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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP NO 176 0F 2007
IN THE MATTER OF ENFORCEMENT
OF BASIC RIGHTS UNDER THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
SECTION 57
ON THE OWN INITIATIVE OF THE NATIONAL COURT
RE RELEASE OF PRISONERS ON LICENCE
Kimbe/Waigani: Cannings J
2007: 10 August
2008: 31 July
BASIC RIGHTS – right to full protection of the law, Constitution, Section 37(1) – right to be protected against unwarranted acts etc, Constitution, Section 41(2) – right of equality, Constitution, Section 55.
BASIC RIGHTS – enforcement – duty of National Court to protect and enforce human rights.
CRIMINAL LAW – sentencing – laws under which prisoners can be released from custody.
CRIMINAL LAW – sentencing – release of prisoners on licence, Criminal Code, Section 615 – mass release of prisoners – whether arbitrary manner of selection of prisoners for release contrary to Basic Rights of prisoners not selected for release on licence.
The Minister for Justice authorised the release of 191 prisoners from a number of jails in the country. The Minister used his powers under Section 615 (release of prisoners on licence) of the Criminal Code to grant a “licence to be at large” to each of the prisoners. A Judge expressed concern that the prisoners were released in a way that was not transparent and may tend to undermine the authority of the courts in the National Judicial System. The Judge exercised the powers of the National Court, on its own initiative, to inquire into the matter and determine whether the Basic Rights of prisoners not selected to be released on licence were breached. A court hearing was conducted, leave was granted for various parties to intervene in the proceedings, evidence was admitted, submissions made and consideration given to whether any rights or freedoms referred to in Division III.3 (basic rights) of the Constitution were breached and whether orders for enforcement of those rights and freedoms should be made.
Held:
(1) There were numerous problems with the mass release on licence exercise in May 2007, in that: no statutory procedures were followed; no criteria were in place; no reasons were given for releasing some prisoners and not others; decisions were made by one person only, the Minister for Justice; the process was not transparent; little or no publicity was given to the exercise; the Parole Board was by-passed; the Advisory Committee on the Power of Mercy was by-passed; little or no consultation took place with the community or victims; no consultation took place with the Judiciary; no regard was had to pending appeals; it undermined the authority of the courts; and it interfered with the independence of the Judiciary.
(2) The effect of such an arbitrary process was that at least two Basic Rights of the remaining prison population (those not released on licence) were breached: the right to the full protection of the law (Constitution, Section 37(1) and the right of equality (Section 55)).
(3) The manner in which the mass release on licence exercise was carried out failed to meet the requirements of Section 41(1) (proscribed acts) of the Constitution, in that it was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
(4) It was therefore necessary and appropriate for the purposes of enforcement of the Basic Rights and proper for remedying the breach of the prohibition of Section 41(1) of the Constitution, to make orders under Sections 23(2) and 57(3) of the Constitution, that are intended to ensure that the system of releasing prisoners on licence becomes open, transparent, rigorous, systematic and fair, so that all prisoners get the full protection of the law and are treated equally.
(5) Orders were accordingly made requiring the Minister for Justice to: inform all prisoners in all jails throughout the country of the release on licence process and give all prisoners an equal opportunity to participate in the exercise; and to determine and promulgate procedures and criteria for any future release on licence exercise.
Cases cited:
Acting Public Prosecutor v Don Hale (1998) SC564
Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212
Application by Benetius Gehasa (2005) N2817
Daniel Ronald Walus v The State (2007) SC882
Edmund Gima & Siune Arnold v The State (2003) SC730
Emil Kongian and Others v The State, SCRA No 92 of 2003, 03.09.07
Ignatius Pomaloh v The State (2006) SC834
In the matter of a Human Rights Application pursuant to Sections 57 and 37 of the Constitution; Danny Pirino v The State (2006) N3111
In the matter of an Application by Paul Tupuru (2005) N2976
In the matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06
In the matter of Four Remandees Allegedly of Unsound Mind of Boram Correctional Institution East Sepik Province: Clement Talis, Paulias Mathias, Roy Maru and Samson Yauling, MP No 621 of 2006, 30.06.06
Joe Giamur v The State, SCRA No 9 of 2006, 23.02.06
John Alex v Martin Golu [1983] PNGLR 117
John Baipu v The State (2005) SC796
Petrus and Gawi v Telikom PNG Ltd, OS No 728 of 2006, 30.05.08
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448
Re Conditions of Detention at Buimo Correctional Institution [1988-89] PNGLR 266
Re Conditions of Detention at Buka Police Lock-Up and the Need to Secure Funding For, Build and Equip a Proper Correctional Institution for the Autonomous Region Of Bougainville MP No 726 of 2006, 06.10.06
Re Conditions of Detention at Buka Police Lock-up, Autonomous Region of Bougainville MP No 726 of 2006, 25.08.06
Re Conditions of Detention at Lakiemata Correctional Institution, West New Britain MP No 813 of 2006, 09.10.06
SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329
The State v Bafe Quati and Others [1990] PNGLR 57
The State v Enni Mathew and Others (2003) N2563
The State v John Baipu (2003) N2451
The State v Rodney Gela and Clarence Logi, CR Nos 1300 and 1301 of 2005, 27.10.05
The State v Tanedo [1975] PNGLR 395
The State v Thomas Waim [1995] PNGLR 187
Thomas Waim v The State (1997) SC519
Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87
ENFORCEMENT OF BASIC RIGHTS
This is a judgment in which the National Court gives its reasons for making orders for enforcement of Basic Rights.
Counsel
O Oiveka, for the 1st intervener
W Piandi, for the 2nd intervener
F Popeu, for the State
31 July, 2008
1. CANNINGS J: In May 2007 the then Minister for Justice, the Honourable Bire Kimisopa MP, authorised the release of 191 prisoners from jails in Papua New Guinea, including 28 prisoners from Lakiemata Jail, West New Britain. The Minister used his powers under Section 615 (release of prisoners on licence) of the Criminal Code to grant a “licence to be at large” to each of the prisoners.
2. Upon hearing about this, I expressed some surprise and concern, as resident Judge for West New Britain, as the mass release of prisoners was apparently done in a way that was not transparent. Little or no publicity accompanied their release. There appeared to have been little or no consultation with the community, especially the victims of the crimes for which the prisoners had been sentenced. I was concerned that releasing prisoners extra-judicially may tend to undermine the authority of the courts in the National Judicial System. I decided to exercise the powers of the National Court, under Section 57 of the Constitution, to inquire into the matter and determine whether the Basic Rights of prisoners not selected to be released on licence were breached.
3. I ordered the Commissioner of the Correctional Service, Richard Sikani, to file a list of all prisoners released on licence in 2007 and I ordered the Commander of Lakiemata Jail, Marcus Mandau, to provide all documents relating to the release of the Lakiemata prisoners. I granted leave to the Commissioner and the Public Solicitor to intervene in the proceedings. The Public Solicitor represented those prisoners, particularly at Lakiemata Jail, who were not selected for early release.
4. I conducted a hearing of the National Court at Kimbe. The Commissioner and the Public Solicitor were represented by Mr Piandi and Mr Oiveka respectively. Mr Popeu of the office of the Public Prosecutor also appeared, to represent the State. As Mr Kimisopa was no longer the Minister for Justice at the time of the hearing I regarded Mr Popeu as providing sufficient representation for the office of the Minister for Justice. Affidavits by Mr Sikani and Mr Mandau were admitted into evidence. Mr Mandau gave oral evidence.
ISSUES
5. The central issue is whether the prisoners were released in a way that infringed the Basic Rights of the prisoners who were not released. If those rights were infringed, what should be done about it? Should any orders for enforcement of those rights be made?
6. I have concluded, after giving the matter careful consideration, that a number of rights were infringed and that I should make orders to protect and enforce them. I have not seriously considered reversing the release of the prisoners. It would not be proper to do that. But I feel it is necessary and appropriate to make orders to ensure that the same sort of thing does not happen again, in the same way.
TERMINOLOGY
7. The term “jail” is used in this judgment to describe prisons: places in which people are detained in custody either on remand (wet kot) or after being convicted and sentenced. The correct legal term for a jail is a “correctional institution”, the term used in the Correctional Service Act. However, as police lock-ups are also defined by the Act as correctional institutions, it is more convenient to use the term jail.
8. There is an alternative and acceptable spelling of jail: “gaol”, which is pronounced the same way as jail. However, I avoid using “gaol” as, in PNG, it is commonly misspelt, and mispronounced, “goal”. For example, all of the instruments releasing prisoners on licence executed by the Minister for Justice, referred to in this judgment, state that the prisoners were released from various “GOALS” in the country. The official documents brought into evidence show instructions being given to “Goal Commanders”. This is a misuse of language and should be assiduously avoided.
APPROACH
9. I will start by setting out the jurisdictional basis of these proceedings. Next, the details of the prisoners released are provided. Findings are then made on how prisoners were selected for early release.
10. I then set out the law under which, in this case, the prisoners were released. Other laws and procedures by which prisoners can be released early from prison are also examined. I outline my concerns about how the release on licence power was exercised in 2007 and why I have concluded that it breached the Basic Rights provisions of the Constitution.
11. I highlight the major problems with what happened and conclude by making the orders considered necessary and appropriate.
JURISDICTION
Human rights
12. Papua New Guinea’s Constitution enshrines a number of human rights, also known as Basic Rights and constitutional rights. They are conferred by the following sections of the Constitution:
Enforcement
13. These are not paper rights or mere expressions of principle. They are justiciable, legal rights. They can be enforced in the National Court and the Supreme Court, primarily under Section 57 but also under Sections 22, 23 and 155(4) (the national judicial system) of the Constitution.
Section 57
14. Section 57 (enforcement of guaranteed rights and freedoms) is the provision I have invoked to commence these proceedings. It provides:
A right or freedom referred to in this Division [III.3, Basic Rights] shall be protected by, and is enforceable in, the Supreme Court or the National Court ... either on its own initiative or on application by any person who has an interest in its protection and enforcement ... [emphasis added].
15. Section 57(3) gives the court wide powers to make orders to remedy breaches of Basic Rights. It states:
A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force) [emphasis added].
16. Section 57 has been applied in numerous decisions of the Supreme Court and the National Court since Independence. For example:
17. Section 57 reinforces the principle that the human rights conferred by the Constitution are not meant to be illusory, ephemeral or feel-good principles, but real, tangible, powerful and enforceable rights capable of immediate effect through court orders and declarations.
Other enforcement provisions
18. Sections 22 and 23 are specifically directed at the National Court and reinforce the principle that that Court has an obligation to ensure that the Basic Rights are actually put into effect.
19. Section 22 (enforcement of the Constitution) states:
The provisions of this Constitution that recognize rights of individuals ... as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine [emphasis added].
20. Section 23(2) (sanctions) states:
Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty ... [emphasis added].
21. Section 155(4) (the national judicial system) states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case [emphasis added].
Power and duty of National Court
22. The combined effect of these provisions is to authorise, and oblige, the National Court, if it identifies a case of apparent breach of the Basic Rights, to act on its own initiative to protect and enforce them. If it is satisfied that Basic Rights have been breached, it is empowered to:
WHICH PRISONERS WERE RELEASED, FROM WHICH JAILS?
23. In May 2007, PNG had about 18 operating jails. Some jails, such as Lorengau and Wabag, though still gazetted “correctional institutions”, have been closed down in recent years and are not included in that group of 18. Also not included are special detention centres such as those at Erap, Laloki and Wewak Boys Town, none of which had any prisoners released on licence in May 2007. I have included Buka Police Lock-Up as, though it is not a proper jail, it has been used since 2004 to hold prisoners as well as remandees.
24. The names and locations of the 18 jails and the number of prisoners released on licence from each one are shown in the table below.
TABLE 1: PRISONERS RELEASED ON LICENCE, MAY 2007
| No | Jail | Area | Number released |
| 1 | Baisu | Western Highlands Province | 19 |
| 2 | Barawagi | Chimbu Province | 13 |
| 3 | Beon | Madang Province | 0 |
| 4 | Bihute | Eastern Highlands Province | 12 |
| 5 | Biru | Northern Province | 3 |
| 6 | Bomana | National Capital District | 20 |
| 7 | Boram | East Sepik Province | 12 |
| 8 | Buka PLU | Autonomous Region of Bougainville | 0 |
| 9 | Bui’iebi | Southern Highlands Province | 0 |
| 10 | Buimo | Morobe Province | 28 |
| 11 | Bundaira | Eastern Highlands Province | 11 |
| 12 | Daru | Western Province | 6 |
| 13 | Gile Gile | Milne Bay Province | 9 |
| 14 | Kavieng | New Ireland Province | 14 |
| 15 | Kerevat | East New Britain Province | 0 |
| 16 | Lakiemata | West New Britain Province | 28 |
| 17 | Ningerum | Western Province | 15 |
| 18 | Vanimo | West Sepik Province | 1 |
| Total | 191 | ||
25. The following tables show, for each jail, the name of each prisoner released, plus:
26. The raw data in the tables comes from the documents produced to the Court by the Commissioner of the Correctional Service. Some of the data is questionable, eg prisoner No 1 for Baisu Jail, Thomas Waim, has a DDR without remission of August 2016 but he was sentenced in August 1995 to 18 years so his proper DDR would appear to be August 2013. It is not clear why 2016 is shown. Perhaps there was a period he was at large. Whatever the case, it has not been practicable to inquire into and resolve such apparent anomalies, so the data has been transcribed directly, without much further inquiry.
27. The last column in each table shows the effective reduction in the sentence for each prisoner. For example, Thomas Waim’s DDR with remission was 9 August 2010. That is the date on which in the ordinary course of events he would have finished serving time in custody. Because he was released on licence in May 2007, he has come out of jail three years and three months early.
TABLE 2: BAISU JAIL, WESTERN HIGHLANDS
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Thomas Waim | 10.08.95 | 18y | Rape | 09.08.16 | 09.08.10 | 3y, 3m |
| 2 | Paul Aviro | 13.11.96 | 10y | Armed robbery & escape | 12.06.03 | 09.04.09 | 1y, 11m |
| 3 | Petrus Wamiyo | 23.02.98 | 17y | Manslaughter | 06.07.15 | 21.09.09 | 2y, 4m |
| 4 | John Kopil | 18.08.99 | 16y | Manslaughter | 17.04.15 | 27.01.10 | 2y, 8m |
| 5 | Eleke Aipnda | 26.07.01 | 10y | Manslaughter | 06.11.11 | 02.06.08 | 1y, 1m |
| 6 | Misi Mark Yala | 13.08.02 | 9y | Murder | 26.08.11 | 21.08.08 | 1y, 3m |
| 7 | Ale Palai Pakio | 15.08.02 | 10y | Murder | 15.08.12 | 04.12.08 | 1y, 7m |
| 8 | Nancy Luta | 15.08.02 | 10y | Murder | 02.02.12 | 04.12.08 | 1y, 7m |
| 9 | John Baipu | 30.07.03 | 25y | Manslaughter | 29.07.23 | 29.03.20 | 12y, 10m |
| 10 | Robert Muring | 06.10.03 | 7y | Misappropriation | 05.02.11 | 25.08.08 | 1y, 3m |
| 11 | Kimpas Arao | 20.05.04 | 8y | Armed robbery | 19.12.11 | 09.06.09 | 2y, 1m |
| 12 | Anna Kombo | 14.09.05 | 5y | Wilful murder | 13.09.10 | 13.01.09 | 1y, 10m |
TABLE 3: BARAWAGI JAIL, CHIMBU PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Kusia Sumal | 12.03.03 | 9y | Murder | 11.12.11 | 11.01.09 | 1y, 10m |
| 2 | Ata Tara Bagil | 17.09.03 | 6y | Robbery | 16.03.09 | 16.05.07 | nil |
| 3 | Aiapo K Rea | 21.06.04 | 4y | Armed robbery | 20.09.08 | 23.05.07 | nil |
| 4 | Bob Sine Toru | 03.02.06 | 2y | PDD | 02.02.08 | 02.06.07 | 1m |
| 5 | Tiki Lala | 20.02.06 | 2y | PDD | 19.02.08 | 19.06.07 | 1m |
| 6 | Nathan Gabriel | 21.03.06 | 4y | Armed robbery | 20.05.10 | 30.12.08 | 1y, 7m |
| 7 | Kimungo Ateio | 13.04.06 | 3y | Armed robbery | 12.04.09 | 12.04.08 | 11m |
| 8 | Wawe Komun | 23.05.06 | 2y | PDD | 22.05.08 | 22.09.07 | 4m |
| 9 | Komiti Pola | 24.05.06 | 2y | PDD | 23.11.07 | 23.05.07 | nil |
| 10 | Robert Uran | 17.08.06 | 5y | Misappropriation | 16.08.11 | 16.12.09 | 2y, 7m |
| 11 | John Mondo | 24.08.06 | 1y | Stealing | 24.08.06 | 03.06.07 | 1m |
| 12 | Wine Kawage | 29.09.06 | 1y | POWA | 28.01.08 | 18.07.07 | 2m |
| 13 | Thomas Mamu | 13.09.06 | 2y | Damaging Property | 12.08.08 | 22.12.07 | 7m |
TABLE 4: BIHUTE JAIL, EASTERN HIGHLANDS PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Baulin Sine | 24.03.00 | 15y | Rape | 23.03.15 | 23.03.10 | 2y, 10m |
| 2 | Moriambo Kasure | 26.04.01 | 12y | Murder | 01.04.13 | 09.02.09 | 1y, 9m |
| 3 | James Tauva | 20.08.01 | 13y | Murder | 30.08.14 | 26.04.10 | 2y, 10m |
| 4 | Enda Boas | 13.02.02 | 11y | Murder | 12.11.12 | 12.04.09 | 1y, 11m |
| 5 | Anna Thomas | 14.02.02 | 14y | Murder | 24.02.16 | 20.06.11 | 4y, 1m |
| 6 | Patrick Robert | 21.03.02 | 11y | Murder | 20.06.13 | 20.09.09 | 2y, 4m |
| 7 | John Kuripana | 05.03.03 | 9y | Murder | 04.09.11 | 04.11.08 | 1y, 6m |
| 8 | Meya Kamdakoi | 13.06.03 | 8y | Murder | 12.09.11 | 12.12.09 | 2y, 7m |
| 9 | Guminive Madan | 19.06.03 | 6y | Wilful murder | 18.05.10 | 28.11.08 | 1y, 6m |
| 10 | Johnson Kiakasi | 27.08.03 | 10y | Murder | 11.05.13 | 16.02.10 | 2y, 9m |
| 11 | Kerry Tamase | 09.07.04 | 5y | POWA | 08.07.09 | 08.11.07 | 6m |
| 12 | Aisi Kabia | 13.05.05 | 6y | Armed robbery | 12.12.10 | 02.02.09 | 1y, 9m |
TABLE 5: BIRU JAIL, NORTHERN PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Micah Penana | 21.11.03 | 10y | Attempted murder | 30.09.13 | 17.06.10 | 3y, 1m |
| 2 | Mataras Suriri | 21.04.05 | 5y | Manslaughter | 23.06.10 | 02.10.08 | 1y, 5m |
| 3 | Henson Dunamai | 18.11.05 | 4y | Sexual penetration | 08.03.10 | 01.10.08 | 1y, 5m |
TABLE 6 : BOMANA JAIL, NATIONAL CAPITAL DISTRICT
| No | Detainee | Date of sentence | Sentence | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Lohe Fuli Howare | 02.11.99 | 19y | Wilful murder | 01.06.18 | 21.03.12 | 4y, 10m |
| 2 | Peter Ange | 02.11.99 | 19y | Wilful murder | 01.06.18 | 21.03.12 | 4y, 10m |
| 3 | John Vila | 02.11.99 | 19y | Wilful murder | 01.06.18 | 21.03.12 | 4y, 10m |
| 4 | Avehara Lihara | 20.12.02 | 13y | Wilful murder | 21.01.15 | 30.05.11 | 4y |
| 5 | Gima Wuri | 08.04.03 | 8y | Murder | 21.02.11 | 06.07.08 | 1y, 2m |
| 6 | Raily Sepa | 11.04.03 | 7y | Rape | 10.08.10 | 01.03.08 | 10m |
| 7 | Gidisia Yelemia | 06.06.03 | 9y | Armed robbery & UUMV | 07.12.11 | 08.02.09 | 1y, 9m |
| 8 | Max Sina Korondo | 13.06.03 | 6y | Robbery | 18.08.09 | 09.08.07 | 3m |
| 9 | Lohori Mau | 08.08.03 | 7y | UCK | 28.01.10 | 01.12.07 | 7m |
| 10 | Jimmy John Yavira | 01.09.03 | 11y | Manslaughter | 30.01.14 | 10.08.10 | 3y, 3m |
| 11 | Apex Jerry | 10.05.04 | 5y | Robbery | 01.12.08 | 24.05.07 | nil |
| 12 | Terry Karakuru | 14.05.04 | 5y | Robbery | 01.03.09 | 26.07.07 | 2m |
| 13 | Ako Manau | 14.05.04 | 5y | Robbery | 01.03.09 | 26.07.07 | 2m |
| 14 | David Hindom | 10.08.04 | 8y | Armed robbery | 16.05.12 | 14.10.09 | 2y, 5m |
| 15 | Jeffery Gai | 22.03.05 | 4y | UCK | 21.10.08 | 11.08.07 | 3m |
| 16 | Roger Bae Nibituo | 13.04.05 | 5y | Armed robbery | 12.09.09 | 22.03.08 | 10m |
| 17 | James Tabira | 10.06.05 | 3y | Attempted robbery | 09.09.08 | 09.08.07 | 3m |
| 18 | James Miviri Willie | 24.06.05 | 4y | False pretences | 19.11.08 | 14.10.07 | 5m |
| 19 | Charles Samilo | 08.08.05 | 4y | Misappropriation | 07.08.09 | 07.04.08 | 11m |
| 20 | Joseph Siew Jong Ng | 20.06.06 | 2y | Stealing | 01.06.09 | 07.06.08 | 1y, 1m |
TABLE 7: BORAM JAIL, EAST SEPIK PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Albert Pius Kokoperi | 20.07.00 | 13y | Armed robbery | 05.05.13 | 30.01.09 | 1y, 8m |
| 2 | Peter Posalak | 09.05.02 | 10y | Incest | 04.05.12 | 05.01.09 | 1y, 8m |
| 3 | Emil Kongian | 29.10.03 | 7y | Arson & UDL | 24.09.10 | 06.06.08 | 1y, 1m |
| 4 | Jack Kam | 29.10.03 | 7y | Arson & UDL | 24.09.10 | 06.06.08 | 1y, 1m |
| 5 | Jeffery Winjat | 29.10.03 | 7y | Arson & UDL | 24.09.10 | 06.06.08 | 1y, 1m |
| 6 | Freddie Kam | 29.10.03 | 7y | Arson & UDL | 24.09.10 | 06.06.08 | 1y, 1m |
| 7 | Basil Sinjavi | 29.10.03 | 7y | Arson & UDL | 24.09.10 | 06.06.08 | 1y, 1m |
| 8 | Leo Yanjuan | 24.03.04 | 6y | UCK | 14.03.10 | 20.03.08 | 10m |
| 9 | Ian Bob Wali | 11.06.04 | 6y | BES | 24.05.10 | 29.05.08 | 1y |
| 10 | Douglas Natalis | 21.06.04 | 7y | Incest | 11.04.11 | 04.01.09 | 1y, 8m |
| 11 | Alex Sainguande | 17.06.05 | 5y | GBH | 16.04.10 | 06.09.08 | 1y, 4m |
| 12 | Penias Moke | 11.12.05 | 4y | Sexual touching | 26.08.09 | 25.05.08 | 1y |
TABLE 8: BUIMO JAIL, MOROBE PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Awai John | 22.03.95 | 27y | Robbery & hijacking | 02.04.25 | 01.04.16 | 8y, 11m |
| 2 | Wendi Imbo | 27.06.02 | 9y | Murder | 26.08.11 | 06.08.08 | 1y, 3m |
| 3 | Kiage Dua | 13.08.02 | 11y | Murder | 09.05.13 | 10.10.09 | 2y, 5m |
| 4 | Gumenu Tuzo | 23.09.02 | 9y | Murder | 16.06.11 | 18.07.08 | 1y, 2m |
| 5 | Stella Justin Blu | 11.05.04 | 6y | Murder | 03.01.10 | 15.02.08 | 9m |
| 6 | Tanu Runare | 22.10.04 | 6y | Armed robbery | 28.11.10 | 16.11.08 | 1y, 6m |
| 7 | Kiking Erick | 16.03.05 | 3y | Armed robbery | 05.08.08 | 19.06.07 | 1m |
| 8 | Stevenson Keibe | 21.04.05 | 6y | Stealing | 20.10.10 | 20.12.08 | 1y, 7m |
| 9 | Miriam Goro | 10.05.05 | 4y | Wilful murder | 09.08.09 | 09.03.08 | 10m |
| 10 | Wama Dua | 25.05.05 | 6y | Armed robbery | 24.05.11 | 24.05.09 | 2y |
| 11 | John Gori Kasau | 15.06.05 | 5y | Manslaughter | 27.03.10 | 03.09.08 | 1y, 4m |
| 12 | Kaiva Harai | 17.06.05 | 6y | Armed robbery | 16.04.11 | 06.05.09 | 2y |
| 13 | Suang Namben | 29.07.05 | 5y | Armed robbery | 28.11.10 | 18.02.09 | 1y, 9m |
| 14 | Mizereng Jeremy | 29.07.05 | 5y | Armed robbery | 28.11.10 | 18.02.09 | 1y, 9m |
| 15 | Kenneth Lenge | 24.08.05 | 6y | Armed robbery | 26.07.11 | 05.08.09 | 1y, 3m |
| 16 | Charles Casmir | 20.10.05 | 3y | Arson | 19.09.08 | 29.09.07 | 4m |
| 17 | Gawi Tino | 20.10.05 | 3y | Arson | 19.09.08 | 29.09.07 | 4m |
