Louha v Independent State of Papua New Guinea [2025] PGNC 459; N11604 (21 November 2025)

N11604

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO 50 OF 2024

GARY LOUHA
Applicant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

WAIGANI: CANNINGS J
4, 14, 21 NOVEMBER 2025

HUMAN RIGHTS – right of prisoners to full protection of the law, Constitution, s 37(1) – whether pre-sentence custody ought to be deducted from head sentence – Criminal Justice (Sentences) Act 1986.

The applicant was sentenced to 15 years imprisonment without any deduction being made for the period of almost one year he spent in custody, on remand, before sentence. He applied to the Supreme Court for review of the sentence but his application was refused. He then filed a human rights application, arguing that as a prisoner he was entitled to the full protection of the law and that he ought to have his pre-sentence period in custody deducted from the head sentence. He sought an order that that period be considered in determination of his due date of release from custody and his date of eligibility for parole.

Held:

(1) The question of what, if any, part of a pre-sentence period in custody is to be deducted from a head sentence is a matter of discretion to be exercised by the sentencing judge under s 3(2) of the Criminal Justice (Sentences) Act.

(2) It is only where the sentencing judge has not exercised the discretion that another Judge in the National Court’s human rights jurisdiction should intervene.

(3) Here there is ample evidence that the applicant spent almost one year in custody before the date of sentence. However, the sentencing Judge in effect exercised the discretion and decided deliberately not to deduct anything from the head sentence under the Criminal Justice (Sentences) Act.

(4) When the Supreme Court dismissed the application for review of the sentence, it affirmed the sentence passed by the National Court inclusive of the decision to deduct nothing from the head sentence.

(5) The application to amend the terms of the sentence was refused.

Cases cited
Agua v Commissioner of Correctional Service (2024) N11122
Application by Karulaka (2025) N11475
Complaint by Umauma (2024) N10876
Evore v Commissioner of Correctional Service (2024) N10950
Louha v The State (2024) SC2551
Moses v Commissioner of Correctional Service (2025) N11271
The State v Louha CR 335 of 2014, 14 May 2021 (unreported)

Counsel
G Louha, the applicant, in person
I Kopi for the respondent

1. CANNINGS J: Gary Louha is a prisoner at Bomana Correctional Institution serving a sentence of 15 years imprisonment for rape. He was sentenced by the National Court at Kundiawa on 14 May 2021 (The State v Louha CR 335 of 2014, 14 May 2021 (unreported)).

2. He was charged and convicted under s 347(1) of the Criminal Code. He was given the maximum sentence available under that provision.

3. The warrant of commitment states:

Length of sentence 15 years imprisonment IHL

Length of period deducted (in custody) Nil

Length of period suspended Nil

Length of sentence to be served 15 years IHL

4. He applied to the Supreme Court for review of the sentence but his application was refused (Louha v The State (2024) SC2551).

5. He then filed a human rights application, arguing that as a prisoner he is entitled to the full protection of the law and that he ought to have his pre-sentence period in custody deducted from the head sentence. He seeks an order that that period be considered in determination of his due date of release from custody and his date of eligibility for parole.

6. There is ample evidence that the applicant was in remand at different locations for a total period of almost one year before he was sentenced.

7. However, the question of what, if any, part of a pre-sentence period in custody is to be deducted from a head sentence is a matter of discretion to be exercised by the sentencing judge under s 3(2) of the Criminal Justice (Sentences) Act which states:

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.

8. It is only where the sentencing judge has not exercised the discretion that another Judge in the National Court’s human rights jurisdiction should intervene (Application by Karulaka (2025) N11475). I have intervened in that way in several cases in recent times, including Complaint by Umauma (2024) N10876, Evore v Commissioner of Correctional Service (2024) N10950, Agua v Commissioner of Correctional Service (2024) N11122 and Moses v Commissioner of Correctional Service (2025) N11271.

9. In those cases it was clearly the intention of the sentencing Judge that the prisoner’s pre-sentence period in custody be deducted from the head sentence, however the Judge had simply indicated that the deduction be made and not specified the period.

10. I find that the sentencing Judge in the present case exercised the discretion and decided deliberately not to deduct the pre-sentence period in custody from the head sentence. His Honour took this approach because of the seriousness of the offence. The applicant was a serving member of the Police Force and committed the offence in a police station while on duty. The victim was a female detainee. There were circumstances of aggravation and the applicant could have been charged with aggravated rape under s 347(2) of the Code, but he was only charged under s 347(1).

11. When the Supreme Court dismissed the application for review of the sentence, it affirmed the sentence passed by the National Court inclusive of the decision to deduct nothing from the head sentence.

12. The applicant has been given the full protection of the law. He has been lawfully sentenced by the National Court. He has had his sentence reviewed by the Supreme Court. His human rights have not been breached.

13. The application to amend the terms of the sentence must therefore be refused.

ORDER

(1) The application for enforcement of human rights is refused.

(2) The file is closed.

__________________________________________________________________
Lawyer for the respondent: Solicitor-General