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State v Pinda [2005] PGNC 194; N2920 (27 October 2005)

N2920

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 310 OF 2005

THE STATE

V

THOMAS PINDA

Kimbe: Cannings J
2005: 4, 27 October

CRIMINAL LAW – sentencing – Criminal Code, Division III.6 (escapes: rescues: obstructing officers of courts) – Section 139 (escape by prisoner) – sentence on plea of guilty.

A young man who was remanded in custody at Lakiemata correctional institution, near Kimbe, on a charge of attempted murder, escaped. It was a mass escape. No personal violence was committed. He surrendered himself soon afterwards. He pleaded guilty to the offence of escaping from lawful custody.

Held:

The offender was sentenced to the statutory minimum of five years imprisonment, four years of which was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730
SCR No 1 of 1994; The State v Aruve Waiba unreported, 04.04.96
The State v Aaron Lahu (2005) N2798
The State v Mark Kanupio and Others (2005) N2800

PLEA

The accused pleaded guilty to escaping from lawful custody and the reasons for the sentence are given below.

Counsel

J Kesan, for the State
R Inua, for the accused

27 October, 2005

1. CANNINGS J: This is a decision on the sentence for a person who pleaded guilty to escape. The incident giving rise to the charge took place on the night of 20 August 2004. It was alleged that the accused escaped from the Lakiemata gaol, West New Britain. The accused had in June 2004 been remanded in custody on a charge of attempted murder. Five other men are facing the same charge and their trial is due to be heard soon. All of them were granted bail of K350.00 each on 13 April 2004 by Los J. However, the accused broke his bail conditions (by not attending a National Court callover, as required) and was arrested under a bench warrant, then remanded in custody. The accused made a new bail application, which I granted on 17 May 2005, imposing cash bail of K1,000.00. Apparently the accused and his guarantors have been unable to raise the cash, so he has remained in custody.

2. On 4 October 2005 the accused was brought before the National Court and faced the following indictment:

Thomas Pinda, of Ganeboku, Talasea, West New Britain Province, stands charged that he on the 20th day of August 2004 at Lakiemata ... whilst being a prisoner in lawful custody of the Correctional Service at Lakiemata escaped from such custody.

3. The indictment was presented under Section 139 of the Criminal Code.

FACTS

4. The following allegations were put to the accused for the purpose of obtaining a plea. The accused was in custody at Lakiemata, on remand for a charge of attempted murder. Between 9.00 pm and 12 midnight on 20 August 2004 there was a mass breakout by about 30 detainees, mainly remandees. They used hacksaws to cut the bars on their cells, then cut the gaol's perimeter fence, then escaped. The accused was at large for four days, then surrendered to the police.

5. The accused stated that it was true that he escaped. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

6. The prisoner has no prior convictions.

ALLOCUTUS

7. I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise to the court for what I have done and apologise to the CIS officers. I know that I have broken the law. But please consider me suitable for a non-custodial sentence. I was remanded in June 2004 and I did not know about this escape plan. Some of the other detainees threatened me and said if I did not go with them, there would be trouble. I just did as I was told to do. I was new in the gaol and did not know what was happening. When I arrived at the village my father took me straight back.

OTHER MATTERS OF FACT

8. Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence. In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor's summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The principles to apply are as follows:

• The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
  
• Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
  
• If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor's summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.
  
• If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.
  
• If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.
  
• If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
  

9. I now apply the above principles to the present case. Both the depositions and the allocutus disclose a number of mitigating factors that are not disputed by the prosecution:

• He was new to the gaol, was threatened and forced to escape.
  
• Only at large for four days.
  
• His father brought him back in. He surrendered to the police and the correctional authorities.
  

RELEVANT LAW

10. Section 139 of the Criminal Code states:

(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.

11. The prisoner is therefore liable to a minimum penalty of five years imprisonment. That is the minimum. No maximum is prescribed. However, the court still has a considerable discretion whether to require a convicted escapee to serve the whole of the head sentence in custody. Some or all the sentence can be suspended provided that the judge obtains a pre-sentence report, gives it careful consideration and spells out the reason for allowing a suspension of all or part of the sentence. (SCR No 1 of 1994; The State v Aruve Waiba unreported, 04.04.96, Los J, Salika J; Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J.)

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Inua reiterated the above mitigating factors:

• He was not one of the main perpetrators.
  
• He was at large for only a short period.
  
• He was surrendered by his father.
  
• He cooperated with the correctional officers upon his recapture.
  

Mr Inua submitted that the court should suspend the whole sentence.

SUBMISSIONS BY THE STATE

13. Mr Kesan, for the State, did not press for a heavy sentence and did not dispute the major mitigating factors set out in the prisoner's allocutus: the circumstances in which he escaped; the short period he was at large; and his surrender.

PRE-SENTENCE REPORT

14. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

Of Ganeboku, Talasea, WNBP heritage – resides in the village – aged 20, single – educated to grade 9 @ Hoskins – father and mother still alive – raised in village – never wage-employed.

No behavioural problems.

The offender wants to return to the village – then re-enrol at a technical school. Sells oil palm to earn money.

Suggestion of previous conviction in District Court for harbouring an escapee, sentenced to 6 months on 13 Sept 04.

Family supportive – no community objection to offender's release back to community.

The report is non-committal on whether he is a suitable candidate for probation supervision.

DECISION MAKING PROCESS

15. To determine the appropriate penalty I will adopt the following decision making process:

• Step 1: what is the appropriate head sentence, in terms of years?
  
• Step 2: should all or part of the sentence be suspended?
  
• Step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

16. In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point;
  
• secondly I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly I will apply those considerations to the facts of the present case, thus arriving at a head sentence.
  

The starting point is five years.

17. The things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point are:

1. Did the offender not use violence in the escape, actual or threatened?
   
2. Did the offender not put anybody in real danger of being injured or killed?
   
3. Did he escape by himself?
   
4. Did the offender not cause damage to property of great value?
   
5. Was there something happening inside the gaol that provided a good reason to escape?
   
6. Was there something happening outside eg with this family that gave him good reason to escape?
   
7. Did the offender give himself up after the escape?
   
8. Was he at large for only a short time?
   
9. Did the offender cooperate with the police in their investigations?
   
10. Has the offender done anything tangible towards repairing his wrong, personally or publicly apologising for what he did?
    
11. Has the offender pleaded guilty?
    
12. Has the offender genuinely expressed remorse?
    
13. Is this his first offence?
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence?
    

18. The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors. Another thing to note is that there are, in general, three categories of considerations listed. Numbers 1 to 7 focus on the circumstances of the escape. Numbers 8 to 12 focus on what the offender has done since the escape and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

19. I apply the above considerations as follows:

1. Yes the offender did not use violence in the escape.
   
2. Yes the offender did not put anybody in real danger of being injured or killed.
   
3. No he was involved in a mass escape.
   
4. No he caused damage to property.
   
5. Yes, he was threatened.
   
6. No, he was not concerned about things happening outside.
   
7. Yes, the offender gave himself up after the escape.
   
8. Yes he was at large for only four days.
   
9. Yes the offender cooperated with the police.
   
10. No, he has not done anything to right his wrong.
    
11. Yes, the offender has pleaded guilty.
    
12. Yes the offender genuinely expressed remorse – to the extent necessary in the circumstances.
    
13. Yes, this was his first offence.
    
14. Yes, he was a fairly youthful offender.
    
15. No, no special circumstances.
    

Taking all the above considerations into account, the head sentence in this case should be five years.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. This is a case where it was appropriate to consider suspending part of the sentence, given the many mitigating circumstances. The pre-sentence report is non-committal but does not indicate that the offender would pose a danger to the community. I am satisfied that in the special circumstances of this case it is appropriate to immediately suspend four years of the sentence, subject to conditions.

STEP 3 - WHAT CONDITIONS SHOULD BE IMPOSED?