| 18 | Benni Abi | 20.10.05 | 3y | Stealing | 10.10.08 | 13.10.07 | 5m |
| 19 | Nason Guyo | 15.02.06 | 2y | Assault | 14.02.08 | 14.06.07 | 1m |
| 20 | Hans L Sutan | 24.02.06 | 2y | Misappropriation | 06.01.08 | 21.05.07 | nil |
| 21 | Velin Noah | 20.03.06 | 3y | Stealing & forgery | 19.03.09 | 19.03.08 | 10m |
| 22 | Lingnanu Wanumen | 12.04.06 | 3y | Incest | 11.11.08 | 01.01.08 | 8m |
| 23 | Anzu Napa | 28.06.06 | 2y | Fraud | 27.12.07 | 27.06.07 | 1m |
| 24 | John Wesley Bali | 13.07.06 | 2y | Stealing | 12.01.08 | 12.07.07 | 2m |
| 25 | Jacob Tumi | 25.08.06 | 2y | Armed robbery | 24.08.08 | 24.12.07 | 7m |
| 26 | Paul Daga | 10.09.06 | 1y | PDD | 28.06.07 | 18.11.07 | 6m |
| 27 | Kevin Vitolo | 20.10.06 | 1y | DCO | 19.10.07 | 19.06.07 | 1m |
| 28 | Joseph Wallum | 28.10.06 | 1y | FPCM | 27.10.07 | 27.06.07 | 1m |
TABLE 9: BUNDAIRA JAIL, EASTERN HIGHLANDS PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Ben David | 11.10.02 | 8y | Murder | 10.04.10 | 10.10.07 | 5m |
| 2 | Henry Panda | 07.04.03 | 8y | Robbery | 06.04.11 | 06.08.08 | 1y, 3m |
| 3 | Ramsey Lester | 19.05.04 | 8y | Armed robbery | 02.06.11 | 27.01.09 | 1y, 8m |
| 4 | Kuring Meso | 20.03.06 | 2y | Armed robbery | 19.02.08 | 29.06.07 | 1m |
| 5 | James David | 27.06.06 | 2y | Stealing & threatening | 26.06.08 | 14.01.08 | 8m |
| 6 | Gio Samongi Durio | 21.08.06 | 2y | Armed robbery | 20.08.08 | 20.12.07 | 7m |
| 7 | Nasa Paneo | 15.09.06 | 2y | GBH | 14.09.08 | 14.01.08 | 8m |
| 8 | Gideon Dinki Moni | 21.09.06 | 1y | Stealing | 03.01.08 | 21.08.07 | 3m |
| 9 | John Simbu | 27.09.06 | 1y | Stealing | 26.09.07 | 26.05.07 | nil |
| 10 | John Loloma | 28.11.06 | 1y | False pretences | 17.03.08 | 10.10.07 | 5m |
| 11 | Paul Kafi | 01.12.06 | 1y | DDCD | 30.11.07 | 30.07.07 | 2m |
TABLE 10: DARU JAIL, WESTERN PROVINCE
| No | Detainee | Date of sentence | Sentence | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Aziz Makhoda | 28.09.06 | 6m | Illegal fishing | 28.09.07 | 28.05.07 | nil |
| 2 | Edi Abdi | 28.09.06 | 6m | Illegal fishing | 28.09.07 | 28.05.07 | nil |
| 3 | Ali Mustazi | 29.09.06 | 6m | Illegal fishing | 28.09.07 | 28.05.07 | nil |
| 4 | Toto Raharto Sudarto | 29.09.06 | 6m | Illegal fishing | 28.09.07 | 28.05.07 | nil |
| 5 | Wahyudi Salash | 29.09.06 | 6m | Illegal fishing | 28.09.07 | 28.05.07 | nil |
| 6 | Asisi Ben Baigo | 29.09.06 | 6m | Illegal fishing | 28.09.07 | 28.05.07 | nil |
TABLE 11: GILE GILE JAIL, MILNE BAY PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Joe Magani Dodoki | 20.08.01 | 10y | Murder | 20.07.11 | 06.04.08 | 11m |
| 2 | Alby Samson | 12.05.03 | 7y | Manslaughter | 11.05.10 | 11.01.08 | 8m |
| 3 | Eslon Joel | 16.05.03 | 7y | Rape | 15.05.10 | 15.01.08 | 8m |
| 4 | Japhet Digwaleu | 21.05.03 | 8y | Robbery | 04.10.11 | 19.12.08 | 1y, 7m |
| 5 | Seth Malai | 21.05.03 | 8y | Robbery | 04.10.11 | 19.12.08 | 1y, 7m |
| 6 | Francis Paul | 21.05.03 | 8y | Robbery | 04.10.11 | 19.12.08 | 1y, 7m |
| 7 | Salot Gumeiu | 22.03.04 | 8y | Manslaughter | 20.10.11 | 30.12.08 | 1y, 7m |
| 8 | Lawrence Lemek Tobenadi | 11.03.04 | 6y | GBH | 10.12.09 | 10.01.08 | 8m |
| 9 | Fred Sapero | 11.03.04 | 6y | Sexual penetration | 10.12.09 | 10.01.08 | 8m |
TABLE 12: KAVIENG JAIL, NEW IRELAND PROVINCE
| No | Detainee | Date of sentence | Sentence | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | John Nelson | 22.01.05 | 3y | Stealing & insulting words | 21.07.08 | 21.07.07 | 2m |
| 2 | Frederick Job | 10.02.06 | 2y | Wilful damage | 09.02.08 | 09.06.07 | 1m |
| 3 | Yagi Philip | 23.06.06 | 12m | Escape | 22.06.07 | 22.06.07 | 1m |
| 4 | Aiaren Penias | 05.10.06 | 1y | Stealing | 04.10.07 | 04.06.07 | 1m |
| 5 | Reagan Tom | 09.10.06 | 12m | PIS | 08.10.07 | 08.06.07 | 1m |
| 6 | Felix Barai | 09.10.06 | 12m | Negligent driving | 08.10.07 | 08.06.07 | 1m |
| 7 | Stanley Steven | 11.10.06 | 12m | PIS | 10.10.07 | 10.06.07 | 1m |
| 8 | Herman Julius | 11.10.06 | 12m | PIS | 10.10.07 | 10.06.07 | 1m |
| 9 | David Venge | 11.10.06 | 12m | PIS | 10.10.07 | 10.06.07 | 1m |
| 10 | Danny Gideon | 11.10.06 | 12m | PIS | 10.10.07 | 10.06.07 | 1m |
| 11 | Takiindu Mulanga | 23.10.06 | 12m | FPCM | 22.10.07 | 22.06.07 | 1m |
| 12 | John Kes Kaminiel | 17.11.06 | 12m | PSP | 16.11.07 | 16.07.07 | 1m |
| 13 | Taiti Kamis | 24.11.06 | 12m | Insulting words | 23.11.07 | 23.07.07 | 2m |
| 14 | Darren Choi | DNP | DNP | DNP | DNP | DNP | DNP |
TABLE 13: LAKIEMATA JAIL, WEST NEW BRITAIN PROVINCE
| No | Detainee | Date of sentence | Sentence (approx) | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Francis Sall | 08.05.01 | 12y | Murder | 07.05.13 | 07.05.09 | 2y |
| 2 | Francis Gambu | 19.03.03 | 10y | Piracy | 18.09.12 | 18.07.09 | 2y, 2m |
| 3 | Peter Bucha | 19.03.03 | 10y | Piracy | 18.09.12 | 18.07.09 | 2y, 2m |
| 4 | Alphonse Namas | 19.03.03 | 10y | Piracy | 18.09.12 | 18.07.09 | 2y, 2m |
| 5 | Patrick Tangole | 19.03.03 | 10y | Piracy | 18.09.12 | 18.07.09 | 2y, 2m |
| 6 | Damine Mova | 19.03.03 | 10y | Piracy | 18.09.12 | 18.07.09 | 2y, 2m |
| 7 | Kairing Bulo | 19.03.03 | 10y | Piracy | 18.10.12 | 08.08.09 | 2y, 3m |
| 8 | Alphonse Jumbuk | 27.03.03 | 7y | Rape | 23.07.10 | 13.11.07 | 6m |
| 9 | Jimmy Amos Rake | 15.05.03 | 7y | Armed robbery | 14.12.09 | 11.09.07 | 4m |
| 10 | Paulus Diya Ire | 15.05.03 | 8y | Rape | 14.11.10 | 14.05.08 | 1y |
| 11 | Esrom Kanapi | 21.10.03 | 7y | Rape | 20.01.11 | 20.08.08 | 1y, 3m |
| 12 | Steven Dene | 17.12.03 | 10y | Piracy | 18.09.12 | 18.07.09 | 2y, 2m |
| 13 | Ben Senny | 24.02.04 | 5y | UCK | 23.02.09 | 23.06.07 | 1m |
| 14 | Daniel Tovue | 27.02.04 | 5y | UCK | 03.02.09 | 11.06.07 | 1m |
| 15 | Oliver B Gapi | 15.04.04 | 5y | Rape | 14.12.09 | 14.07.07 | 2m |
| 16 | Timothy Bevaro | 20.04.04 | 5y | Armed robbery | 26.03.09 | 04.08.07 | 3m |
| 17 | Clarence Malpokum | 04.05.04 | 6y | Armed robbery | 13.05.10 | 13.05.08 | 2y |
| 18 | Thomas Warkuraily | 12.05.04 | 5y | Armed robbery | 11.05.09 | 11.09.07 | 4m |
| 19 | Joe P Giamur | 14.05.04 | 7y | Manslaughter | 12.10.10 | 12.09.08 | 1y, 4m |
| 20 | Andrew Ulo | 14.05.04 | 2y | Rape | 08.01.12 | 20.10.07 | 5m |
| 21 | Nick Oscar | 23.08.04 | 5y | Arson | 22.11.09 | 22.02.08 | 9m |
| 22 | Sap Komep | 10.09.04 | 5y | Indecent assault | 09.09.09 | 09.01.08 | 8m |
| 23 | Steven Lipilas | 25.02.05 | 4y | Manslaughter | 24.02.09 | 14.10.07 | 5m |
| 24 | Peter Pasiklo | 25.02.05 | 4y | Manslaughter | 24.09.09 | 24.10.07 | 5m |
| 25 | Michael Valuka | 08.06.05 | 4y | Rape | 21.10.09 | 06.05.08 | 1y |
| 26 | Clarence Logi | 27.10.05 | 3y | GBH | 22.10.09 | 23.12.07 | 7m |
| 27 | Rodney Gela | 27.10.05 | 5y | GBH | 22.10.11 | 23.04.09 | 1y, 11m |
| 28 | Esther Tiamon | 28.07.06 | 2y | Stealing | 27.01.07 | 27.07.07 | 2m |
TABLE 14 : NINGERUM JAIL, WESTERN PROVINCE
