State v Raka [2018] PGNC 267; N7357 (20 March 2018)

N7357

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 77 OF 2016

THE STATE

V

LAWRENCE RAKA

Kimbe: Miviri AJ
2018: 12^th February
12^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – aiding abetting Escape from lawful custody– police sergeant–terminated from Police– first offender– brought back prisoners to serve out terms– serious offence-deterrent sentence.

Facts
The accused was a police sergeant at Kimbe Police Station. He released two convicted and sentenced prisoners in police custody.

Held
30 year career police sergeant
Released two prisoners
Convicted of drug offences
Recaptured both
Defiance of law
Serious offence
3 years IHL

Cases Cited:
The State v Aua [1997] PGSC 17 SC 535 (28 November 1997
The State v. Thomas Waim, Tala Gena and Alois wanpis N1750 delivered 24^th July 1998

Counsel:

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

SENTENCE

20^th March, 2018

1. MIVIRI AJ: This is the sentence upon the defendant who let out two prisoners who were in lawful custody at the Kimbe Police Cells.
   

Short facts

2. The Prisoners were John Kapre and Thomas Nathan who were awaiting remand warrants to be conveyed to Lakiemata Corrective Institution to serve the 12 months sentence imposed by the Kimbe District Court upon each of them for drug related offences. On 11^th November 2015 prisoner took the cell keys, opened it and let them out. He aided their escape from lawful custody.
   

Charge Aiding Escape from lawful custody S138 CCA

3. The charge has been laid pursuant to section 138 aiding prisoners to escape, the specific words of the section reads: “aids a prisoner in escaping or attempting to escape from lawful custody; or conveys anything or causes anything to be conveyed into a prison with intent to facilitate the escape of a prisoner, is guilty of a crime. Penalty: imprisonment for a term not exceeding seven years. When a prisoner escapes from lawful custody under section 139 the penalty is minimum of 5 years imprisonment. Comparably the present offence is more serious in view of the sentence prescribed. The prisoner is therefore looking at a sentence of a maximum of 7 years imprisonment which will be appropriated and apportioned after due consideration of all aggravating as well as mitigating and any extenuating circumstances to arrive at an appropriate sentence for the offence.
   

Issue

4. What is an appropriate sentence for the prisoner?
   

Aggravation

5. At the forefront is that both John Kapre and Thomas Nathan were prisoners in lawful custody both being convicted of drug related offence possession and each sentenced to 12 months IHL to be served at Lakiemata Corrective Institution and were awaiting to be taken there. Lawrence Raka was a police Sergeant of 30 years span at the Kimbe Police Station when he opened the cell doors on the 11^th November 2015 with the keys and let out both prisoners who escaped as a result. And further he later went out and brought back both prisoners each into custody for both to serve and complete the terms imposed by the court. He acted in defiance and contempt of court especially in the light that he was a serving policeman holding the rank of a sergeant. What he did reflected on the police as a whole, more so in the light that public confidence would be seriously effected of the police. The upkeep of law and order started with the individual trust in policemen and if they behaved as here there would be none. It was a trial as opposed to a plea.
   

Mitigation

6. He was a first offender aged 47 years old married with two children and another yet to be born. This was his second marriage the first wife had since left him. He served the police force since 1986 when he was accepted to train at Bomana Police College and passed out as a policeman. Up to the time of the offence he was holding the rank of sergeant and was shift supervisor. He has no disciplinary record that was presented in court against. His young family depended on him and have now suffered as a result of his termination from the police force as a result of the offence. Presently he is employed as a security guard Supervisor with New Britain Security Service earning K 650 fortnightly and also is paying off a loan of K8000 from the Bank of South Pacific at K300 fortnightly.
   

Presentence and means assessment reports

7. The court ordered reports have been fully considered in this sentence against the prisoner. From both the following emerge, he has no other sources of income other than his salary with the Security Company and has a K8000 loan that he is paying off to bank of South Pacific so any further orders for compensation will not be practicable in my view. Police confirm that he has brought back the prisoners released back to serve their terms imposed. But that he was terminated as a result of that act from the force. He has no disciplinary record except this with police. Both reports recommend him as suitable for probation.
   
8. It is a very serious offence especially in view of the fact that he was a police Sergeant when he committed the offence. No motive has been disclosed from the material that has been placed before the court. But he has brought back both prisoners to serve their terms. It is not as if the prisoners have gone out to commit a criminal offence from which he has benefitted. But it is a very serious abuse of trust and authority as a policeman. Without that in place the criminal justice system will not work.
   
9. In Aua v The State [1997] PGSC 17 SC 535 (28 November 1997) the appellant was a reserve policeman who aided two prisoners to escape from the Boroko police Station cells. He also had prior conviction for stealing and that he had been paid K150 to facilitate the escape. The Supreme Court dismissed the appeal against sentence and confirmed the sentence at first instance of 5 years IHL.
   
10. Comparable this is a regular policeman a sergeant of 30 years span shift supervisor no doubt versed in his duties. He has not disclosed any reason for the assistance except that both were persons from the settlement. He has not benefitted in the offence. He has gone out to bring back both to serve their terms in jail to complete. He has paid with his job of 30 years now he is no longer enjoying the privileges of being a policeman. He was terminated and is now a security supervisor with fewer privileges. He is a first offender with no criminal history or discipline history from the police before the court. He has a young family dependent on him for their upkeep in the town.
    
11. Is it just punishment to sentence him also to five years given that he has run a trial and not a guilty plea as in Aua (supra). Given the facts set out above it would not be just punishment. But certainly a sentence that will deter other like minded persons from so behaving is in order. And in so doing his conduct must be denounced in the strongest terms with sentence that will emphasize including the protection of the community from like offences.
    
12. The maximum sentence is 7 years imprisonment. He like the description given by 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 are 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."

13. He opened the cell doors with the key and let out the prisoners. Nothing as particulars in Thomas Waim and others (supra) happened. Exceptional and extenuating in his case is the fact that he has now lost his job of 30 years as a police sergeant with the privileges of that job. And he went out and brought the prisoners back so that they served out their jail terms imposed. The sentence reflects that fact upon him, bearing in mind that it must educate, deter, and as much as possible, equate to reasonable proportionality, so much so that the balance between society, and the individual prisoner is maintained. That I do here.
    
14. The sentence of the court proportionate given all set out above is 3 years IHL and I so impose that upon the prisoner.
    
15. In the exercise of my discretion pursuant to Section 19 of the Code considering the presentence and the means assessment reports that have been furnished I order that sentence is wholly suspended on entry of a 3 years GBB on condition that he shall within one month as of today pay a fine of K1000 forthwith.
    
16. He shall lodge a receipt of that payment with the registrar of the court to discharge that condition. Should he fail he shall be arrested to serve out his 3 years IHL in jail.
    
17. I order that his bail of K500 shall be refunded forthwith.
    

Ordered Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant