N5251

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.456 of 2011

BETWEEN:

THE STATE

AND:

MAKO RANGI
Prisoner

Mt. Hagen : David, J
2013: 22 & 23 May

CRIMINAL LAW – sentence – conviction on plea of guilty - escape from lawful custody – prisoner serving term for wilful murder – at large for a long period – prisoner of advanced aged – minimum penalty of five years imposed – totality principle applied - effective sentence of three years to be served consecutive to sentence for wilful murder – Criminal Code, Section 139 (1). 

Cases cited:

Public Prosecutor v Terrence Kaveku (1977) PNGLR 110
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Mase v The State (1991) PNGLR 88
The State v Aruve Waiba SCR No 1 of 1994, Unnumbered & Unreported Judgment delivered on 4 April 1996
Public Prosecutor v Don Hale (1998) SC564
The State v Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750
The State v Inema Yawok (1998) N1766
The State v James Tei Wena (2000) N2304
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Irox Winston (2003) N2347
Jack Kumul v The State (2006) SC839
The State v Etane Toto (2009) N3746
The State v Ali Karis Wasiura (2008) N3425
The State v Charlie Kenai, CR 977 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Vanimo on 20 November 2010

Counsel:

Messrs Joe Kesan and Philip Tengdui, for the State
Mr. Philip Kapi, for the prisoner

SENTENCE

23rd May, 2013 

1.	DAVID, J:	Yesterday, the prisoner, Mako Rangi pleaded guilty to a charge preferred on indictment that he on 5 October 2005 whilst being a prisoner in lawful custody of Mr. Berry Forova, Gaol Commander of Baisu jail in Western Highlands Province, Papua New Guinea escaped from such lawful custody contrary to Section 139 (1) of the Criminal Code. I accepted the prisoner's guilty plea and convicted him after having been satisfied that the evidence contained in the depositions supported the charge.

2. 	The short facts are that the prisoner is from Laka village in the Mul/Baiyer District of Western Highlands Province. He is currently an inmate at the Baisu Correctional Institution serving a 25 year sentence for wilful murder committed in 1993. On 5 October 2005, at about 8 o'clock in the morning, the Prisoner was inside the main prison compound at Baisu, serving a sentence of wilful murder. Between 8.00 am and 8.40 am, the Prisoner with 33 other inmates escaped in a mass break out. He was on the run for 6 years until recaptured at Mt Hagen on 9 March 2011. Prior to this escape, the Prisoner had escaped from jail on two other occasions. The first was on 27 February 1998 whilst receiving medical treatment at the Mt Hagen General Hospital. The second was on 13 June 2000 whilst with a firewood collection party at Koibuga near Mt Hagen. The Prisoner was detained shortly after the first two escapes. The third escape has resulted in the current charge. Upon his apprehension, he was taken to Mt Hagen Police Station where he was formally charged for escaping from lawful custody.

3.	The prisoner originates from Laka village, Mul-Baiyer District in the Western Highlands Province. He is aged 56 years, married and has five children. He has no history of having a formal employment, but has been a subsistence farmer all his life. He is a baptised member of the Baptist Church. He is the last born amongst eight siblings in his family comprising six brothers and two sisters. His parents are deceased. According to the Antecedent Report, he has received formal education up to Grade 6. He is currently serving a twenty five year sentence for wilful murder. He was arrested on 9 March 2011. He has been waiting to be brought to his trial for this offence for 2 years, 2 months and 14 days now.

4.	The prisoner has only the prior conviction for wilful murder. 

5.	The prisoner said sorry to the Court for what he did. He admitted that he was serving time for a homicide offence at Baisu Correctional Institution when he escaped with a number of remandees and prisoners in a mass jail break out. He said he was the last person to leave. He said he had returned to the prison area after the mass break out and left the next day. He asked the Court to take into account the fact of being a villager in mitigation. 

6.	In mitigation, it was submitted by Mr. Kapi for the prisoner that the prisoner pleaded guilty, he expressed remorse, and that he was of advanced age. 

7.	In aggravation the State through Mr. Tengdui submitted that; the prisoner was a serial escapee; the prisoner escaped whilst serving a sentence for a very serious offence of wilful murder; the prisoner has a prior conviction; and the offence was prevalent.

