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Independent State of Papua New Guinea v Saguba [2023] PGNC 235; N10305 (5 May 2023)

N10305

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1410 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

RONNY SAGUBA

-Prisoner-

Waigani: Tamade AJ

2023: 23^rd March; 5^th May

CRIMINAL LAW – guilty plea – escape from lawful custody – escape while at Port Moresby General Hospital – Criminal Code, s 139 (1) – sentencing – Criminal Code, s 19 – principles of sentencing applied – sentence suspended to promote deterrence, reformation and rehabilitation

Cases Cited

Goli Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979)

Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990)

Edmund Gima v The State [2003] PGSC 3; SC730 (3 October 2003)

Public Prosecutor v William Bruce Tardrew [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986)

The State v Simon Jerry [2018] N7127

State v Paul Maima [2012] N4752

State v Hezaka [2015] PGNC 140; N6032 (31 July 2015)

Legislation:

Criminal Code Act

Counsel:

Mr Thomas Kokents, for State
Ms Kim Watakapura, for the Prisoner

5^th May, 2023

1. TAMADE AJ: The prisoner, Ronny Saguba of Mabudawan Village, South Fly District, Western Province pleaded guilty to a charge of escaping from lawful custody that he on 16 October 2016 between 8:00am and 12:00pm escaped from lawful custody whilst at the Port Moresby General Hospital thereby contravening section 139(1) of the Criminal Code.
   
2. The facts that the Prisoner pleaded guilty to is that on 16 October 2016 between 8:0am and 12:00pm, the prisoner was at Ward 3C getting medical treatment when he escaped from custody. The prisoner was transported to the Port Moresby General Hospital on 15 October 2016. At his escape, the prisoner was no where to be found at the hospital. It was until 7 October 2021 that the prisoner was found and brought back to be incarcerated. The prisoner was found working as a driver out in the community. The prisoner at the time of his escape was serving a term for wilful murder.
   
3. The Prisoner pleaded guilty to the charge and the Court now deliberates on the appropriate sentence after hearing submissions from counsels.
   
4. Section 139(1) of the Criminal Code is in the following term:
   

s139. 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.

5. In Goli Golu v The State^[1], the Supreme Court held that “the basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence” and that the most severe penalty should be reserved for the most serious instances of the offence.
   
6. I am reminded by the following statement in the Supreme Court in Lialu v The State^[2] (per Kapi DCJ) about sentencing that:
   

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

7. The mitigating factors in this case are that:
   
   1. There is an early guilty plea.
   2. There was no violent escape.
   100. The prisoner expressed genuine remorse at the allocutus stating that at the time of his escape, his wife had passed on and he had to escape to go bury his wife and take care of his children.
        
8. The aggravating factors are that:
   
   1. The prisoner was at large for 4 years, 11 months and 24 days.
   2. The prisoner is serving a 23 year sentence of wilful murder.
   100. The offence is prevalent these days in society.
   4. There was a breach of trust by the prisoner to the CIS guards.
      
9. The Supreme Court held in Edmund Gima v The State^[3] in relation to escaping from lawful custody that:
   
   1. Escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment.
      Affirmed The State v. James Tei Wana & Gend Yanisa Thomas (N2304) and The State v. Irox Winston (N2347).
      
   2. This does not mean that the prescribed minimum sentence of 5 years should be automatically imposed and or suspend either wholly or part of it without more. Instead the Court still as a discretion and a duty to impose a sentence that is either lower or above the minimum sentence depending on the particular circumstances of each case and on proper principles after starting with the prescribed minimum.

Affirmed and followed SCR 1 of 1994: Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996; James Takus v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97 and Joseph Balalau v. The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97.

3. Relevant factors for consideration before arriving at a sentence without limiting the list include:

(a) receipt of information by the escapee of a retaliatory killing of a close relative supported by prison officers;
(b) any evidence of violent sexual attacks upon weaker and younger inmates by more aggressive ones in prison supported by prison officers;
(c) whether the escape is en mass;
(d) whether any weapons are used;
(e) where weapons are used whether any personal or property damage or injury has been occasioned;
(f) the expenses to which the State has been put to, to recapture the escapee;
(g) when and how the recaptured occurred; and
(h) whether there is a guilty plea but this has to be contrasted against the chances of a successful denial.

Followed The State v. Inema Yawok (N1766); The State v. Irox Winston (N2347); and The State v. Thomas Waim, Tala Gena and Alois Wanpis (N1750).

10. The considerations for suspension of sentence are as stated by the Supreme Court in Public Prosecutor v William Bruce Tardrew[4] that:

“Suspension of part of a sentence under s 19(6) of the Criminal Code (Ch No 262) is, or may be appropriate, in three broad categories. The categories are not exhaustive:

(i) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.

(ii) Where suspension will promote the repayment or restitution of stolen money or goods.

(iii) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.

11. The cases of The State v Simon Jerry (2018)(N7127), State v Paul Maima (2012)(N4752), State v Hezaka [2015] PGNC 140; N6032 (31 July 2015) are similar cases in which the prisoners escaped whilst getting medical attention and in which the prisoners were serving existing sentences for prior convictions at the time of their escape. The Court in those cases have ordered 5 years sentences for escaping from lawful custody with suspended sentences and or full term depending on the facts of those cases to run cumulatively with their current sentences.

12. The reason that the prisoner had to escape from custody because of the death of his wife and therefore he had to go bury her is not a good enough reason to be considered as a mitigating factor as put forth by the Defence. It is a blatant defiance of the law, it should aggravate his case as he was serving time for a prior conviction. The prisoner decided to escape and live out in the community as a normal citizen working as a driver. If he had not been caught, he would not have surrendered back to the institution. I take the remorse as after the fact, after being caught however this is the example that should be set when exercising discretion as to punishment. The sentence in this case must be seen as a deterrence. The time the prisoner was at large was over 4 years, almost the minimum time set as penalty for escaping from lawful custody which is 5 years.
    
13. Considering the relevant cases, the mitigating and aggravating factors and section 19 of the Criminal Code, the prisoner is sentenced to 5 years with 2 years suspended and the prisoner shall serve 3 years in addition to his current sentence to be served cumulatively.

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Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused

[1] [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979)
[2] [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990)
[3] [2003] PGSC 3; SC730 (3 October 2003)
[4] [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986)