Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Supa v Commissioner of the Correctional Service [2023] PGNC 471; N10637 (27 December 2023)

-N10637

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 13 OF 2023

IN THE MATTER OF AN APPLICATION FOR
ENFORCEMENT OF HUMAN RIGHTS

PAUL SUPA
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2023: 6^th, 19^th, 27^th December

HUMAN RIGHTS – application by prisoner for enforcement of human rights: Constitution, s 37(1): right to the full protection of the law – calculation of due date of release from custody.

A prisoner was sentenced to 20 years imprisonment in 2016. He later escaped from custody and was at large for almost three years. He applied for enforcement of his human rights by clarification of his due date of release from custody.

Held:

(1) Every prisoner has the right under s 37(1) of the Constitution to the full protection of the law and this includes the right to know with certainty their due date of release from custody.

(2) The applicant’s due date of release from custody showing on his detainee file is 15 July 2034, which date appears to be incorrect as the correct date is better regarded as 18 September 2033.

(3) Ordered that the detainee file be corrected.

Cases Cited

The following cases are cited in the judgment.

Application by Samalan Peter (2014) N5631
Complaint by John Irekau (2013) N4958
Complaint by Michael Tambeng (2013) N4959
The State v Supa (2023) N10306

Counsel

C Oresi, for the Applicant
A Kajoka, for the Respondents

27^th December 2023

1. CANNINGS J: Paul Supa is a prisoner at Bomana Correctional Institution. He was sentenced to 20 years imprisonment for rape by the National Court at Waigani on 27 October 2017. He escaped from custody on 23 April 2019 when he was receiving medical treatment at Port Moresby General Hospital. He was at large until 6 November 2021. He was sentenced to five years imprisonment with three years suspended, for the escape offence (The State v Supa (2023) N10306).

2. He is concerned about his due date of release, which he says he has been trying to have clarified. He applies for enforcement of his human rights by determination of that date.

3. His detainee file, which is in evidence, shows his due date of release with remission as 15 July 2034. It contains no record of his escape or his recapture. There is no evidence on the file that he was charged with the offence of escape. There is no copy of the reported judgment of the National Court. I located that judgment through my own research. It is not in evidence. There is no warrant of commitment in respect of the sentence for escape.

DUE DATE OF RELEASE

4. A prisoner’s due date of release is a matter of law, to be calculated by examining court and Correctional Service records and interpreting and applying provisions of the Correctional Service Act. Every prisoner has the right under s 37(1) of the Constitution to the full protection of the law and this includes the right to know with certainty their due date of release from custody.

5. In calculating the applicant’s due date of release, I follow the approach taken in other cases regarding complaints of unlawful detention such as Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959 and Application by Samalan Peter (2014) N5631.

6. 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 prisoner was at large,

to arrive at a “gross” due date of release.

7. Step 2: Deduct from the “gross” due date of release the periods that the prisoner 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

8. The date of the first sentence is 27 October 2017. To that date is added:

(a) the total length of all sentences: the only sentence recorded on the detainee file is 20 years; and
(b) the period the prisoner was at large: there is no period at large recorded on the detainee file, so this is zero.

Thus the total period to be added to the date of the first sentence is 20 years.

9. The “gross” due date of release is 27 October 2017 + 20 years = 27 October 2037.

Step 2: the “net” due date of release

10. The “gross” due date of release is 27 October 2037. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted = 2 years; and

(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the sentence, ie 1/3 x 20 years = 6 years, 8 months; and

(c) the period of any suspension of sentence = 0.

11. The total period to be deducted from the “gross” due date of release is 8 years, 8 months.

12. The “net” due date of release is 27 October 2037 minus 8 years, 8 months = 27 February 2029.

CONCLUSION

13. In determining the due date of release of this applicant, I have disregarded his escape from custody and the sentence imposed for it. This is an unusual case. The applicant admits that he escaped and there is a reported case showing that he was convicted of escape from lawful custody and sentenced to five years imprisonment. However, there is no record of his escape on his detainee file and there is no warrant of commitment regarding the sentence for escape.

14. What should happen? I think it would be unfair and harsh and oppressive and contrary to s 41(1) of the Constitution for the Court to take into account matters that are not recorded on his detainee file. His due date of release must be based on what is on file.

ORDER

(1) The application is granted, in that it is declared that the applicant is being detained with an incorrect due date of release. The correct due date of release is 27 February 2029.

(2) The Jail Commander, Bomana Correctional Institution, shall ensure that by 31 January 2024:

• (a) sealed copies of this order and judgment are placed on the applicant’s detainee file; and
• (b) the detainee file and all other relevant files and records are amended to show that the due date of release is as shown in this order.
  

(3) The matter shall be called on 6 February 2024 at 1.30 pm to check compliance with this order.

__________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Solicitor-General: Lawyer for the Respondents