State v Wickless [2018] PGNC 315; N7427 (24 August 2018)

N7427

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 333 OF 2018

THE STATE

V

STEVEN WICKLESS

Kimbe: Miviri AJ
2018: 24^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Escaping from lawful custody – plea-minimum penalty – first offender – at large over 10 Months – no further offences –good grounds for part suspension – part custodial sentence.

Facts
Accused was in custody for armed robbery at the Buluma Police Station Cells where he escaped

Held
Plea
First offender
At large for 10 months
No further offences committed
5 years IHL

Cases:
Gima v. The Independent State of Papua New Guinea [2003] PGSC 3: SC730 (3^rd October 2003).
The State v. Tiapu [2007] PGNC 274; N3182 (20 July 2007).
The State v. Thomas Waim, Tala Gena and Alois wanpis N1750 delivered 24th July 1998
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)

Counsel:

A. Bray, for the State
E. Yavisa, for the Defendant

SENTENCE

24^th August, 2018

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

Brief Facts

2. Prisoner escaped from Police Custody on the 16^th February, 2017 over charges of armed robbery committed at the Kimbe City Pharmacy on 13^th February, 2017.
   

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 for almost 10 months before he was rearrested. The sentence prescribed was term of imprisonment of not less than five years.
   

Plea

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 in that he was charged with armed robbery committed at the Kimbe City Pharmacy committed on the 13^th February 2017.
   

Allocutus

5. In his allocutus, he said:
   

“It is true that I escaped from Buluma Police Station cells. I did not damage State Property. My father is deceased I have a four year old baby with mother in the house. I was worried about him and escaped and was at my house all the time. I am sorry for breaking the mother law. Have mercy on me”

Mitigation

6. Your plea mitigates the offence. You were at large since 16^th February, 2017 until the 04^th January, 2018 when you were interviewed by police after you were apprehended. During that time you were not involved in any other criminal offence. You were honest in your guilty plea and expressed genuine remorse for the offence. You were at large for almost 10 months and were not involved in any trouble with the law.
   
7. You do not have any prior convictions known to the law and you are aged 28 years old originally from Meselia, Kandrian, West New Britain Province. You were then in custody over a charge of armed robbery committed at the Kimbe City Pharmacy on the 13^th February, 2017 which is yet to be tried. Escaping from lawful custody carries a minimum penalty of 5 years imprisonment. There are no short cuts to the law and its processes. Escaping only lumps further the consequences against you because you are yet to be accorded what is due to you on the armed robbery charges. The warning here is to comply with the law ensure that you serve out your sentence.
   

Aggravation

8. Escaping from lawful custody is defiance of the rule of law because you were lawfully in custody over another very serious charge of armed robbery which carries the maximum penalty of death. 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. You took advantage of a situation that presented upon the cutting of the prison cell lock. I adopt the reasoning in State v. Thomas Waim, Tala Gena and Alois wanpis (1998)N1750 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."

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. Particularly with the fact that you have pleaded guilty and expressed remorse. It would not be proportionate given the facts and the circumstances of the present offence to so impose against. Here I determine and adjudge that the facts and circumstances depict that suspension of part of the sentence is in order. 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:
   
   • (a) 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.
   • (b) In the exercise of my discretion under Section 19 (6) of the Criminal Code I order that 3years IHL is suspended on 3 years GBB.
   • (c) I further order that 2 years IHL will be served in jail. The period on remand is deducted forthwith. Balance is to be served in jail
     

Sentenced accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant