhoid and the death of 4 inmates – was not proved. In any case, this is a separate offence and the court should impose the minimum penalty of five years which should be served cumulatively with your current term. He said that you were shot when you attempted to escape the second time.

(1) A person being a prisoner in lawful custody, escapes from that custody is guilty of a crime.

11. As we can see this is the only offence under the Code that still carries the minimum prescribed penalty. Here the law says that a sentence for escaping should not be less than 5 years.

12. This court has for some time been divided on the question of whether or not it has the discretion to impose anything less than 5 years. Some members of the court felt that the court has no discretion at all. (The State v Jack Moge [1995] PNGLR 246)

13. The other view is that despite the minimum prescribed penalty of 5 years this does not mean that it ought to be automatically imposed. Rather the court has a discretion and a duty to impose a sentence that is either lower or above the minimum sentence depending on the particular circumstances of each case and on proper principles starting with the prescribed minimum. This view was expressed by the Supreme Court in Edmund Gima & Siune Arnold v The State (2003) SC 730; SCR 1 of 1994 (Kirriwom, Kandakasi, Batari JJ), when following and affirming SCR 1 of 1994, The State v Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996 (Los, Salika JJ); James Takus v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97 and Joseph Balalau v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97.)

14. There the court also held that some of the relevant factors that may be taken into account in arriving at an appropriate sentence may include the following:

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

15. In The State v Roy Feleti CR 567 of 2012 (unreported and published judgment handed down in Alotau on 23rd of May 2013) I commented that the latter position is a utilitarian approach aimed at giving due weight to the fact that the circumstances of escapes are not always the same. Hence, to impose the minimum without recognizing this offends against the principle of equivalence – that punishment must fit the crime.

16. So if I understand what the Supreme Court said in Edmund Gima & Siune Arnold (supra) correctly, 5 years is effectively the "starting" point from which the court can impose a head sentence that either below or above it or partly or wholly suspend the sentence, depending on the peculiar circumstances of a particular case.

17. I note, however, that my brother Cannings J. holds the view that 5 years is the starting point. The head sentence can be above that but cannot be below it. (The State v Eric Tene (2008) N3951; The State v Joseph Kagl Imbo (2008) N3954). Of course the only way the minimum penalty can be tempered here, will be through the exercise of discretion under Section 19 (1) (6) of Code – with partly or wholly suspended sentences with conditions which has been the preferred approach judging by the number of sentences imposed by this court.

18. However, whatever approach one takes, we must never lose sight of the fact that escaping from lawful custody is an affront to the judicial system and law enforcement that must be sternly punished. (The State v. Thomas Waim [1998] PNGLR 360; The State v. James Tei Wana & Gend Yanisa Thomas (2000) N2304 and The State v. Irox Winston (2003) N2347). An escape after conviction and sentence is a deliberate decision not to comply with a court order. (Edmund Gima & Siune Arnold v The State (supra)

19. Let us consider what the sentencing had been in the recent past. Neither counsel assisted the court in this regard but the following cases can be of assistance to me.

20. In The State v Roy Feleti (supra) the prisoner pleaded guilty before me. He walked away from a work parade at Giligili and escaped. He was at large for 3 months and 4 days. Following Edmund Gima & Siune Arnold (supra) I imposed a head sentence of 3 years.

21. In The State v Rudy Haiveta (2012) N4677 (Makail J.) the prisoner was awaiting trial on a charge of piracy when he escaped from the National Court holding cells at Waigani after he bribed a cell guard. He was sentenced to 5 years, four (4) of which were suspended on terms.

22. In The State v Nemo (2010) N4098 (Makail J.), the prisoner was serving 20 years for rape when he escaped from an unsupervised detail outside the prison to visit his sick wife. He remained at large for 1 ½ days. He was sentenced to 5 years imprisonment of which 4 years were suspended on terms.

23. In The State v Koroiwe (2010) N4154 (Cannings J.), the prisoner was sentenced to 5 years for escaping while serving a sentence on a summary conviction for possession of a dangerous weapon. He surrendered a short time after he had escaped. Four (4) years and six (6) months were suspended from the sentence.

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

25. In The State –v- Joseph Kagl Imbo (supra)(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. The effective sentence was 2 years.

26. Let me now move on to consider what will be an appropriate sentence for you.

27. You pleaded guilty to the charge thus saving time and cost to the State in running a trial. You voluntarily surrendered to the gaol commander, albeit some two years after you escaped. Furthermore without proof to the contrary by the State, I accept, in your favour, that you escaped because of your concern for your life and safety because of the outbreak of typhoid at the gaol which had resulted in the deaths of four (4) inmates and that you might not have played a leading part in planning the escape as you said in your address to the Court. (Saperus Yalibakut v The State (2006) SC890) I take these as mitigating your offence. I also note from your antecedent report that you were a youth of 19 years when you committed this offence.

28. On the other hand you are not a first offender. At the time of your escape you were serving concurrent sentences for rape and robbery. Secondly this is a prevalent offence which continues to rise as we speak. Thirdly, to escape you and your fellow inmates caused damage to State property by cuttiing a hole in the perimeter fence. Fourthly you remained at large for a little over two years. I take these as aggravating your offence.

