The State v Joseph Kagl Imbo (2008) N3954

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 February 2008
• Citation: (2008) N3954
• Docket Number: CR NO 138 0F 2008
• Court: National Court
• Year: 2008
• Judgement Number: N3954

Full Title: CR NO 138 0F 2008; The State v Joseph Kagl Imbo (2008) N3954

National Court: Cannings, J

Judgment Delivered: 22 February 2008

N3954

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 138 0F 2008

THE STATE

V

JOSEPH KAGL IMBO

Madang: Cannings J

2008: 19, 20, 22 February

SENTENCE

CRIMINAL LAW – sentence – escape from lawful custody by prisoner serving long sentence for murder and armed robbery – guilty plea – previous escape – sentence of 5 years; 3 years suspended.

A man pleaded guilty to escaping from a jail, where he was a prisoner serving sentences including a 24-year sentence for murder and armed robbery. He has two previous escape convictions. The question arose whether his constitutional right to be detained close to where his relatives reside had been breached. He had been transferred to a number of different jails.

Held:

(1) The minimum sentence for the offence of escaping from lawful custody is five years imprisonment.

(2) A sentence of five years was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

The State v Aruve Waiba SCR No 1 of 1994, 04.04.96

The State v Francis Wangi CR No 1388 of 1999, 17.08.07

SENTENCE

This is a judgment on sentence for escape.

Counsel

M Ruarri, for the State

J Kolkia, for the offender

22 February, 2008

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody arising from the following facts.

2. The offender, Joseph Kagl Imbo, was a prisoner at Beon Correctional Institution serving various sentences, including a 24-year sentence for murder and armed robbery, which had been imposed on him by the National Court in 2004. On 25 September 2005 at 7.00 am the offender escaped with 15 others by cutting iron bars and sheet metal from the walls of the main compound. He was at large until August 2007. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction under Section 139 of the Criminal Code.

ANTECEDENTS

3. The offender has the prior conviction for murder and armed robbery, a conviction for receiving stolen property (which resulted in a sentence of five years, in 2004) and two previous escape convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I want to apologise for all these escapes but there are reasons for them. I have been treated badly. I want to be imprisoned at Barowagi Jail as I am from Simbu Province but the warders always want to transfer me to other jails. I went to Mt Hagen for my Supreme Court appeal but they did not take me back to Barowagi. They transferred me to Boram Jail, near Wewak, and later to Beon.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).

6. He cooperated with the police and made admissions in his police interview. I also accept at face value the allegations that he has been concerned about his transfer to different jails and this may have been done in breach of his constitutional right to be imprisoned close to where his relatives reside, which in his case is Simbu Province. Section 37(20) of the Constitution provides that if a prisoner is to be transferred away from where his relatives reside this must be done for security or other special reasons, which must be endorsed on his file. There is nothing endorsed on Joseph’s file, so I will take into account this apparent breach of constitutional rights as a mitigating factor.

PERSONAL PARTICULARS

7. Joseph Imbo is about 45 years old and is from Kambuk village in the Kerowagi district of Simbu Province.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Kolkia highlighted the guilty plea. As to the escape itself, the offender has given the reasons that he escaped. He has been treated poorly by the Correctional Service. He is already serving a very long sentence and it would be counter-productive to condemn him to an ultra-long sentence. He should be made to serve this escape sentence concurrently with other sentences.

SUBMISSIONS BY THE STATE

9. Mr Ruarri submitted that the sentence in this case must be served cumulatively upon the existing sentences. However, the court might in the exercise of its discretion show some mercy by suspending part of this sentence.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. Section 139 of the Criminal Code states:

(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. No maximum is prescribed. The minimum penalty is five years imprisonment. However, the court still has a considerable discretion whether to require a convicted escapee to serve the whole of the head sentence in custody. Some or all the sentence can be suspended. (The State v Aruve Waiba SCR No 1 of 1994; 04.04.96, Supreme Court, Los J, Salika J; Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J.)

STEP 2: WHAT IS A PROPER STARTING POINT?

13. The starting point is five years. The head sentence can be above that but not below it.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. I have passed sentence in 21 escape cases in West New Britain since 2005, which are summarised in the recent case of The State v Francis Wangi CR No 1388 of 1999, 17.08.07. In all cases I have imposed the minimum penalty of five years imprisonment but suspended part (or in two cases, all) of the sentence, having regard to the circumstances of each case.

15. In Madang in October 2007, I dealt with three prisoners who had escaped: Allan Apau, Jessie Gulien and Joe Gilkam. In each case I imposed a sentence of five years and suspended part of it.

STEP 4: WHAT IS THE HEAD SENTENCE?

16. Mitigating factors are:

· no violence used;

· no risk of injury to others;

· something happening inside the jail;

· cooperated with police;

· guilty plea;

· remorse.

17. Aggravating factors are:

· others involved in escape;

· nothing happening outside jail;

· did not surrender;

· at large for long time;

· not a first offence.

18. After weighing all these factors, I have decided to fix a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. When sentencing an offender it is conventional to deduct from the head sentence the period that has been spent in custody in remand, also known as wet kot, awaiting trial. The offender does not have a right to have this period deducted. It is a matter for the discretion of the court under Section 3(2) of the Criminal Justice (Sentences) Act 1986.

20. In this case, there is nothing to be deducted as the period that the offender has been in jail prior to the hearing of this matter will be treated as him serving the other sentences already imposed on him.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

21. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In some cases the offenders have been unable to comply with the conditions and have been committed to custody to serve the rest of their sentences.

22. In the present case I have decided to suspend three years of the sentence, given the strength of the mitigating factors, and the apparent breach of constitutional rights that has occurred, subject to the following strict conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(b) must not leave the Province in which he resides without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;

(d) must attend his local Church every weekend for service and worship and submit to counselling;

(e) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;...