State v Taimbari [2024] PGNC 168; N10823 (24 May 2024)

N10823

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1919 OF 2023

BETWEEN
THE STATE

AND
GIBSON TAIMBARI
Offender

Popondetta: Makail, J
2024: 16^th, 21^st & 24^th May

SENTENCE – Plea – Guilty – Aiding escape from lawful custody – Aggravating and mitigating factors considered – Guilty plea – Cooperation with police during investigations – Setting free of a criminal – Prevalence of offence – Personal and public deference – Suspended sentence imposed – Criminal Code – Sections 19 & 138

Cases Cited:
Goli Golu v. The State [1979] PNGLR 659
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Lawrence Raka (2018) N7357

Counsel:
Mr J Done, for State
Mr E Yavisa, for Offender

SENTENCE

24^th May 2024

1. MAKAIL, J: The offender pleaded guilty to, and was accordingly convicted of one count of aiding a person to escape from lawful custody contrary to Section 138 of the Criminal Code.

2. The offender is a member of the Police Reservist Unit based at Popondetta Police Station. On Thursday 1 June 2023 at about 3;00 pm the offender was on duty at the Popondetta Police Station. He was asked by the Provincial Police Commander Edric Boera to lock up the detainees on the main cell. He took the key and along with another female police officer opened the door and went in and locked up the detainees in the main cell. One of the detainees named Bradley Bambi was a detainee from Biru Gaol and refused to be locked up in the main cell. He argued with the offender and slammed the cell door and almost hit the offender on his head. The offender gave in and led the detainee to the outer cell and left him there and left for home. The outer cell is securely locked area and on the next morning, the detainee was never to be found in the outer cell.
3. According to Section 138 of the Criminal Code, the offence of aiding a person to escape from lawful custody carries a maximum penalty of seven years term of imprisonment. However, te maximum penalty is reserved for a worst case: Goli Golu v. The State [1979] PNGLR 659.

4. Section 19 of the Criminal Code also confers discretion on the Court to impose a penalty less than the prescribed maximum penalty. In deciding whether the offence falls into the worst category or one where a lesser penalty might be appropriate to impose, each case must be considered on its own peculiar facts and circumstances: Lawrence Simbe v. The State [1994] PNGLR 38.

5. Having considered the offender’s statement on allocutus, that he asked to be placed on probation because he has a family, that according to the antecedent report, he has no prior conviction and his counsel’s outline of personal particulars that he is 55 years old from Popoga village in Ward 7 of Higaturu LLG, Northern Province, married with five children, three females and two males between the ages of two and seventeen years, that one is attending Grade 5 at Isivini Primary School and others are at home, that he comes from a family of six siblings out of which four are males and two are females, him being the first born in the family and completed Grade 5 in 1980 and did not continue his education, that he resides at Isivini Oil Palm Block with his family and is a member of the Church of England (Anglican Church), and further, having considered the mitigating and aggravating factors in this case, these being the offender’s early guilty plea, thus saving the Court costs and time to conduct a trial to determine his guilt, his cooperation with the police investigations, being a first-time-offender as opposed to the fact that he set free a criminal and the prevalence of the offence throughout the country and as reinforced by the CID Officer Mr Paul Aito in the pre-sentence report, this offence calls for a sentence of two to three years term of imprisonment as opposed to the offender’s counsel’s submission of one to two years term of imprisonment.

6. A sentence within the range of two to three years term of imprisonment will not only act as a strong personal deterrence for the offender but also for other members of the police because of the prevalence of the offence. It is also a breach of their constitutional duty to protect lives and property when members of the police allow detainees and convicted prisoners who pose a threat to public safety to escape from custody. As will be noted in The State v. Lawrence Raka (2018) N7357, the offender, a 30-year career member of the police based at Kimbe Police Station released two convicted and sentenced prisoners from the police cell and was sentenced to a term of imprisonment of three years but wholly suspended and ordered to pay a fine of K1,000.00.

7. The offender in this case is sentenced to a term of imprisonment of two years in hard labour. He spent eleven months and two weeks in pre-trial custody. This period is deducted from the term of sentence of two years, leaving a balance of one year and two weeks to serve. Finally, it is not necessary to order a fine of K1,000.00 for the offender to pay as was done in the The State v. Lawrence Raka (supra) because the time spent in pre-trial custody is sufficient punishment for the offender.

Order

8. The final terms of the order of the Court are:

1. The offender is sentenced to a term of imprisonment of two years in hard labour.
2. A period of eleven months and two weeks is deducted from term of sentence of two years for pre-trial custody.
3. A term of one year and two weeks is suspended on the following conditions:

(a) The offender shall be placed on good behaviour bond for the duration of the suspended sentence.

(b) The offender shall report to the Probation Officer on the first Monday of each new month.

(c) The Probation Officer shall prepare a report to submit to the Court at the end of each six-month period on the progress of compliance with the above conditions and rehabilitation of the offender.

(d) If the offender fails to comply with or breaches any of these conditions of suspension, he shall be arrested and returned to prison to serve period of the suspended sentence of one year and two weeks.

________________________________________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender