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State v Haiveta [2012] PGNC 71; N4677 (18 May 2012)

N4677

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1047 OF 2011

THE STATE

V

RUDY HAIVETA

Waigani: Makail, J
2012: 15th, 16th & 18th May

CRIMINAL LAW - Plea - Sentence - Escaping from lawful custody - Prescribed minimum penalty - Term of 5 years imprisonment - Prescribed minimum penalty of 5 years imprisonment imposed - Sentence partly suspended - Criminal Code, Ch 262 - Sections 19 & 139.

CRIMINAL LAW - Prior convictions - First offender - Determined on date of commission of offence convicted of.

Facts

The offender was charged with one count of escaping from lawful custody contrary to section 139 of the Criminal Code, Ch 262. He pleaded guilty to the charge and pleaded for leniency. Prior to the hearing of this charge, he was convicted of armed robbery and unlawful use of motor vehicle. These offences occurred after the offence of escaping from lawful custody. Based on these convictions, the State submitted the offender has prior convictions and is not a first offender.

Held:

1. Under section 139 of the Criminal Code, Ch 262, the offence of escaping from lawful custody carries a prescribed minimum penalty of a term of 5 years imprisonment.

2. In determining whether an offender has prior convictions hence not a first offender, it is the date of the commission of the offence the offender is convicted of that is material in determining whether he has prior convictions.

3. In this case, the offence of escaping from lawful custody occurred in September 2008. He has since been convicted of this offence. Prior to that offence, he would not have any prior convictions. Therefore, he is a first offender.

4. Weighing the mitigating and aggravating factors, they are evenly balanced. The offender is sentenced to 5 years imprisonment and 4 years is suspended and he shall serve the suspended period on probation on condition of good behaviour and such other reporting conditions associated with his probation sentence for 4 years under the supervision of Probation Services Office in Port Moresby.

Cases cited:

The State -v- Jack Moge [1995] PNGLR 246
The State -v- Inema Yawok (1998) N1766
The State -v- Aruve Waiba: SCR No 1 of 1994 (Unnumbered and Unreported Judgment of 04th April 1996)
The State -v- Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750
The State -v- Richard Oslo Kumis (1997) N1517
The State -v- Irox Winston (2003) N2347
Edmund Gima & Siune Arnold -v- The State (2003) SC730
The State -v- Linus Rebo Dakoa (2008) N3427
The State -v- A Juvenile "CL" (2008) N3432
The State -v- Joseph Kagl Imbo (2008) N3954

Counsel:

Mr D Kuvi, for the State
Mr R Pariwa with Mr D Mamu, for the Offender

SENTENCE

18th May, 2012

1. MAKAIL, J: The offender has been charged with escaping from lawful custody contrary to section 139 of the Criminal Code, Ch 262. On arraignment, he pleaded guilty to the following facts; he was arrested and charged for piracy allegedly committed in April 2008. He was remanded at Bomana Correctional Service Institution. On 05th September 2008, he was brought from Bomana and held at the Waigani National Court holding cells awaiting committal court appearance.

2. While waiting there, he was approached by a female accomplice and given K300.00. He used this money and bribed a National Court cell guard who opened the cell gate and allowed him to escape. Subsequently, in November 2008 a warrant of remand was issued for him. He was on the run for close to 2 years and on 10th October 2010, he was apprehended after he assaulted his girlfriend. She reported him to the police and police arrested and charged him with this offence. On or around 12th October 2010, he escaped the second time in a mass break out at the Boroko Police station cell.

3. I accept the offender pleaded guilty to the charge and this has saved time and money to conduct a trial to determine his guilt. He also apologised and I accept his apology. I also accept that no violence was used and no-one was injured or killed during the escape. The State claimed that he had no good reason for escaping. When he escaped, he went and stayed with his girl friend. He said he escaped because his wife was having an extra marital affair and he went to sort it out. I will give him the benefit of doubt and accept his reason.

4. There is dispute in relation to whether he is a first offender. The State submitted he is not because he has been convicted of armed robbery and unlawful use of motor vehicle prior to the hearing of this case. His counsel submitted he is a first offender and those two convictions should not be held against him because it is unfair. It is unfair because the offence of escaping from lawful custody occurred prior to the offences of armed robbery and unlawful use of motor vehicle. The offence of escaping from lawful custody occurred in September of 2008 and the offences of armed robbery and unlawful use of motor vehicle occurred in June 2011.

5. I accept the submissions of his counsel. In my view in determining whether an offender has prior convictions hence not a first offender, it is the date of the commission of the offence the offender is convicted of that is material in determining whether he has prior convictions. In this case, the offence of escaping from lawful custody occurred in September 2008. He has since been convicted of this offence. Prior to that offence, he would not have any prior convictions. For this reason, I accept that he is a first offender.

6. Against those mitigating factors are; there was some degree of pre-planning. His female accomplice brought him K300.00 when he was in the National Court holding cell. With this money, he bribed the cell guard and he opened the cell gate and allowed him to escape. Then, there is the element of bribery. He bribed the cell guard. He bought his temporary freedom with money. Next, he was on the run for close to two years before he was apprehended. Finally but not the least, he did not surrender to the police.

7. The offence carries a prescribed minimum penalty of 5 years imprisonment. This is one of those minimum penalty offences. Much debate during submissions by counsel evolved around the question of whether the Court may impose a penalty lesser than 5 years imprisonment and it was acknowledged that 5 years imprisonment is the minimum penalty. Further, the Courts in past cases have imposed 5 years imprisonment without reduction or have either suspended it in part or in full. Some examples of such cases are those that both counsel have ably cited in submissions: The State -v- Jack Moge [1995] PNGLR 246; The State -v- Inema Yawok (1998) N1766; The State -v- Aruve Waiba: SCR No 1 of 1994 (Unnumbered and Unreported Judgment of 04th April 1996); The State -v- Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750; The State -v- Richard Oslo Kumis (1997) N1517; The State -v- Irox Winston (2003) N2347; Edmund Gima & Siune Arnold -v- The State (2003) SC730; The State -v- Linus Rebo Dakoa (2008) N3427; The State -v- A Juvenile "CL" (2008) N3432 and The State -v- Joseph Kagl Imbo (2008) N3954.

8. Weighing the mitigating and aggravating factors, I am of the view they are evenly balanced. I sentence the offender to 5 years imprisonment and suspend 4 years and order that he serve the suspended period on probation on condition of good behaviour and such other reporting conditions associated with his probation sentence for 4 years under the supervision of Probation Services Office in Port Moresby. He shall serve 1 year less 11 months for time spent in pre-sentence custody and that is 1 month in prison.

Offender sentenced accordingly.

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Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Offender