The State v Sam Obida

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 23 May 2014
• Citation: (2014) N5620
• Court: National Court
• Year: 2014
• Judgement Number: N5620

Full : CR NO 660 OF 2013; The State v Sam Obida (2014) N5620

National Court: Toliken, AJ

Judgment Delivered: 23 May 2014

N5620

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 660 OF 2013

THE STATE

V

SAM OBIDA

Alotau: Toliken, AJ

2014: 09th, 23rd May

CRIMINAL LAW – Sentence – Escaping from lawful custody – Plea – Prisoner escaped while serving sentence for summary conviction – Indictment laid under Section 139 (1) of Criminal Code Ch. 262 - Appropriate charge – Escaping under Section 22 of Summary Offences Act Ch. 264 or Criminal Code Act – Sentence under Summary Offences Act – Appropriate sentence – 5 months imprisonment – Criminal Code Act Ch. 262, s 139; Summary Offences Act Ch. 264, s 22.

Cases Cited

Gima v The State (2003) SC 730

Laki v The State (2005) SC 783

The State v Rudy Haiveta (2012) N4677

The State v Nemo (2010) N4098

The State v Koroiwe (2010) N4154

The State –v- Eric Tene (2008) N 3951

The State –v- Joseph Kagl Imbo (2008) N3954

The State v Roy Feleti (2013) N5285

The State v Raymond Kokora; CR 754 of 2005 (unnumbered and unreported judgment dated 17th June 2013)

The State v Kenneth Wadada; CR 562 of 2012 (unnumbered and unreported judgment dated 23rd August 2013)

Counsel

R. Luman, for the State

P. Palek, for the accused

SENTENCE

23rd May, 2014

1. TOLIKEN, AJ. The prisoner, Sam Obida pleaded guilty before me on 09th May 2013 to one count of escaping from custody thus contravening Section 139 of the Criminal Code Act Ch. 262 (the Code). The prescribed penalty for the offence is a term of imprisonment of not less than five years.

THE FACTS

2. The brief facts put to the prisoner on arraignment are that he was serving time at the Gigligili Corrective Institution for a drug offence. On the 28th of November 2012 he was taken out to cut grass at the Institution’s vanilla garden with other inmates when he escaped. He was at large for almost 5 months. On 22nd day of April 2013 he was recaptured at Kainako Village by CIS officers after a tip off. It appears from the committal depositions that the prisoner was sentenced by the District Court on 13th November 2012 to 2 years imprisonment for possession of a dangerous drug contrary to the Dangerous Drugs Act Ch. 288. So he escaped a mere 15 days from the time of his commitment to prison.

3. I entered a provisional guilty plea and confirmed it after I had perused the committal depositions. I then formally convicted the prisoner.

THE ISSUES

4. The ordinary sentencing issue for me would in the normal circumstances be an easy one given the fact that escaping under the Code is the only offence that carries a minimum prescribed penalty (5 years) and all that I needed to do was probably decide whether to exercise my discretion under the Section 19 of the Code to perhaps suspend a portion of the sentence. This is, however, not the case here. The prisoner as we have seen was serving a sentence for a summary conviction. So a pertinent issue I would like to think then is whether the prisoner ought to have been charged under the Section 139 of Code at all. The issue arises because the Summary offences Act Ch. 264, s 22 also provides for the offence of escaping from lawful custody.

ANTECEDENTS

5. The prisoner is from Kanaturu Village, Rabaraba District of the Milne Bay Province. He is 26 years of age and married with 2 children aged 3 and 7 years. He is the 2nd born in a family of 4 and his parents are both still alive. He is an adherent of the Bahai Faith and only educated up to Grade 8. He was at one time employed by Northern Timbers. He has one prior summary conviction for possession of dangerous drug and was serving his sentence for that when he escaped.

