Hetinu v Commissioner of the Correctional Service [2024] PGNC 306; N10989 (10 September 2024)

N10989

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 52 OF 2024

TERENCE HETINU
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 3^rd, 10^th September

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) –calculation of prisoner’s due date of release from custody – whether National Court has power in its human rights jurisdiction to determine the pre-sentence period in custody to be deducted from head sentence – whether discretion already exercised by National Court in its criminal jurisdiction – whether a period spent on bail is equivalent to a period spent in custody.

A prisoner was sentenced to seven years imprisonment. He had been on bail from the date of his arrest until the date of sentence. The sentencing judge deducted nothing from the head sentence and ordered that he be imprisoned for seven years. Two years after the date of sentence, the prisoner made a human rights application. He claimed that the period of almost three years he spent on bail ought to be deducted from his head sentence and his due date of release recalculated. He argued that the restrictions on his liberty to which he was subject when on bail were tantamount to being deprived of his liberty in custody.

Held:

(1) The discretion of the National Court under the Criminal Justice (Sentences) Act 1986 as to what period, if any, spent in custody before the date of sentence would be deducted from the head sentence, had already been exercised. The National Court in its human rights jurisdiction has no power to re-exercise the discretion of the sentencing judge.
(2) A period spent on bail, though subject to conditions which can restrict the person’s liberty, is not the same thing as being in custody and cannot be included in assessment of any pre-sentence period in custody.
(3) The application had no merit and was dismissed.

Cases Cited
Complaint by Bona Umauma (2024) N10876
Louis Evore v Commissioner of the Correctional Service (2024) N10950

Counsel
T Hetinu, the applicant, in person
B Samiat, for the Respondents

10^th September 2024

1. CANNINGS J: Terence Hetinu is a prisoner at Bomana Correctional Institution serving a seven-year sentence for official corruption under s 87(1) of the Criminal Code. He was on bail from the date of his arrest until the date of sentence. The sentencing judge deducted nothing from the head sentence and ordered that he be imprisoned for seven years.

2. Two years after the date of sentence, during which time his appeal to the Supreme Court against conviction was dismissed, he has made a human rights application in the National Court, seeking enforcement of his rights to the full protection of the law, personal liberty and equality of citizens under ss 37, 42 and 55 of the Constitution. He claims that the period of almost three years he spent on bail ought to be deducted from his head sentence and his due date of release recalculated due to the restrictions on his liberty to which he was subject when on bail. He claims that that was tantamount to being deprived of his liberty as being in custody.

3. The respondents assert that the application is an abuse of process as the applicant is asking the National Court to review a decision of the National Court when, he should have, if he were concerned about his sentence, raised the arguments he is now making, in an appeal or review before the Supreme Court.

4. These are the facts:

• The applicant was arrested on 1 May 2019 and granted bail the same day.
  
• He remained on bail up to and during his trial in the National Court until the date of sentence, 29 April 2022.
  
• He was sentenced to seven years imprisonment, without suspension and without any pre-sentence period in custody deducted from the head sentence.
  

REFUSAL OF APPLICATION

5. This application must be refused for two reasons.

6. First, the discretion of the National Court under the Criminal Justice (Sentences) Act 1986 as to how much time, if any, spent in custody before the date of sentence should be deducted from the head sentence, has already been exercised. The sentencing judge decided to deduct nothing from the head sentence. That was a decision of the National Court and I uphold the respondents’ submission that if the applicant were aggrieved by it, he ought to have acted promptly and taken his grievance to the Supreme Court. It is only where the discretion in the Criminal Justice (Sentences) Act has not been exercised (such as in the recent cases of Complaint by Bona Umauma (2024) N10876 and Louis Evore v Commissioner of the Correctional Service (2024) N10950) that the National Court could in its human rights jurisdiction exercise the discretion as to what, if any, pre-sentence period in custody should be deducted from a head sentence.

7. Secondly, a period spent on bail, though subject to conditions which usually restrict a person’s liberty, is not the same thing as being in custody. It is only a period in custody that can be deducted from a head sentence. That is made clear by ss 3(2) and 4 of the Criminal Justice (Sentences) Act, which state:

3(2) There may be deducted from the length or any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed. [Emphasis added.]

4. At the time of imposing a sentence in any court in the National Judicial System, the judicial officer imposing the sentence shall specify—
   
   • (a) the length of the sentence imposed; and
   • (b) the length of any period to be deducted from the sentence under Section 3(2); and
   • (c) the resultant length of the sentence to be served.
     

8. The applicant has referred to other cases in which he claims the sentencing judge regarded a period on bail as equivalent to a period in custody. However the cases are unreported and nothing in the record of those cases suggests that that was in fact what happened. I would be surprised if it has happened in any case before. It is a novel argument, which is entirely without merit.

DUE DATE OF RELEASE

9. I have checked the applicant’s due date of release, which is shown on his Correctional Service file as 28 December 2026. That date is correct.

CONCLUSION

10. The sentencing judge’s discretion to deduct nothing from the head sentence on account of the pre-sentence period in custody was properly exercised as the applicant spent no time in custody until the day he was sentenced. There has been no breach of human rights under ss 37, 42 or 55 of the Constitution. He has not been denied the full protection of the law. He has not been deprived of his liberty other than in accordance with law. He has not been treated unequally. The application must be dismissed.

ORDER

1. The application for enforcement of human rights is dismissed.
   
2. The applicant’s due date of release from custody, calculated by the Correctional Service to be 28 December 2026, is affirmed as correct.
   
3. The file is closed.

__________________________________________________________________
Solicitor-General: Lawyer for the Respondents