Emmanuel v Independent State of Papua New Guinea [2023] PGNC 265; N10459 (24 August 2023)

-N10459

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NOS 92 & 94 OF 2023

IN THE MATTER OF APPLICATIONS FOR
ENFORCEMENT OF HUMAN RIGHTS

TONY EMMANUEL
First Applicant

EDWARD YAU
Second Applicant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Respondent

PUBLIC PROSECUTOR
Second Respondent

REGISTRAR, NATIONAL COURT & SUPREME COURT
Third Respondent

Madang: Cannings J
2023: 26^th May, 20^th July, 24^th August

HUMAN RIGHTS – application by prisoners for enforcement of human rights – Constitution, s 37(1): right to full protection of the law – confusion re dates of eligibility for parole and due dates of release from custody – different warrants of commitment for same offence.

The applicants are prisoners who were jointly convicted by the National Court of wilful murder in 2012. They were originally sentenced to 50 years and 40 years imprisonment respectively but the National Court later passed different sentences, without expressly revoking the earlier sentences, of 40 years and 30 years respectively. The existence of different warrants of commitment for different sentences made it difficult to calculate dates of eligibility for parole. Further confusion has been created by the applicants’ different detention history. The first applicant has a prior conviction and sentence for rape. The second applicant was at large and sentenced in his absence and not returned to custody until nine months after the date of the second wilful murder sentence, and was convicted of an escape from custody offence and sentenced to three months’ imprisonment. They filed separate human rights applications to clarify their dates of eligibility for parole.

Held:

(1) Calculation of a prisoner’s date of eligibility for parole is a matter of law as it is a date that can be determined only by application of provisions of the Parole Act to the prisoner’s individual circumstances.

(2) Similarly, calculation of a prisoner’s due date of release is a matter of law as it is a date that can be determined only by application of provisions of the Correctional Service Act to the prisoner’s individual circumstances.

(3) Though the applicants’ primary concern was their parole eligibility dates, it was also relevant to calculate their due dates for release from custody as the confusion caused by different sentences also led to uncertainty as to their due dates of release from custody.

(4) The applications for enforcement of human rights were properly before the Court as applications under s 57 of the Constitution for enforcement of the right to full protection of the law under s 37(1) of the Constitution and the National Court has jurisdiction to determine the applications and calculate the dates of eligibility for parole and due dates of release from custody.

(5) Though the orders and warrants of commitment for the second sentences for wilful murder did not expressly revoke the earlier orders and warrants, there was an implied revocation and replacement of the first sentences by the second sentences.

(6) As the applicants had been sentenced in 2013, which was before the 2018 amendments to the Parole Act came into force, they were entitled to have their dates of eligibility for parole calculated according to s 17 of the Parole Act as it was before those amendments. They were eligible for parole after serving one-third of their sentences.

(7) The first applicant’s parole eligibility date is 24 December 2026. The second applicant’s parole eligibility date is 20 January 2024.

(8) The first applicant’s due date of release with remission is 24
April 2044. The second applicant’s due date of release with remission is 20 February 2033.

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
Application of Bradley Neri (2020) N8577
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 Theo Abal (2023) N10166
Complaint by Trevor Waidau (2013) N5417
Emmanuel & Yau v The State (2018) SC1668
The State v Yomba & Ure (2022) SC2274

Counsel

N Katosingkalara, for the Applicants
E Manihambu, for the Respondents

24^th August 2023

1. CANNINGS J: The applicants, Tony Emmanuel and Edward Yau, are prisoners who were jointly convicted of wilful murder by the National Court at Wewak in 2012. The trial judge was Kirriwom J. They were on 19 November 2012 sentenced to 50 years and 40 years imprisonment respectively but the National Court on 20 March 2013 passed different sentences, without expressly revoking the earlier sentences, of 40 years and 30 years respectively.

2. The existence of different warrants of commitment for the different sentences has led to difficulties in calculating their dates of eligibility for parole. Further confusion has been created by the applicants’ different detention history.

3. The first applicant Tony Emmanuel has a prior conviction. He was sentenced by Kariko J on 24 September 2009 to 12 years imprisonment for rape and unlawful deprivation of liberty, with one month deducted for pre-sentence period in custody.

4. The second applicant Edward Yau was at large and sentenced for wilful murder in his absence and was not returned to custody until nine months after the date of the second murder sentence. He was also convicted of an escape from custody offence under the Summary Offences Act and sentenced by Wewak District Court to three months’ imprisonment.

5. The applicants have filed separate human rights applications for the purpose of clarifying their dates of eligibility for parole.

JURISDICTION

6. Calculation of a prisoner’s date of eligibility for parole is a matter of law as it is a date that can be determined only by application of provisions of the Parole Act to the prisoner’s individual circumstances.

7. Similarly, calculation of a prisoner’s due date of release is a matter of law as it is a date that can be determined only by application of provisions of the Correctional Service Act to the prisoner’s individual circumstances.

8. 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, Complaint by John Siko Wel (2015) N6150 and Application of Bradley Neri (2020) N8577. Those are some of the reported cases. There are many more in which I have given oral judgments or extempore rulings to the same effect.

9. Though the applicants’ primary concern is their parole eligibility dates, it is also relevant to calculate their due dates for release from custody as the confusion caused by the different sentences of the National Court has also led to uncertainty as to the applicant’ due dates of release from custody.

10. The applications for enforcement of human rights are properly before the Court as applications under s 57 of the Constitution for enforcement of the right to the full protection of the law under s 37(1) of the Constitution. The National Court has jurisdiction to determine the applications and calculate the dates of eligibility for parole and due dates of release from custody.

DATES OF ELIGIBILITY FOR PAROLE

11. A prisoner’s eligibility (not entitlement) for parole is set out in s 17 (eligibility for parole) of the Parole Act 1991, which presently states, due to amendments made by the Parole (Amendment) Act No 13 of 2018:

(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.

12. Prior to the 2018 amendments, s 17 stated:

(1) Subject to this Act, a detainee who—

(a) having been sentenced to a term of imprisonment of less than three years—has served not less than one year; or

(b) having been sentenced to a term of imprisonment of three years or more—has served not less than one third of the sentence; or

(c) having been sentenced to life imprisonment or detention during Her Majesty's pleasure—has served not less than ten years,

is eligible for parole.

(2) 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.

13. Act No 13 of 2018 commenced operation, by virtue of s 110(1) of the Constitution, on the date of certification by the Speaker, 28 November 2018, as it was not expressed to come into force on any other day. The amendment to s 17, which lengthened the proportion of a sentence a prisoner must serve to be eligible for parole, was not expressed to operate retrospectively, and therefore does not apply to the applicants. Their parole eligibility is determined according to the former s 17(1)(b) (eligibility for parole) of the Parole Act, which stated, until 28 November 2018:

Subject to this Act, a detainee who ... having been sentenced to a term of imprisonment of three years or more – has served not less than one third of the sentence ... is eligible for parole.

14. Each applicant is therefore eligible for parole once he has served one third of his sentence.

First applicant, Tony Emmanuel

15. The first issue to address is the confusion caused by the two warrants of commitment issued in connection with the 2012 conviction for wilful murder. There is no explanation provided by the records of the National Court as to why the trial judge revisited the sentences for the applicants. However, there is no doubt that the first applicant’s second sentence for wilful murder, 40 years imprisonment, revokes and replaces his original sentence of 50 years imprisonment. This was confirmed by the Supreme Court (Salika DCJ, Tamate J, Anis J) when dismissing the applicants’ appeals against sentence on 3 May 2018 in Emmanuel & Yau v The State (2018) SC1668.

16. The second issue to address is the total length of the first applicant’s sentences. The applicants’ counsel Mr Katosingkalara submitted that because the National Court order and warrant of commitment for the wilful murder sentence of 40 years imprisonment did not expressly state that it was cumulative to the 12-year sentence for rape and unlawful deprivation of liberty, it is presumed that the sentences are concurrent. I reject that submission. The two sentences of 12 years and 40 years are for different offences imposed in different cases by different judges. There is no good reason they should be not served cumulatively. The total sentence for the first applicant is 12 + 40 = 52 years imprisonment.

17. One third of 52 years is 17 years, four months. He is eligible for parole once he serves 17 years, four months in custody calculated from 24 August 2009 (being one month before the date of his first sentence).

18. His date of parole eligibility is 24 August 2009 + 17 years 4 months = 24 December 2026.

Second applicant, Edward Yau

19. The total sentence is 30 years (wilful murder) + 3 months (escape) = 30 years, 3 months’ imprisonment.

20. One third of 30 years 3 months is 10 years, one month. He is eligible for parole once he serves 10 years, one month in custody calculated from 20 December 2013 (being the effective date of commencement of sentence upon his return to custody).

21. His date of parole eligibility is 20 December 2013 + 10 years 1 month = 20 January 2024.

Obligations of Commissioner of the Correctional Service

22. The Commissioner must provide the Parole Board with particulars of the prisoner at least six months before the parole eligibility date in accordance with s 18 (Commissioner to provide particulars of detainees eligible for parole) of the Parole Act:

At least six months before a detainee becomes eligible for parole in accordance with Section 17(1), the Commissioner shall provide the Board with the following particulars in the prescribed form:—

(a) the name of the detainee; and

(b) the date of his committal to the corrective institution; and

(c) particulars of the offence committed by him and of his conviction; and

(d) the length of the sentence imposed on him, and if more than one sentence has been imposed on him the lengths of the respective sentences and whether they were imposed to run concurrently or cumulatively; and

(e) particulars of any further sentences imposed on him since his committal to the corrective institution, including particulars of any sentences imposed on him for disciplinary offences while in detention; and

(f) the date on which he will become eligible for parole in accordance with Section 17,

and shall notify the detainee that this has been done.

23. The Parole Board can then require the Commissioner to provide further particulars of the prisoner under s 20 (reports on detainees eligible for parole) of the Parole Act:

(1) Subject to Section 19(3), where the Board receives—

(a) information relating to a detainee in accordance with Section 18; or

(b) notice that a refusal has been withdrawn in accordance with Section 19(2); or

(c) an application for parole under Section 22,

the Board shall request—

(d) the Commissioner; or

(e) the Chief Parole Officer,

to provide it with reports on the detainee.

(2) The report of the Commissioner under Subsection (1) shall contain the following particulars in respect of the detainee:—

(a) an assessment of character and history during detention; and

(b) a report of a medical examination held within the previous three months; and

(c) a recent assessment by a psychiatrist or welfare officer; and

(d) where it is appropriate and available, a report of a resident or visiting chaplain; and

(e) details of any money, including wages, due to him; and

(f) an assessment of his attitude to the offence and to any victim of the offence; and

(g) a summary of progress while in detention, including a resume of achievements in academic and technical skills, and involvement in social, recreational and religious activities; and

(h) an assessment of relationships with other detainees and correctional institution staff; and

(i) an assessment of co-operation, behaviour and general attitude while in detention; and

(j) details of proposed plans, particularly in respect of education and training, employment, proposed housing, community and church involvement; and

(ja) if the detainee has been transferred from his point of origin, proposed plans for repatriation prior to release on parole; and

(k) where the report is made in respect of an application for parole under Section 22, details of any apparent changes in behaviour and attitude since parole was refused.

(3) The report of the Chief Parole Officer under Subsection (1) shall contain the following particulars in respect of the detainee:—

(a) an assessment of character and history;

(b) previous convictions (if any);

(c) an assessment of his attitude to the offence;

(d) any matters of custom relevant to the offence committed;

(da) a victim impact statement; and

(e) particulars of any disputes or disruptions within the community which have arisen as a result of the commission of the offence or which may be likely to arise if he is released on parole;

(f) the amount and nature of any compensation paid in relation to the offence;

(g) an assessment of the likelihood of his reoffending if he is placed on parole;

(h) an assessment of the probability of his successful reintegration into the community if he is released on parole;

(i) an assessment of his rehabilitation plans, particularly in respect of education and training, employment, proposed housing, community and church involvement, and the likelihood of future employment and education;

(j) an assessment of his financial situation, assets and property, family circumstances and marital status;

(k) any other particulars which the Chief Parole Officer thinks relevant in assisting the Board to decide whether to grant or refuse parole;

(l) where the report is made in respect of an application for parole under Section 22, details of any apparent changes in behaviour and attitude since parole was refused.