ADDRESSES TO THE COURT

6. On allocutus the prisoner explained the reason why he had to sell drugs which resulted in his conviction in the District Court, reasons which he said he told the presiding magistrate. To cut a long story short he said that he was then having problems with his first wife who had left him for another man and leaving their child with him. He took a second woman who looked the child but then the first wife wanted the child back but the prisoner refused to give her the child. The woman’s relatives then threatened to kill the child and its step-mother unless the prisoner pays K1800 compensation plus food stuff, 2 pigs and 2 clay pots. The prisoner said that he was therefore forced to sell marijuana to settle those demands.

7. He said that when he was in prison he was concerned about the problem and demands and knowing that no one will assist him he broke the law by escaping. Furthermore his mother was hospitalized and he was worried about her health and that there would be no one to ensure that she takes the right doses of medicines that the doctors would be prescribing her. Hence he escaped. He apologised and asked for forgiveness for breaking the law but urged the Court understand his situation.

8. Mr. Palek submitted that since the prisoner escaped while serving a sentence for summary conviction he ought to have been charged under the Summary Offences Act in the first place and not under the Code. As such he ought to be sentenced to 4 - 6 months imprisonment. Counsel relied upon the Supreme Court authorities in Gima v The State (2003) SC 730 and Laki v The State (2005) SC 783.

9. Counsel cited the following as mitigating the offence. The prisoner pleaded guilty, only educated up to Grade 8, is remorseful, comes from a good family background and of previous good character, cooperated with the police, has ailing parents to care for and that at the time of his escaped he was concerned and depressed about the welfare and safety of his family in the face of threats from his former wife’s relatives. Lastly he did not cause any damage to State property or hurt anyone during his escape.

10. Mr. Luman on the other hand submitted in behalf of the State that escaping from lawful custody is an affront to the criminal justice process. He conceded though that this was a simple escape, no implements were used, the prisoner took the opportunity and acted foolishly. Therefore the minimum should be imposed and the court may then consider a suspension in its discretion.

11. As to whether the prisoner ought to have been charged under the Summary Offences Act, Mr. Luman conceded that Parliament’s intention is clear that escapes from prison on sentences on summary convictions ought to prosecuted summarily but the issue ought to have been brought before the District Court during committal. In spite of that the charge under the Code is still valid. Mr. Luman also said that the only aggravating factors against the prisoner is that he did not voluntarily surrender and that he has one prior conviction.

THE LAW

12. Escaping from lawful custody is indeed a serious offence. It is an affront to the criminal justice system and law enforcement agencies. (Gima v The State (supra). And Parliament’s prescription of the minimum penalty of 5 years imprisonment under Section 139 of the Code testifies to that.

13. Sentences by this court have therefore on the most part started with the minimum of 5 years. And where appropriate suspensions have been imposed as was the case in the cases cited by the defence. For instance in Gima v The State, the Supreme Court (Kirriwom, Kandakasi, Batari JJ.) refused to disturb the sentences of the appellants who were served the minimum of 5 years but had 3 years suspended leaving a balance of 2 years. In Laki v The State (supra) the Supreme Court (Jalina, Kirriwom, Kandakasi JJ.) also dismissed an appeal against a five year sentence of which 3 years were suspended with the appellant being bound over to be of good behaviour.

14. Other cases include the following: In The State v Roy Feleti (2013) N5285 the prisoner pleaded guilty before me. He walked away from a work parade at Giligili and escaped. He was at large for 3 months and 4 days. Following Edmund Gima (supra) I imposed a head sentence of 3 years.

15. In The State v Raymond Kokora; CR 754 of 2005 (unnumbered and unreported judgment dated 17th June 2013) I imposed the minimum penalty of 5 years. In that case I held that where the court is mindful to suspending part of a sentence, the prisoner ought to serve a period equivalent to the period he was out at large if that period was less than the prescribed minimum. Where the prisoner had been on the run for a period longer than the prescribed minimum no suspension should be allowed. The prisoner there was on the run for 2 years so I ordered him to serve 2 years of his 5 years sentence. The balance of 3 years was suspended on condition.

16. In The State v Kenneth Wadada; CR 562 of 2012 (unnumbered and unreported judgment dated 23rd August 2013) I sentenced the prisoner to 5 years less...