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Application by Roger Dumbal [2025] PGNC 122; N11252 (22 April 2025)

N11252

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO 1 OF 2025

APPLICATION BY ROGER DUMBAL
Applicant

WAIGANI: CANNINGS J
10, 22 APRIL 2025

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – prisoner whose sentence was reduced on appeal by Supreme Court still detained under original warrant of commitment issued by National Court – recalculation of due date of release – declaration sought as to date of eligibility for parole.

The applicant was originally sentenced by the National Court to 40 years imprisonment but on appeal by the Supreme Court the sentence was reduced to 25 years imprisonment. However, he remained detained under the warrant of commitment issued by the National Court. He applied for a new warrant of commitment, recalculation of his due date of release and determination of his date of eligibility for parole.

Held:

(1) To enforce the right of the applicant to the full protection of the law under s 37(1) of the Constitution and to give effect to the order of the Supreme Court it was ordered that the original warrant of commitment issued by the National Court be quashed and replaced by a fresh warrant of commitment.

(2) The new due date of release from custody is 31 July 2032.

(3) The applicant was sentenced before the date of commencement of the 2018 amendments to the Parole Act and was eligible for parole after serving one-third of his head sentence. The date is 28 March 2024.

Cases cited
Application by Bona Umauma (2024) N10876
Application by John Varimai (2024) N11117
Application by Wendol Agua (2024) N11122
Applications by Hobai Haro & Lolo Bellamy (2024) N11096
Applications by Tony Emmanuel & Edward Yau (2023) N10459
Baina Benny v Commissioner (2024) N10949
Complaint by John Irekau (2013) N4958
Neri v Commissioner of the Correctional Service (2020) N8577
Yasause v Commissioner of the Correctional Service (2021) N9380

Counsel
S Kuli, for the applicant

1. CANNINGS J: Roger Dumbal is a prisoner at Bomana Correctional Institution serving a sentence for murder. He was originally sentenced by the National Court at Vanimo on 14 November 2017 to 40 years imprisonment. However, on 25 February 2022, in SCRA 70 of 2017, the Supreme Court (Manuhu J and Anis J) upheld his appeal against sentence, quashed the sentence of 40 years imprisonment and substituted it with a sentence of 25 years imprisonment.
   
2. The problem is that a fresh warrant of commitment has not been issued. The applicant continues to be detained under the warrant of commitment based on the original sentence. He applies for a new warrant of commitment and recalculation of his due date of release. He also applies for a determination of his date of eligibility for parole.
   

WARRANT OF COMMITMENT

3. It is not necessary to refer the issue of a fresh warrant of commitment back to the Supreme Court (Baina Benny v Commissioner (2024) N10949). The National Court can issue a fresh warrant, to enforce the right of the applicant to the full protection of the law under s 37(1) of the Constitution. I will, pursuant to s 57(3) of the Constitution, order that the original warrant of commitment issued by the National Court be quashed and replaced by a fresh warrant of commitment.
   

DUE DATE OF RELEASE

4. I have set out a two-step approach to determination of the due date of release (DDR) in many cases, starting with Complaint by John Irekau (2013) N4958. Recent cases in which that approach has been applied include Application by Bona Umauma (2024) N10876, Applications by Hobai Haro & Lolo Bellamy (2024) N11096, Application by John Varimai (2024) N11117 and Application by Wendol Agua (2024) N11122.
   

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, if any, the applicant was at large,

to arrive at a gross DDR.

Step 2: Deduct from the gross DDR the periods that the applicant 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) remission of sentence under s 120 of the Correctional Service Act, and
(c) any period of suspension of the sentence,

to arrive at the net DDR.

Step 1

5. The date of sentence is 14 November 2017. To that date is added:
   
   • (a) the total length of all sentences – here there is only one sentence: 25 years; and
   • (b) any period the applicant was at large: here that is zero.
     
6. The gross DDR is 14 November 2017 + 25 years = 14 November 2042.
   

Step 2

7. From the gross DDR is deducted:
   
   • (a) the pre-sentence period in custody: it is shown on the original warrant of commitment as 1 year 11 months 2 weeks;
   • (b) remission of sentence, 1/3 x 25 years = 8 years 4 months; and
   • (c) suspension: zero.
     
8. The net DDR is 14 November 2042 minus (1 year 11 months 2 weeks + 8 years 4 months) = 31 July 2032.
   

PAROLE ELIGIBILITY

9. The Parole (Amendment) Act No 13 of 2018 repealed the previous s 17 (eligibility for parole) of the Parole Act and replaced it with the following:
   

(1) Subject to this Act and unless otherwise determined by an order of the Court, a detainee who has been sentenced to a term of imprisonment of five years or more and has served not less than half of the sentence is eligible for parole.

(2) A detainee who is serving a term of life imprisonment or is subject to a death sentence shall not be eligible for parole.

(3) A detainee whose application has gone before the Board for three times and was refused by the Board on all occasions is no longer eligible for parole,

(4) A detainee with an appeal pending in the Supreme Court is not eligible for parole until his appeal is heard and determined.

(5) 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.

10. If the applicant’s parole eligibility is determined under the present s 17, he would have to serve half of the head sentence of 25 years imprisonment before becoming eligible, ie 12 years 6 months after he commenced serving his sentence.
    
11. However, the better view, which I have taken in a number of other cases in which prisoners who were sentenced prior to commencement of the 2018 amendments to the Parole Act sought declarations as to their date of eligibility for parole (Neri v Commissioner of the Correctional Service (2020) N8577, Yasause v Commissioner of the Correctional Service (2021) N9380, Applications by Tony Emmanuel & Edward Yau (2023) N10459), is that if the date of the original sentence was before 28 November 2018, parole eligibility is determined under the former s 17 (eligibility for parole) of the Parole Act, prior to its amendment by the Parole (Amendment) Act No 13 of 2018.
    
12. The reason 28 November 2018 is the critical date is that it is the date of commencement of operation of the Parole (Amendment) Act No 13 of 2018. It commenced operation, by virtue of s 110(1) of the Constitution, on the date of its certification by the Speaker, 28 November 2018, as it was not expressed to come into force on any other day. The Parole (Amendment) Act No 13 of 2018 is not expressed to have retrospective operation, so the amendments to parole eligibility it made – making prisoners spend more time in custody before becoming eligible for parole – ought not apply to prisoners sentenced before the date of commencement of the Act.
    
13. The former s 17 stated:
    

(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 10 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.

14. The applicant is therefore eligible for parole under the former s 17(1)(b) after he has “served not less than one third of the sentence”, ie after serving 8 years 4 months of imprisonment. As for the start-date of service of the sentence, it is the date on which he was first detained in custody in connection with the offence for which he is serving the sentence. In this case, it was 1 year 11 months 2 weeks prior to the date of sentence, 14 November 2017, ie 28 November 2015. His date of eligibility for parole is 28 November 2015 + 8 years 4 months = 28 March 2024.
    
15. He is already eligible for parole and I will make a declaration to that effect and order the Correctional Service to facilitate his parole application.
    

ORDER

(1) The warrant of commitment issued by the National Court in CR 611 of 2016 on 14 November 2017 is quashed and replaced by a fresh warrant of commitment in the following terms:

(2) It is declared that the applicant is being detained with an incorrect due date of release. The correct due date of release is 31 July 2032.

(3) The applicant’s date of eligibility for parole is 28 March 2024. The Jail Commander, Bomana Correctional Institution, shall facilitate the making of a parole application by the applicant forthwith.

(4) The Jail Commander, Bomana Correctional Institution, shall ensure that by 1 May 2025:

• (a) a sealed copy of this order is placed on the applicant’s detainee file; and
• (b) the detainee file and all other relevant files and records are amended to show that the due date of release and date of eligibility for parole are as shown in this order.
  

(5) The matter shall be called on 2 May 2025 at 1.30 pm to check compliance with this order.

__________________________________________________________________
Lawyer for the applicant: Public Solicitor