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Benny v Commissioner of the Correctional Service [2024] PGNC 279; N10949 (12 August 2024)

-N10949

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 9 OF 2023

BAINA BENNY
Complainant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 6^th, 8^th, 12^th August

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – prisoner whose sentence was reduced on review by the Supreme Court still detained in accordance with original warrant of commitment issued by National Court – failure to implement decision of Supreme Court.

The complainant prisoner was originally sentenced by the National Court to 40 years imprisonment but on review by the Supreme Court the sentence was reduced to 35 years imprisonment. Nothing was done to give effect to the reduced sentence. The complainant argued that his due date of release was incorrect and should be recalculated to give effect to the Supreme Court decision.

Held:

(1) To enforce the right of the complainant to the full protection of the law under s37(1) of the Constitution and to give effect to the order of the Supreme Court it was ordered that the original warrant of commitment issued by the National Court be quashed and replaced by a fresh warrant of commitment.
(2) The complainant’s due date of release from custody was recalculated as 25 October 2037.

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
Complaint of Okata Talagaim (2010) N3893

Counsel

J P Gene, for the Complainant
A Kajoka, for the Respondents

12^th August 2024

1. CANNINGS J: Baina Benny is a prisoner at Bomana Correctional Institution serving a sentence for wilful murder. He was originally sentenced by the National Court at Alotau on 19 September 2018 to 40 years imprisonment but on 29 April 2022, in SC Rev 36 of 2019, the Supreme Court (Mogish J, Geita J, Liosi J) granted an application for review of the sentence and quashed the sentence of 40 years imprisonment and substituted it with a sentence of 35 years imprisonment.

2. The problem is that nothing has been done by the Supreme Court or the National Court or the Correctional Service to give effect to the reduced sentence. The complainant continues to be detained in accordance with the warrant of commitment based on the original sentence. He complains that his due date of release of 21 July 2042 is incorrect and should be recalculated to give effect to the Supreme Court decision.

3. It is a proper complaint. This is the sort of problem identified in Complaint of Okata Talagaim (2010) N3893. In that case the complainant was convicted by the National Court of murder and sentenced to life imprisonment. In the Supreme Court his appeal against conviction was dismissed but the appeal on sentence was upheld. The sentence of life imprisonment was quashed and substituted by a sentence of 18 years imprisonment. But no follow up action was taken to give effect to the reduced sentence. I made orders that drew the matter to the attention of the Supreme Court, which resulted in a fresh warrant of commitment being issued by the Supreme Court.

4. In the present case, I think a more direct approach is warranted. To enforce the right of the complainant to the full protection of the law under s 37(1) of the Constitution and to give effect to the decision of the Supreme Court of 29 April 2022 to quash the sentence of 40 years imposed by the National Court and substitute it with a sentence of 35 years imprisonment, I will, pursuant to s 57(3) of the Constitution, order that the original warrant of commitment issued by the National Court on 19 September 2018 be quashed and replaced by a fresh warrant of commitment. And I will recalculate the due date of release.

CALCULATION OF DUE DATE OF RELEASE

5. 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 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

8. The date of the only sentence is 19 September 2018. To that date is added:

(a) the total length of all sentences: there is only one sentence, which is, now, 35 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 35 years.

9. The “gross” due date of release is 19 September 2018 + 35 years = 19 September 2053.

Step 2: the “net” due date of release

10. The “gross” due date of release is 19 September 2053. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted, which is 4 years 2 months 25 days; and
(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the head sentence of 35 years, ie 11 years, 8 months; and
(c) the period of any suspension of sentence, which is zero.

11. The total period to be deducted from the “gross” due date of release is 4 years 2 months 25 days + 11 years, 8 months = 15 years 10 months 25 days.

12. The “net” due date of release is 19 September 2053 minus 15 years 10 months 25 days = 25 October 2037.

ORDER

13. To enforce the right of the complainant to the full protection of the law under s 37(1) of the Constitution and to give effect to the order of the Supreme Court (Mogish J, Geita J, Liosi J) of 29 April 2022 at Alotau in SC Rev 36 of 2019, which quashed the sentence of 40 years imposed by the National Court and substituted it with a sentence of 35 years imprisonment, it is, pursuant to s 57(3) of the Constitution, ordered that:

(1) The warrant of commitment issued by the National Court in CR 150 of 2015 on 19 September 2018 is quashed and replaced by a fresh warrant of commitment in the following terms:

(2) The complaint of unlawful detention 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 25 October 2037.

(3) The Jail Commander, Bomana Correctional Institution, shall ensure that by 12 September 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.
  

(4) The matter shall be called on 18 September 2024 at 1.30 pm to check compliance with this order.

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