N11095
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 35 OF 2024

BEN SIMAKOT SIMBU
Applicant 

V 

COMMISSIONER OF THE CORRECTIONAL SERVICE 
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 19th September, 4th October, 5th, 11th November

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – prisoner whose death sentence was commuted to life imprisonment still detained under original warrant of commitment issued by National Court – application for new warrant of commitment and declaration as to parole eligibility. 

The applicant prisoner was sentenced to death in 2004 but in 2022 his death sentence was commuted to life imprisonment. Nothing has been done to give effect to the altered sentence. The applicant sought a fresh warrant of commitment. He also applied for a declaration that he is eligible for parole.

Held:

(1)	To enforce the right of the applicant to the full protection of the law under s 37(1) of the Constitution and to give effect to the decision to commute the death sentence to life imprisonment, it was ordered that the original warrant of commitment issued by the National Court be set aside and replaced by a fresh warrant of commitment, showing the sentence as life imprisonment.
(2)	As the applicant was sentenced in 2004, he is entitled to have his eligibility for parole determined in accordance with the parole eligibility regime that applied to prisoners under the Parole Act 1991, prior to the amendments to that Act that commenced operation in 2018, which means he is eligible for parole after serving ten years imprisonment.

(3)	After considering the date of sentence (26 April 2004) and a period of two years and eight months that the applicant was at large (he escaped on 27 April 2010 and returned to custody on 27 December 2012), his date of parole eligibility was declared to be 26 December 2016.

Cases Cited

The following cases are cited in the judgment.

Applications by Tony Emmanuel & Edward Yau (2023) N10459
Neri v Commissioner of the Correctional Service (2020) N8577
Re Human Rights of Prisoners Sentenced to Death (2017) N6939
The State v Ben Simakot Simbu (2004) N2546
Yasause v Commissioner of the Correctional Service (2021) N9380

Counsel

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

11th November 2024

1.     CANNINGS J: Ben Simakot Simbu is a prisoner at Bomana Correctional Institution. He was convicted of two counts of wilful murder and sentenced to death at Vanimo on 26 April 2004 (The State v Ben Simakot Simbu (2004) N2546). An appeal against conviction and sentence was dismissed for want of prosecution on 26 April 2011 (Re Human Rights of Prisoners Sentenced to Death (2017) N6939). On 11 May 2022 his death sentence was commuted to life imprisonment by the Governor-General in accordance with a recommendation from the Advisory Committee on the Power of Mercy (National Gazette No G360 of 11 May 2022).

2.     He has made an application for enforcement of human rights. He seeks two things. First, a fresh warrant of commitment, as he claims that he is still detained under the original warrant of commitment showing that he is sentenced to death. Secondly, he seeks a declaration that he is eligible for parole.

WARRANT OF COMMITMENT 

3.     I have checked the applicant’s Correctional Service detainee file, which has been admitted into evidence, and confirmed that nothing has been done to amend the terms of his detention. He is still detained under the original warrant of commitment issued on 26 April 2004, which shows that he is sentenced to death. I have no problem in granting a fresh warrant of commitment, which will reflect the sentence of life imprisonment he is now serving. 

ELIGIBILITY FOR PAROLE

4.     The question of the applicant’s date of eligibility for parole, and indeed whether he is eligible for parole at all, is more contentious. On one view, which the applicant’s counsel Mr Gene suggested was probably the proper approach, he is not eligible for parole because of amendments to the Parole Act 1991 made by the Parole (Amendment) Act No 13 of 2018. 

5.     The Parole (Amendment) Act No 13 of 2018 repealed the previous s 17 (eligibility for parole) and replaced it with the following:

(1)	Subject to this Act and unless otherwise determined by an order of the Court, a detainee who has been sentenced to a term of imprisonment of five years or more and has served not less than half of the sentence is eligible for parole.

(2)	A detainee who is serving a term of life imprisonment or is subject to a death sentence shall not be eligible for parole.

(3)	A detainee whose application has gone before the Board for three times and was refused by the Board on all occasions is no longer eligible for parole,

(4)	A detainee with an appeal pending in the Supreme Court is not eligible for parole until his appeal is heard and determined.

(5)	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.     If the applicant’s parole eligibility is determined under the present s 17, he is clearly not eligible for parole under s 17(2) as he is serving a term of life imprisonment. 