8.	As to penalty, Mr. Kapi highlighted the minimum penalty of 5 years that the Court is bound to impose by law and there was no discretion in the Court to impose a lesser term on the authority of The State v Inema Yawok (1998) N1766. He urged the Court to impose the minimum penalty as the head sentence, then deduct from the head sentence the period of confinement whilst waiting to be brought to his trial for this offence since being arrested on 9 March 2011 and the balance of the sentence suspended in the exercise of the Court's discretion relying on the authorities of The State v Aruve Waiba SCR No 1 of 1994, Unnumbered & Unreported Judgment delivered on 4 April 1996 and The State v Inema Yawok. Counsel's computation of the total confinement period as at yesterday was 2 years, 2 months and 13 days. Counsel briefly highlighted the principles on whether the sentence should be served concurrently or cumulatively and the totality principle. He submitted that if the Court were minded to impose a cumulative sentence on the sentence the prisoner is currently serving, the sentence should not be a crushing one given the advanced age of the prisoner. 

9.	Mr. Tengdui concurred with the defence that the Court has no discretion to impose a lesser sentence then the minimum penalty of 5 years. He submitted that the aggravating factors present in the present case warranted a custodial sentence of 6 years. He contended that if any part of the sentence were to be suspended in the exercise of the Court's discretion under Section 19 (1)(d) of the Code, it must be done on some proper basis. He referred me to The State v Aruve Waiba, The State v Thomas Waim, Tala Gena & Alois Wanpis (1998) N1750, and Public Prosecutor v Thomas Vola [1981] PNGLR 412 as some cases on point.

10.	On the question as to whether the sentence should be served concurrently or cumulatively, Mr. Tengdui submitted that that was to be determined in the exercise of the Court's sentencing discretion which must be exercised on proper considerations. These considerations he submitted were summarised by Kandakasi, J in The State v Irox Winston (2003) N2347 which I have read. 

11.	Section 139 of the Code creates the offence and prescribes the penalty for the offence of escape by a prisoner from lawful custody. I set out the provision below.

"139. Escape by prisoner.
(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."

12.	This offence carries a minimum penalty of a term of imprisonment of not less than five years. This means that the head sentence cannot be below five years. No maximum penalty is prescribed. However, in the exercise of its discretion, the Court can suspend part or the whole of any sentence that may be imposed: Aruve Waiba; Edmund Gima and Siune Arnold v The State (2003) SC730.

13.	The courts have stated that escaping from lawful custody is an affront to the judicial system and law enforcement and it must therefore be met with an equally stern punishment: The State v Thomas Waim, Tala Gena and Alois Wanpis; The State v James Tei Wena (2000) N2304; The State v Irox Winston; Edmund Gima and Siune Arnold v The State.

14.	In Edmund Gima and Siune Arnold v The State, the Supreme Court recommended some factors for consideration when considering sentence. Without limiting the list, it said they include:-

1.	receipt of information by the escapee of a retaliatory killing of a close relative supported by prison officers;

2.	any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;

3.	whether the escape is en mass;

4.	whether any weapons are used;

5.	where weapons are used whether any personal or property damage or injury has been occasioned;

6.	the expenses to which the State has been put through, to recapture the escapee;

7.	when and how the recapture occurred; and

8.	whether there is a guilty plea, this has to be contrasted against the chances of a successful denial.

15.	In Jack Kumul v The State (2006) SC839, the Supreme Court said that the length of time of being at large is a relevant factor to be taken into account when considering sentence. It recommended that where an escapee deliberately avoids arrest for a considerable period of time, such as for three years or more and has shown no willingness to surrender, the prescribed minimum penalty should be imposed with no reduction in the term. This falls within the ambit of the seventh factor suggested in Edmund Gima and Siune Arnold v The State. 

16.	I apply the factors set out in Edmund Gima and Siune Arnold v The State in the following manner: 

1.	Did the prisoner receive information of a retaliatory killing of a close relative supported by prison officers?
No. There is no evidence that he received any such information.

