Ali v Commissioner of the Correctional Service [2024] PGNC 238; N10852 (20 June 2024)

N10852

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 16 OF 2024

PATRICK KINGSFORD ALI
Complainant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 24^th May, 13^th & 20^th June

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

A prisoner was sentenced to terms of imprisonment for multiple offences under one warrant of commitment issued by the National Court. The Correctional Service calculated his due date of release from custody as 17 December 2024. The complainant asserted that he should have been released in September 2023 and that he is unlawfully detained.

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 know with certainty their due date of release from custody.

(2) The complainant’s due date of release from custody showing on his detainee file is 17 December 2024, which date is incorrect as the correct date is 18 September 2024. He is not presently unlawfully detained.

(3) Ordered that the detainee file be corrected.

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

Counsel
J P Gene, for the Complainant
I Kopi, for the Respondents

20^th June 2024

1. CANNINGS J: Patrick Kingsford Ali is a prisoner at Bomana Correctional Institution. He was sentenced on 2 June 2023 by the National Court at Waigani for two counts of armed robbery and one count of escape from lawful custody. A warrant of commitment was issued but there are some confusing aspects of it and this has led to difficulties in calculating the due date of release from custody.

2. The Correctional Service calculated his due date of release from custody as 17 December 2024. The complainant asserts that he should have been released in September 2023 and that he is unlawfully detained.

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 know with certainty their due date of release from custody.

4. In calculating the complainant’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 2 June 2023. To that date is added:

(a) the total length of all sentences: there are two sentences, one for the two counts of armed robbery, which is expressed as a total of 12 years plus another sentence for the escape offence, which is 5 years; and
(b) the period the prisoner was at large: there is no period at large recorded on the detainee file, so this is zero.

Thus the total period to be added to the date of the first sentence is 17 years.

8. The “gross” due date of release is 2 June 2023 + 17 years = 2 June 2040.

Step 2: the “net” due date of release

9. The “gross” due date of release is 2 June 2040. From that date is deducted:

(a) the pre-sentence periods ordered by the National Court to be deducted = 4 years, 8 months, 14 days + 4 years, 8 months, 14 days + 2 years (which the warrant of commitment shows as being deducted “for guilty pleas”) = 11 years, 5 months; and

(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the armed robbery sentence (there is no remission in respect of the escape sentence, by virtue of s 120(2)(a) of the Correctional Service Act) ie 1/3 x 12 years = 4 years; and

(c) the period of any suspension of sentence (here, the warrant of commitment, which shows that 15 months, 6 days is to be suspended from the escape sentence, is clearly incorrect, as the correct period, on the presumption that the balance of the sentence of 5 years, after deducting 4 years, 8 months, 14 days in custody, is to be suspended, is 3 months, 2 weeks) = 3 months, 2 weeks.

10. The total period to be deducted from the “gross” due date of release is 11 years, 5 months + 4 years + 3 months, 2 weeks = 15 years, 8 months, 2 weeks.

11. The “net” due date of release is 2 June 2040 minus 15 years, 8 months, 2 weeks = 18 September 2024.

CONCLUSION

12. The warrant of commitment issued by the National Court in this case is expressed in unusual and unconventional terms. It is confusing and this has understandably led to problems in interpreting and applying it. Judges are reminded that under Order 11 rule 20 of the Criminal Practice Rules 2021 a warrant of commitment shall be issued in form 79 of the Criminal Practice Rules.

ORDER

(1) The complaint is partially sustained, in that it is declared that the complainant is being detained with an incorrect due date of release. The correct due date of release is 18 September 2024.

(2) The application for a declaration that the complainant is unlawfully detained is refused.

(3) The Jail Commander, Bomana Correctional Institution, shall ensure that by 28 June 2024:

• (a) sealed copies of this order and judgment are placed on the complainant’s detainee file; and
• (b) the detainee file and all other relevant files and records are amended to show that the due date of release is as shown in this order.
  

(4) The matter shall be called on 2 July 2024 at 1.30 pm to check compliance with this order.

__________________________________________________________________
Public Solicitor: Lawyer for the Complainant
Solicitor-General: Lawyer for the Respondents