Evore v Commissioner of the Correctional Service [2024] PGNC 280; N10950 (12 August 2024)

N10950

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 31 OF 2024

LOUIS EVORE
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 6^th, 8^th, 12^th August

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) –calculation of prisoner’s due date of release from custody – whether pre-sentence custody ought to be deducted from head sentence.

A prisoner was sentenced to eight years imprisonment. The sentencing judge ordered that his pre-sentence period in custody be deducted from the head sentence but did not specify in the warrant of commitment what that period was. This affected the due date of release from custody calculated by the Correctional Service. The prisoner claimed that he had an incorrect due date of release and that it ought to be recalculated.

Held:

(1) It was clearly the intention of the sentencing judge that the pre-sentence period in custody be deducted from the head sentence.

(2) It involved no interference with the exercise of discretion of the sentencing judge to take the pre-sentence period in custody into account in calculation of the due date of release.

(3) The applicant’s due date of release from custody on his detainee file is 2 June 2028, which date is incorrect as the correct date is 8 November 2026. 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 Bona Umauma (2024) N10876
Complaint by John Irekau (2013) N4958
Complaint by Michael Tambeng (2013) N4959

Counsel

J P Gene, for the Complainant
A Kajoka, for the Respondents

12^th August 2024

1. CANNINGS J: Louis Evore is a prisoner at Bomana Correctional Institution serving an 8-year sentence for doing grievous bodily harm with intent under s 315 of the Criminal Code. He applies for correction of his due date of release of 2 June 2028, which he says does not take into account a considerable time he spent on remand before his sentence.

2. In calculating his due date of release the Correctional Service has not taken into account any pre-sentence period in custody and this is because his warrant of commitment simply states:

Length of sentence imposed 8 years

Place of custody Bomana Correctional Institution.

3. However, the order on sentence, as distinct from the warrant of commitment, states:

1. The prisoner is sentenced to 8 years in prison in hard labour.
2. Pre-trial custodial period deducted.
3. Balance to be served at Bomana CS.
   

4. The applicant claims that he has been in custody since 15 October 2020. However, I agree with the submission of Ms Kajoka for the respondents that there is no evidence to support that claim and that the court must be guided by the evidence of the applicant’s CS file, which shows that he was admitted to custody on remand at Bomana Correctional Institution on 9 July 2021. He was sentenced on 3 February 2023. I find that on the evidence available, his pre-sentence period in custody is 1 year 6 months 25 days.

5. This accords with Ms Kajoka’s submission; which is conceded by Mr Gene, for the applicant, to be correct.

6. I am mindful that the question of whether and how much pre-sentence period in custody to deduct from a head sentence is a matter of discretion for the sentencing judge under the Criminal Justice (Sentences) Act 1986. I must be careful that I do not allow the human rights jurisdiction of the National Court to interfere with the process of sentencing that has been exercised already by the National Court in its criminal jurisdiction (Complaint by Bona Umauma (2024) N10876).

7. But this is a special case. It was clearly the intention of the sentencing judge, Sambua AJ, that the pre-sentence period in custody be deducted from the head sentence. It would not involve any interference with the exercise of his Honour’s discretion to take the pre-sentence period in custody into account in calculation of the due date of release. I think it is in the interests of justice to do that. It would ensure that the applicant is afforded the full protection of the law under s 37(1) of the Constitution. Therefore I will recalculate his due date of release.

CALCULATION OF DUE DATE OF RELEASE

8. 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.

9. 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.

Step 1: the “gross” due date of release

10. The date of the only sentence is 3 February 2023. To that date is added:

(a) the total length of all sentences: there is only one sentence, which is 8 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 8 years.

11. The “gross” due date of release is 3 February 2023 + 8 years = 3 February 2031.

Step 2: the “net” due date of release

12. The “gross” due date of release is 3 February 2031. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted, which is deemed to be 1 year 6 months 25 days; and
(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the head sentence of 8 years, ie 2 years, 8 months (note that in Ms Kajoka’s calculation, this amount of remission is incorrectly stated as 2 years 2 months); and
(c) the period of any suspension of sentence, which is zero.

13. The total period to be deducted from the “gross” due date of release is 1 year 6 months 25 days + 2 years, 8 months = 4 years 2 months 25 days.

14. The “net” due date of release is 3 February 2031 minus 4 years 2 months 25 days = 8 November 2026.

ORDER

(1) The application is granted in that it is declared that the applicant is being detained with an incorrect due date of release. The correct due date of release with remission is 8 November 2026.

(2) The Jail Commander, Bomana Correctional Institution, shall ensure that by 12 September 2024:

• (a) a sealed copy of this order is placed on the applicant’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.
  

(3) The matter shall be called on 18 September 2024 at 1.30 pm to check compliance with this order.

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