2.	Is there any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers?
No. There is no such evidence.

3.	Whether the escape was en mass?
Yes. The prisoner escaped with 33 other prisoners and remandees. His statement on allocutus that he returned to the prison area after the mass escape later and left the next day does not alter the fact that he had escaped together with the other prisoners and remandees en mass and did not present himself to the prison authorities by voluntarily surrendering when he said he returned to the prison area. 

4.	Did the prisoner use any weapon?
No he did not. The escapees overpowered 4 correctional officers on duty and made their escape.

5.	Where weapons are used, whether any personal or property damage or injury has been occasioned?
I repeat the answer to the fourth consideration.

6.	What are the expenses to which the State has been put to recapture the prisoner?
There is no evidence of actual expenses incurred by the State in the recapture. The prisoner was recaptured by police 07 Mobile Squad at the Melpa Haus Kai in Mt. Hagen on 9 March 2011 after a tip off. The prisoner however was a serial escapee. The Notifications of Escape of Detainees dated 4 March 1998 and 21 June 2000 respectively confirm the first and second escapes on 27 February 1998 and 13 June 2000.

7.	When and how did the recapture occur?
The prisoner was at large from 5 October 2005 until recaptured by police 07 Mobile Squad at the Melpa Haus Kai in Mt. Hagen on 9 March 2011 after a tip off. He had been at large for a period of about 5 years, 5 months and 4 days.

8.	Whether there is a guilty plea, this has to be contrasted against the chances of a successful denial.
The prisoner pleaded guilty.

17.	Answers to factors 1 and 2 will be treated as neutral factors.

18.	Other factors that require consideration are:

1.	Whether the prisoner is of poor health?
2.	Whether the offender can be regarded as a youthful offender? 
3.	Whether the prisoner cooperated with the police in their investigations?
4.	Whether this is the prisoner's first offence?
5.	Whether the prisoner has genuinely expressed remorse?
6.	Whether any personal or property damage or injury was occasioned?
7.	Whether the offence is prevalent?
8.	Are there any other circumstances of the escape or the prisoner that aggravate or mitigate the seriousness of the offence?

19.	I apply the foregoing factors in the following manner: 

1.	Whether the prisoner is of poor health?
He appears to be in good health. This will be treated as a neutral factor.
2.	Whether the offender can be regarded as a youthful offender?
No, he is of advanced age.
3.	Whether the prisoner cooperated with the police in their investigations?
Yes. He made admissions in the Record of Interview.
4.	Whether this is the prisoner's first offence?
No. He has a prior conviction for wilful murder.

5.	Whether the prisoner has genuinely expressed remorse?
No, but it will be treated as a neutral factor. 
6.	Whether any personal or property damage or injury was occasioned?
None.
7.	Whether the offence is prevalent?
		Yes it is.
8.	Are there any other circumstances of the escape or the prisoner that aggravate or mitigate the seriousness of the offence?
Yes. The prisoner was serving a sentence for a very serious offence of wilful murder so that is an aggravating factor. He did not commit another offence whilst at large so that will be treated as a mitigating factor.

20.	I consider the following to be strong mitigating factors: 

1.	The prisoner did not use any weapon.
2.	No personal or property damage or injury was occasioned. The prisoner simply made his escape with the other 33 escapees by overpowering the 4 correctional officers on duty at the time.
3.	There was no evidence in the depositions that a search for the prisoner's recapture was actually mounted that would have involved a lot of manpower and resources although it might have been done considering it was a mass break out.
4.	The prisoner cooperated with the police.
5.	The prisoner pleaded guilty.
6.	He did not commit another offence whilst at large.
7.	The prisoner is of advanced age.

21.	Should I treat the fact of the prisoner being a villager which he raised on his allocutus as a mitigating factor for purposes of his sentence for this particular offence? I take his raising of him being a villager to mean that he wants his sentence to be a reduced one for his lack of sophistication or ignorance of the law. Whilst those are factors that can be raised in mitigation in an appropriate case, I think he cannot raise them here to his advantage or benefit when the vast majority of the Highlands region from where he hails has had a civilising influence from churches or government or economic activity in his area both pre-independence and post-independence. For himself, this is demonstrated by the fact that he is a baptised member of the Baptist Church and he received formal education up to Grade 6. He was a mature adult man when he escaped who, with his kind of background, should have had a sense of right and wrong. He was detained in prison because of a serious homicide wrong he committed in 1993. The prisoners and remandees are guarded in jail 24/7 by correctional officers. That is a clear message to the prisoners and remandees inferentially that they cannot leave the prison area without the permission of jail authorities for whatever reason until they are discharged lawfully. He has escaped unlawfully twice before when he was recaptured and detained within a short period of time. His leaving the prison the third time with others en mass again without permission of prison authorities was unlawful, hence this charge. I therefore reject the prisoner's statement on his allocutus that he was a villager as a mitigating factor. 

