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State v Andrew [2008] PGNC 318; N3955 (22 February 2008)

N3955

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 146 0F 2008

THE STATE

V

RAYMOND ANDREW

Madang: Cannings J
2008: 21, 22 February

SENTENCE

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 ten-year sentence for armed robbery. He was taken to the hospital for medical treatment and took off while the warders were looking after other prisoners also taken to the hospital.

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. The pre-sentence period in custody was deducted and four 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
The State v Francis Wangi CR No 1388 of 1999, 17.08.07
SENTENCE

This is a judgment on sentence for 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 man who pleaded guilty to one count of escaping from lawful custody arising from the following facts.

2. The offender, Raymond Andrew, was a prisoner at Beon Correctional Institution serving a ten-year sentence for armed robbery, which had been imposed on him by the National Court in February 2006. On 22 August 2006 he was taken to Modilon Hospital, with two other prisoners, for medical treatment. He was taken to the consultation clinic and left there while the warders looked after the other two prisoners. After ten minutes the warders came back and discovered that he had escaped. He was at large for more than seven months. He was recaptured on 31 March 2007.

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction under Section 139 of the Criminal Code.

ANTECEDENTS

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

ALLOCUTUS

5. 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 apologise for escaping. I am not a hard core criminal. The matter over which I was convicted could have been sorted out in the village. I am not in good physical condition. My life is miserable in jail. I ask the court to deal with my case judiciously and give me the same treatment as prisoners who have escaped from Lakiemata Jail.

OTHER MATTERS OF FACT

6. 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).

7. He cooperated with the police and made admissions in his police interview. He claims to have been badly beaten up when he was recaptured.

PERSONAL PARTICULARS

8. Raymond Andrew is 27 years old, and is from Manjuat village in the Angoram district of East Sepik Province.

SUBMISSIONS BY DEFENCE COUNSEL

9. Ms Turi highlighted the guilty plea. As to the escape itself, it was a simple escape. Nobody was hurt and no property was damaged. He has been punished already by being beaten up. A wholly suspended sentence is warranted.

SUBMISSIONS BY THE STATE

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

DECISION MAKING PROCESS

11. 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?

12. 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.

13. 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?

14. 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?

15. 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.

16. 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?

17. Mitigating factors are:

• no violence used;
• no risk of injury to others;
• cooperated with police;
• guilty plea;
• remorse.
  

18. Aggravating factors are:

• nothing happening outside jail;
• did not surrender;
• at large for long time;
• not a first offence.
  

19. 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?

20. 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. In this case, there is nothing to be deducted as the period that the offender has been in jail prior to the hearing of this matter will be treated as him serving the other sentence already imposed on him.

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

21. 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 some cases the offenders have been unable to comply with the conditions and have been committed to custody to serve the rest of their sentences.

22. In the present case I have decided to suspend four years of the sentence, given the strength of the mitigating factors, and the apparent breach of constitutional rights that has occurred when the offender was recaptured. The period of the suspended sentence will be subject to the following strict 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

23. Raymond Andrew, 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