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Application by Barry Karulaka [2025] PGNC 318; N11475 (8 September 2025)

N11475

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO 41 OF 2025

APPLICATION BY BARRY KARULAKA
Applicant

WAIGANI: CANNINGS J
2, 8 SEPTEMBER 2025

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) –calculation of prisoner’s due date of release from custody – whether pre-sentence custody ought to be deducted from head sentence.

A prisoner was sentenced to eight years imprisonment. The sentencing judge ordered that a pre-sentence period in custody of 1 year, 5 months, 1 week and 5 days be deducted from the head sentence. The prisoner claimed that he had been in remand for a longer period than that, and filed a human rights application to have the period corrected. He further claimed that this affected his due date of release from custody and that he should now be discharged from custody.

Held:

(1) The discretion of the sentencing judge as to the pre-sentence period in custody to be deducted from the head sentence, had already been exercised.

(2) The National Court in its human rights jurisdiction cannot interfere with the discretion already exercised by another Judge in its criminal jurisdiction.

(3) It is only in a case where the discretion has not been exercised that a Judge in the human rights jurisdiction of the National Court can make a fresh assessment of the pre-sentence period in custody and deduct it from the head sentence.

(4) The applicant’s due date of release was confirmed to be correct.

Cases cited
The following cases are cited in the judgment.
Application by John Varimai (2024) N11117
Application by Louis Evare (2024) N10950
Application by Samalan Peter (2014) N5631
Application by Wendol Agua (2024) N11122
Applications by Hobai Haro & Lolo Bellamy (2024) N11096
Complaint by Bona Umauma (2024) N10876
Complaint by John Irekau (2013) N4958
Complaint by Michael Tambeng (2013) N4959

Counsel
B Karulaka, the applicant, in person

1. CANNINGS J: Barry Karulaka is a prisoner at Bomana Correctional Institution. He was convicted of robbery, after pleading guilty, at Waigani and on 1 July 2022 was sentenced to eight years imprisonment.

2. The sentencing Judge, Wawun-Kuvi AJ, deducted from the head sentence a pre-sentence period in custody of 1 year, 5 months, 1 week and 5 days. The Correctional Service has determined that the applicant’s due date of release from custody (DDR) is 16 May 2026.

3. The applicant says that the sentencing Judge miscalculated his pre-sentence period in custody as he had been in police and CS custody since the date of his arrest, 30 April 2020. His DDR should be 30 June 2025. As that date has passed, he seeks an order that he be discharged forthwith.

DETERMINATION

4. I cannot reassess the pre-sentence period in custody in this case as the period allowed is very specific, which suggests that the sentencing Judge has deliberately exercised the discretion as to the period to be allowed.

5. The question of whether and how much pre-sentence period in custody to deduct from a head sentence is a matter of discretion for the sentencing judge under the Criminal Justice (Sentences) Act 1986. I must be careful that I do not allow the human rights jurisdiction of the National Court to interfere with the process of sentencing that has been exercised already by the National Court in its criminal jurisdiction.

6. It is only in a case where the discretion has not been exercised that a Judge in the human rights jurisdiction of the National Court can make a fresh assessment of the pre-sentence period in custody and deduct it from the head sentence.

7. Examples of that situation are the cases of Complaint by Bona Umauma (2024) N10876 and Application by Louis Evare (2024) N10950. In each case the sentencing Judge ordered that the pre-sentence period in custody be deducted from the head sentence but no deduction was made in the warrant of commitment.

8. The situation is different here. The sentencing Judge has deducted a very specific period and by doing so has exercised the discretion, and this is reflected in the warrant of commitment. I have no power as another National Court Judge to revisit the question of pre-sentence period in custody.

9. However, I will check the DDR. Every prisoner has the right to the full protection of the law under s 37(1) of the Constitution and this includes the right to ensure that their due date of release has been determined in accordance with law.

DUE DATE OF RELEASE

10. I have set out a two-step approach to determination of the due date of release in many cases, starting with Complaint by John Irekau (2013) N4958. Recent cases in which that approach has been applied include Complaint 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.

11. 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.

12. 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

13. The date of sentence is 1 July 2022. To that date is added:

(a) the total length of all sentences: 8 years; and
(b) any period the applicant was at large: here that is zero.

14. The gross DDR is 1 July 22 + 8 years = 1 July 2030.

Step 2

15. From the gross DDR is deducted:

(a) the pre-sentence period in custody: 1 year, 5 months, 1 week and 5 days;
(b) remission of sentence, 1/3 x 8 years = 2 years 8 months; and
(c) suspension: zero.

16. The net DDR is 1 July 30 minus (1 year, 5 months, 1 week and 5 days + 2 years 8 months) = 1 July 30 minus 4 years 1 month 1 week 5 days = 20 May 2026.

17. This is four days after the DDR calculated by the Correctional Service as 16 May 2026. It is in the interests of justice that that date be deemed to be correct

ORDER

1. The Court is satisfied that the DDR of 16 May 2026 on the applicant’s CS file is correct.
   
2. The human rights enforcement application is refused and the file is closed.

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