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Piau v Commissioner of the Correctional Service [2025] PGNC 18; N11144 (7 February 2025)

-N11144

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO 91 OF 2024

CLEMENT TAMA PIAU
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI : CANNINGS J
3 DECEMBER 2024; 4, 7 FEBRUARY 2025

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – prisoner whose sentence was reduced on review by the Supreme Court still detained under original warrant of commitment issued by National Court – recalculation of due date of release – application for transfer to another correctional institution – Constitution, s 37(20).

The applicant was originally sentenced by the National Court to 40 years imprisonment but on review by the Supreme Court the sentence was reduced to 20 years imprisonment. However, he remained detained under the warrant of commitment issued by the National Court. He applied for a new warrant of commitment and recalculation of his due date of release. He also applied for transfer to a correctional institution in his home province.

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 27 September 2027.

(3) The application for transfer was granted as an enforcement of the right of a prisoner under s 37(20) of the Constitution to be detained in an area in which his relatives reside.

Cases cited

The following cases are cited in the judgment.

Application by Bona Umauma (2024) N10876
Application by John Varimai (2024) N11117
Application by Kutetoa (2005) N2819
Application by Wendol Agua (2024) N11122
Applications by Hobai Haro & Lolo Bellamy (2024) N11096
Baina Benny v Commissioner (2024) N10949
Complaint by John Irekau (2013) N4958
Komidese v Commissioner [1985] PNGLR 212
Piau v Commissioner (2018) N7355
The State v Chris Yomba (2022) SC2274
The State v Paliau (2015) N6036

Counsel

S Kuli for the applicant
M Sole for the respondents

1. CANNINGS J: Clement Tama Piau is a prisoner at Bomana Correctional Institution serving a sentence for wilful murder. He was originally sentenced by the National Court at Kiunga on 27 April 2016 to 40 years imprisonment but on 19 December 2023, in SC Rev 35 of 2020, the Supreme Court (Gavara-Nanu J, Berrigan J, Miviri J) granted an application for review, quashed the sentence of 40 years imprisonment and substituted it with a sentence of 20 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 transfer to Ningerum correctional institution, Western Province, which is his home province.

3. The respondents do not object to the issuance of a fresh warrant of commitment or recalculation of the due date of release but they do object to the application for transfer. I will deal with those three issues in turn.

WARRANT OF COMMITMENT

4. 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

5. 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.

6. 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.

7. 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;
(c) any period of suspension of the sentence,

to arrive at the “net” DDR.

8. The Supreme Court confirmed in The State v Chris Yomba (2022) SC2274 that the period of remission of a sentence is one-third of the head sentence; it is not one-third of the time to be served after deduction of the pre-sentence period in custody. The Court held that any suspended part of the sentence is also to be deducted when calculating the due date of release.

Step 1: the “gross” DDR

9. The date of sentence is 27 April 2016. To that date is added:

(a) the total length of all sentences – here there is only one sentence: 20 years; and
(b) any period the applicant was at large: here that is zero.

10. The “gross” due date of release is 27 April 2016 + 20 years = 27 April 2036.

Step 2: the “net” DDR

11. From the gross DDR is deducted:

(a) the pre-sentence period in custody: 1 year, 11 months; and
(b) remission of sentence, 1/3 x 20 years = 6 years, 8 months; and
(c) suspension: zero.

12. The “net” DDR is 27 April 2036 minus 8 years, 7 months = 27 September 2027.

APPLICATION FOR TRANSFER

13. The applicant wishes to be transferred from Bomana to Ningerum correctional institution, Western Province. He has given evidence that he is from the Kiunga area, close to Ningerum, and that is where his relatives reside, and that since he was transferred to Bomana many years ago for his Supreme Court review, he has received no visits from his relatives. He applies for enforcement of his right as to the place of detention under s 37(20) of the Constitution, which provides:

An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for so doing shall be endorsed on the file of the offender.

14. The respondents oppose the application on the grounds that the applicant had a similar application refused by Tamate J in 2018 (Piau v Commissioner (2018) N7355) and there is no guarantee of his safety if he is transferred to Ningerum and it is better that he remain at Bomana where the prospects of rehabilitation are greater.

15. I am not bound by Tamate J’s decision, which was made more than five years ago. The applicant is entitled to have his present application determined on its merits. He has given evidence that he has applied to the Correctional Service for a transfer but had no response and that his application is supported by a senior correctional officer at Bomana correctional institution and that he is detained in the minimum security unit. The only evidence for the respondents is an affidavit by their counsel Mr Sole, which is more in the nature of a submission opposing the application than a statement of facts. There is no evidence from any officer of the Correctional Service that there are security reasons or any other good cause to justify the applicant’s detention at Bomana, which is a place other than where his relatives reside.

16. The effect of s 37(20) of the Constitution is that a prisoner has a right to be detained at a correctional institution in an area close to where his relatives reside (Komidese v Commissioner [1985] PNGLR 212, Application by Kutetoa (2005) N2819, The State v Paliau (2015) N6036). There is no good reason to refuse this application. I will grant the application to enforce the applicant’s right as to his place of detention under s 37(2) of the Constitution. I will allow two months for the transfer to be effected.

ORDER

(1) The warrant of commitment issued by the National Court in CR 936 of 2014 on 27 April 2016 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 27 September 2027.

(3) The Jail Commander, Bomana Correctional Institution, shall ensure that by 14 February 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 is as shown in this order.
  

(4) The respondents shall transfer the applicant to Ningerum correctional institution by 7 April 2025.

(5) The matter shall be called on 20 February 2025 at 9.30 am to check compliance with order (3) and for the respondents to report on the steps being taken to comply with order (4).

__________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondents: Solicitor-General