Kabuni v Commissioner of the Correctional Service [2024] PGNC 183; N10850 (20 June 2024)

-N10850

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 12 OF 2024

ELVIS KABUNI
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 14^th, 20^th June

HUMAN RIGHTS – allegation by prisoner of unlawful detention – calculation of due date of release from custody.

The applicant was recently released from custody but claims that he was detained unlawfully, beyond his due date of release. He sought a declaration that he had been unlawfully detained for the period beyond his due date of release.

Held:

(1) 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 be released from custody in accordance with their correctly calculated due date of release from custody.

(2) The applicant’s correctly calculated due date of release from custody was 1 August 2023. He was not released until 30 May 2024. He was unlawfully detained for a period of nine months and 29 days. Declaration made accordingly.

Cases Cited

The following cases are cited in the judgment.

Application by Samalan Peter (2014) N5631
Complaint by John Irekau (2013) N4958
Complaint by Michael Tambeng (2013) N4959
The State v Yomba (2022) SC2274

Counsel

J P Gene, for the Applicant

20^th June 2024

1. CANNINGS J: The applicant Elvis Kabuni was until recently a prisoner at Bomana Correctional Institution. He was released from custody on 30 May 2024 but claims that he was detained unlawfully, beyond his due date of release. He seeks a declaration that he was unlawfully detained for the period beyond his due date of release.

2. He was sentenced by the National Court at Wewak on 20 December 2002 to 13 years imprisonment for the offence of mutiny (he was then a member of the PNG Defence Force), with a pre-sentence period in custody of nine months deducted from that head sentence. He was serving his sentence at Bomana Correctional Institution, National Capital District when on 29 January 2008 he escaped from custody. He was at large for a very long period until he was returned to custody on 11 October 2020. There is no indication in his Correctional Service file of him being charged and sentenced for the escape.

DUE DATE OF RELEASE

3. A prisoner’s due date of release is a matter of law, to be calculated by examining court and Correctional Service records and interpreting and applying provisions of the Correctional Service Act. 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 be released from custody in accordance with their correctly calculated due date of release from custody.

4. In calculating the applicant’s due date of release, I 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.

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 prisoner 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 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 s 120 of the Correctional Service Act; and

(c) the period of any suspension of sentence.

to arrive at the “net” due date of release.

Step 1: the “gross” due date of release

7. The date of the first sentence is 20 December 2002. To that date is added:

(a) the total length of all sentences: there is only one sentence, which is 13 years; and
(b) the period the applicant was at large: from 29 January 2008 to 11 October 2020, being 12 years, 8 months, 12 days.

Thus the total period to be added to the date of the first sentence is 25 years, 8 months, 12 days.

8. The “gross” due date of release is 20 December 2002 + 25 years, 8 months, 12 days = 1 September 2028.

Step 2: the “net” due date of release

9. The “gross” due date of release is 1 September 2028. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted = 9 months; and

(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the head sentence (The State v Yomba (2022) SC2274) ie 1/3 x 13 years = 4 years, 4 months; and

(c) the period of any suspension of sentence, which is zero.

10. The total period to be deducted from the “gross” due date of release is 5 years, 1 month.

11. The “net” due date of release is 1 September 2028 – 5 years, 1 month = 1 August 2023.

CONCLUSION

12. The applicant should have been released on 1 August 2023. He was not released until 30 May 2024. He was unlawfully detained for a period of nine months and 29 days. There is no good reason not to grant a declaration to that effect.

ORDER

13. The application is granted, in that it is declared that the applicant was unlawfully detained in breach of his right under s 37(1) of the Constitution to the full protection of the law for the period beyond his due date of release from custody of 1 August 2023 until the date of his actual release from custody, 30 May 2024, being a period of nine months and 29 days.
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Public Solicitor: Lawyer for the Applicant