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In re Application of Enforcement of Human Rights, by Samalan Peter [2014] PGNC 88; N5631 (19 June 2014)

N5631

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 84 OF 2013

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTION 57 OF THE CONSTITUTION
BY SAMALAN PETER

Madang: Cannings J
2014: 24 April, 19 June

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 – uncertainty as to due date of release.

The applicant, a prisoner, is serving a 16-year sentence for murder. He maintains that he is eligible for parole but that no one recognises his eligibility. He also queries the correctness of the due date of release from custody that has been calculated by the Correctional Service. 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.

(2) The applicant's date of eligibility for parole was 22 March 2012 and his due date of release from custody is 22 July 2017.

Cases cited

The following cases are cited in the judgment.

In the matter of a complaint by John Irekau (2013) N4958
In the matter of a complaint by Michael Tambeng (2013) N4959
Re Release of Prisoners on Licence (2008) N3421

APPLICATION

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

Counsel

S Ao, for the applicant
S Phannaphen, for the respondent

19th June, 2014

1. CANNINGS J: Samalan Peter is a prisoner at Beon Jail. He is serving a 16-year sentence for murder, which was imposed by the National Court at Finschhafen on 28 July 2008. He maintains that he has not been considered for parole despite his date of eligibility being in 2012. He is also concerned about his due date of release from custody (DDR). The Correctional Service has informed him that it is 12 February 2018 but he considers that it should be sooner than that. He has filed an application for enforcement of his human rights. He wants the Court to order that he is eligible for parole and to check his DDR.

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. Another law providing protection for prisoners is the Correctional Service Act, which sets out the manner in which a prisoner's DDR is calculated (Re Release of Prisoners on Licence (2008) N3421). Prisoners have a right to be informed with certainty about the length and conditions of their detention. This right extends to their right to be informed with certainty and correctness of the date on which they are eligible for parole and their due date of release. Two issues arise:

• What is the applicant's date of eligibility for parole?
  
• What is his due date of release from custody?
  

WHAT IS THE DATE OF ELIGIBILITY FOR PAROLE?

3. This 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.

3. The key provision in this case is Section 17(1)(b): the applicant is eligible for parole when he "has served not less than one third of the sentence". The applicant is serving only one sentence: the sentence of 16 years. He is eligible for parole after serving 1/3 x 16 years = 5 years, 4 months.

4. He began serving that sentence on the date he was first detained in custody, which is determined by deducting from the date of sentence (28 July 2007) the pre-sentence period in custody that was ordered by the Court to be deducted from the head sentence, which was 1 year, 8 months, 6 days. Thus: 28 July 2007 minus 1 year, 8 months, 6 days = 22 November 2006.

5. He has been in custody continuously since then. He has not spent any time at large. His date of eligibility for parole is calculated by adding to the date on which he commenced serving the sentence, the period of one-third of his sentence. Thus: 22 November 2006 + 5 years, 4 months = 22 March 2012.

6. His complaint, that his human rights have been breached because he has not been considered for parole, despite being eligible, is therefore sustained. The breach of rights is serious as there is no evidence that the Commissioner of the Correctional Service has complied with the 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 [Parole] 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.

7. Those particulars should have been provided to the Parole Board by 22 September 2011. To remedy the breach of human rights that has occurred I will order that the Commissioner provide the necessary particulars to the Parole Board within one month after the date of this judgment; and that the Board make a decision on the applicant's case within a reasonable period, which I set as three months after the date of receipt of the Section 18 particulars.

WHAT IS THE DUE DATE OF RELEASE FROM CUSTODY?

8. To calculate the due date of release I will follow the approach taken in other cases regarding complaints of unlawful detention such as In the matter of a complaint by John Irekau (2013) N4958 and In the matter of a complaint by Michael Tambeng (2013) N4959.

9. 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.

10. 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,

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

Step 1: the "gross" due date of release

11. The date of the first sentence is 28 July 2008. To that date is added:

(a) the total length of all sentences – here there is only one sentence = 16 years; and

(b) the period the complainant was at large: here that period is zero.

Thus the total period to be added to the date of the first sentence is 16 years. The "gross" due date of release is 28 July 2008 + 16 years = 28 July 2024.

Step 2: the "net" due date of release

12. The "gross" due date of release is 28 July 2024. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted: 1 year, 8 months, 6 days; and

(b) remission of sentence under Section 120 of the Correctional Service Act, which is one-third of the sentence, ie 1/3 x 16 years = 5 years, 4 months.

13. The total period to be deducted from the "gross" due date of release is 1 year, 8 months, 6 days + 5 years, 4 months = 7 years, 6 days.

The "net" due date of release is 28 July 2024 minus 7 years, 6 days = 22 July 2017.

14. The present terms of the complainant's detention, which show a due date of release as 12 February 2018, are therefore incorrect and need to be corrected.

ORDER

(1) The application for enforcement is granted and these orders are made under Sections 57(1) and (3) of the Constitution to remedy the breach of the right to the full protection of the law under Section 37(1) of the Constitution that has occurred.

(2) It is declared that the applicant was eligible for parole on 22 March 2012.

(3) The Commissioner of the Correctional Service shall, through the Jail Commander, Beon Correctional Institution, by 18 July 2014 provide the Parole Board with the particulars required by Section 18 of the Parole Act and notify the applicant that that has been done.

(4) The Parole Board shall within three months after receiving the particulars referred to in order (3) decide whether to grant or refuse parole and notify its decision to the Commissioner of the Correctional Service, the Chief Parole Officer and the applicant.

(5) It is declared that the applicant's due date of release from custody is (subject to a decision on whether to grant or refuse parole) 22 July 2017.

(6) The Jail Commander, Beon Correctional Institution, shall ensure that by 18 July 2014:

• (a) sealed copies of this order and judgment are placed on the applicant's Correctional Service file; and
  
• (b) the applicant's Correctional Service file and all other relevant files and records are amended to show that the applicant's due date of release is 22 July 2017; and
  
• (c) an affidavit by a duly authorised officer, certifying that all of the above steps have been taken, shall be filed in these proceedings.
  

(7) The matter shall be called at Madang on 21 July 2014 to check on compliance with this order.

(8) The Assistant Registrar of the National Court, Madang shall forthwith transmit a sealed copy of this order and the judgment of the Court to the Chairman of the Parole Board for the information of the Board.

______________________________________________________________

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