State v Gambaino [2017] PGNC 336; N7030 (6 December 2017)

N7030

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 830 OF 2017

THE STATE

V

PHILIP GIPSON GAMBAINO

Kimbe: Miviri AJ
2017: 6^th December

CRIMINAL LAW – PRACTICE AND PROCEDURE – Escaping from lawful custody – plea - minimum penalty-first offender - at large over a year - no further offences - injured in rearrest - in court with crutches - punishment outside law - good grounds for part suspension - part custodial sentence.

Facts
Accused was in custody at the Kimbe Police Station over allegation of manslaughter of his wife. He was tasked to cook for all in the cells outside. He took the opportunity and escaped.

Held
Plea
Young First offender
At large for over a year
Injured at re arrest
No further offences committed
5 years IHL
2years IHL suspended on 2 years GBB
3years IHL minus time on remand
Balance to be served in jail.

Cases:
Gima v. The Independent State of Papua New Guinea [2003] PGSC 3: SC730
The State v Gima [2003] PGSC 3; SC 730
The State v. Jack Kumul SCRA NO. 06 OF 2005
SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996),

State v Tiapu [2007] PGNC 274; N3182
State v. Thomas Waim, Tala Gena and Alois wanpis N1750 delivered 24th July 1998

Counsel:

A. Bray, for the State
D. Kari, for the Defendant

Sentence

7^th December, 2017

1. MIVIRI AJ: This is the sentence of a man who pleaded guilty to escaping from lawful custody from the Kimbe Police Station.
   

Brief Facts

2. Prisoner was in police custody on the 15^th May 2015 over allegations that he had unlawfully assaulted his wife and caused her death. He was tasked to cook for the other prisoners outside the police cell and took the opportunity and ran away. He was at large until the 22^nd November 2016 when arrested at Section 15 squatter settlement here in Kimbe.
   

Escaping from lawful custody S139 CCA

3. He was charged under section 139 of the Criminal Code that he was a prisoner in lawful custody from which he escaped and was at large. The sentence prescribed was term of imprisonment of not less than five years.
   
4. He admitted the charge upon arraignment and after reading the depositions that were tendered, I confirmed the guilty plea of escaping from lawful custody. Firstly he was a detainee or prisoner within that definition in Gima v. The Independent State of Papua New Guinea [2003] PGSC 3: SC730 (3^rd October 2003. And secondly his confinement or detention was in accordance with law: State v Tiapu [2007] PGNC 274; N3182 (20 July 2007). He was detained by process of law.
   

Allocutus

5. You explain when given an opportunity here that, “you were a first time offender and were assaulted in the cells by the other detainees with a spoon in that you were stabbed there and you took the opportunity when you reported to the police but they did nothing that is why you escaped.
   

Mitigation

6. Your plea mitigates the offence. You were at large since 15^th May 2015 until the 22^nd November 16 when you were apprehended at section 15 squatter settlement. During that time you were not involved in any other criminal offences. You were injured in that apprehension and appeared before me with the aid of crutches though you produced no medical report I took record of that in your favour in determining an appropriate sentence. Your safety was threatened when you were assaulted and stabbed with the spoon so you committed the offence to protect yourself.
   
7. You do not have any prior convictions known to the law and you are aged 25 years old originally from Bapmo, Wosera, East Sepik Province. You were then in custody over a charge that you unlawfully killed your wife before you escaped. Since rearrest you have been in custody since 22^nd November 2016 up till now which would be a year and a month. This period will be deducted from any sentence imposed. The offence carries a minimum penalty of 5 years imprisonment. You were at large for a year and six months and you simply walked away from the police Station after you were allowed out to cook rice for the detainees in the cell.
   

Aggravation

8. Escaping from lawful custody is defiance of the rule of law. For you it was because you were assaulted by detainees. But you did not inform the police of that fact and seek redress. You reported but no help was forthcoming so you broke the law which is the wrong way to address a problem in law. It is in your favour that you did not hurt any law officers in the course of that escape, or any properties of the State. And also too that the law did not help you when you drew your demise to them. You cannot be squarely blamed for the offence. And here I adopt the reasoning in State v. Thomas Waim, Tala Gena and Alois wanpis N1750 delivered 24^th July 1998 by Justice Injia ( as he then was), an effective sentence of 3 years after suspending 2 years from the head sentence of 5 years. In so doing his honour considered the following: -
   

“"... although this was a mass breakout, this was an ordinary escape, in that the 3 accused and others simply climbed over the security fence and escaped. There is no evidence that these 3 accused were the main perpetrators. No weapon was used. No CIS staff member was threatened or injured. And no additional effort and expenses were involved in their re-capture as they were rounded off close to the CIS compound and recaptured the same day shortly after their escape. For these reasons, I consider that to impose the minimum sentence of 5 years per se would be manifestly excessive in the circumstances. Nevertheless, a strong punitive sentence is warranted because this offence is becoming far too prevalent in this country. Escapes from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment. I consider that an effective custodial sentence of 3 years for each accused is appropriate in this case. Accordingly, I sentence each accused to a minimum of 5 years imprisonment as required by law, of which I suspend 2 years in respect of each accused on the condition that when each accused comes out of jail after serving their respective terms, they will be of good behaviour for 12 months."

9. These considerations are fitting with SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996), which I determine as applicable to the facts and circumstances here. The offence does not depict facts and circumstances that warrant that five years be imposed immediately per se. It would not be proportionate given the facts and the circumstances of the present offence to so impose against the prisoner. Here I determine and adjudge that the facts and circumstances depict that suspension of part of the sentence is in order. In particular the fact that the prisoner was injured when he was rearrested and endures that injury into the courtroom in that he came into court on crutches and with its aid to be able to move. In itself is punishment because he suffers as a result of that injury. And that is the highest I can take without any independent evidence to verify the extent of that injury. And I point out these at the beginning of this judgement as the basis for so imposing. I follow the reasoning of Jack Kumul v. The State SCRA NO. 06 OF 2005 as further basis to make the orders that I now make as follows:
   
10. You are convicted for the crime of escaping from lawful custody pursuant to Section 139 (1) of the Criminal Code and sentenced to 5 years IHL

2years IHL is suspended on 2 years GBB.
3years IHL in jail
Period on remand is deducted forthwith.
Balance is to be served in jail

Ordered Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant