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State v Andro [2006] PGNC 234; 2006-3-23 (23 March 2006)

N3020

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1937 OF 2005

THE STATE

V

JOHN NUTE POTO ANDRO

Kimbe: Cannings J
2006: 14 February, 10, 23 March

SENTENCE

CRIMINAL LAW – sentencing – indictable offence – Criminal Code, Division III.6 (escapes: rescues: obstructing officers of courts) – Section 139 (escape by prisoner) – sentence on plea of guilty – escape from correctional institution – offender at large for long period before apprehension – identification of relevant considerations – application of relevant considerations – sentence of 5 years – prisoner must serve minimum sentence of one year – balance of four years suspended on conditions.

A young man who was remanded in custody at Lakiemata Gaol, near Kimbe, on a charge of armed robbery, escaped. It was a mass escape. He was at large for six months before being apprehended.

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

Abbreviations

The following abbreviations appear in the judgment:

Aug – August
CS – Correctional Service
Feb – February
J – Justice
Mar – March
N – National Court judgment
No – number
Nov – November
OK – okay; all right
PNG – Papua New Guinea
SC – Supreme Court judgment
SCR – Supreme Court Review

PLEA

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

Counsel

F Popeu, for the State
A Asan, for the Accused

23^rd March, 2006

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a person who pleaded guilty to escape from lawful custody.

BACKGROUND

Incident

2. The incident giving rise to the charge took place on 20 August 2004. It was alleged that the accused escaped from the Lakiemata Gaol, West New Britain.

3. The accused was in remand on a charge of armed robbery. His trial was held in May 2005 in Kimbe. The Public Prosecutor filed a nolle prosequi and the accused was discharged from the indictment, ie the case was not pursued.

Indictment

4. On 14 February 2006 the accused was brought before the National Court and faced the following indictment:

John Nute Poto Andro of Yalumet, Kabwum, Morobe Province, stands charged that he on the 20^th day of August 2004 at Lakiemata ... whilst being a prisoner in lawful custody of the Correctional Service Commander escaped from lawful custody.

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

FACTS

6. The following allegations were put to the accused for the purpose of obtaining a plea.

7. In August 2004 the accused was being held in remand (‘wait-court’) at Lakiemata Gaol awaiting trial on an armed robbery charge. Between 9.00 pm and 12 midnight on Friday 20 August 2004 there was a mass breakout by about 31 detainees, mainly remandees. They used hacksaws to cut the bars on their cells, cut the gaol’s perimeter fence and escaped. The accused was at large until 12 February 2005 when he was recaptured.

CONVICTION

8. 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

9. The prisoner has no prior convictions.

ALLOCUTUS

10. 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 had been in wait-court from 2001 to 2004. I did not think about escaping. I was asleep then heard noises and noticed that some people were running away. About 30 had left and there were only five of us left behind. I thought back to the time in February 2002 when 16 had escaped. There were 13 of us left behind and when we called out “escape!” the warders threw tear gas into the cell and the next morning assaulted us badly. I did not want that to happen again.

I did not cause any trouble. I just stayed at my house until the police came and got me and shot both my legs. I stayed in the hospital for three days. Then I was locked in the detention cell with two others.

If my case had come on quickly I would not have escaped.

I apologise to the court and the Correctional Service and to everybody in the courtroom for escaping. Please consider all I have said and have mercy on me.

OTHER MATTERS OF FACT

11. 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.

12. 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 allocutus discloses a number of mitigating factors that are not disputed by the prosecution:

• had been in remand for two to three years;
• did not plan the escape;
• concerned about being assaulted by warders if he stayed behind;
• shot by police after being recaptured;
• kept in dark cell at Lakiemata with two other detainees.
  

RELEVANT LAW

13. 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.

SUBMISSIONS BY DEFENCE COUNSEL

14. Mr Asan reiterated the following mitigating factors: the offender pleaded guilty and expressed remorse; he had been in remand for a considerable time before he escaped; his substantive charge (armed robbery) has already been dealt with and he no longer has a case to answer; he was not the principal offender; no weapons were used by the escapers; nobody was injured in the escape. A suspended sentence was warranted.

