Independent State of Papua New Guinea v Avia [2023] PGNC 213; N10302 (28 April 2023)

N10302

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1429 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

MAX MEAKORO AVIA

-Accused-

Waigani: Tamade AJ

2023: 23^rd March; 28^th April

CRIMINAL LAW – guilty plea – escape from lawful custody – escape while in Bomana prison – Criminal Code, s 139 (1) – sentencing – Criminal Code, s 19 – principles of sentencing applied – sentence suspended to promote deterrence, reformation and rehabilitation

Cases Cited
Goli Golu v The State [1979] PNGLR 653
Lialu v The State [1990] PNGLR 487
Edmund Gima v The State [2003] PGSC 3; SC730
State v Boas [2019] NCSO 636
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Legislation
Criminal Code Act

Counsel
Ms Doreen Aruru, for the State
Mr. Trevor Kerari, for the Accused

28th April, 2023

1. TAMADE AJ: The prisoner, Max Meakoro Avia of Mearu Village, Malalaua, Gulf Province pleaded guilty to a charge of escaping from lawful custody that he on the 26 day of August 2021 being a prisoner in lawful custody escaped from prison thereby contravening section 139(1) of the Criminal Code.
   
2. The facts that the Prisoner pleaded guilty to supporting the charge in the indictment is that on 26 August 2021 between 1pm and 2pm, the Accused in the company of 19 others cut open the high security wire fence of the prison and escaped. This was the National Repentance Day when the duty prison officers were busy with the prayer programs organised by the Bomana CIS that the prisoners used this opportunity to cut open the fence and escaped.
   
3. A special task force comprising the police and CIS officers were set up to recapture the prisoners. On 14 September 2021, the prisoner was apprehended at Jacksons Airport in Port Moresby and brought back in detention at Bomana prison after being charged accordingly.
   
4. The Court now deliberates on the appropriate sentence after hearing submissions from counsels.
   
5. Section 139(1) of the Criminal Code is in the following term:
   

139. ESCAPE BY PRISONER.

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

Penalty: A term of imprisonment of not less than five years.

6. In Goli Golu v The State^[1], the Supreme Court held that “the basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence” and that the most severe penalty should be reserved for the most serious instances of the offence.
   
7. I am reminded by the following statement in the Supreme Court in Lialu v The State^[2] (per Kapi DCJ) about sentencing that:
   

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

8. The mitigating factors in this case are that:
   
   1. The prisoner has no prior convictions.
   2. There is an early guilty plea saving the Court time and resources.
   100. There was no violent escape.
   4. The prisoner expressed genuine remorse at the allocutus.
      
9. The aggravating factors are that:
   
   1. The prisoner was at large for 19 days
   2. The offence is prevalent these days in society
   100. There was a breach of trust by the prisoner to the CIS guards.
        
10. The Supreme Court held in Edmund Gima v The State^[3] in relation to escaping from lawful custody that:
    
    1. Escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment.
       Affirmed The State v. James Tei Wana & Gend Yanisa Thomas (N2304) and The State v. Irox Winston (N2347).
       
    2. This does not mean that the prescribed minimum sentence of 5 years should be automatically imposed and or suspend either wholly or part of it without more. Instead the Court still as 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 after starting with the prescribed minimum.

Affirmed and followed SCR 1 of 1994: Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996; 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.

3. Relevant factors for consideration before arriving at a sentence without limiting the list include:

(a) receipt of information by the escapee of a retaliatory killing of a close relative supported by prison officers;
(b) any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;
(c) whether the escape is en mass;
(d) whether any weapons are used;
(e) where weapons are used whether any personal or property damage or injury has been occasioned;
(f) the expenses to which the State has been put to, to recapture the escapee;
(g) when and how the recaptured occurred; and
(h) whether there is a guilty plea but this has to be contrasted against the chances of a successful denial.

Followed The State v. Inema Yawok (N1766); The State v. Irox Winston (N2347); and The State v. Thomas Waim, Tala Gena and Alois Wanpis (N1750).

11. The case of State v Boas[4] is a relevant case within the age range of the offender where the escapee was aged 29 at the time of the offence when he escaped from Buimo in Lae. The prisoner had an early guilty plea, he expressed genuine remorse however he had a prior criminal record. The Court sentenced him to 5 years with 6 months in detention removed from the sentence and the balance of 4 years and 6 months was suspended on the prisoner entering into his own recognisance to be on good behaviour after serving his existing sentence.

12. In regard to suspension of a sentence, the Supreme Court held in Public Prosecutor v William Bruce Tardrew[5]:

“Suspension of part of a sentence under s 19(6) of the Criminal Code (Ch No 262) is, or may be appropriate, in three broad categories. The categories are not exhaustive:

(i) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.

(ii) Where suspension will promote the repayment or restitution of stolen money or goods.

(iii) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.

13. I am of the view that suspension of the sentence in this case will promote personal deterrence, reformation or rehabilitation of the offender.
    
14. In considering the sentencing principles and similar cases, I will order a sentence of 5 years to the prisoner. Pursuant to section 19 of the Criminal Code, as the prisoner has been in detention since 14 September 2021 pre custodial sentence, he has been in custody for a total of 1 year and 7 months, I will order that the balance of the 5 years less the time spent in custody be suspended on the condition that the Prisoner enters into a Recognizance to keep the peace and be of good behaviour for 3 years and 5 months.

________________________________________________________________

Office of the Public Prosecutor : Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused

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[1] [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979)
[2] [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990)
[3] [2003] PGSC 3; SC730 (3 October 2003)

^[4] [2019] NCSO 636

[5] [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986)