The State v Irox Winston (2003) N2347

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 March 2003
• Court: National Court
• Citation: [2003] PNGLR 331
• Year: 2003
• Judgement Number: N2347

Full Title: The State v Irox Winston (2003) N2347

National Court: Kandakasi J

Judgment Delivered: 13 March 2003

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Escape from lawful custody—Court has discretion to impose a sentence below the prescribed minimum—On what basis can this be done?—Only where there are good mitigating factors and a pre–sentence report supporting such sentence—Criminal Code s139(1).

2 CRIMINAL LAW—Sentence—Escape from lawful custody—Serving time for a serious offence—Guilty plea—Circumstances in which offence was committed not clear—On available evidence a case of simple escape—Prevalence of the offence considered—Prisoner with a prior conviction—A deterrent sentence called for—Sentence of 5 years imposed—Criminal Code s139(1).

3 The State v Inema Yawok (1998) N1766, The State v Jack Moge [1995] PNGLR 246, The State v Aruve Waiba (SCR 1 of 1994; Unnumbered and unreported judgment of the Supreme Court (Los J and Salika J) delivered on 4 April 1996), The State v Thomas Waim, Tala Gena and Alois Wanpis (1988) N1750, The State v Richard Olso Kumis (1997) N1517, The State v Okuk Seke (1998) N1826, Public Prosecutor v Don Hale (1998) SC564, The State v James Gurave Guba (2000) N2020, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 and Public Prosecutor v Kerua [1985] PNGLR 85 referred to

Decision on Sentence

___________________________

N2347

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1977 of 2002

THE STATE

-V-

IROX WINSTON

GOROKA: KANDAKASI, J.

2003: 12th and 13th March

CRIMINAL LAW - PRACTICE & PROCEDURE – Escape from lawful custody – Court has discretion to impose a sentence below the prescribed minimum – On what basis can this be done? – Only where there are good mitigating factors and a pre-sentence report supporting such sentence – Criminal Code s.139 (1).

CRIMINAL LAW - Sentence – Escape from lawful custody - Serving time for a serious offence – Guilty plea - Circumstances in which offence was committed not clear – On available evidence a case of simple escape - Prevalence of the offence considered – Prisoner with a prior conviction – A deterrent sentence called for – Sentence of 5 years imposed – Criminal Code s.139 (1).

Cases cited:

The State v Inema Yawok (unreported judgement delivered on 16/06/98) N1766.

The State v. Jack Moge [1995] PNGLR 246.

SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996).

The State v. Thomas Waim, Tala Gena and Alois Wanpis (unreported judgement delivered on 24/07/98) N 1750.

The State v. Richard Olso Kumis (unreported judgement delivered 14/02/97) 1517.

The State v. Okuk Seke (unreported judgement deliver on 24/07/98) N1826.

Acting Public Prosecutor v. Don Hale (unreported judgement delivered 27/08/98) SC564.

The State v. James Gurave Guba (unreported judgement) N2020.

Acting Public Prosecutor v. Haha [1981] PNGLR 20.

Public Prosecutor v. Kerua & Ors [1985] PNGLR 85.

Counsel

Ms .R. Johnston for the State.

Ms.O. Tiria for the Prisoner.

DECISION ON SENTENCE

13th March, 2003

KANDAKASI J: You pleaded guilty to one charge of escaping from lawful custody at Bihute here in Goroka on the 16th of January 2001. That was contrary to s.139 (1) of the Criminal Code. Upon reading the material in the deposition, which was admitted into evidence with your consent, I was satisfied that there was enough evidence to support your guilty plea. I therefore, accepted your guilty plea and convicted you on the charge as presented.

Address on sentence

I then asked you to address me on sentence and you said it was true that you committed the offence and asked for mercy from the Court. Your lawyer addressed the Court further on that. She submitted that you have pleaded guilty, you are married with one child, and your parents are alive. At the time of committing the offence, you were serving a sentence for armed robbery initially for life and subsequently reduced by the Supreme Court on appeal to 18 years.

Your lawyer also submitted that, you were caused to commit the offence upon receipt of information from an unspecified relative or family member that your wife had run away with you child because you had been sentenced to life imprisonment. There is neither any evidence nor is there any suggestion from you as to when you received that information and who in particular from. Likewise, there is no evidence or any suggestion that, you raised with the prison officers the claim of your wife running away with your child and you wishing to do something about it. Besides it took the police more than a year to recapture you. If indeed it is true that you escaped from lawful custody to get your child and wife, you could have freely surrendered as soon as you attended to that problem. You did not do that. Given this, I find it difficult to accept your claim through your lawyer that you escaped to go after your wife and child. Further, in your antecedent report, it is noted at item 8 (g) that you claimed to be married with one child aged 2 years but refused to give the name of your wife. In these circumstances, I find that, the reason you advance for escaping has no factual basis. Instead it is an after thought in a bid to justify the commission of the offence. It means therefore that, you intended to escape purposely to avoid serving fully you term of 18 years for armed robbery.

The State argues that you were serving a term for a serious offence of armed robbery. You intentionally escaped to avoid serving your sentence in full for that offence. Parliament as prescribed a minimum of 5 years imprisonment for the offence. This was in response to a prevalence of the offence, which is still the case today. Counsel for the State urged this Court to take this into account when considering an appropriate sentence for you. She also asked me to make whatever sentence this Court decides is appropriate, to be served cumulatively with the sentence you are already serving.

Facts

There is not much evidence as to the circumstances surrounding the commission of the offence. All there is, is that, on the 16th of January 2001, you were amongst a group of other prisoners serving their time at the Bihute Corrective Institution. You were taken out to work on a new building site at Bihute. The time was around. 9:30 am. Whilst at that site, you escaped. The prison officers who were watching over you and the other prisoners neither saw you escape, nor did they know how you escaped. But they learned of your escape when they took a head count later that day and found out that you were missing.

Your escaped was reported to police soon thereafter but you were not arrested until the 18th of April 2002. Lae police arrested you on that day in Lae. You were then brought back to Bihute where you are currently serving you 18 years sentence for armed robbery. You were formally charged for the offence on the 18th of August 2002 and committed on the 12th of December 2002 to stand trial before this Court.

On the material available before me I find that this was not an aggravated escape. Instead it was a simple escape with no harm or injury to any person or property.

The Law

Section 139 (1) of the Criminal Code defines and prescribes the penalty for the offence of escape from lawful custody in the following terms:

“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...