7.      However, there is an alternative view, which I have taken in a number of other cases in which prisoners who were sentenced prior to commencement of the 2018 amendments to the Parole Act have sought declarations as to their date of eligibility for parole (Neri v Commissioner of the Correctional Service (2020) N8577, Yasause v Commissioner of the Correctional Service (2021) N9380,  Applications by Tony Emmanuel & Edward Yau (2023) N10459). On this alternative view, if the date of the original sentence was before 28 November 2018, parole eligibility is determined under the former s 17 (eligibility for parole) of the Parole Act, prior to its amendment by the Parole (Amendment) Act No 13 of 2018. 

8.     The reason 28 November 2018 is the critical date is that it is the date of commencement of operation of the Parole (Amendment) Act No 13 of 2018. It commenced operation, by virtue of s 110(1) of the Constitution, on the date of its certification by the Speaker, 28 November 2018, as it was not expressed to come into force on any other day. 

9.     The Parole (Amendment) Act No 13 of 2018 is not expressed to have retrospective operation, so the amendments to parole eligibility it made – making prisoners spend more time in custody before becoming eligible for parole and in the case of prisoners serving a life sentence or a death sentence making them ineligible for parole – ought not apply to prisoners sentenced before the date of commencement of the Act.

10.     The former s 17 stated:

(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 10 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.

11.     If the alternative view is taken, the applicant, who is now serving a sentence of life imprisonment, is arguably eligible for parole under the former s 17(1)(c) after serving not less than ten years of imprisonment. He would be eligible for parole after spending a period of imprisonment of ten years plus the two years and eight months he was at large. There is nothing in the Parole Act (including in the 2018 amendments) to say that an escape from custody has any effect on a prisoner’s eligibility for parole. An escape would obviously be a relevant matter for the Parole Board to consider when determining whether parole ought to be granted, but it has no bearing on the question of eligibility. 

12.     His date of eligibility for parole, under this alternative view, would be: date of original sentence, 26 April 2004 + period to be served under s 17(1)(c), 10 years + period at large, 2 years 8 months = 26 December 2016.

13.     I have considered the fact that the applicant was originally sentenced to death and that he was not eligible for parole at the time of sentence. He remained subject to the death sentence and ineligible for parole until 11 May 2022, when the sentence was commuted to life imprisonment. There is an argument to say that his parole eligibility is to be determined by the law as it existed on 11 May 2022 and that the present s 17(2) of the Parole Act would make him ineligible for parole.

14.     There is a delicate question of statutory interpretation involved here. The choice is between saying to a prisoner serving a life sentence that he is not eligible for parole and has no hope of getting parole and must spend the rest of his life in prison and saying to the prisoner that he is eligible (not entitled) for parole and that he has some hope of being released from custody. The application of the law is ambiguous. I think the interests of justice are best served by an interpretation that is favourable to the prisoner, so I will declare that the applicant is eligible for parole.

15.     This is in no way an indication that he ought to be granted parole. I am only determining the question of his eligibility. Whether he is actually granted parole is a question that must be determined by the Parole Board. 

ORDER

16.     To enforce the right of the applicant to the full protection of the law under s 37(1) of the Constitution and to give effect to the decision of the Governor-General in accordance with a recommendation from the Advisory Committee on the Power of Mercy published in National Gazette No G360 of 11 May 2022 to commute the death sentence passed by the National Court at Vanimo on 26 April 2004 to a sentence of life imprisonment, it is, pursuant to s 57(3) of the Constitution, ordered that:

(1)	The warrant of commitment issued by the National Court on 26 April 2004 is set aside and replaced by a fresh warrant of commitment, deemed to be issued on 26 April 2004, in the following terms:

Length of sentence imposed	Life imprisonment 	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	Life imprisonment	
Amount of sentence suspended	Nil	
Time to be served in custody	Life imprisonment	
    
(2)	The applicant is eligible for parole.

(3)	The Jail Commander, Bomana Correctional Institution, shall ensure that by 25 November 2024:

(a)	a sealed copy of this order is 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 date of eligibility for parole is recorded as shown in this order.

(4)	The matter shall be called on 3 December 2024 at 1.30 pm to check compliance with this order. 
__________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Solicitor-General: Lawyer for the Respondents