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State v Sora [2008] PGNC 113; N3428 (24 July 2008)

N3428

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 607 0F 2008

THE STATE

V

RICHARD RANGA SORA

Kimbe: Cannings J
2008: 11, 24 July

SENTENCE

CRIMINAL LAW – sentence – escape from lawful custody (a courthouse) by a remandee attending court – guilty plea – sentence of 5 years; 4 years suspended.

A man pleaded guilty to escaping from lawful custody while he was a remandee attending court. It was a non-violent escape. He was at large for a considerable time before being recaptured.

Held:

(1) The minimum sentence for the offence of escaping from lawful custody is five years imprisonment.

(2) A sentence of five years was imposed and four years was suspended.

Cases cited

The following cases are cited in the judgment:
Edmund Gima and Siune Arnold v The State (2003) SC730
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Aruve Waiba SCR No 1 of 1994, 04.04.96
The State v Francis Wangi CR No 1388 of 1999, 17.08.07

SENTENCE

This is a judgment on sentence for escape.

Counsel

F Popeu, for the State
J Yapao, for the offender

24 July, 2008

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody.

2. He was a remandee, in custody on a charge of armed robbery. On 11 September 2006, he was taken to the Kimbe District Court to attend his committal hearing and walked off without anyone noticing until it was too late. He was at large for a considerable period before being recaptured.

ANTECEDENTS

3. At the time he escaped, he had no prior convictions. The armed robbery charge that he was facing in 2006 has yet to be resolved.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

It is true that I escaped but the police were not dealing with the armed robbery charge properly as it was something that was being settled outside court. Also I was very sick with TB at the time and the police were not looking after me properly. I did not damage any persons or property. I ask for probation.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). I accept what he has said about being very sick at the time of his escape and that he was not being given proper treatment.

PERSONAL PARTICULARS

6. The offender is 29 years old. He is from Penatabotong, Bali Island, WNB. He has for some time been residing in Kimbe. He is educated only to grade 2 and has never been formally employed. His religion is Catholic and he is married with three children, aged from 18 months to 8 years.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Yapao highlighted the guilty plea. As to the escape itself, it was a simple escape. Nobody was hurt and no property was damaged. The offender was a TB patient at the time of his escape and is still under treatment. He had a motive for wanting to escape, so he should be given a fully suspended sentence of five years, he submitted.

SUBMISSIONS BY THE STATE

8. Mr Popeu highlighted that though the offender might have had a good reason for wanting to escape, it was nonetheless a serious offence showing a lack of respect for the law and law enforcement agencies.

DECISION MAKING PROCESS

9. 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

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. 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. (The State v Aruve Waiba SCR No 1 of 1994; 04.04.96, Supreme Court, 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 A PROPER STARTING POINT?

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

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. I have passed sentence in more than 20 escape cases in West New Britain since 2005, which are summarised in the case of The State v Francis Wangi CR No 1388 of 1999, 17.08.07. In all cases I have imposed the minimum penalty of five years imprisonment but suspended part (or in two cases, all) of the sentence, having regard to the circumstances of each case.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. Mitigating factors are:

• no violence used;
• not a mass escape;
• no risk of injury to others;
• the offender was ill at the time and was not getting proper treatment;
• co-operated with the police and made early admissions;
• guilty plea;
• first-time offender.
  

15. Aggravating factors are:

• did not surrender directly to the jail authorities;
• he was at large for a long time.
  

16. After weighing all these factors, I have decided to fix a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. No, there is nothing to be deducted as the offender has been in custody serving a sentence for unlawful assault.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

18. The number of mitigating factors means that some of the sentence should be suspended. The question is how much. This escape occurred in 2006 and as I have already indicated I place a lot of weight on the prisoner’s medical condition and the risk he poses to other detainees.

19. I have decided to suspend four years of the sentence. The period of the suspended sentence will be subject to the following conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave the Province in which he resides without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d) must attend his local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour;
(h) must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. Richard Ranga Sora, having been convicted of one count of escape, is sentenced as follows:

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender