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State v Paliau [2015] PGNC 142; N6036 (7 August 2015)

N6036

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NOs. 194, 195, 196, 197, 198, 199, 200,
201, 202, 203 & 204 OF 2014, 08 & 61 of 2015

THE STATE

V
BRIAN PALIAU, VINCENT SAMSON, REX PALIAU,
HERMAN MOSES, BILL KANAT, LUMAT LUM,
AMOS PHILIP POTAHA, ELIZAH KILACH, STEVEN HAMOU,
JOHN AIWAI, SO-ON PUSAHI,
PATRICK MAKIS & PAIAS MULIU LESSAH
The Prisoners

Kokopo: Higgins, J.
2015: 12th May, 5th June, 6th, 22nd July & 7th August

HUMAN RIGHTS – prisoners transferred or committed to gaol outside of place of residence of relatives – right to be near relatives whilst detained – s.37(20) Constitution – whether good reason for transfer to be made or denied – inadequate gaol facilities on Manus – power to direct upgrading of facilities s.57(3) Constitution – transfers ordered.

Cases Cited:
Ben Micah v. Ombudsman Commission & ors [2015] SC 1445
In the Matters of Applications by Kutetoa & 3 others [2005] PGNC 139; N2819

Counsel:
Ms. Elsie Takoboy, for the State
Mr. John Gesling, for the Prisoners

DECISION

7th August, 2015

1. HIGGINS, J: This matter concerns 13 prisoners at Kerevat Correctional Institution in East New Britain Province each of whom was sentenced to various terms of imprisonment at Manus Province National Court.
   
2. Each has filed a Human Rights application praying that they be reallocated to Lorengau Correctional Institution on Manus Island. The basis for that request is, in reliance on Section 36 and, perhaps more incidentally, on Section 37 & Section 57 of the Constitution that their relatives are in every practical sense, unable to visit them. They live on Manus Island.
   
3. That factual circumstance is acknowledged by the State.
   
4. Other issues are raised, such as access to medical assistance being augmented by relatives. At the outset, I must find that there seems to be no significant disadvantage to prisoners at Kerevat from a lack of access by family members to augment medical assistance.
   
5. The separation from the support and comfort of family members is in all other respects, however, a real and significant disadvantage to the applicants and, again, the State does not seek to deny that. It is a disadvantage in derogation of a right granted by the Constitution, albeit that it is not unqualified.
   

THE EVIDENCE

6. On behalf of the State, Mr Michael Waipo, Commissioner for the Department of Correctional Services, on 2 March 2015, deposed that the applicants, (par 2):
   

".... were sentenced at the Manus National Court at different time duration between 2012 – 2014 and the same court ordered them to serve their sentence term outside of Manus jail facility".

7. As it happens, this statement is not entirely accurate as some of the applicants were sentenced earlier than 2012 and some, indeed most, were not the subject of any order that their sentence be served outside of Lorengau, though for some of those, the warrant did expressly permit, and in a few cases specify, service of sentences at Kerevat.
   
8. The nub of the State's case, however, is that the Lorengau facility, at least then, had a holding capacity of only 60 prisoners and was lacking proper security. The fencing was rusting and falling down so that:
   

".... Until renovation and maintenance works are carried out on the facility, Correctional Services cannot keep high risk prisoners at its Manus facility."

9. On 5 March 2015, there was also sworn an affidavit of Senior Inspector Philip Pranis, the Gaol Commander at Lorengau. He was asked to address the overcrowding issue. SI Pranis deposed that the number of inmates was, at 3 March 2015, 65. Mr. Waipo refers to 65–72 prisoners (Par 8). SI Pranis wrote to the Solicitor General on 3 March 2015 advising:
   

"The current state of Manus Jail cannot cater for prisoners serving long terms as the institution has no sally port, no watch tower and no perimeter fence with run down compound fence and very scarce security officers on the ground. Long termers are required to undergo rehabilitation programs and Manus Jail cannot provide such programs as we lack every facility to meet these requirements."

10. There is no medical facility within the gaol, though prisoners have access to the public hospital if required.
    
11. SI Pranis made particular mention that Rex Paliau, John Aiwai and Bill Kanat, had escaped lawful custody when on remand. Lumat Lum, he stated, had been convicted of rape and murder of his niece. Hence, family support might well be illusory in his case.
    
12. In response, the applicants jointly submitted a statement which referred to the following matters.
    
13. First, in 2007 there had been only one cell block at Lorengau. It had housed 96 detainees. It was overcrowded. Manuhu J. condemned the state of the gaol. That resulted in some maintenance work but little else until 2011 when Gabi J. intervened and ordered the Government of Manus to add to the facilities. This was in fact done, it was stated, and a second cell block was built and opened that same year.
    
14. The applicants also assert that double bunking would assist accommodation.
    
15. They further pointed out, that, though long term (in most cases), they were currently classified at Kerevat, and had been at Lorengau, as low risk prisoners. In that respect, it seems to me, SI Pranis' assertion to the contrary is inaccurate, indeed his past assessment reports concerning detainees, Kanat, Potaha, Makis and Lum is to the opposite effect to that assertion.
    
16. Indeed, apart from the reference to escapes by the 3 applicants Rex Paliau, John Aiwai and Bill Kanat referred to above, which occurred before sentence, no assertion is made that the applicants are high risk prisoners. Indeed, such evidence as there is suggests the contrary.
    
17. The applicants further point out that dealing with those on remand more effectively would also reduce the prison numbers dramatically. Indeed, the ratio of remandees to sentenced prisoners, at over 1:1, if correct, is extraordinarily high.
    
18. The applicants dispute the assertion that Leave of Absence was not available to them at Manus. Indeed they assert they took part in programs including building and fishing. That, indeed, is supported by a statement made earlier by SI Pranis that is at variance with his more recent assertions.
    
19. The applicants also raise the prospect of arranging reconciliation with victims and/or their families to assist in eligibility for parole.
    
20. Particularly, Lumat Lum disputes (and apparently, correctly, as the records now disclose) that he was convicted of rape, albeit he was convicted of wilful murder.
    
21. In further response to those statements, SI Pranis pleads that, even with the facility built in 2011, the gaol cannot cope with more prisoners than it currently holds.
    
22. On 3 June 2015, a further affidavit was submitted by the State from Inspector Tony Yohui, OIC Reception at Kerevat. He deposed that prisoners needing medical assistance are transferred to Nonga Base General Hospital at no charge, although a prisoner might choose private hospital care where a charge would apply, usually met by relatives. As I have noted, I do not believe that this issue has any relevance one way or the other.
    
23. In addition to that evidence, at my request, the State has, very properly, attempted to access the original files relating to each applicant. In only one case, has the file not been made available. I record my thanks to State counsel, Ms Elsie Takoboy, for her assistance and cooperation in this matter.
    
24. I also acknowledge the assistance, pro bono, of Mr. John Gesling of counsel for his assistance to the applicants and to the Court.
    

GENERAL SUBMISSIONS OF COUNSEL

25. The State in its submission draws attention to s.36 and 37 of the Constitution. The particular provision engaged in this case is s.37(20):
    

"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 doing so shall be endorsed on the file of the offender".

26. Two reasons are assigned to justify the removal of these applicants from Manus Island where their relatives reside.
    
27. First, that they are "high risk" prisoners and, secondly, and more relevantly, that to transfer them to Manus would be inhumane given the current conditions there.
    
28. The first of those reasons is not supported by the evidence and, indeed, as Mr. Gesling submits, the only reason that has evidentiary support is that of the current inadequacy of the gaol facilities on Manus.
    
29. It is apparent that in 2011, judicial concern, including orders made, resulted in expansion of the gaol facilities; doubling within 12 months. It is also apparent that there is some ongoing capacity to receive some prisoners.
    
30. It cannot be stressed too strongly that the State has an ongoing and high responsibility under the Constitution to provide adequate facilities for prisoners that ensure humane and lawful treatment. That includes honouring the obligation imposed by s.37 (20). This Court has the responsibility to use its powers to ensure that compliance.
    
31. If that means requiring relevant State agencies to build and upgrade prison facilities then so be it. How that is to be ensured is a different issue. The practicality and enforcement of such an objective is a matter of discretionary judgment. However, it is clear that necessary works could be concluded within 12 months, as the history of Gabi J.'s intervention demonstrates.
    
32. The right conferred by s.37(20) is, as Cannings J. noted, in In the Matters of Applications by Kutetoa & 3 others [2005] PGNC 139; N2819, qualified by the terms of the exception stated in it but it does nevertheless, limit the power of the Commissioner for Corrective Services or his delegates to transfer prisoners from one institution to another. It further qualifies the range of permissible orders a Court may make in sentencing an offender to imprisonment.
    
33. In that case to justify the proposed transfer, which was also to Kerevat, the State pointed to a lack of proper corrective facilities on Bougainville.
    
34. His Honour took the view that to impose an onus of proof on either party was inappropriate. The proceedings were more appropriately to be viewed as inquisitorial rather than adversarial. Whilst that may be accepted, it does not negate the view that an evidential onus would fall on one party or the other depending on the issue. Though no doubt an easy onus to satisfy, an applicant, would for example, need to point to some evidence of relatives living in the relevant area, whilst to justify a transfer apparently contrary to the prohibitive portion of the right conferred by s.37 (20), the State would need to point to evidence of "reasons of security or other good cause" supporting such a transfer. That is emphasised and supported by the obligation to endorse on the offender's file the relevant reason or reasons for a transfer.
    
35. As recently affirmed by the Supreme Court in the case of Ben Micah v. Ombudsman Commission & ors [2015] SC 1445, an obligation to give reasons implies that there are good and sufficient reasons to support the decision and that they are stated so as to enable an aggrieved person to challenge the decision if the reasons appear not to support the decision or are otherwise open to challenge.
    
36. The standard of proof is clearly not greater than the civil onus. Cannings J. expressed that in terms of 'reasonable satisfaction'. I agree.
    
37. The question of security did not arise with the particular applicants in that case, "other good cause" was relied upon. His Honour had no information about the quality of facilities in Kerevat as opposed to Buka. He did, however, accept that the conditions for detention at Buka were 'appalling'.
    
38. His Honour observed that the appropriate remedy, including a consideration of the rights conferred by s.36 (freedom from inhuman treatment) and by s.37 (2) (right to be "treated with humanity and with respect for the inherent dignity of the human person") was for a proper correctional institution to be constructed and commissioned. He made a formal recommendation to that effect to the relevant authorities pursuant to s.57 (3) of the Constitution.
    
39. Clearly, there is a difference between a decision not to transfer a prisoner and a decision to do so but in either case a prisoner may be denied access to relatives. The provisions of s.37(20) are clearly intended to ensure that, absent good reason to the contrary, a prisoner will be detained as near as practicable to his or her family. Not to regard that right as applicable throughout a prisoner's sentence would effectively negate it. Thus, if a good reason does exist for a separation of the prisoner from family proximity, it would be appalling that, once that reason ceases to exist, if it should do so, such a prisoner would have no right to be transferred to a place as proximate as possible to his or her family. Neither could it be accepted that, if a prisoner's family had to relocate, the prisoner could not enjoy the qualified right under s.37 (20) to support a transfer to that new location.
    
40. Thus, it seems to me, a decision not to transfer a prisoner to a location near his or her family is, prima facie, a breach of that prisoner's rights under s.37(20), just as much as a decision to transfer a prisoner away from such a location. That is, of course, unless in a particular case a good reason appears to justify deciding otherwise as allowed by s.37 (20).
    
41. It is troubling that in no case has it appeared that a reason for transfer of a prisoner from Manus to Kerevat has been "endorsed on the file" of the prisoner. Indeed, in some cases, a recommendation was made by SI Pranis that certain prisoners be transferred to Kavieng to be near relatives who were then living there. I do not consider that the requirement for endorsement is mandatory. It may appear from other evidence that there was a good reason for the transfer of a particular prisoner away from Manus. That reason may then be scrutinised to assess whether it is sufficient. If no reason is assigned, of course, that may lead to the conclusion that no sufficient reason existed or now exists as the case may be.
    
42. In this context, it may be noted that the original Warrant of Commitment will specify the institution or range of institutions to which a prisoner may be sent. The selection so made does not preclude a subsequent transfer by the relevant authority under the Correctional Service Act 1995 (See Division 5). I note also the obligations imposed by Part X of that Act (Conditions of Detention). Plainly, those conditions were not being met at Buka in the case decided by Cannings J. That illustrates that some rights of detainees will, in some circumstances, be in conflict with other rights. In this case, the right to be near family may conflict with the right to adequate and humane conditions of detention. A judgment may need to be made as to the balance between those competing considerations.
    
43. It is the duty of the State to ensure that adequate facilities are available to hold prisoners in accordance with the orders of relevant courts, the provisions of the Correctional Service Act 1995 and the Constitution.
    
44. Under s.57(3) of the Constitution, this Court, if a breach of constitutional rights appears, may make such orders as are reasonably open to remedy that breach. Equally, the court may decide that no remedial action is either warranted or practicable in the circumstances. An award of damages for breach is also open (see s.58.)
    
45. What, then, is appropriate in the present case? For these prisoners in respect of whom no sufficient reason exists to deprive them of the proximity of family, the remedy is to direct a transfer to a facility close to that prisoner's family.
    
46. Is it a 'good reason' against that if the transfer would be to a facility that is sub-standard and/or overcrowded?
    
47. I note that Cannings J. did not consider the grossly inadequate facilities at Buka a sufficient reason to permit a transfer to other facilities, albeit that the comparison was not entirely clear. Nevertheless, it is hard to imagine that alternative facilities would not have been better. The remedy was to direct the State through its relevant agencies to bring the facilities up to standard. Gabi J. did that in 2011 at Manus. It could, equally, have been open to authorise but delay a transfer to enable the facilities which would satisfy s.37(20) to be brought up to an acceptable, even if not ideal standard.
    
48. Of course, whilst a few prisoners could be accommodated forthwith at Manus, it is reasonable to conclude that otherwise the facilities need to be upgraded to cater for greater numbers.
    
49. Cannings J. recognised this in the orders he made in The Matter of Katetoa & ors (supra). In this case, it is apparent that a new cell block could be constructed and commissioned within 12 months. Ancillary works could also be completed within that time frame. There would then be no reason not to take these prisoners from Manus who are currently at Kerevat.
    
50. The remaining question is whether in the case of any particular applicant there is a good reason not to order a transfer to Manus.
    

THE INDIVIDUAL CIRCUMSTANCES OF EACH APPLICANT

51. I consider each of the cases in turn in light of the further information provided by counsel for the State.
    

HRA 194 of 2014 – Brian Paliau

52. This offender, was on 28 June 2013, convicted of wilful murder. He was sentenced to 20 years of imprisonment less 10 months 18 days in pre-sentence custody. Geita AJ. ordered that the sentence be served "at any suitable Corrective Institution Gaol Location outside of Lorengau". The offender suffers from "foot drop" as a result of a "swordfish wound with false aneurysm". He has a permanent disability in his right leg dating from 21 October 2009. He was subsequently diagnosed with osteoarthritis of the right hip, a sequel to that disability.
    
53. No reason was given by Geita AJ. for the terms of the order he made. It may have been that the facility was then overcrowded. Certainly, no reason other than overcrowding is suggested for not transferring this applicant back to Manus. It is apparent that the Lorengau General Hospital is well able to cater for his special needs.
    
54. With good behaviour and usual remissions, he could be eligible for parole in about 2020. It is desirable that he be near family and those with whom reconciliation is appropriate well before then.
    
55. I direct that he be transferred to Lorengau no later than 12 months from today.
    

HRA 195 of 2014 – Vincent Samson

56. This offender, was on 3 September 2012, convicted of wilful murder. He was sentenced by Salika DCJ to 36 years of imprisonment less 8 years 8 months. He was committed to the "Corrective Institution of Kerevat".
    
57. No reason is endorsed upon or revealed from the prisoner's file for that direction. Again, it may have been the state of the facilities at Lorengau. No other reason appears.
    
58. This offender could be eligible for parole in about 9 years. It is desirable that he be near family and those with whom reconciliation is appropriate before then.
    
59. I direct that he be transferred to Lorengau no later than 18 months from today.
    

HRA 196 of 2014 – Rex Paliau

60. This offender is a brother to Brian Paliau. He was also sentenced, on 28 June 2013, to 20 years of imprisonment less 10 months and 18 days for wilful murder, by Geita AJ.
    
61. The same order was made for Rex Paliau as for Brian Paliau. Again, no reason is disclosed for the order specifying an institution outside of Lorengau.
    
62. The same considerations apply to this offender as to his brother.
    
63. I direct that he be transferred to Lorengau no later than 12 months from today.
    

HRA 197 of 2014 – Herman Moses

64. This offender was convicted, on 17 July 2009, of manslaughter and sentenced to 15 years imprisonment less 8 months and 3 weeks, by Gabi J. He was directed to be held at "Loengau (sic)".
    
65. On 3 May 2013, the Commissioner directed, pursuant to the Corrective Institutions Act 1995, that he be transferred to Kerevat. Three reasons were given and stated as follows:
    

"▖ for the good of the detainee

• for the good of other detainees at the (sic)
• for smuggling contraband item (marijuana) into compound."
  

66. The third of those reasons is handwritten. The other two are printed. I think the third reason was that which applied to this offender. The other two are not apparently applicable. I believe the Commissioner simply failed to cross them out.
    
67. The transfer was, I infer, for disciplinary reasons. Having been exiled for 2 years, I think the purpose of the transfer has now been realised. No other breaches of discipline are alleged before or since.
    
68. This offender could be eligible for parole quite soon. I direct he be transferred forthwith to Lorengau and in any event within 1 month.
    

HRA 198 of 2014 – Bill Kanat

69. This offender was, on 3 September 2013, convicted of murder (s.300) before Salika DCJ., and sentenced to 20 years hard labour less 2 years 11 months and 10 days. The committal was to "the Corrective Institution of Lorengau/Kerevat".
    
70. SI Pranis, having regard to circumstances he set out in a lengthy testimonial, appeared to regard the order of commitment as mandating a transfer to Kerevat. This offender and 2 co-offenders had asked to be sent to Kavieng where they then had relatives. SI Pranis stated, "...we consider their request as genuine and respect their rights to family visit and welfare matters. For this, we, therefore, refer them to your end for further consideration and arrangement for transfer to Kavieng Correctional Institution"
    
71. All 3 were regarded as of good behaviour and cooperative suitable for "low security".
    
72. As this offender would be eligible for parole about 2020 and is also likely to receive maximum remissions, transfer to Lorengau no later than 12 months from today is directed.
    

HRA 199 of 2014 –Lumat Lum

73. This offender was, on 10 August 2011, sentenced to Life Imprisonment by Gabi J. for the offence of wilful murder.
    
74. There was a suggestion that his crime involved the rape and murder of a niece. That is not supported by his file so far as the offence of rape is concerned.
    
75. SI Pranis, in a letter dated 3 March 2015, said of him:
    

"This prisoner raped and murdered his own niece. (Elder brother's daughter). His own immediate family is his victim so where can he seek welfare support and assistance and from which family, since his own are his victims."

76. The warrant signed by Gabi J. committed this offender to "the Corrective Institution at Lorengau". However, the statement specifying the sentence also stated:
    

"Term of Life Imprisonment (to serve at Kerevat Corrective Service Gaol)."

77. Notwithstanding the statement in his letter of 3 March 2015, SI Pranis made an assessment report in respect of the offender after his conviction and sentence. I reproduce that in full:
    

"ASSESSMENT REPORT FOR LIFE PRISONER LUM LUMAT

Detainee Lum Lumat was sentenced to life in prison by Justice Sao Gabi in 2011 for wilful murder. Lum Lumat aged 34 is from Boath village of the Lelemasih Bupichupeu LLG in Manus Province. Detainee is single and a member of the Evangelical Church of Manus. (ECOM).

Lum was remanded on admittance in 18th of February, 2010 and was convicted by the National Court on 25th of August, 2011. Detainee was remanded in custody for 1 year, 6 months and 7 days before he was convicted. During his remand period he was a very quiet and easy going type of person. Never talk much and most often isolate him from other detainees.

He was never involved in any riot or fight in the institution. A person who just stand and watch and live a neutral life. During his period in custody, he never raised any complain, queries or personal welfare matters to the administration. He gain favor and respect from other prisoners and also officers.

While as a remandees, he volunteer to partake in work party. He was observed as a hard working prisoner who is committed to get the job done and for this he was most often requested to participate in activities within the institution. He is a detainee who seems to be trusted and work with less supervision on several party.

With regard to his offence, detainee seems to understand and except the penalty imposed because when he was asked if he wants to appeal, the detainee refused and emphasized on looking forward to opportunity in released on parole. Detainee was never surprised when he was sentenced to life. It seems that he was expecting it.

After conviction, Lum Lumat gradually changed his behavior. He becomes more open and friendly to staffs and detainees. He took part in sports and other social activities in the institution and outside and faithfully attended religious activity.

Lum is engaged with the specialist industry. His group is building staffs houses in the institution. They've completed 1 house and are now building the next 3 houses. At the same time he is one of those prisoners involved in Lorengau town clean up program.

Detainee Lum Lumat requested to be transferred to Kavieng CI since his immediate relatives are living in Kavieng. He expressed concerned that he has no relative in ENB and feels that his life at Kerevat will be lonely and boring. He sincerely pleads for his request to be considered. His rights to family visit is observed and regarded as priority in respect to detainee welfare and well being. Due to the National Court Order, we have no choice but to act on the order as prescribed. Please consider his request and facilitate his transfer to Kavieng at your convenient time."

78. Whilst at that time the offender had family at Kavieng, I am advised this is no longer so. In any event, the content of the assessment speaks of him participating in community activities. It is wholly inconsistent with him being a despised pariah at risk of pay back from immediate relatives. Whilst the State has not provided a record of his trial and sentence, it seems unlikely that his crime, though heinous enough being wilful murder, corresponds to SI Pranis' description of 3 March 2015.
    
79. In any event, though under life sentence, this offender, if he is as well-behaved as noted in the assessment report, could make parole after 2021.
    
80. It follows that no good reason appears, on the material before me to justify the transfer of this prisoner away from the family that SI Pranis recommended he be transferred to Kavieng to be near.
    
81. He is to be transferred to Lorengau no later than 18 months from today.
    

HRA 200 of 2014 – Amos Potaha

82. This offender was, on 3 September 2012, sentenced to 20 years with hard labour for murder, by Salika DCJ. Two years 11 months and 10 days was deducted for prior time in custody.
    
83. He was committed to the Corrective Institution at Kerevat. No reason was recorded for this transfer from Manus.
    
84. As with Bill Kanat, a character reference from SI Pranis was extremely favourable and recommended transfer to Kavieng to be near relatives and for treatment as a low security prisoner.
    
85. This offender's case is the same as that of Bill Kanat in all respects. I direct that he also be transferred to Lorengau no later than 12 months from today.
    

HRA 201 of 2014 – Elizah Kilach

86. This offender was, on 28 June 2013, convicted of wilful murder and sentenced to 20 years hard labour by Geita AJ. 10 months and 18 days was deducted for prior time in custody.
    
87. He was committed to "the Corrective Institution at Any Suitable Location". The Court Order specifies a "Gaol Location outside of Lorengau". No reason is stated as to why the offender should not be imprisoned at Manus.
    
88. The only reason appearing from the evidence is the current state of facilities on Manus.
    
89. Given the length of sentence and for reasons already stated, I direct that this offender be transferred to Lorengau no later than 12 months from today.
    

HRA 202 of 2014 – Steven Hamou

90. This offender was, on 20 July 2009, convicted of sexual penetration allegedly contrary to s.299a (1) (2) (3) of the Code. That reference is plainly wrong. Section 299 proscribes wilful murder and has only two sub-sections. Section 347 proscribes rape and allows, subject to Section 19, imprisonment for life where circumstances of aggravation are present, otherwise 15 years. The sub-section references are also inappropriate. Section 347 has sub-sections (1) and (2) only. Given that the sentence was 14 years, it is likely that there were circumstances of aggravation as defined by s.349A. Gabi J. sentenced him to 14 years imprisonment less 10 months and 2 days as from that date.
    
91. The warrant of commitment signed by Gabi J. committed the offender to "the Corrective Institution at Loengau (sic)". Whilst not a short term prisoner, this offender is not alleged to be a security risk and is approaching, with remissions, the time he will be eligible for parole. Not only does no reason appear for his transfer to Kerevat but there is every reason for him sooner rather than later being near relatives at the scene of his crime so that he can prepare for possible parole.
    
92. I direct that this offender be transferred forthwith to Lorengau and, in any event, no later than 1 month from today.
    

HRA 203 of 2014 – John Aiwai

93. This offender was, on 5 September 2012, convicted of manslaughter by Salika DCJ. and sentenced to 20 years imprisonment with hard labour less 3 years for pre-trial custody.
    
94. The warrant of commitment specified the Corrective Institution at Keravat (sic) although "Lorengau" is first written then crossed out.
    
95. No reason for the change is recorded. It may be inferred that the primary reason for specifying Kerevat rather than the offender's home location was the state of the facilities at Manus.
    
96. An additional reason may have been because the offender had escaped lawful custody on remand, as SI Pranis mentions in his affidavit of 5 March 2015. There is no other complaint specific to this offender and none since then.
    
97. This offender is unlikely to be considered for parole before 2018 or thereabouts. He should be transferred to Lorengau no later than 12 months from today and I so direct.
    

HRA 204 of 2014 – So-on Pusahi

98. This offender's file is missing. However, no adverse information specific to this offender has been placed before the Court. I can only assume that his circumstances are little different from other applicants.
    
99. Ms. Takoboy was able to advise that he was convicted of murder in July 2009. A release date could be as early as 3 February 2019, depending on remissions and parole.
    
100. I direct that this offender be transferred to Lorengau no later than 12 months from today.
     

HRA 61 of 2015 – Paias Lessah

101. This offender is subject to two sentences. The first in time was on 20 July 2009 for murder, allegedly contrary to s.3000(1)(a) of the Code. I assume that was a reference to s.300(1)(a) - killing with intent to do grievous bodily harm. He was sentenced by Gabi J. to 23 years imprisonment less 1 year 5 months & 2 weeks prior custody. He was committed to 'Lorengau' (sic).
     
102. On 7 March 2012, he pleaded guilty to an offence of receiving stolen property. He was sentenced by Gabi J. to 4 years imprisonment. As he must have been then in custody for the murder, no time was deducted.
     
103. The circumstance of this offending do not appear from the offender's file but the sentence was directed "... to be served cumulatively with the current sentence at Kerevat Corrective Gaol".
     
104. It may well be that the later offence was, somehow, committed whilst in custody but there are no details to suggest that this offender is a security risk currently. Given his cumulative sentence, he is unlikely to be eligible for parole before 2019.
     
105. However, he is no less entitled to be in a place near relatives than any other prisoner and to be provided in that place with proper and humane facilities of detention.
     
106. I direct this offender be transferred to Lorengau no later than 12 months from today.
     

HRA 08 of 2015 – Patrick Makis

107. This offender was, on 10 September 2012, found guilty of murder. He was sentenced by Salika DCJ. to 20 years imprisonment and to be committed to "the Corrective Institution of Lorengau/Keravat (sic)". 2 years 11 months and 10 days was deducted for prior time in custody.
     
108. He was, with Amos Potaha and Bill Kanat, highly praised by SI Pranis as a low security and well-behaved prisoner recommended for transfer to Kavieng to be near his family, then at Kavieng.
     
109. As this offender's relatives are also now at Manus, he should be transferred to Lorengau, after facilities are upgraded and at the same time as his co-offenders Amos Potaha and Bill Kanat, that is, no later than 12 months from today.
     

GENERAL

110. It will be observed that in all but 2 cases, as I have directed transfers at 12 months and 18 months from now. Ideally, all transfers would be forthwith. That, however, would impose a difficult burden for the State to discharge, facilities need to be upgraded and that practical consideration is the reason for the staggered transfer dates which are chosen to have regard to the likely dates for parole eligibility for the various applicants. The practical utility of the proximity of family is not only the comfort of the offender, which is important in itself but also the advancement of rehabilitation in preparation for release.
     
111. None of the applicants poses a security threat so far as I can see. Indeed, four of them have been positively found by SI Pranis in the past to be low risk prisoners.
     
112. Under s.57(3) of the Constitution, the State is directed to upgrade the Corrective Institution of Lorengau to provide detention in humane condition such as exist at Kerevat, within 12 months from today.

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