24. The normal practice is that these obligations of the Commissioner are discharged on his behalf by the commanding officer of the correctional institution in which the prisoner is detained and on behalf of the commanding officer by a correctional officer designated as parole clerk within each correctional institution.

25. I will order that in respect of the first applicant, the above obligations of the Commissioner be discharged at least by the date which is six months before the parole eligibility date of 24 December 2026, ie 24 June 2026.

26. I will order that in respect of the second applicant, the above obligations of the Commissioner be discharged forthwith as the parole eligibility date is 20 January 2024, and six months before that is 20 July 2023 and that date has already passed.

DUE DATES OF RELEASE FROM CUSTODY

27. I will follow the approach to calculation of the due date of release that I have taken in various cases involving complaints of unlawful detention, such as Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959, Application by Samalan Peter (2014) N5631, Complaint by John Siko Wel (2015) N6150 and Complaint by Theo Abal (2023) N10166. It is a two-step approach.

28. 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, if any, the prisoner is at large,

to arrive at a “gross” due date of release.

29. Step 2: Deduct from the “gross” due date of release the periods that the prisoner 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.

First applicant, Tony Emmanuel

Step 1: the gross due date of release

30. The date of the first sentence is 24 September 2009. To that date is added:

(a) the total length of all sentences, 12 years + 40 years = 52 years; +

(b) the period the applicant was at large = 0.

= 52 years.

31. The gross due date of release is 24 September 2009 + 52 years = 24 September 2061.

Step 2: the net due date of release

32. The gross due date of release is 24 September 2061. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted = 1 month;

+

(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 52 years = 17 years, 4 months.

33. Section 120 (remission to be granted) 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.

34. 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. I made this point in Application by Bradley Neri (2020) N8577 and it was confirmed by the Supreme Court to be the correct approach in The State v Yomba & Ure (2022) SC2274.

35. The net due date of release is 24 September 2061 minus 17 years, 5 months = 24 April 2044.

Second applicant, Edward Yau

Step 1: the gross due date of release

36. The date of the first sentence is 20 March 2013. To that date is added:

(a) the total length of all sentences, 30 years + 3 months = 30 years, 3 months; +

(b) the period the applicant was at large after the date of sentence until the date he was returned to custody (20 December 2013) = 9 months,

= 31 years.

37. The gross due date of release is 20 March 2013 + 31 years = 20 March 2044.

Step 2: the net due date of release

38. The gross due date of release is 20 March 2044. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted = 0;

+

(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 30 years, 3 months = 10 years, 1 month.

39. The net due date of release is 20 March 2044 minus 10 years, 1 month = 20 February 2034.

ORDER

1. It is determined that the first applicant’s parole eligibility date is 24 December 2026.
   
2. It is determined that the second applicant’s parole eligibility date is 20 January 2024.
   
3. It is determined that the first applicant’s due date of release with remission is 24 April 2044.
   
4. It is determined that the second applicant’s due date of release with remission is 20 February 2034.
   
5. In respect of the first applicant, the commanding officer of Beon Correctional Institution shall on behalf of the Commissioner of the Correctional Service by 24 June 2026 provide to the Parole Board the particulars and assessment report required by ss 18(2) and 20(2) of the Parole Act, together with any other documents or information required by the Parole Board to enable the expeditious hearing and determination of a parole application by the first applicant.
   
6. In respect of the second applicant, the commanding officer of Beon Correctional Institution shall on behalf of the Commissioner of the Correctional Service forthwith provide to the Parole Board the particulars and assessment report required by ss 18(2) and 20(2) of the Parole Act, together with any other documents or information required by the Parole Board to enable the expeditious hearing and determination of a parole application by the second applicant.
   
7. The commanding officer of Beon Correctional Institution shall ensure that by 4 September 2023 a sealed copy of this order and a copy of the judgment of the National Court relating to this order are placed on the CS file for each of the applicants and that the dates of eligibility for parole and due dates of release from custody as determined by the National Court are clearly recorded on each of their files and in all records of the Correctional Service regarding the applicants.
   
8. These proceedings shall be mentioned in the National Court at Madang on 11 September 2023 at 1.30 pm to check compliance with this order.

__________________________________________________________________
Public Solicitor: Lawyers for the Applicants
Solicitor-General: Lawyers for the Respondents