Piau v Commissioner of Correctional Services [2018] PGNC 278; N7355 (17 July 2018)

N7355

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA No. 103 OF 2017

BETWEEN
CLEMENT TAMA PIAU
Plaintiff

AND
COMMISSIONER OF CORRECTIONAL SERVICES
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Tamate, J
2018: 13, 21 June
2018: 17 July

HUMAN RIGHTS - Application for transfer to another Correctional Service Institute pursuant to Section 37(20) of the Constitution – Whether transfer necessary according to circumstances of case – Whether security issues available?

The Plaintiff has filed a human rights application (HRA) seeking enforcement of his constitutional right under Section 37(20) of the Constitution.

Held:

(1) Application for transfer is refused as there is insufficient and lack of evidence in support.
(2) The Applicant is at liberty to file a fresh application in the future but must be supported by evidence from both his and victim’s relatives stating that there is no animosity and that they undertake to visit applicant in the event transfer his granted to Ningerum Correctional Service Institute.
(3) These proceedings are dismissed and this file shall be closed accordingly.

Cases Cited
Nil

Counsel:

J. Kambao, for the Plaintiff
C. Kuson, for Defendants

17^th July, 2018

1. TAMATE J: This matter proceeded by way of a trial by affidavits and was reserved for ruling. The matter now returns for a ruling on the application by the Plaintiff/Applicant.

Background

2. The applicant is a prisoner serving a term of 40 years IHL at Bomana Correctional Services Institution. He was convicted and sentenced for willful murder pursuant to Section 299 of the Criminal Code Act by the National Court in Kiunga on 27 April 2016. He was serving sentence at Ningerum Rural lock up but was transferred to Bomana Correctional Services in Port Moresby to pursue his appeal in the Supreme Court. Due to the lapse of the appeal period to file his appeal he did not appeal.
   
3. Plaintiff/Applicant wants to now return to Ningerum and serve his sentence at the Correctional Service Institute there by virtue of his application pursuant to Section 37(20) of the Constitution.
   
4. Section 37(20) of the Constitution provides:
   

“An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made the reason for doing shall be endorsed on the file of the offender.”

Application by Plaintiff/Applicant

5. Plaintiff applies for enforcement of his human rights:
   
   • The right to be detained at a place close to where is relatives reside under the Constitution, Section 37(20);
   • The right to liberty of the person under the Constitution, Section 42;
   • The right to freedom of movement under the Constitution, Section 52; and
   • The right to equality of person under the Constitution, Section 55.
     
6. According to his Correctional Service (CS) file, Applicant was:
   
   • Sentenced to 40 years in hard labor (IHL) less 01 year, 11 months for pretrial custody. He is to serve 38 years 01 month in hard labor.

• Due Date of Release (DDR) with remission is: 16 September 2041.
• Due Date of Release (DDR) without remission is: 26 April 2054.
  

7. Plaintiff has relied on his affidavit sworn on 25^th January, 2018 in support of his application.
   
8. He states that he is 36 years old and has two children whose ages are 7 years old and 4 years old respectively. They are been raised by his parents since his wife is deceased. He states his parents are old and he is concerned about the children’s future and welfare. He wants to transfer so that he can have access to his two children.
   
9. In his affidavit he states he was convicted and sentenced to 25 years IHL and therefore he is eligible for parole in three years’ time after serving one third of his sentence.
   
10. He further states that he wants to pay some more compensation to the victim’s family so they could agree for his release on parole. He states that K31, 000.00 compensation has already been paid and victim’s family has agreed to help with his early release on parole.
    

Defendants Response

11. The Defendant relies on the affidavit filed by Commander of Bomana Correctional Service one Kiddy Keko on 26 April 2018. Commander Keko has deposed in his affidavit the following:

(i) On 27 April 2016 the National Court in Kiunga convicted and sentenced Applicant for willful murder of a person named Sep Wok contrary to Section 299 of the Criminal Code Act, Chapter 262.
(ii) Applicant was sentenced to 40 years IHL less pretrial custody of 1 year, 11 months. He is to serve 38 years, 01 month IHL.
(iii) Applicant will be eligible for parole on 7 October 2029, which means he will be eligible for parole in 11 years’ time from this date.

12. He further states that Commissioner of Correctional Services has the authority to transfer detainees pursuant to Section 96(a) of the Correctional Services Act 1995 upon recommendation by the Committee.

13. The Commissioner Correctional Services considers the grounds upon which recommendations are made by the Committee. The grounds would include:

• Closeness of family.
• Behavior and character of the detainee.
• Secure containment and good prospects of rehabilitation.
  

14. No requests for transfer had been made to Commander Keko by the Applicant (Plaintiff) since his incarceration at Bomana Correctional Services.

15. Commander Keko further states that Ningerum Correctional Service Institute is a small lock up which was upgraded from a rural lock up. It does not have the capacity to detain prisoners who have committed such serious crimes and had been sentenced to such longer period of years.

16. Another consideration is for the safety and security of the Applicant since the victim’s relatives live in Ningerum. It is not safe to keep the Applicant there.

17. Finally, Bomana Correctional Service has a secure containment and facilities for Applicant’s rehabilitation.

18. In considering the evidence and submission made by counsel I make the following observations:

(1) Applicant/Plaintiff has stated certain facts which are contrary to the records in his Correctional Services file particularly on the length of his sentence as well as his eligibility for parole in 3 years’ time. The Correctional Service file record and Court file records clearly show that the Applicant was convicted and sentenced to 40 years IHL. The Applicant states he was sentenced to 25 years IHL, therefore he is eligible for release on parole in 3 years’ time. Whether this is deliberate or an error has not been clarified to Court. In any event, the Court accepts that the sentence is 40 years as per the warrant of commitment signed by the trial judge.
(2) He has given different ages for his two children per his HRA application and the affidavit. At that time of his sentence he states that his children were 5 years old and 5 months old respectively. The age of his second child was 5 months old and should be about 2 years and 5 months old now.
(3) There is no other evidence from his family or victim’s family on their support for his release on parole. No other evidence by way of affidavit(s) has been produced to support his application. The issue about his safety is also a concern if he moves to Ningerum where the victim’s relatives are located. There is no evidence showing that there is no longer any animosity between his family and victim’s family.
(4) The Ningerum Correctional Services Institution is a small institute and does not have the capacity to detain prisoners with lengthy sentences for very serious crimes.
(5) It also does not have the capacity containment nor the facilities for purposes of proper rehabilitation.

Ruling on the Application

19. In light of the evidence that has been provided for purposes of this application the applicant has not applied for transfer to the Commanding officer of Bomana Correctional Service for recommendation to the Correctional Service Commissioner. In any event the application has not been supported by any affidavit evidence from the relatives or any independent source to verify his claims that compensation has been paid or his parents are not able to care for his children.

20. Furthermore, the sentence for the serious crime of willful murder is quite lengthy thus it is only proper that he serves his term at Bomana Correctional Institute where he can be properly rehabilitated.

21. Applicant has not been truthful about his sentence in his affidavit including the time for his eligibility for release on parole therefore this raises a concern about the genuineness of this application.

22. As a result of been convicted and sentenced for a very serious crime the Applicant is a prisoner of the State, thus his rights under Sections 42, 52 and 55 of the Constitution are therefore restricted or limited.

Orders of this Court

23. In light of the discussions on the circumstances of this case the Court makes the following orders:

(1) The application for transfer to Ningerum Correctional Service Institution pursuant to Section 37(20) of the Constitution is hereby refused due to lack of supporting evidence.

(2) The Applicant is at liberty to file a fresh application in the future but must be supported by evidence from both his and victim’s relatives stating that there is no animosity and that they undertake to visit applicant in the event transfer his granted to Ningerum Correctional Service Institution.

(3) These proceedings are dismissed and the file shall be closed accordingly.

Orders accordingly,
______________________________________________________________
Public Solicitors: Lawyer for the Applicant
Solicitor General: Lawyer for the Respondent