30. It is universally accepted that the fundamental purpose of criminal sentencing is to exact respect for the law and the maintenance of a just, peaceful and safe society. The sentencing court tries to achieve this by imposing sentences with equally generally accepted objectives. These include punishment, deterrence, rehabilitation, separation (of certain offenders from society) and reparation and restitution for harm done. The object of a sentence will, however, depend on the type of offence and circumstances of each particular case.

31. What then is the object of sentencing in cases of escaping from lawful custody?

32. As we have seen, escaping from lawful custody is a willful and deliberate disrespect or upfront to the judicial system and law enforcement. Naturally then, the object for such a sentence must firstly be to punish the offender with a view to denouncing this unlawful conduct, and secondly to deter him and others who might be similarly inclined. That this is the case is clearly reflected by Parliament's prescription of the minimum penalty of 5 years imprisonment for the offence.

33. Hence, you must be punished for your disrespect for the judicial authority of the people and the agencies charged with enforcing the law or giving effect to lawful orders of the court such as the Correctional Service.

34. Furthermore because of the increasing prevalence of escapes in our gaols throughout the country which are becoming more daring and sophisticated your sentence should also seek to deter you personally and others as well.

35. So to arrive at what would be an appropriate sentence for you given the peculiar circumstances of your case we start of course with the minimum prescribed by the law – 5 years. Whether this is the "starting point" or "the head sentence" depends very much, I guess, on how one interprets what the Supreme Court held in Edmund Gima & Siune Arnold v The State (supra).

36. Treating the prescribed minimum as the starting point would enable me to fix a head sentence for you either above or below 5 years which I may further suspend with conditions.

37. If it were on the other hand the head sentence, then, it would seem, as held by His Honour Cannings, J. that I cannot go below the prescribed minimum fixed by Parliament. This is an entirely tenable position because it seems that Parliament had in fact set the "head sentence" which it of course has the power to do. (See SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314)

38. However, the court is not divested of its discretion under s 19 (1)(d)(6) of the Code to suspend a sentence where the circumstances of the case warrant in order to prevent injustice or a breach of the principle of equivalence.

39. In hindsight I think that the latter position also is utilitarian in that it also allows for an effective sentence that reflects mitigating and any extenuating circumstances in a particular case while at the same time give effect to Parliament's clear intention.

40. Your lawyer urged me not to impose any additional penalty above that which you are already serving. If I understand him correctly he seems to be inviting me to sentence you to the rising of the court. To accede to this would, however, to defeat the objects of sentencing for this type of offence.

41. However, this does not mean that I will not take into account circumstances and factors in your case that must and will mitigate your offence.

42. I must say here that your offence is not the worst type despite the fact that there are aggravating factors going against you. The reason for your escape – your fear of contracting typhoid – and the fact that you voluntarily gave yourself up to the Gaol Commander of Biru, are significant mitigating factors.

43. So in the circumstances, I impose the prescribed minimum penalty of 5 years for you. You were serving sentences when you escaped so nothing will be deducted for your pre-trial period. This sentence will run consecutively with your current sentence.

44. Your case, however, seems to cry out to me to "temper justice with mercy" through the exercise of my discretion under s 19 (1)(d)(6) of the Code for a whole or partial suspension of your sentence. And that means that I will have to decide how much of your sentence ought to be suspended if at all.

45. Because of the increasing prevalence of escapes from our gaols and the need for personal and general deterrence it would not be fair on society if your sentence were to be wholly suspended.

46. However, given your mitigating factors I will suspend a portion of your sentence. But you will have to serve a fair and just portion of your five years sentence.

48. I would like to suggest here that where a court decides to suspend a sentence for a person who is convicted for escaping, the prisoner must at the very minimum serve a portion of the head sentence that is equivalent or proportionate to the period he had been at large. This is fair and just and is just a way of giving effect to what naturally should be demanded of escapees. So if you remain at large for a year you must expect to extend your prison stay by the same period.

49. But where a person has been at large for a period equal to or beyond the prescribed minimum penalty of 5 years, I suggest also that there should not be any suspension at all, regardless of the reasons for the escape in the first place.

50. So in your case, you were at large for a period of just a little over 2 years. You will therefore serve a period of 2 years of your 5 years sentence. The balance of 3 years will be suspended on the following terms:

Head Sentence	5 years to run cumulatively with current sentences for rape and robbery.
Period suspended	3 years with following conditions: Upon release you will keep the peace and be of good behaviour for the period of the suspended portion of your sentence (3 years); You will reside at your home village of Asema Village, Kira, Northern Province; You will not leave the Northern Province without written permission of the National court; You report the Senior Community Based Correction Officer (Probation Officer) at Popondetta at the end of every months; You will have a favourable probation report filed at the Popondetta Sub-Registry of the National Court by the Community Based Correction Office in Popondetta after every six months; If you breach any of the above conditions you will be arrested and brought before the National Court to explain why you should not be imprisoned for the suspended balance of your sentence.
Period to be served	2 years to be served at Biru Corrective Institution, Popondetta.

Sentenced accordingly.
_____________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Kokora [2013] PGNC 139; N5283 (17 May 2013)