22.	I consider the following to be strong aggravating factors: 

1.	The prisoner was a serial escapee. The Notifications of Escape of Detainees dated 4 March 1998 and 21 June 2000 respectively confirm the first and second escapes on 27 February 1998 and 13 June 2000.
2.	The escape was en mass.
3.	The prisoner escaped with the other 33 escapees by overpowering the 4 correctional officers on duty at the time.
4.	The prisoner escaped whilst serving a 25 year sentence for a very serious offence of wilful murder.
5.	The prisoner has a prior conviction.
6.	The prisoner had been at large for a period of about 5 years, 5 months and 4 days, a very long period.
7.	The offence was prevalent.
8.	The prisoner did not surrender directly to the police or the Baisu Correctional Institution. He was recaptured by police 07 Mobile Squad at the Melpa Haus Kai in Mt. Hagen on 9 March 2011 after a tip off. 

23.	As can be seen above, the factors in aggravation slightly outweigh those in mitigation.
24.	I have considered the following comparable sentences.

25.	In The State v Etane Toto (2009) N3746, the prisoner escaped from Bihute Correctional Service while serving a 4 year sentence for sexual touching. He escaped while engaged in a rehabilitation training programme conducted by YCA at the jail. He slipped out of the jail while no one was watching. The prisoner was arrested just under a month after his escape as a result of committing another offence of a similar kind that he was serving while he was at large. On a guilty plea, the prisoner was sentenced to five years imprisonment without any part of it being suspended which was to be served cumulatively. 

26.	In The State v Thomas Waim, Tala Gena and Alois Wanpis, the prisoners were part of a group of fourteen prisoners who broke out of the Baisu Correctional Institution in a mass breakout and dashed for freedom, but were recaptured near the jail the same day shortly after their escape. This was an ordinary escape in that the prisoners and others simply climbed over the security fence and escaped. Thomas Waim was serving eighteen years for rape and Alois Wanpis was serving one year ten months for dangerous driving causing death. Tala Gena was being held in remand for trial in the National Court on a charge of rape, but he also had a prior conviction for escape whereby he was sentenced to ten months previously by the Local Court. Each prisoner was sentenced to five years imprisonment with two years suspended in each case on the condition that when each prisoner completed his term, he was to be of good behaviour for twelve months. The sentences for Thomas Waim and Alois Wanpis were to be served cumulatively to the sentences they were initially serving. 

27.	In Jack Kumul v The State, on a guilty plea, the appellant was convicted and sentenced to five years imprisonment with no part of the term suspended. The appellant was serving a twelve year sentence for armed robbery when he committed the offence. He was admitted to a hospital for medical treatment and guarded by correctional officers when he simply walked out of the hospital. The most significant aggravating factor the trial judge found against the appellant was that he was on the run for four years nine months and three days before his recapture during a police raid of a settlement where he resided. He appealed against sentence. The Supreme Court found no error in the sentence imposed and dismissed the appeal. 

28.	In The State v Irox Winston, the prisoner escaped from the Bihute Correctional Institution whilst serving an eighteen year sentence for armed robbery. He was amongst a group of prisoners who were taken out to work on a new building site within the gaol when he escaped. He was recaptured by police at Lae after being at large for about fifteen months. The Court held that while it was a simple escape with no harm or injury caused to any person or property, the offence was prevalent. It agreed with the view that escaping from prison to avoid serving sentence was an affront to the criminal justice system therefore it must be met with an equally stern punishment. On a guilty plea, a sentence of five years imprisonment was imposed without any reduction and it was to be served cumulatively on the sentence for armed robbery. 

