Abal v Commissioner of the Correctional Service [2023] PGNC 57; N10166 (27 March 2023)

-N10166

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 1 OF 2023

IN THE MATTER OF A COMPLAINT OF UNLAWFUL DETENTION

THEO ABAL
Complainant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2023: 22^nd, 27^th March

HUMAN RIGHTS – complaint by prisoner of unlawful detention: Constitution, s 42(5) – due date of release – period of remission – Correctional Service Act, s 120.

The complainant is serving an 18-year sentence for murder. He complains under s42(5) of the Constitution that he is unlawfully detained in that he has been accorded an incorrect due date of release, 18 June 2028. He claims that it should be a date in 2023. He concedes that he escaped from custody in 2017 and was at large until 2021 but says there were good grounds for his escape and the period at large should not affect his due date of release. The respondents assert that 18 June 2028 is the correct date and that the period the complainant was at large cannot be ignored when calculating the due date of release.

Held:

(1) Calculation of a prisoner’s due date of release is a matter of law, to be calculated by examining the warrant of commitment and applying provisions of the Correctional Service Act. It is a matter falling within the jurisdiction of the National Court under s 42(5) of the Constitution as a complaint of unlawful detention.

(2) There were errors in calculation of the due date of release as the correct date is 21 March 2027.

(3) The complaint was partially sustained. Orders were made to correct the records of the Correctional Service.

Cases Cited

The following cases are cited in the judgment.

Application by Bradley Neri (2020) N8577
Application by Samalan Peter (2014) N5631
Complaint by John Irekau (2013) N4958
Complaint by Michael Tambeng (2013) N4959
The State v Yomba & Ure (2022) SC2274

Counsel

T Abal, the complainant, in person
N Aiwara, for the Respondents

27^th March, 2023

1. CANNINGS J: Theo Abal is a prisoner at Bomana Correctional Institution, serving an 18-year sentence for murder, imposed by the National Court at Waigani on 7 May 2015. He complains under s 42(5) of the Constitution that he is unlawfully detained in that he has been accorded an incorrect due date of release, 18 June 2028. He claims that it should be a date in 2023. He concedes that he escaped from custody in 2017 and was at large until 2021 but says there were good grounds for his escape and the period at large should not affect his due date of release. The respondents assert that 18 June 2028 is the correct date and that the period the complainant was at large cannot be ignored.

COMPLAINT OF UNLAWFUL DETENTION

2. Section 42(5) of the Constitution 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.

3. Calculation of a prisoner’s due date of release is a matter of law, to be calculated by examining the warrant of commitment and interpreting and applying provisions of the Correctional Service Act. It is a matter falling within the jurisdiction of the National Court under s 42(5) of the Constitution as a complaint of unlawful detention.

CALCULATION OF DUE DATE OF RELEASE

4. I will follow the approach I have taken in other cases involving similar complaints about miscalculation of the due date of release, such as Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959 and Application by Samalan Peter (2014) N5631. It is a two-step approach.

5. 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.

6. 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.

Step 1: the “gross” due date of release

7. The date of sentence is 7 May 2015. To that date is added:

(a) the total length of all sentences – here there is only one sentence = 18 years; +

(b) the period the complainant was at large: here that period was 13 July 2017 to 17 April 2021 = 3 years, 9 months, 4 days.

= 21 years, 9 months, 4 days.

8. The complainant has argued that the court should ignore the period he was at large and the 3 years, 9 months, 4 days he spent outside custody should be counted as part of the sentence he has served. He has given evidence that he was being detained in poor conditions and was very ill, and was denied medical treatment. He says that two of his fellow detainees in his cell had died in custody. His life was in danger. When he was eventually taken to Port Moresby General Hospital he was not given prompt attention, so he escaped. To save his life. He voluntarily returned to custody in 2021 and was detained in solitary confinement without fresh air or exercise for three months.

9. The respondents’ evidence is contrary to that version of events. However, I do not have to decide who to believe as I have decided that in this case, the period at large cannot be ignored. The complainant has not been charged with any offence in regard to his escape. He has benefited already from an exercise of discretion in his favour, ie the decision not to charge him with an offence under s 139 (escape by prisoner) of the Criminal Code. I will not inquire further into the circumstances of his escape or his return to custody and what happened to him immediately afterwards.

10. The “gross” due date of release is therefore 7 May 2015 + 21 years, 9 months, 4 days = 11 February 2037.

Step 2: the “net” due date of release

11. The “gross” due date of release is 11 February 2037. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted: 3 years, 10 months, 3 weeks;

+

(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 18 years = 6 years.

12. 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.

13. 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.

14. Ms Aiwara for the respondents submitted that the period that the complainant was at large, 13 July 2017 to 17 April 2021, should be deducted from the “period of sentence”, under s 120(2)(b). This is at first glance an appealing argument. However, I have decided that in the present case, it has no bearing on the period of sentence. By escaping from custody, the complainant stopped the clock on his sentence. No part of his head sentence elapsed between the date of his escape and the date he was returned to custody.

15. 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 3 years, 10 months, 3 weeks + 6 years = 9 years, 10 months, 3 weeks.

16. The “net” due date of release is 11 February 2037 minus 9 years, 10 months, 3 weeks = 21 March 2027.

17. It will be recalled that the CS file shows the complainant has a due date of release with remission as 18 June 2028. This is an error.

RESOLUTION OF COMPLAINT

18. The complaint is sustained to the extent that the terms of detention, which show a due date of release of 18 June 2028, are incorrect. I will make orders to correct the error.

ORDER

(1) The complaint is sustained, in that it is declared that the complainant is being detained with an incorrect due date of release of 18 June 2028.

(2) The complainant’s correct due date of release is 21 March 2027.

(3) The Jail Commander, Bomana Correctional Institution, shall ensure that by 14 April 2023:

• (a) sealed copies of this order and judgment are 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 due date of release is as shown in this order;
• (c) an affidavit is filed in these proceedings demonstrating compliance with this order.
  

(4) The matter shall be called on 18 April 2023 at 3.00 pm to check compliance with this order.

__________________________________________________________________
Solicitor-General: Lawyer for the Respondents