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In re Application for Enforcement of Human Rights under section 57 of the Constitution, by Willie Tarur [2014] PGNC 131; N5733 (17 September 2014)

N5733

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

HRA NO 74 OF 2014

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTION 57 OF THE CONSTITUTION
BY WILLIE TARUR

Madang: Cannings J
2014: 15, 17 September

HUMAN RIGHTS – application by prisoner for enforcement of human rights: Constitution, Section 37(1): right to the full protection of the law – failure by appropriate authorities to notify prisoner of date of eligibility for parole.

The applicant, a prisoner, is serving a 10-year sentence for manslaughter. He maintains that he is eligible for parole but his parole applications have not been prepared by the Correctional Service or if they have been prepared and forwarded to the Parole Board, he has received no reply. He applied for enforcement of his human rights.

Held:

(1) Every prisoner has the right under Section 37(1) of the Constitution to the full protection of the law and this includes the right to be considered for parole in accordance with the date on which he becomes eligible for parole under the Parole Act 1991 and to be informed with certainty of his date of eligibility for parole.

(2) Section 17(1) of the Parole Act provides that a person who has been sentenced to a term of three years or more (not being a life sentence) is eligible for parole after serving one third of the sentence.

(3) To be eligible for parole, the applicant had to serve 3 years, 4 months in custody. He has already served 4 years, 7 months, 2 days. The date of eligibility of parole has been exceeded by 1 year, 3 months, 2 days.

(4) Orders were made to remedy the breach of human rights that had occurred and to expedite determination of a parole application.

Cases cited

The following cases are cited in the judgment.

Application for enforcement of human rights by Waga Kumutz (2014) N5633
In the matter of a complaint by Michael Tambeng (2013) N4959
In the matter of a complaint by Okata Talagaim (2010) N3893

APPLICATION

This was an application for enforcement of human rights under Section 57(1) of the Constitution.

Counsel

V Amoko, for the applicant

17th September, 2014

1. CANNINGS J: Willie Tarur, also known as Turik Willie, is a prisoner at Beon Jail, serving a 10-year sentence for manslaughter. He maintains that he is eligible for parole but his parole applications have not been prepared by the Correctional Service or if they have been prepared and forwarded to the Parole Board, he has received no reply. He has filed an application for enforcement of human rights. He wants the Court to declare that he is eligible for parole and order the responsible authorities to expedite his parole application.

2. All persons in Papua New Guinea, including prisoners, have the right under Section 37(1) of the Constitution "to the full protection of the law". One of the most important laws providing 'protection' for prisoners is the Parole Act 1991. It provides a system of parole by amongst other things setting dates on which prisoners become eligible for parole and requiring the Parole Board to consider the case of each prisoner who is eligible for parole and to make a decision whether to grant or refuse parole (Application for enforcement of human rights by Waga Kumutz (2014) N5633).

3. Prisoners have a right to be informed with certainty about the length and conditions of their detention (In the matter of a complaint by Okata Talagaim (2010) N3893, In the matter of a complaint by Michael Tambeng (2013) N4959). This right extends to their right to be informed of the date on which they are eligible for parole. It is properly regarded as a human right or a Basic Right and therefore is enforceable under Sections 57(1) and 57(3) of the Constitution.

THE APPLICANT'S CRIMINAL RECORD

4. He has been convicted and sentenced on only one occasion: on 15 September 2011 he was given a 10-year sentence, with a pre-sentence period in custody of 1 year, 7 months deducted; no part of the sentence was suspended, which left him with 8 years, 5 months to be served in custody. He has been in custody continuously (with no period at large due to escape from custody). He has been assigned a due date of release by the Correctional Service (after taking into account the remission of one-third of the sentence under Section 120(1) of the Correctional Service Act) of 25 April 2017.

ELIGIBILITY FOR PAROLE

5. The applicant's eligibility for parole is determined under Section 17 of the Parole Act, which states:

(1) Subject to this Act, a detainee who—

(a) having been sentenced to a term of imprisonment of less than three years—has served not less than one year; or

(b) having been sentenced to a term of imprisonment of three years or more—has served not less than one third of the sentence; or

(c) having been sentenced to life imprisonment or detention during Her Majesty's pleasure—has served not less than ten years,

is eligible for parole.

(2) For the purposes of determining the length of a sentence under Subsection (1)—

(a) remission of sentence shall not be taken into account; and

(b) where a detainee has been sentenced to—

(i) two or more terms of imprisonment to be served concurrently—the longer or longest term (as the case may be) shall be considered; or

(ii) two or more terms to be served cumulatively—the total of these terms shall be considered.

6. To be eligible for parole, the applicant must serve one third of his total sentence of 10 years. One-third of 10 years is 3 years, 4 months. On the date of sentence he had already served 1 year, 7 months. He had to serve 1 year, 9 months in custody after the date of sentence to be eligible for parole. His date of eligibility for parole is therefore 15 September 2011 + 1 year, 9 months = 15 June 2013.

7. The date of eligibility of parole has been exceeded by 1 year, 3 months, 2 days. The applicant's right to the full protection of the law has been breached in a serious way. I will make orders to remedy the breach of human rights that has occurred and expedite determination of a parole application, and ensure that the matter is kept under continuing review by the Court.

8. The Correctional Service is reminded of the importance of complying with its obligation to provide particulars regarding the applicant's parole eligibility six months before the date of eligibility in accordance with Section 18 of the Parole Act, which states:

At least six months before a detainee becomes eligible for parole in accordance with Section 17(1), the Commissioner shall provide the Board with the following particulars in the prescribed form:—

(a) the name of the detainee; and

(b) the date of his committal to the corrective institution; and

(c) particulars of the offence committed by him and of his conviction; and

(d) the length of the sentence imposed on him, and if more than one sentence has been imposed on him the lengths of the respective sentences and whether they were imposed to run concurrently or cumulatively; and

(e) particulars of any further sentences imposed on him since his committal to the corrective institution, including particulars of any sentences imposed on him for disciplinary offences while in detention; and

(f) the date on which he will become eligible for parole in accordance with Section 17,

and shall notify the detainee that this has been done.

ORDER

(1) The application for enforcement of human rights is granted.

(2) It is declared that the applicant's date of eligibility for parole was 15 June 2013.

(3) The Jail Commander, Beon Correctional Institution shall by 17 October 2014 forward to the Parole Board all documents and information required by Sections 18 and 20 of the Parole Act, regarding a parole application by the applicant.

(4) This matter shall be called for mention at Waigani on 22 October 2014 at 9.30 am, at which hearing the legal representative of the Jail Commander, Beon Correctional Institution and the Chief Parole Officer shall appear, to inform the court of compliance with this order.

(5) The application for parole shall be considered and determined by the Parole Board by 21 November 2014.

(6) This matter shall be called for further mention at Waigani on 29 November 2014 at 9.30 am, at which hearing the legal representative of the Jail Commander, Beon Correctional Institution and the Chief Parole Officer shall appear, to further check compliance with this order; and in particular the Chief Parole Officer shall notify the Court of the result of the parole application.

(7) For the avoidance of doubt: failure to comply with this order will result in a charge of contempt of court without further notice.

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Public Solicitor: Lawyer for the Applicant