In re Complaint under section 42(5) of the Consitution by Michael Tambeng [2013] PGNC 10; N4959 (31 January 2013)

N4959

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 10 OF 2012

IN THE MATTER OF A COMPLAINT UNDER SECTION 42(5) OF THE CONSTITUTION BY MICHAEL TAMBENG

Madang: Cannings J
2012: 12 April, 7, 18 December,
2013: 23, 31 January

HUMAN RIGHTS – liberty of the person – complaint of unlawful detention: Constitution, Section 42(5)

The complainant, a prisoner, complained under Section 42(5) of the Constitution that he was being punished by the Correctional Service for having escaped by being given an inflated due date of release of 27 April 2021 and was being unlawfully detained.

Held:

(1) Every prisoner has the right under Section 42(5) of the Constitution to make a complaint to the National Court or a Judge that he or she is being unlawfully or unreasonably detained, and if such a complaint is made the Court or Judge is obliged to:

• order that the complainant be brought before the court or the Judge;
• inquire into the complaint;
• determine whether the complainant's detention is lawful and reasonable; and
• if not satisfied order the release of the complainant (either unconditionally or on conditions).
  

(2) Here, the Court ordered that the complainant be brought before it and inquired into the complaint and was not satisfied that the terms of the complainant's detention was lawful, in that the due date of release on his Correctional Service file of 27 April 2021 is inflated (though not to the extent contended for by the complainant).

(3) The Court, having calculated the correct due date of release, ordered that the complainant be released, subject to any further order of the Court, on 13 July 2018.

Cases cited

The following cases are cited in the judgment.

Application by Benetius Gehasa (2005) N2817
In the matter of a complaint by Okata Talagaim (2010) N3893
In the matter of complaints of unlawful and unreasonable detention by Michael Walge and Others (2006) N3022
Re Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153
Re Release of Prisoners on Licence (2008) N3421

COMPLAINT

This was a complaint of unlawful detention under Section 42(5) of the Constitution.

Counsel

E Thomas & S Tanei, for the complainant
M Pil, for the State

31 January, 2013

1. CANNINGS J: Michael Tambeng is a prisoner at Beon Jail. He has complained to the National Court that he is being unlawfully detained. He says that he is being punished by the Correctional Service for having escaped by being given an inflated due date of release of 27 April 2021. He says that though he was at large for a long time no one is taking into account why he escaped and the fact that he went back to his village and did his 'normal community activities'. His complaint is brought under Section 42(5) of the Constitution, which states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

2. Section 42(5) of the Constitution gives every person who is detained in custody, especially prisoners, the right to make a complaint to the National Court or a Judge that he or she is being unlawfully or unreasonably detained. If such a complaint is made the Court or Judge is obliged to:

• order that the complainant be brought before the court or the Judge,
• inquire into the complaint;
• determine whether the complainant's detention is lawful and reasonable; and
• if not satisfied, order the release of the complainant (either unconditionally or on conditions).
  

(See generally Application by Benetius Gehasa (2005) N2817, In the matter of complaints of unlawful and unreasonable detention by Michael Walge and Others (2006) N3022, Re Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153, In the matter of a complaint by Okata Talagaim (2010) N3893.)

INQUIRY

3. I ordered that the complainant be brought before the National Court. I have inquired into his complaint and make the following findings of fact:

• He was first sentenced by the National Court (Andrew J) on 27 November 1992 to a term of 20 years imprisonment for murder and attempted murder, with the pre-sentence period in custody of 7 months deducted from the head sentence, none of which was suspended.
  
• On 27 May 1994 he escaped.
  
• On 2 July 1994 he was recaptured.
  
• On 17 August 1994 the National Court (Andrew J) sentenced him to 1 year imprisonment, for escape, to be served cumulatively to the original sentence.
  
• On 13 April 1999 he escaped again. He was charged in respect of that escape, but the charge was struck out by the District Court.
  