| No | Detainee | Date of sentence | Sentence | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Lucas Bukokim | DNP | 6m | Insulting words | DNP | 06.07.07 | 2m |
| 2 | Bobby Amdeng | DNP | 2y | PDD | DNP | 06.10.07 | 5m |
| 3 | Jason Victor | DNP | 18m | Assault | DNP | 15.08.07 | 3m |
| 4 | Obed Yakabeyok | DNP | 18m | PDD | DNP | 27.07.07 | 2m |
| 5 | Gorden Ketu | DNP | 11m | Stealing | DNP | 24.07.07 | 2m |
| 6 | Peter Tani | DNP | 6m | Trespass | DNP | 24.06.07 | 1m |
| 7 | Lemi Tomlin | DNP | 10m | PDD | DNP | 09.06.07 | 1m |
| 8 | Aron Atope | DNP | 10m | BES | DNP | 06.06.07 | 1m |
| 9 | Tobi Koitu | DNP | 18m | PDD | DNP | 31.05.07 | nil |
| 10 | Wesley Kuruka | DNP | 6m | Assault | DNP | 21.05.07 | nil |
| 11 | Roy Bann | DNP | 18m | PDD | DNP | 09.10.07 | 5m |
| 12 | Michael Araliu | DNP | 6m | Assault | DNP | 21.05.07 | nil |
| 13 | Kevin Parau | DNP | 18m | PDD | DNP | 09.10.07 | 5m |
| 14 | Jerry Andrew | DNP | 5m | Trespass | DNP | 08.10.07 | 5m |
| 15 | Freddy Waiem | DNP | 1y | Wilful damage | DNP | 08.01.08 | 8m |
TABLE 15: VANIMO JAIL, WEST SEPIK PROVINCE
| No | Detainee | Date of sentence | Sentence | Offence | DDR without remission | DDR with remission | Release effect (approx) |
| 1 | Jim Aro | 22.02.00 | 16y | Rape | 22.02.16 | 21.11.10 | 3y, 6m |
HOW WERE THE PRISONERS SELECTED FOR RELEASE?
28. It seems that at some time in 2006 jail commanders throughout the country were invited to submit names of prisoners they were recommending for early release. According to Mr Mandau’s evidence the original plan was that the prisoners would be released en masse as a goodwill gesture for Christmas 2006. He says that in November 2006 he submitted a list of 43 prisoners to Correctional Service headquarters, with supporting documents, including community records and institutional behaviour reports. Headquarters pruned the list back to 28. He received a faxed copy of the instrument signed by the Minister for Justice authorising release of the 28 prisoners on 17 May 2007. They were released the next day at 8.30 am.
29. When asked how he decided which prisoners to recommend, Mr Mandau said that all prisoners who had served at least one-third of their sentence were eligible. He said that all the prisoners at Lakiemata Jail knew how the release on licence system worked. I have to say that I find that difficult to believe.
30. In my time as resident Judge in Kimbe I have made 15 Visiting Justice visits to Lakiemata Jail and on almost every visit prisoners ask me about release on licence and parole, as they obviously do not understand how these processes operate. My experience has been the same when I have made VJ visits to other jails, such as Beon, Boram and Buimo. It appears that the prison population is ignorant of the difference between release on licence and parole and does not understand why some prisoners are released on licence and others are left in prison to serve their full sentences. It appears that the Parole Board does not make regular visits to jails. The prisoners do not understand their rights and they are suspicious of the way that decisions are made to release particular prisoners on licence.
WHAT LAW DID THE MINISTER RELY ON TO RELEASE THE PRISONERS?
31. The Minister for Justice acted under Section 615(2) of the Criminal Code, which states:
Where a person is serving a term of imprisonment for an offence against a law, the Minister may, if he thinks proper to do so in the circumstances, grant to him, by writing under his hand, a licence to be at large [emphasis added].
32. That provision confers an extremely broad power on the Minister for Justice. The only requirement is that the Minister ‘thinks it proper in the circumstances’ to release a prisoner.
33. Section 615 contains a number of other subsections, which define the period of the licence and allow the Minister to set conditions and prescribes the procedure in the event that a prisoner breaches the conditions of the licence. However, there are no considerations to guide or constrain the Minister when forming the opinion that it is ‘proper’ to release a prisoner on licence. There is no procedure to follow. There does not have to be a recommendation from a jail commander or from the Commissioner of the Correctional Service or the Parole Board. There is no requirement for a recommendation from anybody. The Minister could, conceivably, select a prisoner known or related to the Minister, or perhaps a prisoner who had written to the Minister and requested early release, and the Minister could unilaterally form the opinion that it was ‘proper’ to release the prisoner and grant a licence to be at large, which then becomes sufficient authority for the release of the prisoner. The licence does not have to be approved by any court – there is no need even to consult the court which sentenced the prisoner – or any other authority.
34. There could be consequences under the Leadership Code and/or the Criminal Code if the Minister deliberately abused his or her power, eg by receiving a bribe or other corrupt payment. But by itself, Section 615 contains very few safeguards and provides scope for abuse of power.
35. Section 615 does not appear to be in line with the letter or the spirit of the Constitution, that is Section 151(4), which contemplates the establishment of “systems” of probation, parole or release on licence. Section 151 is the provision that confers power on the Executive to grant pardons and otherwise exercise the power of mercy. It concludes with Subsection (4), which states:
Nothing in this section prevents the establishment by law of systems of probation, parole or release on licence, or any similar systems. [Emphasis added.]
36. It cannot fairly be said, in my opinion, that Section 615 provides for a system of releasing prisoners. It confers a bare power, not envisaged by the Constitution. That is why the powers it confers on the Minister for Justice should be used sparingly, on a case-by-case basis, and not arbitrarily.
37. The full text of Section 615 is:
(1) In this section—
"licence" means a licence to be at large granted under Subsection (2);
"prescribed authority" means a Magistrate Grade III, or IV, or a Reserve Magistrate under the District Courts Act (Chapter 40);
"the prescribed period", in relation to a licence, means the period commencing on the day on which the licence was granted and ending on the day that, if no remissions of sentence were granted, would be the last day of the term of imprisonment being served by the person to whom the licence was granted.
(2) Where a person is serving a term of imprisonment for an offence against a law, the Minister may, if he thinks proper to do so in the circumstances, grant to him, by writing under his hand, a licence to be at large.
(3) A licence is sufficient authority for the release from prison of the person to whom it is granted.
