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Pokarup v Commissioner of the Correctional Service [2023] PGNC 469; N10635 (27 December 2023)

-N10635

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 136 OF 2022

IN THE MATTER OF AN APPLICATION FOR
ENFORCEMENT OF HUMAN RIGHTS

DAVID POKARUP
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2023: 6^th, 19^th, 27^th December

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

A prisoner was sentenced to eight years imprisonment in 2007. He is in custody 16 years after the date of sentence. He has a history of escaping from custody but the details are contentious. He is concerned about his due date of release, which he claims has been incorrectly calculated.

Held:

(1) 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 due date of release from custody.

(2) If it is alleged that a prisoner has escaped from custody, the court must be guided by the best evidence available. If there is no evidence of an escape on the Correctional Service file the alleged escape should be disregarded in calculating the due date of release.

(3) According to the Correctional Service file, there was only one escape by the applicant and he was at large for a period of seven years, six months, one week and four days. His due date of release was 21 March 2020. He is unlawfully detained and shall be discharged from custody forthwith.

Cases Cited

The following cases are cited in the judgment.

Application by Samalan Peter (2014) N5631
Complaint by John Irekau (2013) N4958
Complaint by Michael Tambeng (2013) N4959
The State v Roy & Pokarup (2007) N5041

Counsel

C Oresi, for the Applicant
A Kajoka, for the Respondents

27^th December 2023

1. CANNINGS J: David Pokarup is a prisoner at Bomana Correctional Institution. He was sentenced to eight years imprisonment for armed robbery by the National Court at Kimbe on 17 August 2007 when he was 19 years old (The State v Roy & Pokarup (2007) N5041). He has not been sentenced for any other offence, but he remains in custody 16 years later.

2. He has a history of escaping from custody but the question of how many times he escaped and for what periods he was at large is contentious. He is concerned about his due date of release, which he claims has been incorrectly calculated. He applies for enforcement of his human rights by the correction of that date in the Correctional Service records.

DUE DATE OF RELEASE

3. A prisoner’s due date of release is a matter of law, to be calculated by examining court and Correctional Service records and interpreting and applying provisions of the Correctional Service Act. 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 due date of release from custody.

4. This is the applicant’s second human rights application aimed at clarifying his due date of release. His first one was HRA 262 of 2015, which I decided at Kimbe on 31 March 2016 by declaring that his due date of release was 21 March 2020.

5. In his Correctional Service file, there is a loose reference to an escape that allegedly occurred after 19 December 2015. It allegedly occurred on 18 August 2016 and he was allegedly recaptured on 16 April 2022. However, there is no formal notification of escape or recapture, no evidence of a charge of escape and no warrant of commitment for the offence of escape.

6. If it is alleged that a prisoner has escaped from custody, the court must be guided by the best evidence available. If there is no satisfactory evidence of an escape the alleged escape should be disregarded in calculating the due date of release.

7. I find that there is no satisfactory evidence of a second escape. Only the first escape and the period at large after it, should be considered in determining the due date of release. As it turns out, I have already taken those matters into account when I decided HRA 262 of 2015.

8. I followed the approach taken in other cases regarding complaints of unlawful detention such as Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959 and Application by Samalan Peter (2014) N5631.

9. 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 the prisoner was at large,

to arrive at a “gross” due date of release.

10. Step 2: Deduct from the “gross” due date of release the periods that the prisoner 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

11. The date of the first sentence is 17 August 2007. To that date is added:

(a) the total length of all sentences – here there is only one sentence = 8 years; and
(b) the period the complainant was at large: here that period is from 1 February 2008 to 12 August 2015 = 7 years, 6 months, 1 week, 4 days.

Thus the total period to be added to the date of the first sentence is 15 years, 6 months, 1 week, 4 days.

12. The “gross” due date of release is 17 August 2007 + 15 years, 6 months, 1 week, 4 days = 28 February 2023.

Step 2: the “net” due date of release

13. The “gross” due date of release is 28 February 2023. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted: 3 months, 1 week; and

(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the sentence, ie 1/3 x 8 years = 2 years, 8 months.

14. The total period to be deducted from the “gross” due date of release is 3 months, 1 week + 2 years, 8 months = 2 years, 11 months, 1 week.

15. The “net” due date of release is 28 February 2023 minus 2 years, 11 months, 1 week = 21 March 2020.

CONCLUSION

16. The applicant’s due date of release of 21 March 2020 was more than three years and nine months ago. This is intriguing. It makes me think that there perhaps was a second escape and it was perhaps after my decision of 31 March 2016 in HRA 262 of 2015 and perhaps the applicant was recaptured on 16 April 2022. However, where the liberty of an individual is concerned, his right to the full protection of the law under s 37 of the Constitution is paramount. Records must be kept and maintained for every person in custody. If the records do not show an escape and do not show any period at large, such matters must be disregarded. The consequence is that the applicant has passed his due date of release. He is presently unlawfully detained. He is entitled to be discharged from custody forthwith. Because of the uncertainty over whether he might still be charged over the alleged second escape, I will order that he not face action without the leave of the court.

ORDER

(1) The application for enforcement of human rights is granted and these orders are made under ss 57(1) and (3) of the Constitution to remedy the breach of the right to the full protection of the law under s 37(1) of the Constitution that has occurred.

(2) It is declared that the applicant’s due date of release from custody was 21 March 2020 and that the applicant is presently unlawfully detained.

(3) The applicant shall be released from custody forthwith.

(4) The Commissioner of the Correctional Service shall, if requested by the applicant, facilitate pursuant to s 119(2)(a) of the Correctional Service Act, the return of the applicant, by 27 February 2024, to his normal place of residence, Kimbe, West New Britain Province.

(5) The applicant shall not be arrested, charged or detained for any alleged escape from custody since 17 August 2007 without the leave of the National Court.

(6) This matter shall be mentioned for compliance check on 6 February 2024 at 1.30 pm.

__________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Solicitor-General: Lawyer for the Respondents