The State v Raymond Kokora (2013) N5283

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 17 May 2013
• Citation: (2013) N5283
• Docket Number: CR NO. 754 OF 2005
• Court: National Court
• Year: 2013
• Judgement Number: N5283

Full Title: CR NO. 754 OF 2005; The State v Raymond Kokora (2013) N5283

National Court: Toliken, AJ

Judgment Delivered: 17 May 2013

N5283

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 754 OF 2005

THE STATE

V

RAYMOND KOKORA

Popondetta: Toliken, AJ

2013: 12th, 17th May

CRIMINAL LAW – SENTENCE – Escaping from custody – Plea – Prisoner serving 20 years for rape and robbery – Escapes through hole cut in perimeter fence - with 3 other inmates – Typhoid outbreak – Prisoner fears for health and safety – Surrenders voluntarily after 2 years – Criminal Code Ch. 262, s 139.

CRIMINAL LAW – Sentence –Escaping from lawful custody - A wilful and deliberate disrespect or upfront to the judicial system and law enforcement – Object of sentence - Punish the offender with a view to denouncing this unlawful conduct, and to deter him and others - Clearly reflected by Parliament’s prescription of the minimum penalty.

CRIMINAL LAW – Appropriate sentence – Prescribed minimum of 5 years imposed - Not worst type of offence – Plea and reason for escape considered - Appropriate case to temper justice with mercy by suspension of a portion of sentence.

CRIMINAL LAW - Appropriate sentence – Suspension - Portion to be served – Must be equivalent or proportionate to the period he had been at large – No suspension where period prisoner at large is equal to or over prescribed minimum penalty – Prisoner to serve 2 years, equivalent to period he was at large – Balance of 3 years suspended with conditions – Criminal Code Ch. 262, s 19(1)(d)(6).

Cases Cited

The following cases are cited in the judgment:

The State v Rudy Haiveta (2012) N4677

The State v Roy Feleti CR 567 of 2012 (unreported and published judgment handed down in Alotau on 23rd of May 2013)

The State v Nemo (2010) N4098

The State v Koroiwe (2010) N4154

The State v Eric Tene (2008) N3951

The State v Joseph Kagl Imbo (2008) N3954

Saperus Yalibakut v The State (2006) SC890

The State v. Irox Winston (2003) N2347

The State v. James Tei Wana & Gend Yanisa Thomas (2000) N2304

Edmund Gima & Siune Arnold v The State (2003) SC 730

The State v. Thomas Waim [1998] PNGLR 360

James Takus v The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97)

Joseph Balalau v The State (unreported and unnumbered Supreme Court judgment delivered on 29/11/97)

SCR 1 of 1994, The State v Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996)

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314

Counsel

J.W. Tamate, for the State

L. Mamu, for the accused

SENTENCE

17th June, 2013

1. TOLIKEN, AJ: John Kokora, on the 12th of June 2013 you pleaded guilty to one count of escaping from lawful custody, an offence under Section 139(1) of the Criminal Code Act chapter 262 (the code).

BRIEF FACTS

2. The brief facts to your case are as follows. At the time of your escape you were serving concurrent sentences of 20 years for rape and 12 years for robbery at the Biru Corrective Institution under the lawful custody of the Gaol Commander.

3. On 10th of February 2003 you and three others cut the fence at the back of the Male Compound next to the ablution block and escaped. You were at large until you voluntarily surrendered to the Gaol Commander on 11th April 2005. You were later referred to the police and formally charged for this offence.

4 I confirmed your plea and convicted you but only after I had perused the committal depositions and having satisfied myself that the evidence supported both your plea and the charge.

ANTECEDENTS

5. You have two prior convictions – one for rape where you sentenced to 20 years and the other for robbery where you were sentenced to 12 years. These were to be served concurrently. You were in fact serving these sentences when you escaped.

ALLOCUTUS

6. In your address to the court on sentence this is what you said:

“In 2003 there was a typhoid outbreak at Biru. Five of us were ill with typhoid. We were not taken to the hospital and as a result four of us died. I saw my fellow inmates cut the fence and that inspired me to escape with them. The other inmates were apprehended but not charged. I am the only one who was charged. I was shot in the leg by the police.”

7. You told the court when asked that you were shot by the police in 2010.

SUBMISSIONS

8. Mr. Mamu submitted in your behalf that the court should consider the reason for your escape - you feared for your safety because of the outbreak of typhoid at Biru. He said you are serving an effective term of 19 years and that there is no need to impose a further term on top of that. He further said that no utility or purpose will be served if an additional term is to be added to your current term. He finally asked the court to exercise its discretion and not impose any additional punishment. However, if the court is mindful to impose a penalty then any sentence should be served concurrently with the current term.

9. Mr. Tamate for the State submitted your reason for escaping – outbreak of typhoid and the death of 4 inmates – was not proved. In any case, this is a separate offence and the court should impose the minimum penalty of five years which should be served cumulatively with your current term. He said that you were shot when you attempted to escape the second time.

THE OFFENCE

10. Section 139 provides for the offence of escaping in the following terms:

139. Escape by prisoner

(1) A person 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)...

11. As we can see this is the only offence under the Code that still carries the minimum prescribed penalty. Here the law says that a sentence for escaping should not be less than 5 years.

12. This court has for some time been divided on the question of whether or not it has the discretion to impose anything less than 5 years. Some members of the court felt that the court has no discretion at all. (The State v Jack Moge [1995] PNGLR 246)

13. The other view is that despite the minimum prescribed penalty of 5 years this does not mean that it ought to be automatically imposed. Rather the court has 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 starting with the prescribed minimum. This view was expressed by the Supreme Court in Edmund Gima & Siune Arnold v The State (2003) SC 730; SCR 1 of 1994 (Kirriwom, Kandakasi, Batari JJ), when following and affirming SCR 1 of 1994, The State v Re Aruve Waiba (unreported and unnumbered Supreme Court judgment delivered in 1996 (Los, Salika JJ); 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.)

14. There the court also held that some of the relevant factors that may be taken into account in arriving at an appropriate sentence may include the following:

(a) receipt of information of a retaliatory killing of a close relative

supported by prison officers

(b) violent sexual attacks upon weaken and younger inmates by more

aggressive inmates with support from prison officers

(c ) whether escape is en mass

(d) whether weapons were used in escape

(e) where weapons are used whether personal injury or damage to

property was occasioned

(f) the cost of recapture to the State

(g) when and how the prisoner was recaptured

(h) whether there was a guilty plea

15. In The State v Roy Feleti CR 567 of 2012 (unreported and published judgment handed down in Alotau on 23rd of May 2013) I commented that the latter position is a utilitarian approach aimed at giving due weight to the fact that the circumstances of escapes are not always the same. Hence, to impose the minimum without recognizing this offends against the principle of equivalence – that punishment must fit the crime.

16. So if I understand what the Supreme Court said in Edmund Gima & Siune Arnold (supra) correctly, 5 years is effectively the “starting” point from which the court can impose a head sentence that either below or above it or partly or wholly suspend the sentence, depending on the peculiar circumstances of a particular case.

17. I note, however, that my brother Cannings J. holds the view that 5 years is the starting point. The head sentence can be above that but cannot be below it. (The State v Eric Tene (2008) N3951; The State v Joseph Kagl Imbo (2008)...