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State v Ephraim [2017] PGNC 219; N6898 (12 September 2017)

N6898

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 958 of 2015

THE STATE

V

BOKA CYNTHA EPHRAIM

Kimbe: Miviri AJ

2017: 12^th September

CRIMINAL LAW- Escaping from Lawful custody-armed robbery pack Rape- Police cell paid policeman to go to Hospital sick--no weapons used- 4 months at large- pending rape and armed robbery charges-5 years IHL time in remand deducted balance suspended on GBB.

Facts

Prisoner felt sick and gave K200 to a policeman who opened the cell and he walked out, never to be seen until the14^th November 2014.

Held
4 months at large after escaping. Defiance of the law.
Rule of law strong and deterrent sentence.
Five (5) years IHL, two (2) years 10 months deducted for time on remand. Two (2) years 2 months IHL suspended on 2 years 2 months GBB.

Cases cited:

State v. Thomas Waim, Tala Gena and Alois wanpis N1750 delivered 24^th July 1998
SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996),
Gima v The State [2003] PGSC 3; SC 730 (30 October 2003).
State v Inema Yawok N1766

Counsel:
D.Kuvi, for the State
B Popeu , for the Defendant

SENTENCE

12^th September, 2017

1. MIVIRI AJ: This is the sentence of a man who escaped from the police cells in Kimbe whilst awaiting an armed robbery and a rape charge.
   

Brief Facts

2. Boka Cyntha Ephraim was sick and he gave K200 in cash to a policeman who opened the cell and he went out never to return again until the 14^th November 2014 when police rearrested him upon sighting him at Kumbango main road.
   

The Law

3. Section 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.

Plea

4. I find no issue with the plea entered as all the elements of the offence are satisfied by the evidence filed Gima v. The Independent State of Papua New Guinea [2003] PGSC 3: SC730 (3^rd October 2003, “prisoner was set out,” Meaning of – A captive, hostage, detainee, criminal, inmate, jailbird or a convict who is deprived of his liberty or one who is kept against his will in confinement or custody in a prison, penitentiary, jail, or other correctional institution, as a result of conviction of a crime or awaiting trial – Criminal Code s. 139 – SOA s. 22.”
   
5. Further that "lawful custody" – Means some form of custody or imprisonment authorised by law whether such a person is in custody awaiting trial or serving a sentence – SOA s. 22, 139 – Criminal Code s.139 and 141. State v Tiapu [2007] PGNC 274; N3182 (20 July 2007)
   

Evidence

6. You were lawfully in custody and should have gone out by law and the present charges would not have followed you to today. There are no short cuts to avoiding the call of the law upon you. You must always follow due process of the law to answer to the law. You have pleaded guilty to the offence which is in your favour as it demonstrates that you accept your defiance and will not lead you anyway except back here to the hand of the law. Early plea is good consideration in your favour when an appropriate sentence is determined and it will be one of the strong basis to consider some discounts in the sentence.
   

Allocutus

7. In your allocutus, you elected not to say anything.
   

Mitigation

8. The prisoner was employed by New Britain Palm Oil, married with a child 16 years old. Wife has since left for the village after his incarceration. Offender did not damage any state properties and no injuries done to any officers of the law. The mitigation outweighs aggravation. After recapture on 14^th November 2014 you have been in custody since up to the date of this sentence. This is a total of 2 years and10 months.
   

Prosecution submission

9. It is a minimum sentence prescribed, the court is not bound by that and Justice Kirriwom made a statement in the State v Inema Yawok (1998) N1766 in citing Aruve Waiba, “that a more lenient interpretation to law, court can suspend sentence”. On the 25^th and 26^th May 2017, I sentenced Bartholomew Wakore to 5 years IHL, a period in custody deducted the balance fully suspended on GBB. He was at large for 18 years. Here you were on remand, escaped and was at large for four months before your recapture on the 14^th November 2014.

Considerations of law

10. Section 139 (1) of the Criminal Code prescribes a minimum sentence of 5 years that is to be imposed here. I am bound to impose as set but can suspend the sentence of 5 years or part thereof following SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996). The discretion to suspend is based on facts and material placed before. There must be proper evidence and facts upon which the suspension of the sentence is called. The discretion is not in a vacuum and these I do so following Acting Public Prosecutor v Haha [1981] PNGLR 205 and also Ume v The State [2006] PGSC 9; SC836 (19 May 2006).
    
11. Further in The State v. Thomas Waim, Tala Gena and Alois Wanpis (1998) N1750 delivered 24^th July 1998, Justice Injia ( as he then was) delivered an effective sentence of 3 years after suspending 2 years from the head sentence of 5 years. In so doing his honour considered the following: -
    

“... although this was a mass breakout, this was an ordinary escape, in that the 3 accused and others simply climbed over the security fence and escaped. There is no evidence that these 3 accused were the main perpetrators. No weapon was used. No CIS staff member was threatened or injured. And no additional effort and expenses were involved in their re-capture as they were rounded off close to the CIS compound and recaptured the same day shortly after their escape. For these reasons, 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 far too prevalent in this country. Escapes from lawful custody are an affront to the judicial system and law enforcement and it must be met with an equally stern punishment. I consider that an effective custodial sentence of 3 years for each accused is appropriate in this case. Accordingly, I sentence each accused to a minimum of 5 years imprisonment as required by law, of which I suspend 2 years in respect of each accused on the condition that when each accused comes out of jail after serving their respective terms, they will be of good behaviour for 12 months."

12. Each case of escaping from lawful custody like any other criminal offence is weighed according to its own facts and circumstances. Here you took advantage of the police station which was poorly manned with the accomplice of a policeman then of a poorly manned police station, facts upon which you pleaded guilty to the indictment. But this is unlikely as there is no warrant of release from the police including the investigating officer. No one was injured in the escape and that there were no further offences perpetrated after the escape and during the period that you were out at large.
    
13. I adopt the reasoning and the application of law set out by his honour Justice Injia (as he then was) in State v. Thomas Waim, Tala Gena and Alois wanpis N1750 (supra) as relevant and applicable here given the facts and circumstances of the present case and the charge. Accordingly I apply it here. You were the main perpetrator of the escape. It was a simple escape. There were no weapons used or injury caused to policemen who were there and on duty. You took advantage of there being no other policemen on duty enough to contain the escape. And you were at large for four months and apprehended by Police. You do not have any prior conviction except that you have the rape charge which is outstanding against you.
    
14. I further take into account that your conduct in escaping can be likened to one who does not respect the rule of law, who is prepared to defy the law, and your continued being at large for 4 months is clear indication of that fact.
    
15. You must understand and appreciate after this that two wrongs do not make right, but merely draw tighter the noose of the rule of law against wrongdoers like yourself. You not only suffer but go to prison longer than initially had it being one offence only. You must subdue and submit yourself to the rule of law to correct a wrong there are no short cuts to avoiding the rule of law. You not only will be visited with the sentence of escaping from lawful custody now but should the rape and attempted rape be sustained, its sentence will follow suit. You get more than what you initially set out to get. I warn that do not under any circumstances invest your life in crime as the dividends that will flow are years of incarceration over and above what you are initially charged with.
    
16. The offence carries a prescribed minimum penalty of 5 years imprisonment. Both counsel evolved substantially around the question of whether the Court may impose a penalty lesser than 5 years imprisonment and alternatively consider suspension of part of the sentence. These options were in line with precedence in the following cases discussed above.
    
17. Therefore I consider that I would not be venturing into new ground but established judicial precedents in this area accordingly, I apply and follow in making the following orders:
    
    • (1) I sentence you to 5 years IHL
    • (2) I deduct 2 years 10 months on remand.
    • (3) 2 years 2 months IHL remaining is suspended on a 2years 2 months GBB.

Ordered Accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant