The State v Simon Jerry

• Jurisdiction: Papua New Guinea
• Judge: Kaumi AJ
• Judgment Date: 27 February 2018
• Citation: (2018) N7127
• Court: National Court
• Year: 2018
• Judgement Number: N7127

Full : CR 530 of 2017; The State v Simon Jerry (2018) N7127

National Court: Kaumi AJ

Judgment Delivered: 27 February 2018

N7127

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 530 of 2017

THE STATE

V

SIMON JERRY

Lae: Kaumi AJ

2018: 13, 22, 27 February

CRIMINAL LAW – Criminal Code Act 1974, Part III-Offences Against the Administration of Law and Justice and Against Public Authority, Division 6-Escapes: Rescues: Obstruction Officers of Courts-Section 139 subsection (1)-Plea of Guilt-Offender escaped from lawful custody-Mitigating and Aggravating Factors – Expression of Remorse–Prevalent Offence.

CRIMINAL LAW-Sentence-Guilty Plea-Escape unnoticed from hospital by prisoner serving 18 years sentence for Murder and Grievous Bodily Harm-Prescribed minimum penalty-Term of 5 years imprisonment-Breach of trust-Serving time for serious offences

CRIMINAL LAW- Sentence-Escaping from lawful custody is an affront to the judicial system and law enforcement and must be met with an equally stern punishment-Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered.

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Not worst type of offence-Mild aggravating factors-Strong mitigating factors plea and reason for escape considered-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Facts

The offender pleaded guilty to escaping from a lawful custody where he was serving an 18 years sentence for Murder and Grievous Bodily Harm. He was at large for a long time before being recaptured.

Held:

[1] The minimum sentence for the offence of escaping from lawful custody is five years imprisonment.

[2] A five year term of imprisonment was imposed. Part of the sentence was suspended conditionally.

Cases Cited:

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

Saperus Yalibakut v The State (2006) SC890

State v Apau (2007) N5497

SCR1 of 1994 Re Aruve Waiba (Unreported and unnumbered Supreme Court judgment delivered on the 04/04/96).

The State v Inema Yawok (1998) N1766

The Acting Public Prosecutor v Don Hale (1998) SC564

The State v Thomas Waim, Tala Gena and Alois Wanpis[1998] PNGGLR 360

The State v Jason Dungioa (2000) N2038

The State v James Tei Wena and Gend Yanisa Thomas (2000) N2304

The Gima v Independent State of Papua New Guinea [2003] PGSC3, SC730 (3 October 2003)

The State v Irox Winston [2003] N2347

Tom Longman Yaul v The State (2005) SC 803

The State v Paul Pei Peni CR No. 1332/2004

The State v Kito Ase CR No. 774/2005

The State v Stanis Gala CR No. 788/2005

The State v Thomas Pinela [2005] N2920

The State v James Negol CR No. 871/2005

The State v Herman Kapuvi CR No. 689/2006

The State v Raka Benson (2006) CR 447, 445

The State v Allan Apau CR No. 994/2007 Cannings. J

The State v Eric Tene (2008) N3951

The State v Joseph Kagl Imbo (2008) N3954

The State v Nemo (2010) N4098

The State v Koroiwe (2010) N4154

The State v Rudy Haiveta (2012) N4677

The State v Roy Feleti CR No. 567/2012

The State v Rangi [2013] N5251

The State v Raymond Kokora (2013) N5283

The State v Hezaka [2015] N6032

Legislation Cited:

Constitution of Papua New Guinea

Criminal Code 1974

Criminal Justice (Sentencing) Act 1986

Counsel

Ms. Mercy Tamate, for the State

Ms. Katurowe, for the offender

SENTENCE

27th February, 2018

1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 13th February 2018 was found guilty of one count of escaping from lawful custody contrary to Section 139 (1) of the Criminal Code Act Chapter 262.

