Sandy v Marauri [2013] PGNC 145; N5332 (12 August 2013)

N5332

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 63 OF 2013

BETWEEN

FRANCIS REU SANDY
Applicant

AND

MR WILLIAM MARAURI – OFFICER SECOND IN COMMAND
First Respondent

AND

MR PAUL KIWA – CS, PAROLE & RECEPTION CLERK (FORMER)
Second Respondent

AND

MR MANU MOMBI – CS, RECEPTION CLERK
Third Respondent

Kimbe: Makail, J
2013: 08th & 12th August

HUMAN RIGHTS - Application for enforcement of human rights – Allegations of breaches of human rights – Complaint of delay in early release – Miscalculation of period of sentence – Information missing on date of escape and re-capture – Remission – One third remission – Constitution – ss. 36, 37, 42 & 55 – Correctional Service Act, 1995 – s. 120.

Cases Cited

No cases cited

Counsel

Applicant in person
First Respondents in person
No appearance for Second & Third Respondents

DECISION
12th August, 2013

1. MAKAIL, J: This is an application for enforcement of human rights pursuant to the Constitution. The alleged breaches of human rights are:

• s. 36, Protection from inhuman treatment,
• s. 37, Protection of the law,
• s. 42, Liberty of the person, and
• s. 55, Equality of citizens.
  

2. The applicant's complaint is that he has been unlawfully detained. He says that on 07th November 1996, he was convicted and sentenced to 25 years imprisonment for murder. Eleven (11) months was deducted for time spent in pre-trial custody, leaving a balance of 24 years and 1 month to serve. He escaped twice. He does not know the date of the first escape. For the second one, he says it was sometimes in 2002. He was recaptured on 05th March 2008. The reason for the second escape was to attend a peace ceremony in his village with the relatives of the deceased.

3. He was not charged and sentenced by the Court for the two escapes. On 24th February 2009, the auditors from Correctional Service conducted a roll-call and discovered that he did not have a warrant of commitment. He says that a few weeks later, the second respondent Mr Kiwa produced a warrant and it stated that he had 4 years left from 2008 to serve and was due for release on 26th November 2012. On 17th February 2011, Mr Kiwa produced another warrant which stated that he was due for release on 15th May 2021. Then on 28th February 2011, Corporal Joe Dube produced another warrant which stated that he was due for release on 26th May 2021. He made a complaint to the Ombudsman Commission in relation to the conflicting dates of release and was advised to bring the matter to Court.

4. The information produced by the respondents confirms that the applicant is serving a prison term of 25 years for murder. He escaped twice. First on 10th August 1998 and date of recapture, unknown, the second on 30th March 2002 and recaptured on 16th August 2008. For the second escape, the period he was at large is 6 years, 5 months and 16 days. It also confirms that he was not charged and sentenced for these escapes. Had he not escaped, he would have been released on 26th November 2012. He is now serving time for the period he was at large for the second escape. In addition to that, because he escaped, he lost his one-third remission of 2 years and 1 month and therefore must serve in full the head sentence of 25 years. The total time is 8 years and 7 months.

5. The conflicting dates of release are a result of lack of information kept by the respondents on the date of the first escape and date of recapture and also the conflicting dates of recapture of the second escape. But what is available is the original date of release. Computing the date of release from 07th November 1996 by adding 25 years will give 07th November 2021. Deduct 11 months from that date for time spent in pre-trial custody gives 07th December 2020. This is the original date of release. The one-third remission period of 25 years is 8 years and 3 months. Deducting this period from 07th December 2020 reduces the time to 07th March 2012.

6. The respondents say that since the applicant escaped twice, he lost his one-third remission of the head sentence. The applicant says that the respondents do not have any power to revoke the remission. Section 120 of the Correctional Service Act 1995 states:

"120. Remission to be granted.

(1) Subject to this section, the Commissioner shall grant to a detainee remission equal to one third of the period of sentence.

(2) A remission shall not be granted in respect of —

(a) the period of any sentence imposed on a detainee in consequence of a conviction for escaping or attempting to escape from lawful custody; or

(b) that period of a sentence which elapses between the escape and recapture of a detainee who escaped from lawful custody; or

(c) the period of any sentence imposed on a detainee for a corrective institution offence of rural lock-up offence.

(3) Where a detainee is returned to custody pursuant to Section 26 of the Parole Act 1991, the detainee shall —

(a) be granted by the Commissioner remission equal to one third of the period of sentence served by the detainee prior to release on parole; and

(b) not be eligible for remission on the period of sentence served while on parole subject to the Parole Act 1991; and

(c) not be deemed to be serving the sentence for any period which elapses between the laying of the charge for breach of parole and being returned to custody pursuant to Section 26 of the Parole Act 1991; and

(d) be deemed to be serving the sentence of imprisonment if in custody pursuant to Section 25 of the Parole Act 1991; and

(e) be eligible for remission on times spent in custody prior to a determination under Section 27 of the Parole Act 1991.

(4) In the case of a detainee who, immediately before the coming into operation of this Act, was a detainee under the Corrective Institutions Act (Chapter 63) repealed by Section 169, the provisions of this Act shall apply in respect of the calculation of remission (and loss of remission) to any portion of the sentence served before that coming into operation as they apply in respect of that portion of the sentence to be served after that coming into operation." (Underlining mine).

7. There is nothing in this section that says that where the Commissioner of Correctional Service grants to a detainee remission equal to one third of the period of sentence, the detainee escapes from prison and is subsequently recaptured, he or she loses the remission. However, sub-section 2(b) states that remission will not be granted to the detainee for the period of a sentence which elapses between the escape and recapture of a detainee. This means that if a detainee is at large and his period of sentence expires and the detainee is subsequently recaptured, he or she will not be entitled to remission. He or she will have to serve out the full term.

8. Given this interpretation, it seems that where the Commissioner grants a detainee remission, the detainee escapes and is subsequently recaptured, that remission remains intact and the period of remission must be deducted from the head sentence. Otherwise, the only way is for the respondents to charge and prosecute the applicant for escaping so that the Court may impose a sentence on him. In this case, the respondents did not charge the application for escaping and the period of 8 years and 3 months must be deducted from the head sentence. If this is done, the new date of release will be 07th March 2012.

9. But that is not all, the period of time he was at large for the two escapes must also be taken into account and the respondents are right in taking them into account. As the dates for the first escape and recapture are unknown, it is not possible to determine the period the applicant was at large and therefore this period is not considered. As for the second escape, there are two different dates for recapture. The applicant says 05th March 2008 and the respondents say 16th August 2008. Apart from saying that the respondents fabricated the dates of release, the applicant did not call any witnesses to verify his assertion. I will give the benefit of doubt to the respondents and accept 16th August 2008 as the date of recapture.

10. From 30th March 2002 to 18th August 2008 is a period of 6 years, 5 months and 16 days. Add this to 07th March 2012 gives a new release date of 23rd August 2018. This is the new date of release. He is lawfully detained and is due for release on this date.

____________________________________

Applicant in person
First Respondents in person
No appearance for Second & Third Respondents