SUBMISSIONS BY THE STATE

15. Mr Popeu, 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 lengthy period on remand; mistreatment after recapture.

PRE-SENTENCE REPORT

16. 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.

Brought up in Gigo settlement, Kimbe – lives with his father – mother deceased – educated to grade 3 – 24 years old – no formal employment – illiterate – single – no income – relies on father for support – health OK.

He has changed his life while in gaol – has joined “God’s 21^st Ministry”.

Reasonable family and community support for the offender in the event that he is released.

The report concludes that he is a suitable candidate for probation supervision.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what are the considerations that should be taken into account in determining the head sentence?
  
• step 4: what is the head sentence?
  
• step 5: should all or part of the sentence be suspended?
  
• step 6: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

18. No maximum is prescribed. The minimum penalty is five years imprisonment. 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 04.04.96, unreported, Los J, Salika J; Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J.)

STEP 2: WHAT IS THE STARTING POINT?

19. The starting point is five years. The head sentence can be above that but not below it.

STEP 3: WHAT ARE THE RELEVANT CONSIDERATIONS?

20. The things I consider should be taken into account when determining whether to increase 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 his 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?
    

21. Three categories of considerations have been 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.

STEP 4: WHAT IS THE HEAD SENTENCE?

22. I apply the various considerations to arrive at the head sentence:

1. Yes the offender did not use violence in the escape.
   
2. Yes the offender did put people in real danger of being injured or killed.
   
3. No he was involved in a mass escape.
   
4. No there was some damage to Correctional Service property.
   
5. Yes he had been mistreated inside the gaol.
   
6. No he was not concerned about things happening outside.
   
7. No the offender did not give himself up after the escape.
   
8. No he was at large for a considerable period, six months.
   
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. No he cannot be regarded as a youthful offender.
    
15. Yes special circumstances exist:
    
    • had been in remand for two to three years;
    • did not plan the escape;
    • concerned about being assaulted by warders if he stayed behind;
    • shot by police after being recaptured;
    • kept in a dark cell at Lakiemata with two other detainees.
      

Recap

23. I regard the following as strong mitigating factors:

• No 1 – no violence;
  
• No 2 – nobody injured;
  
• No 5 – had been mistreated;
  
• No 9 – cooperated with police;
  
• No 11 – pleaded guilty;
  
• No 12 – expressed remorse;
  
• No 13 – first offender;
  
• No 15 – long period in remand and treated inhumanely after recapture.
  

24. I regard the following as strong aggravating factors:

• No 3 – mass escape;
  
• No 7 – had to be recaptured;
  
• No 8 – long period at large.
  

25. The other factors are not significantly aggravating (Nos 4, 6, 10 and 14).

26. After weighing all these factors and bearing in mind that there are eight strong mitigating factors compared to three strong aggravating factors, there is no case for lifting the head sentence above the starting point of five years.

27. I accordingly fix a head sentence of five years imprisonment.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. This is a case where it was appropriate to consider suspending part of the sentence, given the many mitigating circumstances.

29. The pre-sentence report indicates that the offender does not pose a danger to the community.

30. 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.

31. However, since the hearing of the matter I have been informed that the offender has been charged and remanded in custody in relation to a separate matter – another armed robbery allegedly committed in August 2005. Therefore, he will not be able to be released immediately even though it appears he may have already served one year in custody. Step 6 of the sentencing process, referred to above, will not be considered at this stage.

SENTENCE

32. The court makes the following order:

1. the offender, John Nute Poto Andro, having been convicted of the crime of escape, is sentenced to 5 years imprisonment, 4 years of which will be suspended subject to compliance with conditions which will be set by further order of the court;
   
2. any pre-sentence period spent in custody in connexion with this matter will be deducted under Section 3(2) of the Criminal Justice (Sentences) Act; and
   
3. as the offender has been remanded in custody in connection with another, separate charge he shall remain in custody pending any further orders of the court.
   

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused