State v Obida [2014] PGNC 329; N5620 (23 May 2014)

N5620

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 660 OF 2013

THE STATE

V

SAM OBIDA

Alotau: Toliken, AJ
2014: 09th, 23rd May

CRIMINAL LAW – Sentence – Escaping from lawful custody – Plea – Prisoner escaped while serving sentence for summary conviction – Indictment laid under Section 139 (1) of Criminal Code Ch. 262 - Appropriate charge – Escaping under Section 22 of Summary Offences Act Ch. 264 or Criminal Code Act – Sentence under Summary Offences Act – Appropriate sentence – 5 months imprisonment – Criminal Code Act Ch. 262, s 139; Summary Offences Act Ch. 264, s 22.

Cases Cited

Gima v The State (2003) SC 730
Laki v The State (2005) SC 783
The State v Rudy Haiveta (2012) N4677
The State v Nemo (2010) N4098
The State v Koroiwe (2010) N4154
The State –v- Eric Tene (2008) N 3951
The State –v- Joseph Kagl Imbo (2008) N3954
The State v Roy Feleti (2013) N5285
The State v Raymond Kokora; CR 754 of 2005 (unnumbered and unreported judgment dated 17th June 2013)
The State v Kenneth Wadada; CR 562 of 2012 (unnumbered and unreported judgment dated 23rd August 2013)

Counsel

R. Luman, for the State
P. Palek, for the accused

SENTENCE

23rd May, 2014

1. TOLIKEN, AJ. The prisoner, Sam Obida pleaded guilty before me on 09th May 2013 to one count of escaping from custody thus contravening Section 139 of the Criminal Code Act Ch. 262 (the Code). The prescribed penalty for the offence is a term of imprisonment of not less than five years.
   

THE FACTS

2. The brief facts put to the prisoner on arraignment are that he was serving time at the Gigligili Corrective Institution for a drug offence. On the 28th of November 2012 he was taken out to cut grass at the Institution's vanilla garden with other inmates when he escaped. He was at large for almost 5 months. On 22nd day of April 2013 he was recaptured at Kainako Village by CIS officers after a tip off. It appears from the committal depositions that the prisoner was sentenced by the District Court on 13th November 2012 to 2 years imprisonment for possession of a dangerous drug contrary to the Dangerous Drugs Act Ch. 288. So he escaped a mere 15 days from the time of his commitment to prison.

3. I entered a provisional guilty plea and confirmed it after I had perused the committal depositions. I then formally convicted the prisoner.

THE ISSUES

4. The ordinary sentencing issue for me would in the normal circumstances be an easy one given the fact that escaping under the Code is the only offence that carries a minimum prescribed penalty (5 years) and all that I needed to do was probably decide whether to exercise my discretion under the Section 19 of the Code to perhaps suspend a portion of the sentence. This is, however, not the case here. The prisoner as we have seen was serving a sentence for a summary conviction. So a pertinent issue I would like to think then is whether the prisoner ought to have been charged under the Section 139 of Code at all. The issue arises because the Summary offences Act Ch. 264, s 22 also provides for the offence of escaping from lawful custody.

ANTECEDENTS

5. The prisoner is from Kanaturu Village, Rabaraba District of the Milne Bay Province. He is 26 years of age and married with 2 children aged 3 and 7 years. He is the 2nd born in a family of 4 and his parents are both still alive. He is an adherent of the Bahai Faith and only educated up to Grade 8. He was at one time employed by Northern Timbers. He has one prior summary conviction for possession of dangerous drug and was serving his sentence for that when he escaped.

ADDRESSES TO THE COURT

6. On allocutus the prisoner explained the reason why he had to sell drugs which resulted in his conviction in the District Court, reasons which he said he told the presiding magistrate. To cut a long story short he said that he was then having problems with his first wife who had left him for another man and leaving their child with him. He took a second woman who looked the child but then the first wife wanted the child back but the prisoner refused to give her the child. The woman's relatives then threatened to kill the child and its step-mother unless the prisoner pays K1800 compensation plus food stuff, 2 pigs and 2 clay pots. The prisoner said that he was therefore forced to sell marijuana to settle those demands.

7. He said that when he was in prison he was concerned about the problem and demands and knowing that no one will assist him he broke the law by escaping. Furthermore his mother was hospitalized and he was worried about her health and that there would be no one to ensure that she takes the right doses of medicines that the doctors would be prescribing her. Hence he escaped. He apologised and asked for forgiveness for breaking the law but urged the Court understand his situation.

8. Mr. Palek submitted that since the prisoner escaped while serving a sentence for summary conviction he ought to have been charged under the Summary Offences Act in the first place and not under the Code. As such he ought to be sentenced to 4 - 6 months imprisonment. Counsel relied upon the Supreme Court authorities in Gima v The State (2003) SC 730 and Laki v The State (2005) SC 783.

9. Counsel cited the following as mitigating the offence. The prisoner pleaded guilty, only educated up to Grade 8, is remorseful, comes from a good family background and of previous good character, cooperated with the police, has ailing parents to care for and that at the time of his escaped he was concerned and depressed about the welfare and safety of his family in the face of threats from his former wife's relatives. Lastly he did not cause any damage to State property or hurt anyone during his escape.

10. Mr. Luman on the other hand submitted in behalf of the State that escaping from lawful custody is an affront to the criminal justice process. He conceded though that this was a simple escape, no implements were used, the prisoner took the opportunity and acted foolishly. Therefore the minimum should be imposed and the court may then consider a suspension in its discretion.

11. As to whether the prisoner ought to have been charged under the Summary Offences Act, Mr. Luman conceded that Parliament's intention is clear that escapes from prison on sentences on summary convictions ought to prosecuted summarily but the issue ought to have been brought before the District Court during committal. In spite of that the charge under the Code is still valid. Mr. Luman also said that the only aggravating factors against the prisoner is that he did not voluntarily surrender and that he has one prior conviction.

THE LAW

12. Escaping from lawful custody is indeed a serious offence. It is an affront to the criminal justice system and law enforcement agencies. (Gima v The State (supra). And Parliament's prescription of the minimum penalty of 5 years imprisonment under Section 139 of the Code testifies to that.

13. Sentences by this court have therefore on the most part started with the minimum of 5 years. And where appropriate suspensions have been imposed as was the case in the cases cited by the defence. For instance in Gima v The State, the Supreme Court (Kirriwom, Kandakasi, Batari JJ.) refused to disturb the sentences of the appellants who were served the minimum of 5 years but had 3 years suspended leaving a balance of 2 years. In Laki v The State (supra) the Supreme Court (Jalina, Kirriwom, Kandakasi JJ.) also dismissed an appeal against a five year sentence of which 3 years were suspended with the appellant being bound over to be of good behaviour.

14. Other cases include the following: In The State v Roy Feleti (2013) N5285 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 (supra) I imposed a head sentence of 3 years.

15. In The State v Raymond Kokora; CR 754 of 2005 (unnumbered and unreported judgment dated 17th June 2013) I imposed the minimum penalty of 5 years. In that case I held that where the court is mindful to suspending part of a sentence, the prisoner ought to serve a period equivalent to the period he was out at large if that period was less than the prescribed minimum. Where the prisoner had been on the run for a period longer than the prescribed minimum no suspension should be allowed. The prisoner there was on the run for 2 years so I ordered him to serve 2 years of his 5 years sentence. The balance of 3 years was suspended on condition.

16. In The State v Kenneth Wadada; CR 562 of 2012 (unnumbered and unreported judgment dated 23rd August 2013) I sentenced the prisoner to 5 years less the time spend in custody awaiting sentence leaving a resultant sentence of Resultant sentence shall be 3 years 4 months and 13 days. I ordered that he serve 18 months of that and suspended the balance on condition.

17. 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.

18. 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.

19. 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) were suspended from the sentence.

20. In The State –v- Eric Tene (2008) N 3951 (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.

21. 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. The effective sentence was 2 years.

22. Turning now to the case at hand, the first issue that I must determine is whether the prisoner should have been charged under the Code given that he was serving time for a summary conviction. And now that he is before this court should he be nonetheless sentenced under the Code?

23. The Supreme Court in Gima indeed, as submitted by Mr. Palek, held among other things that Parliament did not make any mistake in enacting the two provisions for the same offence of escaping from lawful custody. It said that there is a good policy reason behind this and Parliament had intended that escapes from lawful custody in connection with a summary offence should be dealt with under s 22 of the Summary Offences Act whilst escapes from a lawful custody in connection with an indictable offence should be dealt with under s 139 of the Code. And to that end the Supreme Court said the police and/or the prosecution has no choice but to be guided by the legislative policy and prosecute offenders under the respective provisions depending on the reason for their imprisonment to avoid arguments of disparity, unfairness and the like.