(4) A licence is subject to such conditions (if any) as are specified in the licence.
(5) The Minister may, at any time before the expiration of the prescribed period, by writing under his hand—
(a) vary or revoke a condition of a licence or impose additional conditions; or
(b) revoke a licence.
(6) The varying of a condition or the imposing of an additional condition under Subsection (5) does not have effect until notice of it has been given to the person to whom the licence was granted, being notice given before the expiration of the prescribed period.
(7) Where—
(a) a licence granted to a person is revoked; or
(b) the person to whom a licence has been granted has, during the prescribed period, failed to comply with a condition of the licence; or
(c) there are reasonable grounds for suspecting that he has, during that period, failed to comply with a condition of the licence,
then—
(d) a member of the Police Force may, without warrant arrest him; and
(e) a Magistrate Grade III. or IV. may, after receiving evidence on oath, issue a warrant for his arrest.
(8) Where a member of the Police Force arrests a person under Subsection (7) on a ground specified in Subsection (7)(b) or (c), the member shall, as soon as practicable, take him before a prescribed authority.
(9) If the prescribed authority is satisfied that a person brought before him under Subsection (8) failed without lawful excuse to comply with a condition of the licence, the prescribed authority shall cancel the licence.
(10) A person brought before a prescribed authority under Subsection (8) shall, unless the prescribed authority otherwise directs, be kept in custody until the prescribed authority has determined the matter.
(11) Where a licence granted to a person is revoked or cancelled—
(a) the person may, subject to Subsection (12), be detained in prison to undergo imprisonment for a period equal to the part of his term of imprisonment that he had not served at the time when he was released from prison under the licence; and
(b) a prescribed authority may give a warrant under his hand for the detention of a person under Paragraph (a).
(12) Where a prescribed authority cancels a licence under Subsection (9), the person to whom the licence was granted may appeal to the National Court against the cancellation.
(13) On an appeal under Subsection (12), the National Court may—
(a) if it is satisfied that the ground on which the licence was cancelled has been established—confirm the cancellation; or
(b) if it is not so satisfied—order that the cancellation cease to have effect.
(14) An appeal under Subsection (12) shall be by way of re-hearing, but the National Court may have regard to any evidence given before the prescribed authority.
38. In the present case the Minister executed 14 instruments, one for each jail from which the prisoners were released. All but one of the instruments were in the same terms:
I, Hon Bire Kimisopa MP, Minister for Justice, by virtue of the powers conferred by Section 148 of the Constitution and Section 615 of the Criminal Code Act (Chapter 262), and all other powers me enabling, hereby grant to persons specified in the schedule hereto and serving terms of imprisonment for offences a licence to be at large forthwith on the following conditions:
39. The exception was the instrument for Daru Jail, where the normal three conditions were not included and there was only one condition, namely:
That upon your release you shall return to your own country and do not return to Papua New Guinea.
40. Presumably that was because all the prisoners released on licence from that jail were non-citizens.
WHAT OTHER LAWS ALLOW PRISONERS TO BE GIVEN EARLY RELEASE?
41. The release on licence power needs to be distinguished from other laws and procedures under which prisoners can have their sentences suspended or be released early from jail:
42. Those powers and procedures can be invoked after a person has been prosecuted, convicted and sentenced. They are to be distinguished from laws that grant an immunity from prosecution, eg Section 344 of the Constitution allows for granting of immunity from prosecution for crimes committed during the Bougainville Crisis (In the matter of an Application by Paul Tupuru (2005) N2976).
Suspension of sentences
43. All or part of a prison sentence can be suspended by the court imposing the sentence, provided that a pre-sentence report is considered (Acting Public Prosecutor v Don Hale (1998) SC564; Edmund Gima & Siune Arnold v The State (2003) SC730). This means that the prisoner, as the offender continues to be called, serves the suspended part of the sentence outside jail, subject to conditions that are imposed under a probation order. 44. Sentences can be suspended under Section 19 of the Criminal Code and under the Probation Act.
Remission
45. In most cases a prisoner who is sentenced to a term of imprisonment only has to spend two-thirds of that term in jail. The prisoner is granted a remission of one-third of the sentence under Section 120(1) of the Correctional Service Act, which states:
Subject to this section, the Commissioner [of the Correctional Service] shall grant to a detainee remission equal to one third of the period of sentence.
46. For example, an offender given a sentence of 24 years imprisonment will be entitled to a remission of one-third (eight years) of the sentence, which means the time actually spent in custody will be 16 years. There are some exceptions. For example, a remission is not to be granted in respect of the period of any sentence imposed for escaping or attempting to escape (Section 120(2)(a)). If a prisoner is returned to custody as a result of breaching a parole condition some of the remission period is lost (Section 120(3)). If a prisoner is found guilty of a disciplinary offence the jail commander can, as a penalty, order the loss of up to ten days remission for each offence (Sections 160, 161).
47. Otherwise, remission is a statutory right, not a privilege or a reward for good behaviour or something that a prisoner has to apply for.
Early release under a court order
48. This occurs when the court, in fixing the sentence, indicates a minimum period in custody that the prisoner must serve, after which he or she will be eligible for early release. I adopted this sentencing practice in Kimbe in numerous cases in 2005 and 2006, having taken the view that Section 19 of the Criminal Code allows this sort of flexibility to the National Court.
49. The Supreme Court, however, took a different view in Daniel Ronald Walus v The State (2007) SC882, holding that the National Court, having sentenced an offender, is functus officio (its duties are discharged) and cannot impose a sentence that creates a lack of certainty as to how much time an offender will have to spend in custody.
50. The Supreme Court held that the National Court has no power to provide for early release from prison, which amounts to usurpation of the powers of the Parole Board.
Parole
51. This is the process by which a prisoner is granted early release under the Parole Act. The system works this way:
Pardons and other exercises of the power of mercy
52. This is where the executive government decides, in a particular case, to lessen, soften or in some other way avoid the effect of a sentence that has been imposed on an offender by the courts. This is done by the Governor-General exercising the power of mercy under Section 151 (grant of pardon etc) of the Constitution, by granting a:
53. The term ‘pardon’ is not defined by any law of Papua New Guinea. The legal effect of a pardon will depend on whether it is expressed to be free or conditional. It is not necessarily the same thing as an acquittal (The State v Tanedo [1975] PNGLR 395). If the offender is a Member of Parliament who has lost their seat due to being convicted of an indictable offence and who is granted a “free pardon” before the issue of the writ for a by-election, the member is restored to the seat under Section 106(6) of the Constitution.
54. The full text of Section 151, contained in Subdivision VI.4.D (the power of mercy) of the Constitution is:
(1) Subject to this Subdivision, the Head of State [ie the Governor-General, per Constitution, s 82(2), Schedule 1.20(a)(iii)], acting with, and in accordance with, the advice of the National Executive Council, may grant to a person convicted of an offence or held in penal detention under a law of Papua New Guinea—
(a) a pardon, either free or conditional; or
(b) a remission or commutation of sentence; or
(c) a respite of the execution of sentence; or
(d) a less severe form of punishment for that imposed by any sentence,
and may remit or refund, in whole or in part, any fine, penalty or forfeiture paid or payable to a governmental body.
(2) Where an offence has been committed, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may grant a pardon, either free or conditional, to an accomplice who gives evidence that leads to the conviction of a principal offender.
(3) Except in a case referred to in Subsection (2) or as otherwise permitted by or under an Act of the Parliament, the exercise of the power conferred by Subsection (1) shall not be held out, offered or promised in advance of conviction.
(4) Nothing in this section prevents the establishment by law of systems of probation, parole or release on licence, or any similar systems.
55. Though the Governor-General’s power of mercy is broad and can have the same effect as releasing a prisoner on licence, there are more limits on the exercise of this power than in the case of a release on licence by the Minister for Justice under the Criminal Code. The Governor-General, unlike the Minister for Justice, cannot exercise the power of mercy unilaterally. Two important constraints apply:
56. The Public Prosecutor can advise the NEC, through the Minister for Justice, to advise the Governor-General to grant pardons to accomplices who give evidence leading to the conviction of principal offenders. This is done under Section 4(1)(i) of the Public Prosecutor (Office and Functions) Act. However, it seems that there would still need to be a report on the matter by the Advisory Committee so as to comply with Section 152(2).
57. The power of mercy provisions of the Constitution reflect the recommendations of the Constitutional Planning Committee, which recognised that the Executive arm of government has a role in correcting injustices that come to light with the passage of time. The CPC stated:
As a means of ensuring that the executive power of mercy is not used in an arbitrary way, we have recommended the establishment of an Advisory Committee on the Power of Mercy whose function it is to give advice to the Executive on most matters in respect of which that power may be used. ...
We recognise that it is important for the Executive to have the power to commute sentences of death, to grant pardons and to reduce sentences. This power is, of course, a normal one for any Executive. It enables the Government to rectify injustices which only become apparent after the time for an appeal against a conviction or sentence has passed. ...
We are, however, concerned to try to ensure that the power of mercy is exercised only in an appropriate case and in a just manner. We propose that an advisory committee on the exercise of the power of mercy be established to investigate and make recommendations in cases where the Executive is giving consideration to exercising this power. (Final Report of the CPC, Chapter 8 – The Administration of Justice – paras 16, 122 and 123.)
58. Significantly, the CPC did not want the power of mercy to be ‘used in an arbitrary way’. It should be ‘exercised only in an appropriate case and in a just manner’. However, the manner in which the release on licence exercise was carried out in May 2007 did not adhere to those guiding principles.
WHAT IS THE PROBLEM WITH THE MASS RELEASE OF PRISONERS ON LICENCE?
Risk of abuse
59. The inherent problem with the current practice is that there are no statutory procedures, guidelines or criteria that provide a systematic and fair way of making decisions. And because the power is given to one person – the Minister for Justice – there is an ever-present risk of corruption, nepotism and abuse. The decision to release a prisoner can be made on a whim.
60. There is no evidence before the court to show that the process was actually, deliberately abused, for an improper motive, in the May 2007 mass release exercise. But nor on the other hand is there evidence that the exercise was carried out in a fair and systematic way that saw all prisoners given equal opportunity to participate in and benefit from the exercise.
Anomalies
61. Two of the biggest jails in the country – Beon and Kerevat – had no prisoners released on licence, whereas Lakiemata Jail, one of the smallest, had the equal highest number – 28 – with Buimo Jail, which is the second largest jail. No explanation is available for this.
62. A large proportion of prisoners released from some jails were serving time for homicide offences: 8 out of 12 from Baisu; 9 out of 12 from Bihute. Four prisoners released from Bomana were serving sentences for wilful murder, the most serious offence on our statute books, carrying a maximum penalty of death. Were any of the relatives of the deceased asked how they felt about these prisoners being released on licence? One of the Bomana prisoners, Avehara Lihara, was serving a sentence for wilful murder, but was released after serving less than five years. Perhaps there were good reasons for him being allowed a relatively short time in custody for such a serious offence. But the evidence before the court does not show any.
63. A prisoner released on licence from Baisu, Thomas Waim, was serving time for one of the most notorious series of pack-rapes reported in the case law of this country. His original sentence of 25 years was reduced on appeal to the Supreme Court to 18 years (The State v Thomas Waim [1995] PNGLR 187; Thomas Waim v The State (1997) SC519). Perhaps there were good reasons for him being released early. Perhaps he has changed his life and is no longer a threat to the community. Perhaps he has reconciled with the victims. But the records do not reveal any of this. Surely such a prisoner must have his case rigorously addressed by the Parole Board or the Advisory Committee on the Power of Mercy before being granted a licence to be at large.
64. The same concern applies to another Baisu prisoner, John Baipu. He was convicted of the murder (not manslaughter) of his uncle and won an appeal to the Supreme Court against the original sentence, which was reduced from life imprisonment to 25 years (The State v John Baipu (2003) N2451; John Baipu v The State (2005) SC796). He started serving his sentence in July 2003, thus spending less than four years in custody before being released on licence in May 2007.
65. By contrast, the 14 prisoners released from Kavieng Jail and the 15 released from Ningerum Jail were serving relatively short sentences, of up to three years, for relatively minor crimes. Why were no prisoners serving long sentences for homicide offences, rape, armed robbery and the like, not released from these jails? Were they considered ineligible? It seems that they have not been treated the same way as prisoners at other jails.
Unfairness
66. The method of releasing prisoners on licence was unfair, in that:
Lack of publicity
67. Little or no publicity was given to the May 2007 exercise, either before or after it happened. Perhaps there was a valid reason for releasing so many prisoners at once. Perhaps the aim was to reduce the prison population in view of the overcrowding at some jails. If that was the purpose, it should have been explained.
Lack of consultation
68. There was little consultation with the community; and no thought seems to have been given to consulting the most important, perhaps most neglected, stakeholders in the criminal justice system – the victims of the crimes of the prisoners being granted a licence to be at large (or in the case of homicide offences, the relatives of the deceased).
69. A number of prisoners serving sentences for sexual offences such as rape and sexual penetration of children were released. Was any attention given to ensuring that they had been rehabilitated? The Criminal Code now provides for victim impact statements to be made available to the National Court when it is sentencing an offender for a sexual offence. Shouldn’t an even greater concern be shown for the impact on the victim when it is proposed to release such offenders early from jail?
70. A good reason for a release on licence might be that the prisoner is in a poor physical or mental condition. If that is the case, steps should be taken to ensure that the family and friends of the prisoner, and the community in which the prisoner will live, are in a position to cope. The justice system must be alert to the special needs and rights of detainees who have psychological problems or mental illness or infirmity or are otherwise of unsound mind (In the matter of Four Remandees Allegedly of Unsound Mind of Boram Correctional Institution East Sepik Province: Clement Talis, Paulias Mathias, Roy Maru and Samson Yauling, MP No 621 of 2006, 30.06.06). Releasing prisoners who are mentally ill, on licence, without ensuring that someone will look after them when they come out of jail would appear to be a reckless way of administering justice.
Parole Board by-passed
71. There is a tribunal in place – the Parole Board – established by an Act of the Parliament – the Parole Act 1991 – with statutory procedures and criteria to follow, which is required to do, in a careful, rigorous and fair way, what was done in an arbitrary way in May 2007.
72. The members of the Parole Board are the experts on such matters and the Board and the apparatus to support it should be properly funded.
Appeals process disrupted
73. There was no consultation with the Judiciary. This has had the effect of undermining respect for, and the authority of, the courts in the National Judicial System, particularly the National Court and the Supreme Court. The manner in which prisoners were released has had some bizarre consequences.
74. Consider the case of Joe Giamur, a prisoner who was serving a seven-year sentence for manslaughter at Lakiemata Jail. The sentence was imposed by the National Court in 2004 and he appealed against the sentence to the Supreme Court. His appeal was, in February 2007, dismissed and the Supreme Court, acting under Section 23(4) of the Supreme Court Act, increased the sentence to 14 years (Joe Giamur v The State, SCRA No 9 of 2006, 23.02.06). Yet he was released on licence, three months later. This has made a mockery of the Supreme Court appeal process.
75. Something similar occurred with the release of prisoners from Boram Jail. Five of them – Emil Kongian, Freddie Kam, Basil Sinjavi, Jack Kam and Jeffery Winjat – had been sentenced by the National Court, for arson and unlawful deprivation of liberty (The State v Enni Mathew and Others (2003) N2563). They were each serving a sentence of 13 years and two months, not seven years as recorded in the official documents provided by the Commissioner of the Correctional Service. Such a serious error in this basic data suggests that no proper auditing of sentences was carried out before decisions were made on which prisoners to release.
76. Those five prisoners had appealed to the Supreme Court against their convictions and sentences. Their appeals were heard in Wewak in April 2006 (the Court was constituted by the late Justice Jalina, Justice Mogish and myself). Judgment was reserved, then handed down in September 2007. Unbeknown to the Court, the five prisoners had been granted a release on licence four months before judgment was pronounced. Some of them had actually been out on bail pending their appeal, so they were released on licence even though they were not in prison.
77. Their appeals against conviction were dismissed but the appeals against sentence were upheld and their sentences reduced by more than half (Emil Kongian and Others v The State, SCRA No 92 of 2003, 03.09.07). But, because some of them were on bail when they were ‘released’, they spent little time in jail for committing serious offences.
78. Those five prisoners had three co-offenders – Dennis Nopi, Henni Mathew and Roger Gisa – whose appeals were dealt with in the same way. Their names are absent from the list of Boram prisoners granted release on licence. Why did they miss out? This illustrates another problem with the current system. The law does not expressly require the Minister to give reasons justifying the release of a prisoner on licence, and it is apparent that the Minister, in fact, gives no reasons. This adds to the confusion, mystery and suspicion surrounding the process.
Executive interference
79. A further example of what I, with respect, am forced to label as Executive interference in the administration of justice can be found at Lakiemata. In 2005 at Kimbe, in the case of The State v Rodney Gela and Clarence Logi, CR Nos 1300 and 1301 of 2005, 27.10.05, I sentenced two young men for doing grievous bodily harm to another young man in the course of a drunken brawl at Galewale village. The offenders attacked and stabbed the victim, chased him and stabbed him again while he was on the ground, clearly defenceless. The victim suffered serious, life-threatening injuries.
