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Application by Bernard Wilson [2025] PGNC 106; N11237 (8 April 2025)

-N11237

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO 16 OF 2025

APPLICATION BY BERNARD WILSON

WAIGANI : CANNINGS ACJ

4, 8 APRIL 2025

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – prisoner serving 2-year sentence seeks clarification of due date of release from custody – determination of terms of sentence.

The applicant is a prisoner who sought clarification of his due date of release from custody. He claimed that the Correctional Service erred in calculating his due date of release (DDR) as 22 January 2026.

Held:

(1) 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.

(2) The applicant’s understanding of the terms of his sentence was misconceived. He was sentenced to two years imprisonment without any suspension and there was no deduction for the pre-sentence period in custody.

(3) However, as the sentencing Magistrate did not address his mind to the exercise of discretion available under the Criminal Justice (Sentences) Act 1986, it was appropriate for the National Court, as an enforcement of the applicant’s right to full protection of the law, to exercise that discretion. There was evidence that the applicant had a pre-sentence period in custody of three months 17 days.

(4) The Correctional Service did not err in not deducting that period. However, when it is deducted, it results in an earlier DDR. Orders made, declaring a corrected due date of release for the applicant.

Cases cited

Application by Bona Umauma (2024) N10876
Application by John Varimai (2024) N11117
Application by Wendol Agua (2024) N11122
Applications by Hobai Haro & Lolo Bellamy (2024) N11096
Complaint by John Irekau (2013) N4958

1. CANNINGS J: Bernard Wilson is a prisoner at Bomana Correctional Institution serving a sentence passed by the Waigani District Court on 23 September 2024 after conviction for an offence of unlawful wounding under s 322(1)(a) of the Criminal Code. He has lodged a human rights application to correct what he claims is an error in calculation by the Correctional Service of his due date of release from custody (DDR) as 22 January 2026. He submits that it should be 6 June 2025.

2. He claims that the sentencing Magistrate, his Worship Mr Nii, sentenced him to three years imprisonment and ordered that one year of his sentence was suspended and that his pre-sentence period in custody would be deducted from the sentence.

3. Those claims are not borne out by the warrant of commitment issued by his Worship, which shows that the applicant was sentenced to two years imprisonment with no pre-sentence period in custody deducted.

4. However, it is reasonably to be inferred that his Worship did not address his mind to exercising the discretion available under s 3(2) of the Criminal Justice (Sentences) Act 1986, which states:

There may be deducted from the length or any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

5. I consider that it is appropriate in the circumstances of this case for the National Court, as an enforcement of the applicant’s right to full protection of the law, to exercise that discretion.

6. There is sufficient evidence that the applicant was remanded in custody for three months 17 days in connection with the offence for which the sentence of two years imprisonment was imposed.

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. 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.

DUE DATE OF RELEASE

8. I have set out a two-step approach to determination of the due date of release (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, Application by John Varimai (2024) N11117 and Application by Wendol Agua (2024) N11122.

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, if any, the applicant was at large,

to arrive at a gross DDR.

10. 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, and
(c) any period of suspension of the sentence,

to arrive at the net DDR.

Step 1

11. The date of sentence is 23 September 2024. To that date is added:

(a) the total length of all sentences – here there is only one sentence: 2 years; and
(b) any period the applicant was at large: here that is zero.

12. The gross DDR is 23 September 2024 + 2 years = 23 September 2026.

Step 2

13. From the gross DDR is deducted:

(a) the pre-sentence period in custody: 3 months 17 days;
(b) remission of sentence, 1/3 x 2 years = 8 months; and
(c) suspension: zero.

14. The net DDR is 23 September 2026 minus (3 months 17 days + 8 months) = 6 October 2025.

CONCLUSION

15. The Correctional Service did not err in not deducting the pre-sentence period in custody. The Correctional Service must apply the terms of a warrant of commitment and in this case the warrant did not deduct anything for the pre-sentence period in custody. However, when it is deducted, it results in an earlier DDR.

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 6 October 2025.
   
2. The Jail Commander, Bomana Correctional Institution shall ensure that, by 11 April 2025, a sealed copy of this order is placed on the applicant’s detainee file and 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 will be called on 14 April 2025 at 1.30 pm to check compliance with this order.

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