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In re Complaint by Paul Niko, under section 42(5) of the Constitution [2014] PGNC 126; N5719 (9 September 2014)

N5719

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

HRC NO 28 OF 2013

IN THE MATTER OF A COMPLAINT UNDER
SECTION 42(5) OF THE CONSTITUTION BY PAUL NIKO

Madang: Cannings J
2014: 10 July, 9 September

HUMAN RIGHTS – liberty of the person – complaint of unlawful detention: Constitution, Section 42(5).

The complainant, a prisoner, complained under Section 42(5) of the Constitution that he was being unlawfully detained.

Held:

(1) Every prisoner has the right under Section 42(5) of the Constitution to make a complaint to the National Court that he is being unlawfully or unreasonably detained.

(2) The Court inquired into the complaint and was not satisfied that the terms of the complainant's detention, showing his due date of release as 31 November 2017, were lawful. The complaint was sustained and it was ordered that the due date of release is 29 December 2012 and that the complainant shall be released from custody forthwith.

Cases cited

The following cases are cited in the judgment.

Application by Benetius Gehasa (2005) N2817
In The Matter of a Complaint by Jack Kumul Kora (2014) N5632
In The Matter of a Complaint by Michael Tambeng (2013) N4959
In the matter of a complaint by Okata Talagaim (2010) N3893
In The Matter of a Complaint by Trevor Waidau (2013) N5417
In the matter of complaints by Michael Walge and Others (2006) N3022
Re Release of Prisoners on Licence (2008) N3421

COMPLAINT

This was a complaint of unlawful detention under Section 42(5) of the Constitution.

Counsel

J Javapro, for the complainant
S Phannaphen, for the respondent

9th September, 2014

1. CANNINGS J: Paul Niko is a prisoner at Beon Jail. He complained to the National Court that he is being unlawfully detained. He says that he is being held by the Correctional Service on warrants of commitment that have expired, and that the due date of release assigned to him, 30 November 2017, is incorrect. He claims that he should be released from custody. His complaint is brought under Section 42(5) of the Constitution, which states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

2. Section 42(5) gives every person who is detained in custody the right to make a complaint to the Court that he or she is being unlawfully or unreasonably detained. If such a complaint is made the Court is obliged to:

• order that the complainant be brought before the Court;
• inquire into the complaint;
• determine whether the complainant's detention is lawful and reasonable; and
• if not satisfied, order the release of the complainant (either unconditionally or on conditions).
  

(See generally Application by Benetius Gehasa (2005) N2817, In the matter of complaints by Michael Walge and Others (2006) N3022, Re Release of Prisoners on Licence (2008) N3421, In the matter of a complaint by Okata Talagaim (2010) N3893, In The Matter of a Complaint by Michael Tambeng (2013) N4959, In The Matter of a Complaint by Trevor Waidau (2013) N5417, In The Matter of a Complaint by Jack Kumul Kora (2014) N5632.)

INQUIRY

3. I ordered that the complainant be brought before the Court. I have inquired into his complaint and make the following findings of fact:

• He was first sentenced by the National Court (Doherty J) at Lae on 24 January 1990 to a term of 6 years 6 months imprisonment for rape, with the pre-sentence period in custody of 10 months deducted from the head sentence.
  
• On 12 February 1990 he was sentenced by the Lae District Court to a term of 1 month imprisonment for escape from custody.
  
• On 25 February 1991 he was sentenced by the Lae District Court to a term of 6 months imprisonment for escape from custody.
  
• On 31 May 1994 he was sentenced by the National Court (Sevua J) at Lae to a term of 12 years imprisonment for rape, with the pre-sentence period in custody of 8 years deducted from the head sentence.
  
• On 8 September 1994 he escaped from custody and was at large until 17 August 1995, a period of 11 months, 1 week, 2 days.
  
• On 24 November 1995 he was sentenced by the National Court (Sakora J) at Lae to a term of 5 years imprisonment for escape from custody.
  
• On 12 January 1996 he was sentenced by the National Court (Doherty J) at Lae to a term of 1 year, 9 months imprisonment for escape from custody.
  
• On 6 April 2001 he escaped from custody and was at large until 30 May 2012, a period of 11 years, 1 month, 3 weeks, 3 days.
  

None of the sentences were expressed to be served concurrently and no part of any of the sentences was suspended.

CALCULATION OF DUE DATE OF RELEASE

4. To calculate the complainant's due date of release I will follow this approach:

Step 1: Identify the date of the first sentence and add to it:

(a) the total length of all sentences; and

(b) the total length of all periods the complainant was at large,

to arrive at a "gross" due date of release.

Step 2: Deduct from the "gross" due date of release the periods that the complainant is entitled to have deducted, namely:

(a) any pre-sentence period in custody that a court has ordered under the Criminal Justice (Sentences) Act be deducted; and

(b) any remission of sentences under Section 120 of the Correctional Service Act, which is one-third of each sentence (except for the escape sentences in respect of which, under Section 120(2), there is no remission),

to arrive at the "net" due date of release.

Step 1: the "gross" due date of release

5. The date of the first sentence is 24 January 1990. To that date is added:

(a) the total length of all sentences, which is 6 years, 6 months + 1 month + 6 months + 12 years + 5 years + 1 year 9 months = 25 years, 10 months; and

(b) the total period the complainant was at large: 11 months, 1 week, 2 days + 11 years, 1 month, 3 weeks, 3 days = 12 years, 1 month, 5 days.

Thus the total period to be added to the date of the first sentence is 25 years, 10 months + 12 years, 1 month, 5 days = 37 years, 11 months, 5 days. The "gross" due date of release is 24 January 1990 + 37 years, 11 months, 5 days = 29 December 2027.

Step 2: the "net" due date of release

6. The "gross" due date of release is 29 December 2027. From that date is deducted:

(a) the pre-sentence periods ordered by the National Court to be deducted: 8 years + 10 months = 8 years, 10 months; and

(b) remission of sentences under Section 120(1) of the Correctional Service Act: as the total length of all sentences that attract remission is 6 years, 6 months (rape) + 12 years (rape) = 18 years, 6 months, one-third of that is 6 years, 2 months.

The total period to be deducted from the "gross" due date of release is 8 years, 10 months + 6 years, 2 months = 15 years. The "net" due date of release is 29 December 2027 minus 15 years = 29 December 2012.

RESOLUTION OF COMPLAINT

7. I am not satisfied that the terms of the complainant's detention, which show a due date of release as 30 November 2017, are lawful, as the proper due date of release is 29 December 2012. The complaint is sustained and the Court will order that the complainant be released from custody forthwith.

ORDER

(1) The complaint is sustained in that the Court is not satisfied that the current terms of the complainant's detention, which show a due date of release as 30 November 2017, are lawful, as the correct due date of release is 29 December 2012.

(2) The Jail Commander, Beon Correctional Institution, shall ensure that within seven days after the date of this order, sealed copies of this judgment and order are placed on the complainant's Correctional Service file.

(3) The complainant shall be released from custody forthwith.

______________________________________________________________
Public Solicitor: Lawyer for the Complainant
Solicitor-General: Lawyer for the Respondent