24. The point was confirmed by the Supreme Court two years later in Laki v The State (supra). There the appellant was indicted and sentenced to 5 years (3 suspended on condition) for escaping while in lawful custody for two armed robbery charges and two unlawful detention charges all of which indictable offences. The single ground of appeal was that he was unfairly dealt with when 3 o his co-accused were dealt with summarily under s 22 of the Summary Offences Act.

25. The court agreed with Gima that where a person is in lawful custody in relation to an indictable offence he must be dealt with under the Criminal Code while one held in lawful custody in relation to a summary offence must be dealt with under the Summary Offences Act. The court then held (and I quote from the head notes) that "It would therefore be illegal to proceed with a charge under the Summary Offences Act if the escapee's initial detention or imprisonment was in relation to an indictable offence and the same applies to a case in which an escapee was held in custody for a summary offence and he is charged under the Criminal Code. Where an escape charge has been dealt with illegally in either of these ways, a subsequent proceeding that proceeds correctly cannot be set aside or down graded to be on par with the one that had proceeded illegally because of the illegality." What the Supreme Court said in those two cases cannot be any clearer.

26. The facts of the case at hand are the opposite of what happened in Laki and therefore it is distinguishable. Here the prisoner escaped while in lawful custody for a sentence of 2 years on summary conviction for possession of dangerous drugs. His charge proceeded illegally under s 139 of the Code when he ought to have been charged under s 22 of the Summary Offences Act.

27. So unlike Laki where the charge proceeded legally and hence the sentence could not thereafter be disturbed on the ground advanced by the appellant, here the criminal process proceeded illegally from the start and I do not wish to assist it along in its illegal course. The outcome of this case must be as envisaged by Parliament when it enacted two separate offences for escapes under the Code and the Summary Offences Act and as interpreted by the Supreme Court. And as the Supreme Court said in Gima the police and/or the prosecution have no choice but to be guided by the legislative policy and prosecute offenders under the respective provisions depending on the reason for their imprisonment to avoid arguments of disparity, unfairness and the like.

28. Therefore the ultimate result is that the prisoner here must be sentenced under the s 22 of Summary Offences Act and not under s 139 of the Code. To do otherwise would be to act illegally or perpetuate an illegal course. The penalty provided by s 22 the Summary Offences Act is a fine not exceeding K200.00 or imprisonment for a term not exceeding six months. So what then should be an appropriate sentence? Is this a worst instance of escaping?

29. I agree with the lawyers that this is not the worst instance of escaping and therefore it should not attract the maximum penalty. The only aggravating factors are that the prisoner has a prior conviction from which his subsequent escape directly arose and that he did not surrender voluntarily thus forcing CIS to incur unnecessary expenses in picking him up from the village. Lastly escapes are becoming very prevalent and as we speak detainees and prisoners continue to escape despite the imposition of stiff sentences by this court.

30. On the other hand the prisoner pleaded guilty very early to charge. In fact he admitted the offence from the very beginning starting with his Record of Interview and he admitted his offence at the Committal Court which then committed him to this Court for sentence. He also cooperated with the police. He expressed what I believe was genuine remorse. He is a simple inadequately educated and unsophisticated villager who was very much shaped by the belief systems, social and customary obligations and pressures prevailing in his area. And this obviously influenced his belief that those very close to him will suffer harm in his absence. He did not injure any one let alone cause damage to State property when he escaped. His mitigating factors therefore outweigh the aggravating factors.

31. Be that as it may, I must impose a sentence, which in the circumstances must not only take the prisoner's interest into account but also denounce his act which as we have said is an affront to the criminal justice system and law enforcing agencies such as the Police, the Courts and Correction Services.

32. So taking all the above into consideration I sentence the prisoner to 5 months imprisonment principally to deter him personally. The sentence is proportionate to the period he was at large (The State v Raymond Kokora (supra) followed. This sentence will run consecutively with his sentence of 2 years for his summary conviction for drug possession.

Ordered accordingly.

___________________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner