National Court of Papua New Guinea

1. POLUME-KIELE J. The accused pleaded guilty to escape from lawful custody on 17 February 2014 contrary to s 139 (1) of the Criminal Code. The punishment for this offence is a mandatory sentence of not less than 5 years imprisonment.

2. At the trial, the accused admitted to escape from lawful custody. The prisoner gave his reasons for escape as to his inability to pay his medical bills as his request for assistance from the CIS hierarchy at Bihute were not favorable so he had to go and look for money to pay his bills. This court noted that there is a medical report prepared by a Dr Kima Yuave of Sky Medical dated 11th November 2014 on the accused. The medical report disclosed that the prisoner suffers from ‘liver cirrhosis’.

3. There is no evidence to suggest that the escape was spectaculo w No weapon had been used on hospital or prison staff member threatened or injured. The escape was a simple one. The accused had simply walked out of the Goroka Base Hospital at the material and was recaptured on the the 19th of October 2014 at about 9.30 a.m. at Kainantu when he was apprehended following an incident at the Highlands Wantok Retail Shop. The recapture occurred as a result of an incident where the prisoner has threatened the Shop Owner and his employees with a Tramontina bush knife and the matter reported to the Kainantu Police. With assistance from the public and the police; the accused was apprehended by the police at the Hekai Trading and later identified as a prison escapee, Becks Hezaka, who now stand charged for escaping from lawful custody, contrary to s 139 (1) of the Criminal Code Act. The accused is educated up to Grade 3 level and comes from Tandranofi Village in the Kainantu area of the Eastern Highlands Province and a prisoner of the State.

ANTECEDENT REPORT

4. Three prior convictions are recorded against the accused. All three convictions arose from the same incident and those are attempted armed robbery, (s 387 of the Criminal Code Act) unlawful wounding (s 322 of the Criminal Code) and wilful damage (s 444 of the Criminal Code). These convictions were handed down on the 31st of August 2012, for which the accused was serving 9 years, 10 months 19 days. The accused was in lawful custody at CIS Bihute at the time of his escape.

ALLOCUTUS

5. When the prisoner was asked to address the court on sentence, the prisoner said:

“I went looking for money to pay for my medical bills as I was admitted to an intermediate ward and I was unable to pay the medical fee. Although I had asked the CIS Bihute to assist with the payment of the medical fee, they refused so I went to look for money to pay the bill and also to get some good food for nourishment of my physical body and health. Besides, when I was in prison, my mother died and when I asked the CIS to be allowed to attend to my mother’s funeral, this also was refused”. This has lead to the deterioration of my health.

Submission on Sentence

6. The court in determining an appropriate penalty to impose has had regard to factors regarding the accused person’s background, his reasons for escape, guilty plea and prior convictions. In addition, considerations relating to the community safety also demands for tough punishment for this type of offence.

7. In his oral submission on sentence, Defence Counsel Mr. John Biki for the prisoner has requested that the minimum sentence be made either concurrent with his present sentences or that the minimum sentence be suspended in whole or in part to ensure that the total sentence is not devastating on the prisoner due to his ill health however, no case laws was referred to in support of the submission on behalf of the accused.

8. Counsel for the State Ms. Barbara Gore in her oral submission on sentence submitted that whilst the minimum sentence for escape from lawful custody is a minimum of 5 years imprisonment under s 139 (1) of the Criminal Code, she submitted that a penalty of between 2 and 3 years sentence would be appropriate. Ms. Gore also informed the court that the prisoner has had three prior convictions recorded against him. Again, Counsel for the State did not refer me to any case law to support her submission on the imposition of a penalty between 2 and 3 years imprisonment.

9. In the absence of references to case law on the offence of escape from lawful custody and the exercise of discretion with regards to the determination of the severity of the penalty plus other mitigating and aggravating factors, I took the liberty to do my own research and found some very useful case law which has greatly assisted me in arriving at this decision. In State v Inema Yawok, (1998) N1766, Kirriwom J. held that as s 139 of the Criminal Code carries a mandatory minimum penalty of five years, there is no discretion for the court to impose a lesser sentence. Similar sentiments are also made in the State v Jack Moge [1995] PNGLR 246, where Jalina J. held that under the amended provisions there is no discretion available under s 19 of the Code and Jalina stated that:

“ in the new penalty the words ‘imprisonment of not less than 5 years’ means that a court or a judge may not impose a period of imprisonment of less than 5 years. A court or a judge has no discretion. The fact that a court or a judge has no discretion is clear from the fact that the penalty prescribed in section 139 (1) as amended is not subject to section 19 of the Code”

10. In the present case, the prisoner escaped from lawful custody. Whilst his escape appeared ordinary, his reasons for the escape are unacceptable. Furthermore there is no evidence of an outstanding hospital bill for payment by the prisoner. In addition, he is a prisoner of the State with three prior convictions. His threatening behaviour and the use of an offensive weapon against the owners and employees of the Highlands Wantok Retail Shop on the 19th of October 2014 shows that the accused is still a threat to the community. Reference is made to State v Thomas Waim, Tala Gena & Alois Wanpis [1998] PNGLR 360 at 363, which case involved an escape from lawful custody his Honour Injia J (as he was then) held that and I quote:

“although this was a mass breakout, this was an ordinary escape... No weapons were used. No CIS staff member was threatened or injured... I consider that to impose the minimum sentence of 5 years per se would be manifestly excessive in the circumstances. Nevertheless, a strong punitive sentence is warranted because this offence is becoming too prevalent in this country. Escapes from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equal stern punishment.”

11. I adopt the sentiments expressed by His Honour Injia J (as he was then), escape from lawful custody is becoming too frequent and community demands that tough punishment be imposed for such offence provided that this exercise of power are based on some proper basis. These proper basis were considered in a number of judgments and these are discussed accordingly in Public Prosecutor v Thomas Vola [1981] PNGLR 412;where here factors relevant to the exercise of this discretion include the following: if the prisoner is a first time young offenders, 18 years or below as held in Gimble v The Stat> [1988-89] PNGLR 271& 271 at 2nd is of good characteracter and good family background as held in State v Frank Kagai [ PNGLR 320 and State v te v Justin Nyama [1991] PNGLR&#1t 127 respectively vely or on medical grounds as held in [1986] PNGLR 91. On the qunstion of concurrncurrent sentences, the guidelines in A Public Prosecutor v Konis onis Haha [1981] PNGLR 205 is applied. In that, in determining the question of imposing concurrent sens, considerations is only gnly given “if the offence committed is related to a series of offences which are committed in the prosecution of a single purpose or the facts giving rise to the offences are the same or closely related”. All the above principles are well settled.