The State v A Juvenile "CL" (2008) N3432

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 August 2008
• Citation: (2008) N3432
• Docket Number: CR NO 671 0F 2008
• Court: National Court
• Year: 2008
• Judgement Number: N3432

Full Title: CR NO 671 0F 2008; The State v A Juvenile "CL" (2008) N3432

National Court: Cannings J

Judgment Delivered: 19 August 2008

N3432

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 671 0F 2008

THE STATE

V

A JUVENILE, “CL”

Kimbe: Cannings J

2008: 11, 24, 25 July,

19 August

SENTENCE

CRIMINAL LAW – sentence – escape from lawful custody (a police lock-up) by a juvenile remandee – guilty plea – sentence of 5 years; 4.5 years suspended.

A 16-year-old boy pleaded guilty to escaping from a police lock-up where he was detained awaiting committal proceedings in the District Court. It was a non-violent escape. He was at large for 20 days before being recaptured.

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 and four years and six months 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

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal

J – Justice

N – National Court judgment

No – number

SC – Supreme Court judgment

SCR – Supreme Court Reference

SCRA – Supreme Court Criminal Appeal

v – versus

SENTENCE

This is a judgment on sentence for escape.

Counsel

F Popeu, for the State

E Geita, for the offender

19 August, 2008

1. CANNINGS J: This is a decision on sentence for a 16-year-old boy, “CL”, who pleaded guilty to one count of escaping from lawful custody.

2. He was being detained at Kimbe police lock-up on charges of armed robbery and attempted murder. He was awaiting committal proceedings in the District Court. At 5.00 pm on 2 March 2008 the cell guard let him go outside to clean dirty dishes and left him unsupervised. He just walked off. He was recaptured on 22 March 2008 by the mobile squad.

ANTECEDENTS

3. He has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I ran away because the police were not being fair with me. I went before the District Court and I was granted bail and my brother wanted to pay the bail money but the police did not agree with it. They stopped me getting bail.

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). In that regard, I will take into account that:

· He was being detained together with adult remandees.

· He was wrongfully deprived of bail.

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections Service shows that CL is from the Kandrian area of West New Britain, both his parents are deceased and he has for a number of years been raised and cared for by his elder brother at the Section 10 settlement in Kimbe. He has been educated to grade 7 at Kimbe Secondary School. His brother is committed to looking after him.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Geita urged the court to consider CL’s tender age. He has got himself into trouble with the law but sending him to jail for a long time will not do him much good. Most of the sentence should be suspended.

SUBMISSIONS BY THE STATE

8. Mr Popeu did not object to the proposition that a substantially suspended sentence is appropriate.

DECISION MAKING PROCESS

9. 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?

10. Under Section 139 of the Criminal Code there is no maximum penalty for the offence of escaping from lawful custody. The minimum penalty is five years imprisonment. However, the court 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,; Edmund Gima and Siune Arnold v The State (2003) SC730)

STEP 2: WHAT IS A PROPER STARTING POINT?

11. 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?

12. I have passed sentence in more than 20 escape cases in West New Britain since 2005, which are summarised in the 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.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

· no violence used;

· not a mass escape;

· no risk of injury to others;

· the offender was being detained in a cell along with adult remandees, in violation of his human rights under Section 37(19) of the Constitution;

· the guilty plea;

· first-time offender.

14. Aggravating factors are:

· did not surrender directly to the police.

15. 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?

16. I will deduct the period in custody since around the date of recapture (22 March 2008), which I round out as five months.

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

17. The number of mitigating factors means that some of the sentence should be suspended. The question is how much. The offender is facing serious charges but everyone – especially the Police – needs reminding that he has a constitutional right to be presumed innocent. He also has a right to be treated with dignity and inherent respect for the human person, during all the time that he is in custody; and he has special rights as a juvenile, which have been breached.

18. The pre-sentence report shows that we are dealing with a young boy who has had a tough upbringing. He has lost both parents already and is fortunate to have a brother who is doing his best to look after him. He may or may not have been involved in criminal activities – that has yet to be resolved. I cannot help but get the impression that he is an intelligent young man with considerable potential. I agree with Mr Geita that keeping him in jail for a long period for this offence will achieve very little and might lead him down the wrong path.

19. I will suspend four years and six months of the sentence. The period of the suspended sentence will be subject to the following 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 return to full-time schooling by the start of the 2009 school year;

(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;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour;

(h) must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;

(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. The juvenile, “CL”, having been convicted of one count of escape, is sentenced as follows:

Length of sentence imposed 5 years

Pre-sentence period to be deducted 5 months

Resultant length of sentence to be 4 years, 7 months
served

Amount of sentence suspended 4 years, 6 months

Time to be served in custody 1 month

Place of custody Lakiemata Correctional Institution,
until further order of the National
Court.

Sentenced accordingly.

_________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the offender