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Application by Roselyn James [2025] PGNC 123; N11253 (22 April 2025)

N11253

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO 123 OF 2024

APPLICATION BY ROSELYN JAMES
Applicant

WAIGANI: CANNINGS J
8, 11, 22 APRIL 2025

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – prisoner whose sentence was reduced on review by Supreme Court still detained under original warrant of commitment issued by National Court – recalculation of due date of release – declaration sought as to date of eligibility for parole.

The applicant was originally sentenced by the National Court to 16 years imprisonment but on review by the Supreme Court the sentence was reduced to 13 years imprisonment. However, she remained detained under the warrant of commitment issued by the National Court. She applied for a new warrant of commitment, recalculation of her due date of release and determination of her date of eligibility 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 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 new due date of release from custody is 18 December 2026.

(3) The applicant was sentenced after the date of commencement of the 2018 amendments to the Parole Act and was eligible for parole after serving one-half of her head sentence. The date is 18 October 2024.

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
Baina Benny v Commissioner (2024) N10949
Complaint by John Irekau (2013) N4958

Counsel
B Shem for the applicant

1. CANNINGS J: Roselyn James is a prisoner at Bomana Correctional Institution serving a sentence for murder. She was originally sentenced by the National Court at Waigani on 18 December 2019 to 16 years imprisonment. However, on 1 August 2023, in SC Rev 13 of 2020, the Supreme Court (Mogish J, Bona J and Kaumi J) upheld her application for review of sentence, quashed the sentence of 16 years imprisonment and substituted it with a sentence of 13 years imprisonment.
   
2. The problem is that a fresh warrant of commitment has not been issued. The applicant continues to be detained under the warrant of commitment based on the original sentence. She applies for a new warrant of commitment and recalculation of her due date of release. She also applies for a determination of her date of eligibility for parole.
   

WARRANT OF COMMITMENT

3. It is not necessary to refer the issue of a fresh warrant of commitment back to the Supreme Court (Baina Benny v Commissioner (2024) N10949). The National Court can issue a fresh warrant, to enforce the right of the applicant to the full protection of the law under s 37(1) of the Constitution. I will, pursuant to s 57(3) of the Constitution, order that the original warrant of commitment issued by the National Court be quashed and replaced by a fresh warrant of commitment.
   

DUE DATE OF RELEASE

4. 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.
   

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.

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

5. The date of sentence is 18 December 2019. To that date is added:
   

(a) the total length of all sentences – here there is only one sentence: 13 years; and
(b) any period the applicant was at large: here that is zero.

6. The gross DDR is 18 December 2019 + 13 years = 18 December 2032.
   

Step 2

7. From the gross DDR is deducted:
   
   • (a) the pre-sentence period in custody: it is shown on the original warrant of commitment as 1 year 8 months;
   • (b) remission of sentence, 1/3 x 13 years = 4 years 4 months; and
   • (c) suspension: zero.
     
8. The net DDR is 18 December 2032 minus (1 year 8 months + 4 years 4 months) = 18 December 2026.
   

PAROLE ELIGIBILITY

9. The applicant was sentenced after the date of commencement, 28 November 2018, of the Parole (Amendment) Act No 13 of 2018. Her eligibility for parole is to be determined under the current s 17 (eligibility for parole) of the Parole Act, which states:
   

(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.

10. The applicant is eligible for parole after she has “served not less than half of the sentence”, ie after serving 6 years 6 months of imprisonment. As for the start-date of service of the sentence, it is the date on which she was first detained in custody in connection with the offence for which she is serving the sentence. In this case, it is 1 year 8 months prior to the date of sentence, 18 December 2019, ie 18 April 2018. Her date of eligibility for parole is 18 April 2018 + 6 years 6 months = 18 October 2024.
    
11. She is already eligible for parole and I will make a declaration to that effect and order the Correctional Service to facilitate her parole application.
    

ORDER

(1) The warrant of commitment issued by the National Court in CR 495 of 2019 on 18 December 2019 is quashed and replaced by a fresh warrant of commitment in the following terms:

(2) It is declared that the applicant is being detained with an incorrect due date of release. The correct due date of release is 18 December 2026.

(3) The applicant’s date of eligibility for parole is 18 October 2024. The Jail Commander, Bomana Correctional Institution, shall facilitate the making of a parole application by the applicant forthwith.

(4) The Jail Commander, Bomana Correctional Institution, shall ensure that by 1 May 2025:

• (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 due date of release and date of eligibility for parole are as shown in this order.
  

(5) The matter shall be called on 2 May 2025 at 1.30 pm to check compliance with this order.

Lawyer for the applicant: Public Solicitor