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Umauma v Commissioner of the Correctional Service [2024] PGNC 210; N10876 (5 July 2024)

-N10876

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 11 OF 2024

BONA UMAUMA
Complainant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 3^rd, 5^th July

HUMAN RIGHTS – complaint by prisoner of unlawful detention – calculation of due date of release from custody – whether pre-sentence custody ought to be deducted from head sentence.

A prisoner was sentenced to 25 years imprisonment. The sentencing judge ordered that his pre-sentence period in custody be deducted from the head sentence but this was not reflected on the warrant of commitment. This affected the due date of release from custody calculated by the Correctional Service. The prisoner complained that he had an incorrect due date of release.

Held:

(1) It was clearly the intention of the sentencing judge that the pre-sentence period in custody be deducted from the head sentence.

(2) It therefore involved no interference with the exercise of discretion of the sentencing judge to take the pre-sentence period in custody into account in calculation of the due date of release.

(3) The complainant’s due date of release from custody on his detainee file is 1 October 2038, which date is incorrect as the correct date is 30 June 2036.

(4) 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

Counsel

S Kuli, for the Complainant

5^th July 2024

1. CANNINGS J: Bona Umauma is a prisoner at Bomana Correctional Institution serving a 25-year sentence for rape. He complains about his due date of release of 1 October 2038, which he says does not take into account a considerable time he spent on remand before his sentence.

2. In calculating his due date of release the Correctional Service has not taken into account any pre-sentence period in custody and this is because his warrant of commitment simply states:

Length of sentence imposed 25 years

Place of custody Bomana Correctional Institution.

3. However, the order on sentence, as distinct from the warrant of commitment, states:

The prisoner is sentenced to 25 years in prison in hard labour less the custodial period.

4. According to his warrant of remand he was remanded in custody on 31 October 2019. He was sentenced on 2 February 2023. I find that on the evidence available, his pre-sentence period in custody is 3 years 3 months 2 days.

5. I am mindful that the question of whether and how much pre-sentence period in custody to deduct from a head sentence is a matter of discretion for the sentencing judge under the Criminal Justice (Sentences) Act 1986. I must be careful that I do not allow the human rights jurisdiction of the National Court to interfere with the process of sentencing that has been exercised already by the National Court in its criminal jurisdiction.

6. But this is a special case. It was clearly the intention of the sentencing judge, Sambua AJ, that the pre-sentence period in custody be deducted from the head sentence. It would not involve any interference with the exercise of his Honour’s discretion to take the pre-sentence period in custody into account in calculation of the due date of release. I think it is in the interests of justice to do that. It would ensure that the complainant is afforded the full protection of the law under s 37(1) of the Constitution. Therefore I will recalculate his due date of release.

CALCULATION OF DUE DATE OF RELEASE

7. 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.

8. In calculating the complainant’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.

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 prisoner 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 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 s 120 of the Correctional Service Act; and

(c) the period of any suspension of sentence.

to arrive at the “net” due date of release.

Step 1: the “gross” due date of release

11. The date of the only sentence is 2 February 2023. To that date is added:

(a) the total length of all sentences: there is only one sentences, which is 25 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 25 years.

12. The “gross” due date of release is 2 February 2023 + 25 years = 2 February 2048.

Step 2: the “net” due date of release

13. The “gross” due date of release is 2 February 2048. From that date is deducted:

(a) the pre-sentence periods ordered by the National Court to be deducted, which is deemed to be 3 years 3 months 2 days; and

(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the head sentence of 25 years, ie 8 years, 4 months; and

(c) the period of any suspension of sentence, which is zero.

14. The total period to be deducted from the “gross” due date of release is 11 years, 7 months, 2 days.

15. The “net” due date of release is 2 February 2048 minus 11 years, 7 months, 2 days = 30 June 2036.

ORDER

(1) The complaint is sustained in that it is declared that the complainant is being detained with an incorrect due date of release. The correct due date of release is 30 June 2036.

(2) The Jail Commander, Bomana Correctional Institution, shall ensure that by 12 July 2024:

• (a) a sealed copy of this order is placed on the complainant’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 16 July 2024 at 1.30 pm to check compliance with this order.

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