80. When imposing the sentences of six years and four years respectively, I took into account the offenders’ varying degrees of involvement. Rodney Gela attacked the victim more viciously and showed little mercy compared to Clarence Logi, whose actions were less blameworthy. Imposing different sentences on co-offenders is not unusual; indeed it is necessary to ensure that justice is done, so that each sentence fits the crime that has been committed by the individual concerned (Ignatius Pomaloh v The State (2006) SC834). However, those fundamental principles of sentencing were undermined by the decision of the Minister for Justice to release both Rodney Gela and Clarence Logi on licence on the same day.
81. As it turned out, I had granted Clarence Logi early release, in March 2007, in accordance with the terms of the order under which he was sentenced, having been satisfied that he had a good (indeed glowing) institutional behaviour record and that there was a community work program for him in place. He is now serving the balance of his sentence outside jail in accordance with a detailed probation order, which requires him to perform six hours unpaid community work each week, attend church every week and abstain from alcohol. Clarence Logi is under constant supervision by a probation officer who must file a report every three months on his level of compliance with the order. He is also required to appear before the National Court at Kimbe every three months. The Court makes an assessment of his progress and makes a considered decision on whether he continues on probation. The prisoner continues therefore to be under the watchful eye of the justice system.
82. Rodney Gela, on the other hand, is ‘at large’ and his conduct is regulated only by the vague conditions of the licence granted to him by the Minster for Justice. He is not, in fact, despite what his licence might suggest, under the supervision of any probation officer. He does not have a community work program that he has to adhere to. He does not have to appear in court and account for his conduct. The crime he committed was significantly worse than his co-offender’s. Yet, because of the manner in which the release on licence exercise was carried out, prisoners like him are being treated generously, while others who have committed similar or less serious crimes are treated more strictly.
Independence of the Judiciary
83. The mass release on licence exercise in May 2007 was, in my view, an affront to the justice system and the independence and authority of the Judiciary.
84. Section 157 (independence of the National Judicial System) of the Constitution enshrines judicial independence by stating:
Except to the extent that this Constitution specifically provides otherwise, neither the Minister responsible for the National Justice Administration [ie the Minister for Justice] nor any other person or authority (other than the Parliament through legislation) outside the National Judicial System has any power to give directions to any court, or to a member of any court, within that System in respect of the exercise of judicial powers or functions. [Emphasis added.]
85. It has not been suggested that the Minister for Justice expressly directed any court as to how to sentence anybody. However, when prisoners are released en masse, arbitrarily, without regard to the principles of sentencing and the consequences for those not released and the consequences on the workings of the appeals and probation processes, it does, inevitably, imperil the separation of powers and encroach on the independence of the courts. The courts’ role as the arbiter of justice is whittled away. Judges no longer have the final say on what a prisoner’s sentence should be.
86. What happened in May 2007 was not unprecedented. There have been similar mass releases on licence in the past. But that does not justify this sort of thing being repeated. The decision to release just one prisoner on licence can be viewed as a travesty of justice. It can lead to a breakdown in order in the jails and civil disturbances, such as in 1979 when the then Minister for Justice, Nahau Rooney, was released on licence soon after being convicted of contempt of court and sentenced to eight months imprisonment (Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448).
87. If Judges are not vigilant against unwarranted intrusions into the judicial decision-making process our system of justice will become dysfunctional. The independence of the Judiciary will be under intolerable stress. We will have a justice system without integrity.
WHAT BASIC RIGHTS DOES IT INFRINGE?
88. To recap, the main problems with the mass release on licence exercise in May 2007 are that:
89. The effect of such an arbitrary, non-transparent process is that at least two Basic Rights of the remaining prison population (those not released on licence) were breached:
Full protection of the law: Section 37(1)
90. Every person in PNG is guaranteed the right to the full protection of the law by Section 37(1) (protection of the law) of the Constitution, which states:
Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
91. Section 37(1) states very clearly that this right must be fully available to persons in custody. The Constitution recognises that such individuals have special rights. They must not be submitted to torture (whether physical or mental) or to treatment or punishment that is cruel or otherwise inhuman. They must be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Sections 36(1), 37(17)).
92. They must also be given the full benefit of laws under which they are eligible for early release from their sentences. They must be informed about such laws and how they work and what rights they have under them. If such laws are to be invoked, the person responsible – in this case, the Minister for Justice – must put in place a decision-making process that is fair, rigorous, systematic and transparent. What happened leading up to May 2007 was the opposite of that. The prisoners who were not informed about what was happening or who were simply not considered for early release – such as those at Beon and Kerevat Jails – were denied the full protection of the law.
Equality: Section 55
93. The right of equality of citizens is guaranteed by Section 55(1) (equality of citizens) of the Constitution, which states:
Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
94. No prisoner has a right to be released on licence. A release on licence is a privilege. But every prisoner has a right to equal treatment and equal consideration for conferment of such a privilege. A decision-making process that is arbitrary and cannot stand up to judicial scrutiny, which is haphazard and results in large proportions of the country’s prison population not being considered for early release betrays the principle of equality before the law that is enshrined in Section 55.
Proscribed acts: Section 41
95. In addition, the way in which the mass release on licence exercise was carried out fails to meet the requirements of Section 41(1) (proscribed acts) of the Constitution, which states:
Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
96. Section 41 proscribes (ie prohibits) seven sorts of acts. Even if done under a valid law, an act is unlawful if it is, in the particular case:
97. The “act” in question in the present case is the act of the Minister for Justice in releasing 191 prisoners on licence. I don’t think it can be said that that act was harsh or oppressive, given the large number of prisoners that were actually released. However, the arbitrary manner in which the act was carried out puts it in jeopardy of being classed as ‘not warranted’ by or ‘disproportionate’ to the circumstances and the requirements of the case, and certainly brings it into the final category of proscribed acts: ‘not reasonably justifiable’.
98. I consider that the Minister’s act was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. It was an unlawful and prohibited act. The National Court is therefore obliged to make the orders it thinks proper under Section 23(2) of the Constitution to remedy the breach of the prohibition (SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329; Petrus and Gawi v Telikom PNG Ltd, OS No 728 of 2006, 30.05.08).
WHAT ORDERS SHOULD BE MADE?
99. Having identified breaches of two of the Basic Rights and declared the actions of the Minister for Justice unlawful and prohibited, I will make orders that are necessary and appropriate for the purposes of enforcement of the Basic Rights; orders that I think are proper for remedying a breach of the prohibition. The orders are made under Sections 23(2) and 57(3) of the Constitution.
100. These orders will apply until such time as Section 615 of the Criminal Code is amended or repealed. They are intended to ensure that the system of releasing prisoners on licence becomes open, transparent, rigorous, systematic and fair, so that all prisoners get the full protection of the law and are treated equally.
101. The orders are:
(1) The Minister for Justice must, after consultation with the Minister responsible for the Correctional Service, the Commissioner of the Correctional Service, the Advisory Committee on the Power of Mercy and the Parole Board, within three months after service of this order upon him, produce and circulate to all prisoners in the country a leaflet that explains to prisoners the various laws and procedures by which they can be eligible for or entitled to early release from custody. The leaflet must, in particular, state whether the Minister intends to continue to use, and if so how he proposes to administer, the release on licence provisions of the Criminal Code.
(2) The Minister for Justice must ensure that, if he proposes to engage in a mass release on licence exercise involving ten or more prisoners, all prisoners in all jails throughout the country are informed of the process and given an equal opportunity to participate in the exercise.
(3) The Minister for Justice must, within three months after service of this order upon him:
(a) determine a set of procedures that he will follow when deciding whether to grant a licence to be at large to any prisoner;
(b) determine a set of criteria against which he will assess any prisoner’s application for, or any claim that a prisoner be the subject of, a release on licence; and
(c) promulgate those procedures and criteria by publication in the National Gazette and in a daily nationwide newspaper.
(4) The procedures must include the following measures:
- (a) publication, at least two months before the proposed date of release, in the National Gazette and in a daily nationwide newspaper, of a notice that the Minister is giving consideration to the release on licence of the prisoner, giving the name of the prisoner, the offence for which the prisoner is serving sentence, the length of the sentence, where the prisoner is imprisoned and the proposed conditions to which the licence will be subject;
- (b) consultation with the community and the victim(s) of the crime(s) of which the prisoner has been convicted;
- (c) notification of the proposal to the Chief Justice;
- (d) publication, at least one week before the release date, in the National Gazette and in a daily nationwide newspaper, of notice of the decision to release a prisoner on licence, giving details of the prisoner, the date of release, the conditions that apply to the prisoner and the reasons for making the decision to grant a licence to be at large to the prisoner.
Orders accordingly.
_________________________
Public Solicitor: Lawyer for the 1st intervener
W Piandi: Lawyer for the 2nd intervener
Public Prosecutor: Lawyer for the State
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