29.	In The State v Ali Karis Wasiura (2008) N3425, the prisoner was serving sentences for armed robbery and two previous escapes at the Lakiemata Correctional Institution when he escaped. He was on a work detail attending to the sewage system close to the gaol when he ran away. He was at large for three years and eight months before being recaptured. He was sentenced to five years and two years was suspended. Factors considered in mitigation there were; that the prisoner did not use violence; that the prisoner was not involved in a mass escape; that there was no risk of injury to others; that the gaol was in a bad condition at the time of escape and that provided some motivation for escaping; he was assaulted and made to spend two months in the detention cell; and that the prisoner entered a guilty plea. Factors considered as aggravating there were; that the prisoner was not a first-time offender; that the prisoner did not show any remorse; that the prisoner did not surrender directly to the gaol authorities; and that he was at large for a long time.

30.	In The State v Charlie Kenai, CR 977 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Vanimo on 20 November 2010, the prisoner escaped from the lawful custody of the Vanimo Correctional Institution whilst serving a 20 year sentence for murder. He escaped by scaling the fence. He was at large for 14 hours and voluntarily surrendered to gaol authorities. On a guilty plea, I sentenced him to 5 years imprisonment which was to be served cumulatively on the sentence for murder and suspended 4 years and 6 months conditionally. 

31.	It is settled law that the maximum penalty is reserved for the worst case for the offence under consideration. After weighing all the mitigating and aggravating factors present in this case, I have decided that the case does not fall within the worst category for this offence. For this reason, I have decided to sentence the prisoner to a minimum term of 5 years imprisonment in hard labour. The sentence will be served at Baisu Correctional Institute

32.	Should I deduct the period of the prisoner's incarceration since his recapture which is about 2 years, 2 months and 14 days as of today? Section 3 (2) of the Criminal Justice (Sentences) Act 1986 is the statutory basis for deducting from a head sentence the period of pre-trial confinement. The provision states:

"3.	Length of sentences.
(2)	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." (my emphasis)

33.	It seems that I am prevented by this provision from deducting the period of incarceration since the prisoner's recapture. That is because whilst awaiting his trial for this offence, the prisoner has been serving his sentence for the wilful murder conviction.

34.	It is now settled law that there can be no suspension of any part of a sentence without a pre-sentence report. It may be argued that the principles enunciated in Public Prosecutor v Don Hale (1998) SC564 apply in cases other than the offence of escaping from lawful custody, because the offender is already in prison, but the Supreme Court in Edmund Gima and Siune Arnold v The State held that such an argument would be correct only to an extent, but otherwise it would effectively vest the Court with the community's sentencing powers solely in the hands of the Court to the exclusion of the community itself. It further held that some input from the community was necessary to determine whether an offender should be released into the community prior to the completion of his or her term of imprisonment. In the circumstances, there being no pre-sentence report, I will not consider suspending any part of the sentence.

35.	I will now have to decide whether the sentence should be concurrent or cumulative. Sentences are made concurrent where a series of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: see Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. Sentences will be made cumulative to another, as the parties have correctly submitted, where the offences are so different in character at different times or have been committed on different victims. This offence has no connection whatsoever with the charge for wilful murder except that the prisoner escaped from lawful custody whilst serving the sentence for that offence. There is therefore no proper basis for the sentence to be served concurrently with the existing sentence for wilful murder; it must be served cumulatively. The total term the prisoner has to serve now adding this sentence to the existing sentence for wilful murder will be 30 years. Mathematically, he will be aged 61 years when he is discharged from prison. Where he is accorded with any remission of sentence for good conduct whilst incarcerated, he could be discharged earlier.

36.	I will now consider the totality principle. The totality principle requires that when cumulative sentences are imposed, a final review has to be made by the Court to determine whether the total is excessive or not in the whole circumstances: Public Prosecutor v Terrence Kaveku (1977) PNGLR 110; Mase v The State (1991) PNGLR 88. Applying the totality principle, I think the total sentence will be crushing on the prisoner due mainly to his advanced age which is usually applied as a special mitigating factor. In the exercise of my sentencing discretion, I would reduce the sentence by two years under the totality principle. This means that effectively, the prisoner will serve three years consecutive to his sentence for wilful murder.

37.	A warrant of commitment shall issue forthwith to execute the sentence.

Sentenced accordingly.
__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner