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Agua v Commissioner of the Correctional Service [2024] PGNC 450; N11122 (31 December 2024)

N11122

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 122 OF 2024

WENDOL AGUA
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: CANNINGS J
20, 27, 31 DECEMBER 2024

HUMAN RIGHTS – application by prisoner for enforcement of human rights: Constitution, s 37(1): right to the full protection of the law – determination of due date of release from custody – determination of pre-sentence period in custody – effect of Supreme Court order altering sentence.

The applicant, a prisoner, is serving a 12-year sentence. He was originally sentenced by the National Court to 30 years imprisonment but on review by the Supreme Court a substitute sentence of 12 years imprisonment was passed. The Supreme Court ordered that “time spent in custody is deducted” but did not specify the amount of time to be deducted. The applicant sought relief by the National Court in its human rights jurisdiction by taking account of the time he spent in custody before the date of sentence.

Held:

(1) A prisoner’s due date of release from custody (DDR) is a matter of law. 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 that date with certainty.

(2) The pre-sentence period in custody to be deducted from the head sentence is 1 year, 6 months and 25 days. The DDR is 15 September 2025.

Cases cited

Application by Bona Umauma (2024) N10876
Application by Bradley Neri (2020) N8577
Application by John Varimai (2024) N11117
Applications by Hobai Haro & Lolo Bellamy (2024) N11096
Complaint by John Irekau (2013) N4958
The State v Chris Yomba (2022) SC2274

Counsel

W Agua, the applicant, in person

1. CANNINGS J: Wendol Agua is a prisoner at Bomana Correctional Institution. He was convicted of wilful murder by the National Court at Lorengau and sentenced on 10 April 2019 to 30 years imprisonment. He applied to the Supreme Court for review of his conviction and sentence. The Supreme Court (Bona J, Berrigan J and Purdon-Sully J) on 26 September 2024 in SC Rev No 85 of 2023 upheld the review of conviction, quashed the conviction for wilful murder, entered a verdict of guilty of murder, quashed the sentence of 30 years and passed a substitute sentence of 12 years imprisonment, to be calculated from the original date of sentence, 10 April 2019.
   
2. The Supreme Court ordered that “time spent in custody is deducted” but did not specify the amount of time to be deducted. The Correctional Service has calculated the applicant’s due date of release from custody (DDR) as a date in 2027. No account has been taken of the time he spent in custody before the date of sentence as this has not been determined by any court. The applicant has brought this human rights enforcement application and asks the National Court in its human rights jurisdiction to determine his pre-sentence period in custody and take it into account in determining a new DDR.
   

PRE-SENTENCE PERIOD IN CUSTODY

3. I have no difficulty in upholding the application and inquiring into the question of the period the applicant spent in custody before 10 April 2019. He has adduced evidence in the form of his charge sheet and National Court bail certificate and in two affidavits that enable me to make the following findings of fact:
   

• on 30 July 2015 he was arrested, charged and detained in custody at Lorengau Police Lock-up;
  
• he remained in custody until he was released on bail granted by the National Court on 24 February 2017;
  
• he remained on bail until he was convicted of wilful murder and sentenced on 10 April 2019;
  
• his pre-sentence period in custody was from 30 July 2015 to 24 February 2017, a period of 1 year, 6 months and 25 days.
  

DUE DATE OF RELEASE (DDR)

4. Calculation of the DDR is a matter of law. The date is determined by examining a warrant of commitment (in this case, a new warrant has been issued by the Supreme Court) and interpreting and applying the Correctional Service Act. They are matters that fall within the jurisdiction of the National Court, as a superior court of record, of unlimited jurisdiction, under ss 163(2) and 166(1) of the Constitution. 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 DDR (Application by Bradley Neri (2020) N8577).
   
5. I have set out a two-step approach to determination of the DDR in many cases, starting with Complaint by John Irekau (2013) N4958. Recent cases in which that approach has been applied include Application by Bona Umauma (2024) N10876, Applications by Hobai Haro & Lolo Bellamy (2024) N11096 and Application by John Varimai (2024) N11117.
   
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, if any, the applicant was at large,

to arrive at a “gross” DDR.

7. Step 2: Deduct from the “gross” DDR the periods that the applicant 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) remission of sentence under s 120 of the Correctional Service Act;
(c) any period of suspension of the sentence,

to arrive at the “net” DDR.

8. The Supreme Court confirmed in The State v Chris Yomba (2022) SC2274 that the period of remission of a sentence is one-third of the head sentence; it is not one-third of the time to be served after deduction of the pre-sentence period in custody. The Court held that any suspended part of the sentence is also to be deducted when calculating the DDR.
   

Step 1: the “gross” DDR

9. The date of sentence is 10 April 2019. To that date is added:
   

(a) the total length of all sentences – here there is only one sentence: 12 years; and
(b) any period the applicant was at large: here that is zero.

10. The “gross” due date of release is 10 April 2019 + 12 years = 10 April 2031.
    

Step 2: the “net” DDR

11. From the gross DDR is deducted:
    

(a) the pre-sentence period in custody: 1 year, 6 months and 25 days; and
(b) remission of sentence, 1/3 x 12 years = 4 years; and
(c) suspension: zero.

12. The “net” DDR is 10 April 2031 minus 5 years, 6 months and 25 days = 15 September 2025.
    

CONCLUSION

13. The Correctional Service did not err in taking the approach that the pre-sentence period in custody had not been determined by a court and therefore could not be taken into account. However, now that it has been determined and taken into account, the applicant’s DDR has to be amended.
    

ORDER

(1) It is declared that the DDR presently showing on the applicant’s detainee file is incorrect and that the applicant’s correct DDR with remission is 15 September 2025.

(2) The Jail Commander, Bomana Correctional Institution, shall ensure that a sealed copy of this order is placed on the applicant’s Correctional Service file and that the applicant’s Correctional Service file and all other relevant files and records are amended to show that the applicant’s DDR is as shown in this order.

(3) The matter shall be called on 6 January 2025 at 9.30 am to check compliance with this order.