State v Teya [2023] PGNC 431; N10575 (21 November 2023)

N10575

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 2118 OF 2023

THE STATE

V

EBON TEYA

Vanimo: Miviri J
2023: 20^th & 21^st November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Escape from lawful custody – Detention Sexual Penetration of Minor Under 16 years Old – Medical Treatment Aid Post CIS – Escaped Running Out of Gate – Caught by CIS Officers Immediately – Serious Defiance of Law – Guilty Plea – First Offender – deterrent sentence.

Facts
Accused was remanded in Custody at Vanimo Corrective Institution for sexual penetration of a minor under 16 years. He was taken to the aid post within for medical treatment. But came out after and ran out of the gate. He was pursued by Warders and caught.

Held
First Offender.
Guilty Plea.
Serious defiance of law.
Escape from CIS Premises.
Strong deterrent Sentence.

Cases Cited:
State v Haiveta [2012] PGNC 71; N4677
State v Waim [1998] PGNC 73; N1750
Dambui v The State [2003] PGSC 20; SC724
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730
Golu v The State [1979] PNGLR 653

Counsel:
F. Popeu, for the State
O. Himore, for the Defendant

SENTENCE

21^st November 2023

1. MIVIRI J: This is the sentence of Ebon Teya who escaped from the Corrective Institution Vanimo where he was remanded on a charge of sexual penetration of a minor under 16 years.
   
2. Again, I am determining sentence of a detainee as opposed to a convicted prisoner of the State serving time for serious offences known to the law as in State v Haiveta [2012] PGNC 71; N4677 (18 May 2012) where 5 years was imposed but 4 years was suspended and the prisoner was ordered to serve only a year in jail. He was serving time for other criminal offences when he escaped by getting K300 from an accomplice that he used to bribe the cell guard with and escaped. He was at large for over two years before being captured.
   
3. The facts here are not likened because this is an innocent person detained for an allegation yet to be sustained through the process of law. He was taken down to the Aid Post within Vanimo Corrective Institution on the 24^th May 2023 at about 10am to 10.30am whilst he was remanded. He got treatment and then came out and made a run to the gate escaping. But he was pursued by Warders and immediately apprehended and taken back into Custody.
   
4. The charge has been laid pursuant to section 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.

(2) An offender under Subsection (1) may be tried, convicted, and punished, notwithstanding that at the time of his apprehension or trial the term of his original sentence (if any) has expired.

5. He has pleaded guilty to the charge and expressed remorse and pleaded for mercy. He is a first-time offender aged in his late 27 years. He is an unemployed person married with six (6) children of the Catholic Christian Faith. Originally from Laitre, Vanimo, West Sepik Province. He is educated to primary School there and has no work history. This would be his first conviction and therefore would be treated with leniency considering all set out above.
   
6. It is a very serious offence because he was prepared to dash for freedom at all costs. But for the alert Warders he would be at large now cost of raids and the like to take him back. That has been avoided with his immediate apprehension. He has further with his guilty plea saved all from a trial logistics expense. These weigh in his favour. But he has shown disrespect to the law and contempt against it. By itself is not a light matter to be swept aside without restraint in the sentence. It is a prevalent offence and should be stopped in its tracks. But this is a remandee not a convicted prisoner of the State serving time and making a getaway. It is not what is observed by this Court in State v Waim [1998] PGNC 73; N1750 (24 July 1998). In my view it is relevant to set out the express of authority there that,“... 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."
   
7. And it is not a case where he has been at large for quite a substantial time. He was caught immediately after short chase up tower mountain. He is a first offender by this offence because the offence for which he was lawfully in custody was an allegation, a charge only until conviction. It was a charge of sexual penetration of a minor under 16 years. By his conduct he has turned his life into worse from bad. But he has admitted his wrong against the law. That ought to draw some benefits in the sentence that is passed upon him.
   
8. The sentence prescribed is a minimum sentence which I have set out above. It is five years prescribed, but the courts have in other cases that have come before it imposed sentences other than five years: Dambui v The State [2003] PGSC 20; SC724 (26 November 2003). The Supreme Court determined an error in the sentence imposed, reverted it back to this Court to reconsider another sentence other than the minimum sentence. It upheld the appeal against the sentence. This is not new where a sentence of 2 years for escaping from lawful custody was confirmed on appeal: Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730 (3 October 2003). This Court has followed likewise to impose other than the minimum prescribed, Haiveta (supra).
   
9. Before me is a first offender charged with the offence of sexual penetration of a minor under 16 years and is yet to be determined. So for all intent and purposes he is innocent. And he has appreciated and accepted the long arm of the law and pleaded guilty. That is admission that must be encouraged so that the prisoner turns around from that pit that he has fallen into. He must be treated with the seriousness of that offence, but his facts also must be entailed in that sentence. More serious offence has entailed sentences drawing. On a charge of aiding escape by a reserve policeman the appeal was dismissed against the sentence at first instance. Five years imprisonment was confirmed 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. This is serious circumstances even though aiding prisoners to escape but relevant here in that serious facts draw stern sentences.
   
10. I consider it trite that the maximum penalty should be reserved for the worst offence: Golu v The State [1979] PNGLR 653. This is not the worst offence of escaping from lawful custody. It is not what is described by this Court in Waim (supra). This is a run for freedom exercised out of the gate of the Prison which in itself is very serious. It should be a place to await correction in law, not defiance and breach as is the case here.
    
11. The sentence in the aggregate except for that defiance of the rule of law, the mitigating features outweigh the aggravating features. I determine that the proportionate sentence given all facts identified and apparent set out above is 12 months IHL. Time in custody is deducted he will serve the balance in jail.
    

Ordered Accordingly,

__________________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor : Lawyers for the Defendant