Wel, John Sika - Complaint under Section 42(5) of the Constitution, In re. [2015] PGNC 259; N6150 (10 December 2015)

N6150

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 11 OF 2015

IN THE MATTER OF A COMPLAINT BY JOHN SIKO WEL
UNDER SECTION 42(5) OF THE CONSTITUTION

Madang: Cannings J
2015: 11 August, 10 December

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 unlawfully detained.

Held:

(1) Every prisoner has the right under Section 42(5) of the Constitution to make a complaint to the National Court that he is being unlawfully or unreasonably detained.

(2) The Court inquired into the complaint and was not satisfied that the terms of the complainant's detention, showing his due date of release as 23 March 2017, were lawful. The complaint was sustained and it was ordered that the due date of release is 25 October 2016.

Cases cited

The following cases are cited in the judgment.

Application by Benetius Gehasa (2005) N2817
In The Matter of a Complaint by Jack Kumul Kora (2014) N5632
In The Matter of a Complaint by John Paiya Irekau (2013) N4958
In The Matter of a Complaint by Michael Tambeng (2013) N4959
In the matter of a complaint by Okata Talagaim (2010) N3893
In The Matter of a Complaint by Paul Niko (2014) N5719
In The Matter of a Complaint by Trevor Waidau (2013) N5417
In the matter of complaints by Michael Walge and Others (2006) N3022
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 Wurr, for the Complainant
C Waienge, for the Respondent

10th December, 2015

1. CANNINGS J: John Siko Wel is a prisoner at Beon Jail. He complained to the National Court that he is being unlawfully detained. He says that the periods that he was at large (he has escaped from custody three times since he was first sentenced in 2004) have been unlawfully added to his sentence. He says that the due date of release that the Correctional Service has assigned to him, 23 March 2017, is incorrect. He claims that he should be released from custody immediately. 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) gives every person who is detained in custody the right to make a complaint to the Court that he or she is being unlawfully or unreasonably detained. If such a complaint is made the Court is obliged to:

• order that the complainant be brought before the Court;
• 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 by Michael Walge and Others (2006) N3022, Re Release of Prisoners on Licence (2008) N3421, In the matter of a complaint by Okata Talagaim (2010) N3893, In The Matter of a Complaint by John Paiya Irekau (2013) N4958, In The Matter of a Complaint by Michael Tambeng (2013) N4959, In The Matter of a Complaint by Trevor Waidau (2013) N5417, In The Matter of a Complaint by Jack Kumul Kora (2014) N5632, In The Matter of a Complaint by Paul Niko (2014) N5719.)

INQUIRY

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

• He was first sentenced by the National Court (Davani J) at Waigani on 11 May 2004 to a term of 15 years imprisonment for abduction and rape, with the pre-sentence period in custody of 1 year, 3 months, 4 days deducted from the head sentence.
  
• On 18 January 2005 he escaped from Bomana Correctional Institution and was at large until 27 August 2005, a period of 7 months, 1 week, 2 days.
  
• On 6 February 2006 he escaped from Bomana Correctional Institution and was at large until 9 February 2006, a period of 3 days.
  
• On 23 May 2007 he was sentenced by the National Court (Mogish J) at Waigani to an effective term of 1 year imprisonment for escape (4 years of the sentence was suspended), with no pre-sentence period in custody deducted from the head sentence.
  
• On 12 January 2010 he escaped from custody and was at large until 18 February 2010, a period of 1 month, 6 days.
  
• On 23 August 2011 he was sentenced by the National Court (Mogish J) at Waigani to an effective term of 2 years imprisonment for escape (3 years of the sentence was suspended), with no pre-sentence period in custody deducted from the head sentence.
  

4. He has been continuously in custody since the date of his last sentence, 23 August 2011.

CALCULATION OF DUE DATE OF RELEASE

5. To calculate the complainant's 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 period 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, which is one-third of each sentence (except for the escape sentences in respect of which, under Section 120(2), there is no remission),

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

Step 1: the "gross" due date of release

6. The date of the first sentence is 11 May 2004. To that date is added:

(a) the total length of all sentences: 15 years + 1 year + 2 years = 18 years; and

(b) the total period the complainant was at large: 7 months, 1 week, 2 days + 3 days + 1 month, 6 days = 8 months, 2 weeks, 4 days.

Thus the total period to be added to the date of the first sentence is 18 years + 8 months, 2 weeks, 4 days = 18 years, 8 months, 2 weeks, 4 days.

7. The "gross" due date of release is 11 May 2004 + 18 years, 8 months, 2 weeks, 4 days = 29 January 2023.

Step 2: the "net" due date of release

8. The "gross" due date of release is 29 January 2023. From that date is deducted:

(a) the pre-sentence periods ordered by the National Court to be deducted: 1 year, 3 months, 4 days; and

(b) remission of sentences under Section 120(1) of the Correctional Service Act: as the total length of all sentences that attract remission is 15 years, one-third of that is 5 years.

9. The total period to be deducted from the "gross" due date of release is 1 year, 3 months, 4 days + 5 years = 6 years, 3 months, 4 days. The "net" due date of release is 29 January 2023 minus 6 years, 3 months, 4 days = 25 October 2016.

RESOLUTION OF COMPLAINT

10. 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 of 23 March 2017, is lawful. However, the complaint is not sustained to the extent sought by the complainant, who appears to have been harbouring the view that his sentences should have continued to be regarded as being served even when he was at large. Prisoners must understand that if they escape they 'stop the clock' on their sentences. I find no evidence that the Correctional Service has deliberately added time unlawfully to the complainant's sentence. It seems that some accidental arithmetic errors have been made.

ORDER

(1) The complaint is sustained in that the Court is not satisfied that the current terms of the complainant's detention, which show a due date of release as 23 March 2017, are lawful, as the correct due date of release is 25 October 2016.

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

• (a) a sealed copy of the 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 25 October 2016; and
  
• (c) an affidavit by a duly authorised officer, certifying that 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 4 February 2016 to check compliance with this order.

________________________________________________________________
Public Solicitor: Lawyer for the Complainant
C Waienge: Lawyer for the Respondent