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State v Lutu [2008] PGNC 281; N5463 (24 April 2008)

N5463

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 338 0F 2008

THE STATE

V

DANIEL LUTU

Kimbe: Cannings J
2008: 20 March, 16, 24 April

CRIMINAL LAW – sentence – escape from lawful custody by prisoner serving sentence for armed robbery – guilty plea – previous escape – sentence of 5 years; 4 years suspended.

A man pleaded guilty to escaping from lawful custody while he was a prisoner serving a sentence for armed robbery. He absconded from a work detail. It was a non-violent escape. He was at large for three months, then surrendered.

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:

Danny Pirino v The State (2006) N3111
Edmund Gima and Siune Arnold v The State (2003) SC730
Saperus Yalibakut v The State SCRA (2006) SC890
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

T Ai, for the State
R Beli, for the offender

24th April, 2008

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody. He was a prisoner at Lakiemata Correctional Institution serving an eight-year sentence for armed robbery. On 21 September 2007 he was on a work detail in a pawpaw patch close to the prison. While the warder supervising him was looking in the other direction he took off. He was at large for a little over three months before surrendering on 6 January 2008.

ANTECEDENTS

2. The offender has the prior conviction for armed robbery.

ALLOCUTUS

3. 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. A paraphrased summary of his response follows:

After I surrendered they put me in the detention cell at the jail for two months. Other prisoners who are put into that cell only stay there for one month. I ask for mercy as I have already been punished for what I did.

OTHER MATTERS OF FACT

4. 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 (2006) SC890). He cooperated with the police and made admissions in his police interview. He spent two months in detention, ie solitary confinement.

PRE-SENTENCE REPORT

5. The report by the Community Corrections and Rehabilitation Service reveals that the offender, Daniel Lutu, is 32 years old, married with three children. He comes from Namova village in the Talasea area and has an oil palm block that provides him with a regular income. He was educated to grade 6 and has little formal employment. He has strong family support, especially from his father and his wife. The local Village Court Magistrate, Martin Baili, speaks highly of the offender, and was one of the people who assisted him in voluntarily returning to custody. The offender has evidently returned to Lakiemata as a changed man and is actively involved in Catholic Church activities in the jail. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Beli highlighted the guilty plea. As to the escape itself, it was a simple escape. Nobody was hurt and no property was damaged. The offender has been punished already by being in solitary confinement for a long time.

SUBMISSIONS BY THE STATE

7. Mr Ai conceded that there was a case for suspending some, but not all, of the sentence.

DECISION MAKING PROCESS

8. 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?

9. 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.

10. 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?

11. 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?

12. I have passed sentence in 21 escape cases in West New Britain since 2005, which are summarised in the recent 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?

13. Mitigating factors are:

• no violence used;
• not a mass escape;
• no risk of injury to others;
• he surrendered directly to the jail authorities;
• he was at large for a relatively short time;
• he was given stern punishment upon his return to custody (two months in the detention cell);
• cooperated with police;
• guilty plea;
• good pre-sentence report.
  

14. Aggravating factors are:

• no justifiable motive for escaping;
• not a first-time offender;
• no remorse.
  

15. 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?

16. No, there is nothing to be deducted.

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

17. The high number of mitigating factors means that some of the sentence should be suspended. The question is how much. In many of the 21 previous escape cases in West New Britain I suspended big chunks of the sentence largely because of the very poor condition of Lakiemata Jail and Kimbe Police lock-up, the correctional institutions where most of the escapes took place. Over the last two years conditions at those places have improved markedly because of orders I have made under Section 57 of the Constitution. I have made no secret of the fact that I would be stricter in sentencing detainees who escape, in 2007 and beyond, than I had been in the past. Daniel Lutu's escape happened in September 2007 so he should be expecting a harsher sentence than if he had escaped in 2006.

18. On the other hand, he has done the right thing by surrendering and it appears from the pre-sentence report that he stayed out of trouble when he was at large and just went back to the village and helped out his family. He also makes a good point by saying that, for someone who voluntarily came back into custody, he was treated harshly by being placed in detention for two months. The maximum period a prisoner can be placed in a separate detention cell is 28 days and, though there can be one extension of 28 days, this must be done under written separation orders under Section 108 of the Correctional Service Act (Danny Pirino v The State (2006) N3111). No separation orders have been produced to the court, which would legitimise the detention of two months in this case. As a Visiting Justice I have regularly inspected the detention cells at Lakiemata. Though they provide more humane conditions now than their predecessors did up until 2005 when the notorious 'dark cell' regime was in place, it still represents a severe punishment to be placed in such a cell for a period of two months. So, taking account of those strong mitigating factors, 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

19. Daniel Lutu, 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