ISSUE

2. The relevant issue is what the appropriate sentence in his case?

AGREED BRIEF FACTS

3. The brief facts giving rise to the charge are as follows:

On the 15th of November 2010, the accused/prisoner having being convicted of the offences of murder and grievous bodily harm, was sentenced by the National Court in Bulolo to 18 years imprisonment in hard labor.

About 4 months after he was sentenced, the accused/prisoner fell ill and was taken to Angau Memorial Hospital in Lae, Morobe province to receive medical treatment.

The State alleges that on the 03rd of March 2011, at about 1:30pm the accused/prisoner escaped from the hospital ward unnoticed. Since then he has remained at large until the 08th of January 2017 when he was spotted and apprehended by members of the Bumbu Community and the Defence Force Military Police at Igam here in Lae.

4. State says that the accused actions contravened section 139(1) of the Criminal Code Act.

5. After having read the committal depositions and being satisfied that the evidence therein supported the elements of the charge and that his plea of guilt was in order I proceeded to confirm his plea and convicted him as charged.

ANTECEDENT

6. The Antecedent Report provided to the Court by the State on paragraph 9 states that he has two prior convictions for murder and grievous bodily harm and was sentenced to 18 years, 8 months and 25 days by the Bulolo National Court. It was at the time of serving this sentence that he committed the offence.

ALLOCATUS

7. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“At the time when I escaped in 2010, there was an outbreak of cholera at the Buimo Prison, I was admitted for 3 months at Angau Hospital. There was no guardian to look after me, so when I felt okay I escaped. I stayed out for 7 years and surrendered to community leaders. For that I say sorry to God, the State and the Correctional Service and I am very sorry for what I did since what I did was wrong. So I ask the Court for leniency for a lighter sentence”.

OTHER MATTERS OF FACT

8. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution (Saperus Yalibakut v. The State (2008) SC890. In his allocatus the prisoner stated that he escaped from the hospital where he was receiving medical treatment after a cholera outbreak at Buimo Correctional Institution and I accept this reason.

SUBMISSION BY DEFENCE COUNSEL

9. Ms Katurowe highlighted the offender’s plea of guilty and further that by the time he is discharged, he would be about 80 years old. That applying the totality principal, she submitted that the sentence would be too crushing on the prisoner as he would be very old by the time of his discharge. She therefore submitted that his sentence should be reduced to 5 years.

10. The prisoner explained his reason for escaping from lawful custody.

SUBMISSION BY THE STATE

11. Ms Tamate stressed that the prisoner was not a first time offender and had been at large for seven years, until he was recaptured and this showed his disregard for the law and community and further that the prisoner had taken advantage of his right to be given medical treatment and escaped and this was a prevalent offence. She referred the court to the case of State v Apau (2007) PGNC 254 and submitted that the court should impose a 5 year sentence as a deterrent and if it was minded to suspend the sentence it should do so with conditions.

RELEVANT LAW AND SUPREME AND NATIONAL COURT AUTHORITIES.

12. I will now refer to the pertinent law and Supreme Court and National Court authorities which will assist me in arriving at a penalty that befits the crime.

13. The prisoner pleaded guilty to one count of escaping from lawful custody contrary to section 139 (1) of the Criminal Code Act.

14. The Supreme Court in Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC 730 stated that:

i) Escaping from lawful custody is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment and affirmed The State v. James Tei Wanna & Gend Yanisa Thomas (N2304) and The State v. Irox Winston (N2347).

ii) This does not mean that the prescribed minimum sentence of 5 years should be automatically imposed and or suspend either wholly or part of it without more. Instead the Court still 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 after starting with the prescribed minimum and affirmed and followed SCR 1 of 1994: Re Aruve Waiba (unreported and unnumbered Supreme Court judgement delivered 1996; James Takus v. The State (unreported and unnumbered Supreme Court judgement delivered on the 29/11/97 and Joseph Balalau v. The State (unreported and...