Varimai v Commissioner of the Correctional Service [2024] PGNC 447; N11117 (18 December 2024)

N11117

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 64 OF 2024

JOHN VARIMAI
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: CANNINGS J
3, 18 DECEMBER 2024

HUMAN RIGHTS – application by prisoner for enforcement of human rights: Constitution, s 37(1): right to the full protection of the law – determination of due date of release from custody and date of eligibility for parole.

The applicant, a prisoner, is serving a 14-year sentence. He sought clarification of his due date of release (DDR) and his date of eligibility for parole.

Held:

(1) A prisoner’s DDR and date of eligibility for parole are matters of law. 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 those dates with certainty.

(2) The DDR is 20 November 2030 and the date of eligibility for parole is 21 July 2028.

Cases cited

Application by Bona Umauma (2024) N10876
Application by Bradley Neri (2020) N8577
Applications by Hobai Haro & Lolo Bellamy (2024) N11096
Complaint by John Irekau (2013) N4958
The State v Chris Yomba (2022) SC2274

Counsel

S Kuli for the applicant
B Samiat for the respondents

1. CANNINGS J: John Varimai is a prisoner at Bomana Correctional Institution, serving a 14-year sentence for the offence of persistent sexual abuse of a child, imposed by the National Court at Waigani on 17 February 2023. He seeks clarification of his due date of release from custody (DDR) and the date on which he becomes eligible for parole.
   
2. Calculation of these dates are matters of law. The dates are determined by examining a warrant of commitment and interpreting and applying the Correctional Service Act. They are matters that fall within the jurisdiction of the National Court, as a superior court of record, of unlimited jurisdiction, under ss 163(2) and 166(1) of the Constitution. 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 DDR and their date of eligibility for parole (Application by Bradley Neri (2020) N8577).
   

DUE DATE OF RELEASE (DDR)

3. I have set out a two-step approach to determination of the DDR in many cases, starting with Complaint by John Irekau (2013) N4958. Recent cases in which that approach has been applied include Application by Bona Umauma (2024) N10876 and Applications by Hobai Haro & Lolo Bellamy (2024) N11096.
   
4. 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, if any, the applicant was at large,
     

to arrive at a “gross” DDR.

5. Step 2: Deduct from the “gross” DDR the periods that the applicant 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) remission of sentence under s 120 of the Correctional Service Act;
   • (c) any period of suspension of the sentence,
     

to arrive at the “net” DDR.

6. The Supreme Court confirmed in The State v Chris Yomba (2022) SC2274 that the period of remission of a sentence is one-third of the head sentence; it is not one-third of the time to be served after deduction of the pre-sentence period in custody. The Court held that any suspended part of the sentence is also to be deducted when calculating the DDR.
   

Step 1: the “gross” DDR

7. The date of sentence is 17 February 2023. To that date is added:
   
   • (a) the total length of all sentences – here there is only one sentence: 14 years; and
   • (b) the period the applicant was at large: here that is zero.
     
8. The “gross” due date of release is 17 February 2023 + 14 years = 17 February 2037.
   

Step 2: the “net” DDR

9. From the gross DDR is deducted:
   
   • (a) the pre-sentence period in custody: 1 year, 6 months, 3 weeks, 6 days; and
   • (b) remission of sentence, 1/3 x 14 years = 4 years, 8 months; and
   • (c) suspension: zero.
     
10. The “net” DDR is 17 February 2037 minus 6 years, 2 months, 3 weeks, 6 days = 20 November 2030.
    
11. The applicant’s Correctional Service file shows a DDR with remission of 23 November 2030, which is only a three-day departure from the date I have calculated.

Nevertheless, to afford the applicant the full protection of the law, the date will need to be corrected.

DATE OF ELIGIBILITY FOR PAROLE

12. This is determined under s 17(1) of the Parole Act, which states:
    

Subject to this Act and unless otherwise determined by an order of the Court, a detainee who has been sentenced to a term of imprisonment of five years or more and has served not less than half of the sentence is eligible for parole.

13. The applicant is eligible for parole when he has served “not less than half of the sentence”. The term “the sentence” refers to the head sentence, which is 14 years. He is eligible for parole when he has served half of that time: seven years. He started his time in custody 1 year, 6 months, 3 weeks, 6 days before the date of sentence, 17 February 2023. He is therefore deemed to have commenced serving his sentence on 21 July 2021. Seven years after that gives him a date of eligibility for parole of 21 July 2028.
    

ORDER

(1) It is declared that the applicant’s DDR with remission is 20 November 2030 and that his date of eligibility for parole is 21 July 2028.

(2) The Jail Commander, Bomana Correctional Institution, shall ensure that a sealed copy of this order is placed on the applicant’s Correctional Service file and that the applicant’s Correctional Service file and all other relevant files and records are amended to show that the applicant’s DDR and parole eligibility date are as shown in this order.

(3) The matter shall be called on 23 December 2024 at 1.30 pm to check compliance with this order.

__________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondents: Solicitor-General