N5632

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 81 OF 2013

IN THE MATTER OF A COMPLAINT UNDER
SECTION 42(5) OF THE CONSTITUTION BY JACK KUMUL KORA

Madang: Cannings J
2014: 24 April, 19 June

HUMAN RIGHTS – liberty of the person – complaint of unlawful detention: Constitution, Section 42(5).

The complainant, a prisoner, complained under Section 42(5) of the Constitution that he was being unlawfully detained.

Held:

(1)	Every prisoner has the right under Section 42(5) of the Constitution to make a complaint to the National Court or a Judge that he or she is being unlawfully or unreasonably detained.

(2)	The Court inquired into the complaint and was not satisfied that the terms of the complainant's detention, showing his due date of release as 15 December 2019, were lawful. The complaint was sustained and it was ordered that the due date of release is 24 August 2018.

Cases cited

The following cases are cited in the judgment.

Application by Benetius Gehasa (2005) N2817
In The Matter of a Complaint by Michael Tambeng (2013) N4959
In the matter of a complaint by Okata Talagaim (2010) N3893
In the matter of complaints by Michael Walge and Others (2006) N3022
Re Release of Prisoners on Licence (2008) N3421

COMPLAINT

This was a complaint of unlawful detention under Section 42(5) of the Constitution.

Counsel

S Ao, for the complainant
S Phannaphen, for the respondent

19th June, 2014 

1. CANNINGS J: Jack Kumul Kora is a prisoner at Beon Jail. He has complained to the National Court that he is being unlawfully detained. He says that he is being punished by the Correctional Service for having escaped twice by being given an inflated due date of release of 15 December 2019. His complaint is brought under Section 42(5) of the Constitution, which states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a)	the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b)	unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

2. Section 42(5) gives every person who is detained in custody the right to make a complaint to the Court that he or she is being unlawfully or unreasonably detained. If such a complaint is made the Court is obliged to:

•	order that the complainant be brought before the Court;
•	inquire into the complaint;
•	determine whether the complainant's detention is lawful and reasonable; and
•	if not satisfied, order the release of the complainant (either unconditionally or on conditions).

(See generally Application by Benetius Gehasa (2005) N2817, In the matter of complaints by Michael Walge and Others (2006) N3022, Re Release of Prisoners on Licence (2008) N3421, In the matter of a complaint by Okata Talagaim (2010) N3893, In The Matter of a Complaint by Michael Tambeng (2013) N4959.)

INQUIRY

3. I ordered that the complainant be brought before the National Court. I have inquired into his complaint and make the following findings of fact:

•	He was first sentenced by the National Court on 11 October 1988 to a term of 12 years imprisonment for rape, with the pre-sentence period in custody of 6 months deducted from the head sentence, none of which was suspended.

•	On 26 February 1995 he escaped from prison. He was at large until 26 October 1997, a period of 2 years, 8 months.

•	On 26 March 1998 he was sentenced by the National Court to a term of 12 years imprisonment for murder, with the pre-sentence period in custody of 5 months deducted from the head sentence, none of which was suspended.

•	On 17 August 1999 he was sentenced by the National Court to a term of 5 years imprisonment for two counts of armed robbery, with the pre-sentence period in custody of 1 year deducted from the head sentence, none of which was suspended.

•	On 18 August 1999 he was sentenced by the National Court to a term of 3 years imprisonment for two counts of grievous bodily harm, with no pre-sentence period in custody deducted from the head sentence, the sentence of 3 years being made concurrent with the sentence for murder.

•	On 12 September 1999 he escaped again. He was at large until 25 June 2004, a period of 4 years, 9 months, 1 week, 6 days.

•	On 19 August 2004 he was sentenced by the District Court to a term of 6 months imprisonment for various offences under the Summary Offences Act, the sentence of 6 months being made concurrent with the sentence for murder.

•	On 18 November 2004 he was sentenced by the National Court to a term of 5 years imprisonment for escape, with no pre-sentence period in custody deducted from the head sentence.

CALCULATION OF DUE DATE OF RELEASE

4. To calculate his due date of release I will follow this approach:

Step 1: Identify the date of the first sentence and add to it:

(a)	the total length of all sentences (apart from those ordered to be served concurrently with other sentences); and

(b)	the total length of all periods the complainant was at large,

to arrive at a "gross" due date of release.

Step 2: Deduct from the "gross" due date of release the periods that the complainant 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)	any remission of sentences under Section 120 of the Correctional Service Act,

to arrive at the "net" due date of release.

Step 1: the "gross" due date of release

5. The date of the first sentence is 11 October 1988. To that date is added:

(a)	the total length of all (cumulative) sentences, which is 12 years + 12 years + 5 years + 5 years = 34 years; and

(b)	the total period the complainant was at large: 2 years, 8 months + 4 years, 9 months, 1 week, 6 days = 7 years, 5 months, 1 week, 6 days.

Thus the total period to be added to the date of the first sentence is 34 years + 7 years, 5 months, 1 week, 6 days = 41 years, 5 months, 1 week, 6 days. The "gross" due date of release is 11 October 1988 + 41 years, 5 months, 1 week, 6 days = 24 March 2030.

Step 2: the "net" due date of release

6. The "gross" due date of release is 24 March 2030. From that date is deducted:

(a)	the pre-sentence periods ordered by the National Court to be deducted = 6 months + 5 months + 1 year = 1 year, 11 months; and

(b)	remission of sentences under Section 120(1) of the Correctional Service Act, which is one-third of each sentence (except for the escape sentence in respect of which, under Section 120(2) there is no remission) and, as the total length of all sentences that attract remission is 12 years (rape) + 12 years (murder) + 5 years (armed robbery) = 29 years, one-third of that is 9 years, 8 months.

7. The total period to be deducted from the "gross" due date of release is 1 year, 11 months + 9 years, 8 months = 11 years, 7 months. The "net" due date of release is 24 March 2030 minus 11 years, 7 months = 24 August 2018.

RESOLUTION OF COMPLAINT

8. I am not satisfied that the terms of the complainant's detention, which show a due date of release as 15 December 2019, are lawful. The complaint has been sustained to the extent that his due date of release is sooner than that calculated by the Correctional Service.

ORDER

(1)	The complaint is sustained in that the Court is not satisfied that the current terms of the complainant's detention, which show a due date of release as 15 December 2019, are lawful, as the correct due date of release is 24 August 2018.

(2)	The Jail Commander, Beon Correctional Institution, shall ensure that within 14 days after the date of this order:

(a)	a sealed copy of this Order is placed on the complainant's Correctional Service file; and
(b)	the complainant's Correctional Service file and all other relevant files and records are amended to show that the complainant's due date of release is 24 August 2018; and 
(c)	an affidavit by a duly authorised officer, certifying that all of the above steps have been taken, shall be forwarded to the Assistant Registrar of the National Court, Madang.

(3)	The matter shall be called at Madang on 10 July 2014 to check on compliance with this order.
______________________________________________________

Public Solicitor: Lawyer for the complainant
Solicitor-General: Lawyer for the respondent