The State v Ria Bernard (2008) N5461

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 April 2008
• Citation: (2008) N5461
• Docket Number: CR NO 339 0F 2008
• Court: National Court
• Year: 2008
• Judgement Number: N5461

Full Title: CR NO 339 0F 2008; The State v Ria Bernard (2008) N5461

National Court: Cannings J

Judgment Delivered: 24 April 2008

N5461

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 339 0F 2008

THE STATE

V

RIA BERNARD

Kimbe: Cannings J

2008: 20 March, 16, 24 April

CRIMINAL LAW – sentence – escape from lawful custody by prisoner serving sentence for grievous bodily harm – guilty plea – no previous escape.

A man pleaded guilty to escaping from lawful custody while he was serving a sentence for grievous bodily harm. He absconded from a work detail. It was a non-violent escape. He was at large for 20 months, then surrendered.

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 was suspended.

Cases cited

The following cases are cited in the judgment:

Danny Pirino v The State (2006) N3111

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

Saperus Yalibakut v The State (2006) SC890

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

F Popeu & T Ai, for the State

R Beli, for the offender

24th April, 2008

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of escaping from lawful custody. He was a prisoner at Lakiemata Correctional Institution serving an eight-year sentence for two grievous bodily harm offences. On 1 June 2005, just ten days after being sentenced, he was on a work detail cutting grass close to the prison. While the warder supervising him was looking in the other direction he took off. He was at large for over 20 months before surrendering on 21 February 2007.

ANTECEDENTS

2. The offender has the prior conviction for grievous bodily harm.

ALLOCUTUS

3. The offender stated:

I escaped because I was afraid for my life. Conditions at the jail in 2005 were bad and there were a lot of diseases. After I surrendered they put me in the detention cell at the jail for one month. The detainees now have beds to sleep on and there is now a good mess, good drinking water and good bathroom facilities. This was my first escape and I apologise before this court for what I have done and promise that I will never do it again.

OTHER MATTERS OF FACT

4. 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 (2006) SC890. He cooperated with the police and made admissions in his police interview. He spent one month in detention cell, ie solitary confinement.

PRE-SENTENCE REPORT

5. The report by the Community Corrections and Rehabilitation Service reveals that the offender, Ria Bernard, is 32 years old, married with six children. He comes from Garile village in the Talasea area and has cocoa and coconut blocks that provide him with some income. He was educated to grade 6 and has no formal employment. He has strong family support, especially from his father and his wife. The local Assemblies of God Church Elder, Alfred Rowa, speaks highly of the offender, and says that while the offender was at the village during the period he was at large, he abstained from alcohol (the thing that led him to commit the grievous bodily harm offences) and was a changed person. The offender has evidently returned to Lakiemata as a changed man and, despite his history of escaping, has been classified as a medium risk prisoner.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Beli highlighted the guilty plea. The escape was a simple one. Nobody was hurt and no property was damaged. He had a motive for escaping as he had a genuine concern for his health and conditions in the jail at the time of the escape were poor. The offender has been punished already by being in solitary confinement.

SUBMISSIONS BY THE STATE

7. Mr Ai conceded that there was a case for suspending some, but not all, of the sentence.

DECISION MAKING PROCESS

8. 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?

9. 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.

10. 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; 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 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.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

· no violence used;

· not a mass escape;

· no risk of injury to others;

· he surrendered directly to the jail authorities;

· he was given stern punishment upon his return to custody (one month in the detention cell);

· cooperated with police;

· guilty plea;

· genuine remorse;

· good pre-sentence report.

14. Aggravating factors are:

· no justifiable motive for escaping;

· not a first-time offender;

· he was at large for a long time (20 months).

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. No, there is nothing to be deducted.

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

17. The high number of mitigating factors means that some of the sentence should be suspended. The question is how much. In many of the 21 previous escape cases in West New Britain I suspended big chunks of the sentence largely because of the very poor condition of Lakiemata Jail and Kimbe Police lock-up, the correctional institutions where most of the escapes took place. But over the last two years conditions at those places have improved markedly because of orders I have made under Section 57 of the Constitution. I have made no secret of the fact that I would be stricter in sentencing detainees who escape, in 2007 and beyond, than I had been in the past. Ria Bernard’s escape happened in 2005 and I accept that he had a genuine concern for his health given the conditions in the jail at that time. Though he was at large for a long time, he has done the right thing by surrendering and it appears from the pre-sentence report that he stayed out of trouble when he was at large and went back to the village and helped out his family. I think he also makes a good point by saying that, for someone who voluntarily came back into custody, he was treated harshly by being placed in detention for one month. Though it was not unlawful for him to be in detention for that amount of time (Danny Pirino v The State (2006) N3111), it is questionable whether such a practice is providing an incentive for escapees to voluntarily return themselves to custody. I regard the surrender as a very strong mitigating factor and have decided to suspend four years of the sentence, 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 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;

(f) must not consume alcohol or drugs;

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

(h) must have a...