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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO 43 OF 2020
IN THE MATTER OF AN APPLICATION FOR
ENFORCEMENT OF HUMAN RIGHTS
BRADLEY NERI
Applicant
V
COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent
Waigani: Cannings J
2020: 31st July, 9th, 12th October
HUMAN RIGHTS – application by prisoner for enforcement of human rights: Constitution, s 37(1): right to the full protection of the law – alleged errors by Correctional Service in calculation of date of eligibility for parole and due date of release from custody
The applicant, a prisoner, is serving a 16-year sentence for murder. He is concerned about the date he becomes eligible for parole and his due date of release. He claims that these dates have been incorrectly calculated and this is a breach of his right to the full protection of the law under s 37(1) of the Constitution. He applied for enforcement of his human rights by the correction of those dates in the Correctional Service records. The respondents opposed the application, arguing that the Court had no jurisdiction to intervene in the matter, as it lies within the administrative responsibility of the Correctional Service, and that the application was premature as the applicant had not exhausted the avenues available to him within the prison system to query his dates.
Held:
(1) A prisoner’s date of eligibility for parole and due date of release are matters of law, to be calculated by examining a warrant of commitment and interpreting and applying provisions of the Parole Act and Correctional Service Act. They are matters that fall within the jurisdiction of the National Court, as a superior court of record, of unlimited jurisdiction, under ss.163(2) and 166(1) of the Constitution.
(2) Every prisoner has the right under s 37(1) of the Constitution to the full protection of the law and this includes the right to know with certainty their date of eligibility for parole and due date of release from custody.
(3) The National Court has jurisdiction to intervene in cases in which it is shown that the date of eligibility for parole and/or due date of release have been incorrectly calculated.
(4) There were errors in the applicant’s current date of eligibility for parole (14 February 2024) and due date of release (6 February 2028), which are, as a matter of law, 11 February 2024 and 11 October 2026, which amount to a breach of the right of the applicant to the full protection of the law.
(5) Orders were made to correct the records of the Correctional Service accordingly.
Cases Cited
The following cases are cited in the judgment.
Application by Jacob Eddie (2014) N5735
Application by Samalan Peter (2014) N5631
Application by Waga Kumutz (2014) N5633
Complaint by Jack Kumul Kora (2014) N5632
Complaint by John Irekau (2013) N4958
Complaint by John Siko Wel (2015) N6150
Complaint by Michael Tambeng (2013) N4959
Complaint by Okata Talagaim (2010) N3893
Complaint by Paul Niko (2014) N5719
Complaint by Trevor Waidau (2013) N5417
APPLICATION
This was an application by a prisoner for correction of his date of eligibility for parole and due date of release from custody, prosecuted as an application for enforcement of human rights.
Counsel
E Wurr, for the Applicant
A Kajoka, for the Respondents
12th October, 2020
1. CANNINGS J: Bradley Neri is a prisoner at Bomana Correctional Institution, serving a 16-year sentence for murder, imposed by the National Court at Waigani on 14 February 2020. He was accorded a pre-sentence period in custody, deducted from the head sentence, of 4 years and 3 days. He is concerned about the date he becomes eligible for parole and his due date of release from custody. He claims that these dates have been incorrectly calculated and this is a breach of his right to the full protection of the law under s 37(1) of the Constitution. He applies for enforcement of his human rights by the correction of those dates. The respondents, the Commissioner of the Correctional Service and the State, oppose the application.
2. The following issues arise:
3. Ms Kajoka, for the respondents, submits that the National Court has no jurisdiction to intervene in the matter, as the queries the applicant has about his date of eligibility for parole and his due date of release lie within the administrative responsibility of the Correctional Service. His application is premature as he has not exhausted the avenues available to him within the prison system to query the dates.
4. I reject that argument. While the dates that the applicant is concerned about, of course, lie within the administrative responsibility of the Correctional Service, that does not mean that the dates calculated by the Correctional Service have to be accepted or cannot be challenged. A prisoner’s date of eligibility for parole and due date of release are matters of law, to be calculated by examining a warrant of commitment and interpreting and applying provisions of the Parole Act and Correctional Service Act. They are matters that fall within the jurisdiction of the National Court, as a superior court of record, of unlimited jurisdiction, under ss 163(2) and 166(1) of the Constitution.
5. Every prisoner has the right under s 37(1) of the Constitution to the full protection of the law and this includes the right to know with certainty their date of eligibility for parole and due date of release from custody. I have stated this in numerous cases over a long period, such as Complaint by Okata Talagaim (2010) N3893, Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959, Complaint by Trevor Waidau (2013) N5417, Application by Samalan Peter (2014) N5631, Complaint by Jack Kumul Kora (2014) N5632, Application by Waga Kumutz (2014) N5633,Complaint by Paul Niko (2014) N5719, Application by Jacob Eddie (2014) N5735 and Complaint by John Siko Wel (2015) N6150.
6. Those are the reported cases. There are many more in which I have given oral judgments or ex tempore rulings. I am not aware of any appeals against any of my rulings so I am surprised that it is being suggested in this case that the Court has no jurisdiction. If the Correctional Service or the State takes issue with my development of the law in this area, then they should appeal to the Supreme Court. They can then try to prove that I am wrong in saying that calculation of date of the eligibility of parole and the due date of release are questions of law and that if those dates are incorrectly calculated that amounts to a breach of the prisoner’s human rights.
7. As for the submission that the application is premature, I uphold the submission of counsel for the applicant, Ms Wurr, that for such a claim to have substance, the respondents would need to point to the existence of some system of administrative review within the Correctional Service by which prisoners are able to have their key dates checked. However, there is no such evidence in this case, and I am unaware of such a system being in existence in any correctional institution. If and when I see evidence of a system of administrative review, I will consider whether an application for correction of a prisoner’s key dates is premature. In this case, the application is not premature.
8. I consider that the National Court has jurisdiction to intervene in any case in which it is shown that the date of eligibility for parole and/or due date of release have been incorrectly calculated. The Court clearly has the power to order the Correctional Service to amend its records on such matters.
2 HAS A BREACH OF HUMAN RIGHTS BEEN PROVEN?
9. This depends on whether errors have been made in the dates shown in the applicant’s Correctional Service records. He presently has a date of parole eligibility of 14 February 2024 and a due date of release from custody (with remission) of 7 October 2026.
Date of parole eligibility
10. The applicant was sentenced in 2020, after commencement of recent amendments to the Parole Act, which lengthen the proportion of sentence a prisoner must serve to be eligible for parole. Section 17 (eligibility for parole) now states:
(1) Subject to this Act and unless otherwise determined by an order of the Court, a detainee who has been sentenced to a term of imprisonment of five years or more and has served not less than half of the sentence is eligible for parole.
(2) A detainee who is serving a term of life imprisonment or is subject to a death sentence shall not be eligible for parole.
(3) A detainee whose application has gone before the Board for three times and was refused by the Board on all occasions is no longer eligible for parole,
(4) A detainee with an appeal pending in the Supreme Court is not eligible for parole until his appeal is heard and determined.
(5) For the purposes of determining the length of a sentence under Subsection (1):
(a) remission of sentence shall not be taken into account; and
(b) where a detainee has been sentenced to —
(i) two or more terms of imprisonment to be served concurrently - the longer or longest term (as the case may be) shall be considered; or
(ii) two or more terms to be served cumulatively - the total of these terms shall be considered.
11. The key provision in this case is Section 17(1): the applicant is eligible for parole when he “has served not less than half of the sentence”. The words “the sentence” refer to the head sentence. The question of remission of the sentence (which is relevant for purposes of calculation of the due date of release) is not relevant at this stage.
12. The applicant is serving only one sentence: the sentence of 16 years. He is eligible for parole after serving half of that sentence: 1/2 x 16 years = 8 years.
13. In calculating when the applicant is regarded as having served eight years, it is necessary to take into account his pre-sentence period in custody. He was sentenced on 14 February 2020 with a pre-sentence period in custody of four years and three days, which means that the effective date of commencement of his sentence was 11 February 2016. Adding eight years to that date is 11 February 2024. The date shown in the applicant’s CS file is incorrect by only three days. It is a small error, but it is an error, which should be corrected.
Due date of release
14. To calculate the due date of release, I will follow the approach taken in other cases regarding complaints of unlawful detention such as Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959 and Application by Samalan Peter (2014) N5631. The method of calculation might appear complicated, but it needs to be borne in mind that I developed it to deal with cases in which the prisoner was serving more than one sentence and/or had a history of escaping from custody on more than one occasion.
15. 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.
16. 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,
to arrive at the “net” due date of release.
17. It is when calculating the period of remission that I have observed in many cases that the Correctional Service makes errors, so it is useful here to point out that every prisoner who is serving a sentence expressed in years (ie those who are not subject to a sentence of life imprisonment or a death sentence) is almost invariably entitled to a remission of one-third of their sentence, under s 120 (remission to be granted) of the Correctional Service Act 1986, which states:
(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.
Step 1: the “gross” due date of release
18. The date of sentence is 14 February 2020. To that date is added:
(a) the total length of all sentences – here there is only one sentence = 16 years; and
(b) the period the complainant was at large: here that period is zero.
Thus the total period to be added to the date of the first sentence is 16 years. The “gross” due date of release is 14 February 2020 + 16 years = 14 February 2036.
Step 2: the “net” due date of release
19. The “gross” due date of release is 14 February 2020. From that date is deducted:
(a) the pre-sentence period ordered by the National Court to be deducted: 4 years, 3 days; and
(b) remission of sentence under s 120 of the Correctional Service Act, which is “one-third of the period of sentence”, ie 1/3 x 16 years = 5 years, 4 months.
20. The key words in s 120(1) are “period of sentence”. That means the head sentence. It does not mean the period to be spent in custody after deducting the pre-sentence period in custody. In this case that period is, as shown on the warrant of commitment, 11 years, 11 months, 3 weeks and 4 days. This is where the Correctional Service often errs. The error has been made in this case. On the front page of the applicant’s CS file, next to sentence, is shown: 11 years, 11 months, 3 weeks and 4 days. That is wrong, not simply because the Correctional Service takes a different approach to the calculation. It is wrong in law. It is an error of law. An error in the interpretation and application of the law has occurred. It is a serious and significant error as it has meant that in this case, in calculating the one-third remission, the Correctional Service has allowed a remission of one-third of 11 years, 11 months, 3 weeks and 4 days, which equals about four years, rather than one-third of 16 years, which equals five years, four months.
21. Getting back to the correct calculation to be made in this case: the total period to be deducted from the “gross” due date of release is 4 years, 3 days + 5 years, 4 months = 9 years, 4 months, 3 days.
22. The “net” due date of release is 14 February 2036 minus 9 years, 4 months, 3 days = 11October 2026.
23. Another way of calculating the due date of release in the present case (which is a rather simple one, with only one sentence and no periods at large to take into account) would be to fix on the deemed date of commencement of the sentence of 11 February 2016 and go forward the period equal to two-thirds of the sentence (2/3 x 16 years) of ten years, eight months = 11 October 2026.
24. It will be recalled that the CS file shows the applicant has a due date of release with remission as 6 February 2028. This is a serious and significant error.
Any breach of human rights?
25. Yes, it has been proven that there has been a small error of three days in calculating the date of eligibility for parole and a serious and significant error in calculating the due date of release. Both errors, while they remain uncorrected, constitute an infringement of the applicant’s right to the full protection of the law under s 37(1) of the Constitution.
3 WHAT ORDERS SHOULD THE COURT MAKE?
26. As the applicant has shown a breach of human rights, the Court will invoke its powers under ss 57(1) and 57(3) of the Constitution to enforce his human rights and make the order that is necessary and appropriate. Section 57(1) states:
A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
27. Section 57(3) 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).
28. I determine that is necessary and appropriate to order the Correctional Service to correct its records.
ORDER
(1) The application for enforcement is granted and these orders are made under ss 57(1) and (3) of the Constitution to remedy the breach of the right to the full protection of the law under s 37(1) of the Constitution that has occurred.
(2) It is declared that the applicant is eligible for parole on 11 February 2024.
(3) It is declared that the applicant’s due date of release from custody is 11 October 2026.
(4) The Jail Commander, Bomana Correctional Institution, shall ensure that by 26 October 2020:
- (a) sealed copies of this order and judgment are placed on the applicant’s Correctional Service file; and
- (b) the applicant’s Correctional Service file and all other relevant files and records are amended to show that the applicant’s date of eligibility for parole and due date of release are as shown in this order.
(5) The matter shall be called on 2 November 2020 at 1.30 pm to check compliance with this order.
__________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Solicitor-General: Lawyer for the Respondents
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