Independent State of Papua New Guinea v Supa [2023] PGNC 231; N10306 (5 May 2023)

N10306

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1411 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

PAUL SUPA

-Prisoner-

Waigani: Tamade AJ

2023: 23^rd March; 5^th May

CRIMINAL LAW – guilty plea – escape from lawful custody – escape while at Port Moresby General Hospital – Criminal Code, s 139 (1) – sentencing – Criminal Code, s 19 – principles of sentencing applied – serving time for prior conviction – sentenced to 2 years to be served cumulatively

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

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

The State v Simon Jerry (2018) (N7127)

State v Paul Maima (2012) (N4752)

State v Hezaka [2015] PGNC 140; N6032

Legislation:

Criminal Code Act

Counsel:

Mr Thomas Kokents, for State

Ms Tymilla Yapao, for the Accused

5^th May, 2023

1. TAMADE AJ: The prisoner, Paul Supa of Mainomo Village, Chuave District, Chimbu Province pleaded guilty to a charge of escaping from lawful custody that he on 23 of April 2019 was at the Port Moresby General Hospital getting medical treatment at the Dental clinic when he escaped from lawful custody thereby contravening section 139(1) of the Criminal Code.
   
2. The facts that the Prisoner pleaded guilty is that on 23 April 2023, the prisoner was receiving medical treatment at the Dental Clinic at the Port Moresby General Hospital and between 1:30pm and 2:00pm whilst waiting to be picked up, he made his escape. It was until 6 November 2021 at around 6:30pm that he was apprehended at his home at 6 mile settlement. The prisoner was intoxicated at the time of his arrest.
   
3. The Prisoner pleaded guilty to the charge and the Court now deliberates on the appropriate sentence after hearing submissions from counsels.
   
4. 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.

5. 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.
   
6. 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.”

7. The mitigating factors in this case are that:
   
   1. There is an early guilty plea.
   2. There was no violent escape.
   100. The prisoner expressed genuine remorse at the allocutus.
        
8. The aggravating factors are that:
   
   1. The prisoner was at large for 2 years and 4 months.
   2. The prisoner is serving an 18 year sentence of sexual penetration with a prior conviction.
   100. The offence is prevalent these days in society.
   4. There was a breach of trust by the prisoner to the CIS guards.
      
9. 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. 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).

10. In regard to suspension of a sentence, the Supreme Court held in Public Prosecutor v William Bruce Tardrew[4]:

“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.

11. It is noted that the prisoner would have been still at large had he not been apprehended. The guilty plea of the prisoner came after 1 year 4 months of being apprehended and perhaps this is due to the dialogue on the plea between the State and the Prisoner’s lawyers.

12. The cases of The State v Simon Jerry (2018) (N7127), State v Paul Maima (2012) N4752, State v Hezaka [2015] PGNC 140; N6032 (31 July 2015) are similar cases in which the prisoners escaped whilst getting medical attention and in which the prisoners were serving existing sentences for prior convictions at the time of their escape. The Court in those cases have ordered 5 years for escaping from lawful custody with suspended sentences to run cumulatively with their current sentences.

13. 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 a prior conviction and is currently serving the term of that prior sentence, I will order that the prisoner serves 2 years in custody and the other 3 years is suspended. These two years is added to his current sentence to be served cumulatively.

________________________________________________________________

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