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State v Tene [2008] PGNC 316; N3951 (22 February 2008)

N3951

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 102 0F 2008

THE STATE

V

ERIC TENE

Madang: Cannings J
2008: 19, 22 February

SENTENCE

CRIMINAL LAW – sentence – escape from lawful custody – two offences – guilty plea – sentence of 5 years, 4 years suspended, on each charge.

A man pleaded guilty to escaping from jail twice, while serving a sentence for a summary offence. Both were non-violent escapes.

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 on each offence, to be served cumulatively, with no reduction permissible under the totality principle; being a total of ten years.

(3) Eight years of the sentence 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, unreported
The State v Francis Wangi CR No 1388 of 1999, 17.08.07
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This is a judgment on sentence for two counts of escape.

Counsel

M Ruarri, for the State
A Turi, for the offender

22 February, 2008

1. CANNINGS J: This is a decision on sentence for a young man, Eric Tene, who pleaded guilty to two counts of escaping from lawful custody. He was a prisoner at Beon Jail serving a 10-month sentence for possession of dangerous drugs. He first escaped on 19 February 2007 when he scaled the fence of the main compound in the middle of the day. He was recaptured in August 2007 but was only in custody for a short time before he escaped again, on 20 August 2007. On this occasion he was in a work party close to the jail when he took off. He was recaptured the following month. I convicted the offender of two offences under Section 139 of the Criminal Code.

ANTECEDENTS

2. The offender was on 10 February 2007 convicted by the Madang District Court of the summary offence of possession of dangerous drugs.

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:

I did what I did for a reason. I heard that my father had lost his life so I had to go and see him. I was not being treated properly by the warders. They show favouritism to other prisoners. They don't give some of us any work to do. I promise that I will not escape again. I seek the court's mercy.

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 SCRA No 52 of 2005, 27.04.06). He cooperated with the police and made admissions in his police interview.

PERSONAL PARTICULARS

5. Eric Tene is a young man, aged 21, from Saune in the Kabwum district of Morobe Province. He has limited education and no formal employment record.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted the guilty plea. As to the escapes, the offender has given his reasons. The escapes had no aggravating features. He could have been charged under the Summary Offences Act, which would have attracted a much lower penalty.

SUBMISSIONS BY THE STATE

7. Mr Ruarri agreed that the offender could have been charged under the Summary Offences Act, given that he was serving time in prison for a summary offence; so perhaps he deserves some leniency.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

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. (SCR No 1 of 1994; The State v Aruve Waiba, Supreme Court, 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 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 sentences 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. In Madang in October 2007, I dealt with three prisoners who had escaped: Allan Apau, Jessie Gulien and Joe Gilkam. In each case I imposed a sentence of five years and suspended part of it.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

13. Mitigating factors are:

• non-violent escape;
• no risk of injury;
• sole escapee;
• no property damage;
• cooperated with police;
• guilty plea;
• remorse; concern about his father.
  

14. Aggravating factors are:

• did not surrender;
• showed contempt for the law;
• not a first-time offender.
  

15. I will not lift the head sentence above the starting point of five years. I accordingly fix a head sentence of five years imprisonment for each offence, a total of ten years.

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

16. When sentencing an offender it is conventional to deduct from the head sentence the period that has been spent in custody in remand, also known as wet kot, awaiting trial. The offender does not have a right to have this period deducted. It is a matter for the discretion of the court under Section 3(2) of the Criminal Justice (Sentences) Act 1986, which states:

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.

17. In the circumstances of this case – a double-escape – I am not going to deduct any pre-sentence period in custody.

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

18. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). They were two different offences committed at different times so they should be served cumulatively.

STEP 7: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

19. I now look at the total sentence the offender is facing to see if it is appropriate having regard to the totality of the criminal behaviour involved. Though a sentence of ten years might seem excessive given that the offender was only supposed to be in custody for ten months, I do not have any discretion available to me because of the statutory minimum sentence on each charge. The sentence must remain at ten years.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In the present case I have decided to suspend eight years of the sentence on 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 Madang Province 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 at Madang 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 and must not cause any trouble for, or harass, the victim and his family;

(h) must have a satisfactory probation report submitted to the National Court Registry at Madang 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.

21. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

22. Eric Tene, having been convicted of two counts of escape, is sentenced as follows:

Sentenced accordingly.
_________________________

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