Independent State of Papua New Guinea v Harisu [2023] PGNC 245; N10383 (5 July 2023)

N10383

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1403 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

KIRIKIRIHAU HARISU

-Prisoner-

Waigani: Tamade AJ

2023: 29^th May; 5^th July

CRIMINAL LAW- sentencing - escape from lawful custody- section 139 of Criminal Code- offender serving existing sentence

Cases Cited

Goli Golu v The State [1979] PNGLR 653

Lialu v The State [1990] PNGLR 487

State v Jerry [2021] PGNC 599, N9449

State v Avu [2006] PGNC 202; N5006

State v Gulein [2007] PGNC 250; N5496

Legislation:

Criminal Code Act

Counsel:
Mr Thomas Kokents, for State
Ms Kim Watakapura, for the Prisoner

5^th July, 2023

1. TAMADE AJ: The Prisoner pleaded guilty to escaping from lawful custody contrary to section 139(1) of the Criminal Code and this is a decision on sentence on the matter.
   
2. The facts that the prisoner pleaded guilty to is that on 5^th September 2015, the prisoner was a convicted prisoner serving time at the Minimum Security Prison at Bomana when he made his escape. At that time, the prisoner was allowed to collect greens from his garden outside the CIS Compound when he made his escape. The prisoner was on the run until Saturday 27 June 2020 when he was apprehended at Karama Village, Malalaua District in Gulf Province.
   
3. 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.

4. I am reminded that 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.
   
5. In Lialu v The State^[2] (per Kapi DCJ) said this 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.”

6. The prisoner in this case is a 46 year old male from Karama in Malalaua District in Gulf Province. He is married with 4 children and has been in detention for 9 years.
   
7. The prisoner’s aggravating factors are:
   
   1. He has a prior conviction, and he is serving a twenty year sentence for murder.
   2. There was a breach of trust from him as a prisoner when he escaped whilst out collecting greens from his garden.
   100. He was at large for 4 years, 5 months and 22 days.
   4. The prevalence of this offence.
      
8. The mitigating factors are:
   
   1. There is an early guilty plea saving the Court time to and resources to run a full trial.
   2. There is a non-violent escape.
   100. No property was damaged.
   4. Prisoner escaped on his own.
      
9. In State v Jerry [2021] PGNC 599, N9449, the prisoner was awaiting sentence for a previous crime when he escaped. He was sentence to three years in hard labour.
   
10. In State v Avu [2006] PGNC 202; N5006 (22 September 2006), the prisoner escaped whist he was serving time for murder. He escaped when he was given time to work in the jail’s garden for work parade. He was at large for 6 months. He was sentenced to 5 years with 6 months to be served in custody whilst 4 years and 6 months was suspended.
    
11. In State v Gulein [2007] PGNC 250; N5496 (16 October 2007), a man was serving 15 years for murder when he escaped in broad daylight when there was a mass escape. He was at large for 3 years. He was sentenced to 5 years with the pre-sentence period deducted and the remaining 3 years was suspended.
    
12. Taking into account the comparable cases, the aggravating and mitigating factors, I sentence the prisoner to 5 years. Pursuant to section 19 of the Criminal Code, the prisoner shall serve 1 year which will be served cumulatively with his current sentence and the 4 years is suspended.
    

Sentenced accordingly.

_______________________________________________________________

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)