• He was at large until 24 January 2011 (when he was recaptured). He has remained in custody since then.
  

CALCULATION OF DUE DATE OF RELEASE

4. To calculate his due date of release I will follow this approach:

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 the complainant was at large,

to arrive at a "gross" due date of release.

Step 2: Deduct from the "gross" due date of release the periods that the complainant is entitled to have deducted, namely:

(a) any pre-sentence periods in custody that a court has ordered under the Criminal Justice (Sentences) Act be deducted; and

(b) any remission of sentences under Section 120 of the Correctional Service Act (for an explanation of the calculation of remission see Re Release of Prisoners on Licence (2008) N3421),

to arrive at the "net" due date of release.

Step 1: the "gross" due date of release

The date of the first sentence is 27 November 1992. To that date is added:

(a) the total length of all sentences, which is 20 years + 1 year = 21 years; and

(b) the total length of all periods the complainant was at large, which is: 1 month, 5 days (from 27 May 1994 to 2 July 1994) + 11 years, 9 months, 1 week, 4 days (from 13 April 1999 to 24 January 2011) = 11 years, 10 months, 2 weeks, 2 days.

Thus the total period to be added to the date of the first sentence is 21 years + 11 years, 10 months, 2 weeks, 2 days = 32 years, 10 months, 2 weeks, 2 days.

The "gross" due date of release is therefore 27 November 1992 + 32 years, 10 months, 2 weeks, 2 days = 13 October 2025.

Step 2: the "net" due date of release

The "gross" due date of release is 13 October 2025. From that date is deducted:

(a) the pre-sentence periods in custody that a court has ordered be deducted, the only period in this case being the period ordered to be deducted from the original sentence, 7 months; and

(b) remission of sentences under Section 120 of the Correctional Service Act, which, apart from the 1-year sentence for escape (in respect of which no remission is allowed) is one-third of each sentence. The total length of all sentences except for the escape sentence is 21 years minus 1 year = 20 years. The total period of remission is 6 years, 8 months.

5. The total period to be deducted from the "gross" due date of release is 7 months + 6 years, 8 months = 7 years, 3 months.

6. The "net" due date of release is therefore 13 October 2025 minus 7 years, 3 months = 13 July 2018.

RESOLUTION OF COMPLAINT

7. The complaint will be sustained in that I am not satisfied that the terms of the complainant's detention, which show a due date of release as 27 April 2021, is lawful. However, the complaint is not sustained to the extent sought by the complainant, who appears to have been harbouring the view that provided that he stayed out of trouble while he was at large his sentences should have continued to be regarded as being served. Prisoners must understand that if they escape they 'stop the clock' on their sentences. The Correctional Service made no error in not taking into account that there were allegedly good reasons for his long period at large. However, it does appear (from the worksheets provided to the Court) that penalties of some sort, described as 'loss of remission', have been imposed on account of the periods that the complainant was at large. There is no law authorising such penalties.

ORDER

(1) The complaint is sustained in that the Court is not satisfied that the terms of the complainant's detention, which show a due date of release as 27 April 2021, is lawful.

(2) The Jail Commander, Beon Jail, shall ensure that within 14 days after the date of this order:

• (a) a sealed copy of this Order is placed on the complainant's Correctional Service file; and
  
• (b) the complainant's Correctional Service file and all other relevant files and records are amended to show that the complainant's due date of release is 13 July 2018; and
  
• (c) an affidavit by a duly authorised officer, certifying that all of the above steps have been taken, shall be forwarded to the Assistant Registrar of the National Court, Madang.
  

(3) The matter shall be called at Madang on 15 February 2013 to check on compliance with this order.

(4) The complainant shall be released from custody, subject to any further order of the Court or other due process, on 13 July 2018.

Ordered accordingly.
______________________________________________
Public Solicitor: Lawyer for the complainant
Public Prosecutor: Lawyer for the State