State v Yomba [2022] PGSC 95; SC2274 (5 August 2022)

SC2274

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 6 OF 2020

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND
STEVEN POKANIS in his capacity as ACTING CORRECTIONAL SERVICES COMMISSIONER
Second Appellant

AND
KIDDY KEKO in his capacity as BOMANA JAIL COMMANDER
Third Appellant

AND
CHRIS JIM YOMBA
Respondent

SCA NO. 7 OF 2020

KIDDY KEKO in his capacity as BOMANA JAIL COMMANDER
First Appellant

AND
STEVEN POKANIS in his capacity as ACTING CORRECTIONAL SERVICES COMMISSIONER
Second Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

AND
DOMINIC MOPI URE
Respondent

SCA NO. 11 OF 2020

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND
STEVEN POKANIS in his capacity as ACTING CORRECTIONAL SERVICES COMMISSIONER
Second Appellant

AND
KIDDY KEKO in his capacity as BOMANA JAIL COMMANDER
Third Appellant

AND
PETER MARTIN
Respondent

Waigani: Hartshorn, Berrigan and Tusais JJ
2022: 27^th July and 5^th August

APPEAL – SENTENCE – S 120 of Correctional Service Act, 1995 – Calculation of remission to be granted – Meaning of “period of sentence” – Appeals dismissed.

Cases Cited:

Papua New Guinean Cases
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
Telikom PNG Ltd v Kopalye (2021) SC2141
Electoral Commission v. Pila Niningi (2003) SC710
Kala Rawali v. Paias Wingti; Tom Olga v. Paias Wingti (2009) SC1033
PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145
Nikint Investment Ltd v. Niganu (2020) SC1919
Neri v Commissioner of the Correctional Service (2020) N8577
Sandy v Marauri (2013) N5332

Overseas Cases
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569

References cited

Sections 117, 120 of the Correctional Service Act
Sections 3 and 4 of the Criminal Justice (Sentences) Act, 1986

Counsel

Mr E. Geita, for the Appellants
Mr C. Oresi, for the Respondents

DECISION ON APPEAL

5^th August, 2022

1. BY THE COURT: The appeals were heard together. They concern the same issue, that is the calculation of remission under the Correctional Service Act, 1995.
   

BACKGROUND

2. In each case the appellants appeal against the decision of the National Court upholding a claim for breach of human rights in favour of the respondent on the basis that the respondent’s due date of release from prison had been miscalculated by the Correctional Service.
   
3. The essential question is whether remission should be calculated according to the head sentence (see [15] below) or according to the balance of the sentence to be served after time spent in custody prior to sentence has been deducted.
   
4. The appellants submit that s 117 of the Correctional Service Act gives power to the Commissioner of the Correctional Service to establish a system to calculate remission and the date of discharge. Such a system is already in place, and according to the system or practice, remission is calculated at one third of the “resultant length of the sentence to be served”, that is the period of sentence remaining after time spent in custody prior to sentence has been deducted. It is submitted that s 4 of the Criminal Justice (Sentences) Act, 1986 supports this view.
   
5. The respondents submit that s 120 of the Correctional Service Act applies and that the Court should approve the interpretation given to it by Cannings J in several cases, such that remissions are calculated at one third of the head sentence: see for instance Neri v Commissioner of the Correctional Service (2020) N8577. It was this approach which was adopted by Tamate J in the three cases the subject of the appeals. The same interpretation was applied by Makail J in Sandy v Marauri (2013) N5332.
   

CONSIDERATION

6. In interpreting the statutes of Papua New Guinea the matters contained in ss 109(4) and 158(2) of the Constitution are to be given paramount consideration: Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433; Kidu CJ, Kapi DCJ, Amet J.
   
7. Section 158(2) of the Constitution makes clear that in interpreting the law the courts “shall give paramount consideration to the dispensation of justice”. In doing so s 109(4) of the Constitution provides that:
   

“Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.”

8. As made clear by numerous opinions of the Supreme Court, “justice” is to be interpreted as “justice according to law”: Electoral Commission v. Pila Niningi (2003) SC710; Kala Rawali v. Paias Wingti; Tom Olga v. Paias Wingti (2009) SC1033; PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145; Nikint Investment Ltd v. Niganu (2020) SC1919; Telikom PNG Ltd v Kopalye (2021) SC2141.
   
9. Accordingly, the ordinary rules of construction must be applied.
   
10. Section 117 of the Correctional Service Act creates no discretion in the Commissioner with respect to the calculation of remission. It simply provides that the Commissioner must ensure that systems are established for the recording of sentences, and the calculation of remission and discharge dates:
    

COMMISSIONER TO PROVIDE SYSTEM FOR SENTENCE CALCULATION

The Commissioner shall ensure that systems are established for–

(a) the recording of sentences; and

(b) the calculation of discharge dates; and

(c) the calculation of remission; and

(d) the notification of sentences to detainees.

11. Remission must, however, be calculated according to law: Neri at [20].
    
12. Section 120 of the Correctional Service Act is the operative provision. It provides (emphasis ours):
    

S 120. REMISSION TO BE GRANTED

(1) Subject to this section, the Commissioner shall grant to a detainee remission equal to one third of the period of sentence.

(2) A remission shall not be granted in respect of–

(a) the period of any sentence imposed on a detainee in consequence of a conviction for escaping or attempting to escape from lawful custody; or

(b) that period of a sentence which elapses between the escape and recapture of a detainee who escaped from lawful custody; or

(c) the period of any sentence imposed on a detainee for a corrective institution offence of rural lock-up offence.

(3) Where a detainee is returned to custody pursuant to Section 26 of the Parole Act 1991, the detainee shall–

(a) be granted by the Commissioner remission equal to one third of the period of sentence served by the detainee prior to release on parole; and

(b) not be eligible for remission on the period of sentence served while on parole subject to the Parole Act 1991; and

(c) not be deemed to be serving the sentence for any period which elapses between the laying of the charge for breach of parole and being returned to custody pursuant to Section 26 of the Parole Act 1991; and

(d) be deemed to be serving the sentence of imprisonment if in custody pursuant to Section 25 of the Parole Act 1991; and

(e) be eligible for remission on times spent in custody prior to a determination under Section 27 of the Parole Act 1991.

(4) In the case of a detainee who, immediately before the coming into operation of this Act, was a detainee under the Corrective Institutions Act (Chapter 63) repealed by Section 169, the provisions of this Act shall apply in respect of the calculation of remission (and loss of remission) to any portion of the sentence served before that coming into operation as they apply in respect of that portion of the sentence to be served after that coming into operation.

13. Subject only to certain specified exceptions, the Commissioner is required under s 120(1) of the Act, to grant to a detainee remission equal to one third of “the period of sentence”.
    
14. The purpose of remission is to promote good behaviour. A prisoner may lose a period of remission for conduct constituting an offence under s 152 of the Act.
    
15. To our minds s 120(1) is clear. The “period of sentence” means just that, the period or length of the sentence. It is sometimes referred to as the “head sentence”. It is the total period of the sentence imposed for the offence or offences, taking into account, where more than one sentence is imposed, whether they are ordered to be served concurrently or cumulatively, but before the Court exercises its discretion to deduct any time already served in custody. It is not the “balance” or the “resultant sentence to be served”.
    
16. Furthermore, as the opening words of s 120(1) make clear, remission shall be granted, subject to “this section”. S 120(2) and (3) identify those periods in respect of which remission is not to be granted. The period spent in custody prior to sentence is not one of those identified.
    
17. The Criminal Justice (Sentences) Act, 1986 does not assist the appellants.
    

S 3. LENGTH OF SENTENCES

(1) A sentence imposed by a court in the National Judicial System shall take effect from the beginning of the day on which it is imposed, unless a law otherwise provides.

(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.

S 4. PERSON IMPOSING SENTENCE TO SPECIFY LENGTH OF SENTENCE, ETC

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.

18. It is consistent with the interpretation outlined above.
    
19. S 3 allows a judicial officer, as a matter of discretion, to deduct time spent in custody from “the length of any term of imprisonment imposed by the sentence” before the sentence was imposed. S 4 requires the judicial officer to specify the length of the sentence imposed, the length of any period deducted for time already spent in custody, and the “resultant length of the sentence to be served”. Again, the “length of the sentence imposed”, or the period of sentence, is different from the “resultant length of the sentence to be served”.
    
20. Furthermore, the effect of the Commissioner’s practice is to reduce the remission granted to a person who has been held in custody whilst on remand compared to a person who has not. As a result, a person who has been held on remand will serve more time in custody for the same sentence as a person who has not. There is no basis for that in the legislation or as a matter of basic principle.
    
21. Finally, whilst not strictly a penal code, s 120 of the Correctional Service Act is concerned with the implementation of punishment. To the extent that the effect of the provision remains doubtful it should be resolved in favour of the liberty of the subject: Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112 at [26] to [27] considered; see also Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569.
    
22. We make one further observation. The remission “shall be granted on the period of the sentence”. The provision does not distinguish between the period of sentence which is suspended and that which is not. Thus if a person is sentenced to a period of imprisonment, part of which is suspended, the remission shall nevertheless be calculated on the total period of sentence.
    
23. It might be argued that this gives a double discount to an offender in such circumstances. Perhaps, but if there is a gap in the legislation then it is for the legislature to fill it. Furthermore, it appears to us that the legislation is clear in applying remission to the entire “period of sentence”. Hence the need for provisions such as s 120(2)(b) and 120(3)(b) to exclude periods spent outside custody during the “period of sentence” from the calculation of remission in certain circumstances, for instance where there has been an escape from custody or a breach of parole. In addition, a person serving that part of a sentence which is suspended remains under sentence, and usually subject to conditions, even if only of good behaviour. Thus we see no inherent inconsistency in the application of remission to the entire period of sentence in that context, although it may mean in practical terms that an offender will spend less time in custody than intended by a judicial officer. Ultimately, however, remission is a matter mandated under statute and must be granted according to law.
    

Orders

24. Accordingly, we make the following orders.
    
    • (1) The appeals are dismissed.
    • (2) The appellants shall pay the costs of the respondents on a party/party basis to be taxed if not agreed.
      

________________________________________________________________
Solicitor General: Lawyer for the Appellants
Public Solicitor: Lawyer for the Respondents