21. Four years of the sentence will be suspended, subject to the following conditions, which shall apply for the whole of the period of the sentence, commencing today:

1. The offender shall comply with a church activity program, which shall be ratified by the National Court within one month after today.
   
2. The offender shall comply with a community work program which shall be ratified by the National Court within one month after today.
   
3. There shall be a probation report submitted by the Community Corrections and Rehabilitation Service to the National Court at Kimbe every three months after today.
   
4. The offender shall not consume alcohol or smoke tobacco or any other substance.
   
5. The offender shall not leave West New Britain without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Community Corrections and Rehabilitation Service.
   
6. The offender shall co-operate with the Community Corrections and Rehabilitation Service and with all persons nominated to supervise his compliance with the church activity program and the community work program.
   
7. The offender shall keep the peace and be of good behaviour and in particular shall not take any unilateral or unlawful action against any person he believes is responsible for him being charged with attempted murder.
   
8. Breach of any of these conditions will mean that the prison sentence will crystallise, ie the offender will go to gaol for the balance of the period of probation.
   

PRE-SENTENCE PERIOD IN CUSTODY

22. I now have to consider whether all or any part of the period that the prisoner has spent in custody prior to the handing down of the sentence should be deducted from the head sentence of five years. The relevant law is Section 3 (length of sentences) of the Criminal Justice (Sentences) Act 1986, which states:

(1) A sentence imposed by a court in the National Judicial System shall take effect from the beginning of the day on which it is imposed, unless a law otherwise provides.

(2) There may be deducted from the length or any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

23. In applying these provisions the following dates are important:

24. Without taking account of any pre-sentence period in custody or the suspension of any part of the sentence, the prisoner's sentence would be for five years, from 27 October 2005 to 27 October 2010. However, he has already spent a pre-sentence period in custody of one year, four months and 19 days (excluding the four days at large, from 20 to 24 August 2004). All of that period is available to be deducted from the five-year sentence. In the exercise of my discretion under Section 3(2) of the Criminal Justice (Sentences) Act, I will deduct only one year. I do that for two reasons. First it will make it easier to keep track of the duration of the sentence. Secondly, it may be more beneficial for the prisoner to have a credit of four months and 19 days available in the event that he is convicted and sentenced for the attempted murder charge that is pending. If he is convicted and sentenced to a term of imprisonment for that offence he will not be able to have a deduction, again, of any period that is now being deducted. That would amount to double-dipping and would defeat the purpose of the Act and nullify the punishment he is subject to for escaping from custody.

BAIL

25. Now that the prisoner has been convicted and sentenced for escaping from custody and would in normal circumstances be entitled to be released, to begin serving the suspended part of his sentence, it is appropriate to have a fresh look at the bail granted to him previously. On 17 May 2005 I granted him bail, imposing cash bail of K1,000.00. That apparently proved too much for him and his guarantors to raise and that is why he has remained in custody. I will, in the circumstances, in the exercise of my discretion as the bail authority, vary the bail conditions in the following way. I will reduce the amount of cash bail to K350.00. That is the amount of bail his co-accused on the attempted murder charge he is facing, were required to pay; and have paid.

SENTENCE

26. The Court makes the following order:

1. The offender, Thomas Pinda, having been convicted of the crime of escape, is sentenced to 5 years imprisonment, 4 years of which is suspended subject to compliance with the conditions prescribed above;
   
2. one year of the five-year sentence is deducted under Section 3(2) of the Criminal Justice (Sentences) Act;
   
3. the term of the sentence will run to 27 October 2009;
   
4. the conditions of the bail granted to him by this court on 17 May 2005 are varied by reducing the amount of cash bail from K1,000.00 to K350.00;
   
5. if the offender is convicted and sentenced for attempted murder or a similar offence, the Registrar shall ensure that copies of the order emanating from these proceedings and reasons for this decision are given to the sentencing Judge prior to the imposition of sentence for that offence.
   

Sentenced accordingly.
______________________________________

Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused