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In re Complain under section 42(5) of the Constitution, in re Trevor Waidau [2013] PGNC 163; N5417 (14 November 2013)

N5417

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 8 OF 2013

IN THE MATTER OF A COMPLAINT UNDER
SECTION 42(5) OF THE CONSTITUTION BY TREVOR WAIDAU

Madang: Cannings J
2013: 14 August, 24 October, 14 November

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) Here, the Court ordered that the complainant be brought before it and inquired into the complaint and was not satisfied that the terms of the complainant's detention, showing his due date of release as 25 November 2014, were lawful. The complaint was sustained and it was ordered that the due date of release is 12 February 2014.

Cases cited

The following cases are cited in the judgment.

Application by Benetius Gehasa (2005) N2817
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
In the matter of complaints of unlawful and unreasonable detention by Michael Walge and Others (2006) N3022

COMPLAINT

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

Counsel

A Meten, for the complainant

14th November, 2013

1. CANNINGS J: Trevor Waidau 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 by being given an inflated due date of release of 25 November 2014. 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, In the matter of a complaint by Okata Talagaim (2010) N3893, In The Matter of a Complaint Constitution 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 21 April 2004 to a term of 8 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 16 January 2008 he was sentenced by the District Court to 18 months imprisonment for being in possession of dangerous drugs.
  
• On 9 May 2008 he was sentenced by the District Court to 15 months imprisonment for possession of illicit spirits (home brew) and 20 months imprisonment for being in possession of dangerous drugs (marijuana), the sentences to be served cumulatively.
  
• On 5 October 2008 he escaped from prison. He was at large until 20 September 2010. He has remained in custody since then. He was charged with the offence of escape but the matter was struck out by the District Court.
  

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; 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 (Re Release of Prisoners on Licence (2008) N3421),

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

Step 1: the "gross" due date of release

The date of the first sentence is 21 April 2004. To that date is added:

(a) the total length of all sentences, which is 8 years + 18 months + 15 months + 20 months = 12 years, 5 months; and

(b) the period the complainant was at large: 1 year, 11 months, 2 weeks, 1 day (from 5 October 2008 to 20 September 2010).

Thus the total period to be added to the date of the first sentence is 12 years, 5 months + 1 year, 11 months, 2 weeks, 1 day = 14 years, 4 months, 2 weeks, 1 day. The "gross" due date of release is 21 April 2004 + 14 years, 4 months, 2 weeks, 1 day = 5 September 2018.

Step 2: the "net" due date of release

5. The "gross" due date of release is 5 September 2018. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted: 5 months; and

(b) remission of sentences under Section 120 of the Correctional Service Act, which is one-third of each sentence and, as the total length of all sentences is 12 years, 5 months = 149 months, one-third of that is 49.67 months = 4 years, 1 month, 3 weeks.

6. The total period to be deducted from the "gross" due date of release is 5 months + 4 years, 1 month, 3 weeks = 4 years, 6 months, 3 weeks. The "net" due date of release is 5 September 2018 minus 4 years, 6 months, 3 weeks = 12 February 2014.

RESOLUTION OF COMPLAINT

7. I am not satisfied that the terms of the complainant's detention, which show a due date of release as 25 November 2014, 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 25 November 2014, are lawful, as the correct due date of release is 12 February 2014.

(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 12 February 2014; 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 11 December 2013 to check on compliance with this order.

____________________________________
Public Solicitor: Lawyer for the complainant