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In re Application for Enforcement of Human Rights, by Waga Kumutz [2014] PGNC 90; N5633 (19 June 2014)

N5633

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 60 OF 2013

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTION 57 OF THE CONSTITUTION
BY WAGA KUMUTZ

Madang: Cannings J
2014: 24 April, 19 June

HUMAN RIGHTS – application by prisoner for enforcement of human rights: Constitution, Section 37(1): right to the full protection of the law – failure by appropriate authorities to notify prisoner of date of eligibility for parole.

The applicant, a prisoner, is serving two separate sentences of life imprisonment for homicide offences. He also served a sentence of 5 years, 6 months for rape. He maintains that he is eligible for parole but that his parole applications have been refused and no one is telling him his date of eligibility for parole. He applied for enforcement of his human rights.

Held:

(1) Every prisoner has the right under Section 37(1) of the Constitution to the full protection of the law and this includes the right to be considered for parole in accordance with the date on which he becomes eligible for parole under the Parole Act 1991 and to be informed with certainty of his date of eligibility.

(2) Section 17(1) of the Parole Act provides that a person who has been sentenced to a term of three years or more (not being a life sentence) is eligible for parole after serving one third of the sentence and that a person who has been sentenced to life imprisonment is eligible for parole after serving ten years of the sentence.

(3) Here the applicant has served a sentence of 5 years, 6 months and he is serving two terms of life imprisonment, each of which attracts a minimum period in custody prior to his becoming eligible for parole. To be eligible for parole the applicant must serve in custody a period of 1 year, 10 months + 10 years + 10 years = 21 years, 10 months.

(4) After taking account of the fact that the applicant was at large for a total period of 3 years, 7 months, 2 weeks, he will be eligible for parole on 8 January 2019.

Cases cited

The following cases are cited in the judgment.

In the matter of a complaint by Michael Tambeng (2013) N4959
In the matter of a complaint by Okata Talagaim (2010) N3893

APPLICATION

This was an application for enforcement of human rights under Section 57(1) of the Constitution.

Counsel

S Ao, for the applicant
S Phannaphen, for the respondent

19th June, 2014

1. CANNINGS J: Waga Kumutz is a prisoner at Beon Jail. He is serving two separate sentences of life imprisonment for homicide offences. He also served a sentence of 5 years, 6 months for rape. He maintains that he is eligible for parole but that his parole applications have been refused and no one is telling him his date of eligibility for parole. He has filed an application for enforcement of human rights. He wants the Court to order that he is eligible for parole or, if he is not presently eligible, to declare the date on which he will become eligible.

2. It is an unusual application as such matters are usually left to the appropriate authorities, the Commissioner of the Correctional Service and the Parole Board, to sort out. However, it is a proper application. All persons in Papua New Guinea, including prisoners, have the right under Section 37(1) of the Constitution "to the full protection of the law". One of the most important laws providing 'protection' for prisoners is the Parole Act 1991. It provides a system of parole by amongst other things setting dates on which prisoners become eligible for parole and requiring the Parole Board to consider the case of each prisoner who is eligible for parole and to make a decision whether to grant or refuse parole.

3. Prisoners have a right to be informed with certainty about the length and conditions of their detention (In the matter of a complaint by Okata Talagaim (2010) N3893, In the matter of a complaint by Michael Tambeng (2013) N4959). This right extends to their right to be informed of the date on which they are eligible for parole. It is properly regarded as a human right or a Basic Right and therefore it is enforceable under Sections 57(1) and 57(3) of the Constitution, which state:

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. ...

(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force). ...

THE APPLICANT'S CRIMINAL RECORD

4. He has been convicted and sentenced on four different occasions, as shown in the following table.

5. He was first detained in custody on 25 July 1993, when he was remanded in connection with the charge of rape of which he was subsequently convicted and sentenced (on 9 May 1994). He has not, however been continuously in custody since then. His Correctional Service file shows that he escaped from custody twice and was at large during these periods:

• 27 May 1994 to 11 July 1994, a period of 1 month, 2 weeks; and
  
• 4 December 1994 to 4 June 1998, a period of 3 years, 6 months;
  

being a total period of 3 years, 7 months, 2 weeks.

ELIGIBILITY FOR PAROLE

6. The applicant's eligibility for parole is determined under Section 17 of the Parole Act, which states:

(1) Subject to this Act, a detainee who—

(a) having been sentenced to a term of imprisonment of less than three years—has served not less than one year; or

(b) having been sentenced to a term of imprisonment of three years or more—has served not less than one third of the sentence; or

(c) having been sentenced to life imprisonment or detention during Her Majesty's pleasure—has served not less than ten years,

is eligible for parole.

(2) For the purposes of determining the length of a sentence under Subsection (1)—

(a) remission of sentence shall not be taken into account; and

(b) where a detainee has been sentenced to—

(i) two or more terms of imprisonment to be served concurrently—the longer or longest term (as the case may be) shall be considered; or

(ii) two or more terms to be served cumulatively—the total of these terms shall be considered.

7. A prisoner serving a life sentence will according to Section 17(1)(c) be eligible for parole after serving ten years. What if the prisoner, such as the applicant, has received more than one life sentence? In my view the only proper way to interpret Section 17(1)(c) is that the prisoner must serve at least 10 years in respect of each life sentence.

8. The applicant must therefore spend 20 years in custody in respect of the two life sentences before being eligible for parole. In addition he must serve 1 year, 10 months (being one-third of 5 years, 6 months) in respect of the rape sentence, which was the first sentence he received, on 9 May 1994. To be eligible for parole the applicant must therefore serve in custody:

• 1 year, 10 months (re rape sentence) + 10 years (re first life sentence) + 10 years (re second life sentence) = 21 years, 10 months.
  

9. If the applicant had been in custody continuously since the date of his initial detention, 25 July 1993, he would be eligible for parole on this date:

• 25 July 1993 + 21 years, 10 months = 25 May 2015.
  

10. However, he has spent a total of 3 years, 7 months, 2 weeks at large, so that period must be added to what would otherwise have been the date of eligibility for parole. Thus:

• 25 May 2015 + 3 years, 7 months, 2 weeks = 8 January 2019.
  

11. That is the date on which he will be eligible for parole. I will make a declaration to that effect. I will in addition make orders to ensure that the Correctional Service complies with its obligation to provide particulars regarding the applicant's parole eligibility six months before the date of eligibility in accordance with Section 18 of the Parole Act, which states:

At least six months before a detainee becomes eligible for parole in accordance with Section 17(1), the Commissioner shall provide the Board with the following particulars in the prescribed form:—

(a) the name of the detainee; and

(b) the date of his committal to the corrective institution; and

(c) particulars of the offence committed by him and of his conviction; and

(d) the length of the sentence imposed on him, and if more than one sentence has been imposed on him the lengths of the respective sentences and whether they were imposed to run concurrently or cumulatively; and

(e) particulars of any further sentences imposed on him since his committal to the corrective institution, including particulars of any sentences imposed on him for disciplinary offences while in detention; and

(f) the date on which he will become eligible for parole in accordance with Section 17,

and shall notify the detainee that this has been done.

12. I will also order that the Parole Board make a decision on the applicant's case within a reasonable period, which I set as nine months after the date of receipt of the Section 18 particulars.

ORDER

(1) It is declared that the applicant will be eligible for parole, provided that he remains continuously in custody, on 8 January 2019.

(2) The Commissioner of the Correctional Service shall by 8 July 2018 provide the Parole Board with the particulars required by Section 18 of the Parole Act and notify the applicant that that has been done.

(3) The Parole Board shall within nine months after receiving the particulars referred to in order (2) decide whether to grant or refuse parole and notify its decision to the Commissioner of the Correctional Service, the Chief Parole Officer and the applicant.

(4) The Jail Commander, Beon Correctional Institution, shall forthwith place a sealed copy of this order and the judgment of the Court on the applicant's Correctional Service file.

(5) The Assistant Registrar of the National Court, Madang shall forthwith transmit a sealed copy of this order and the judgment of the Court to the Chairman of the Parole Board for the information of the Board.

_______________________________________________________
Public Solicitor: Lawyer for the Applicant
Solicitor-General: Lawyer for the Respondent