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Application by Madline Yari for Enforcement of Human Rights [2024] PGNC 112; N10773 (26 April 2024)

N10773

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 30 OF 2024

IN THE MATTER OF AN APPLICATION FOR
ENFORCEMENT OF HUMAN RIGHTS

MADLINE YARI
Applicant

Waigani: Cannings J
2024: 25^th & 26^th April

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 17 years imprisonment in 2013. She has been given different dates for her release from custody. She applied for enforcement of her human rights by clarification of the due date of release from custody.

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) The applicant’s due date of release from custody showing on her detainee file is 12 August 2024, which is incorrect. The correct date is 3 July 2024.

(3) Ordered that the detainee’s file be corrected.

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

Counsel
M Yari, the applicant, in person

26^th April 2024

1. CANNINGS J: Madline Yari is a prisoner at Bomana Correctional Institution. She was sentenced to 17 years imprisonment for murder by the National Court at Waigani on 3 July 2013. She is concerned about her due date of release. She says she has been given different dates, one is 12 April 2024 (which has passed), the other is 12 August 2024. She applies for enforcement of her human rights by determination of that date.

2. Her detainee file, which is in evidence, shows her due date of release with remission as 12 August 2024. I can see no record of the due date of release being 12 April 2024.

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. In calculating the applicant’s due date of release, I follow the approach I have taken in other cases such as Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959 and Application by Samalan Peter (2014) N5631. The calculation appears complex, but it is designed to take account of scenarios where a prisoner is serving more than one sentence or escapes from custody and is at large but is later returned to custody.

5. 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.

6. 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 sentence under s 120 of the Correctional Service Act,

to arrive at the “net” due date of release.

Step 1: the “gross” due date of release

7. The date of sentence is 3 July 2013. To that date is added:

(a) the total length of all sentences: the only sentence is 17 years imprisonment; and
(b) the period the prisoner was at large: zero.

8. The total period to be added to the date of the first sentence is 17 years.

9. The “gross” due date of release is 3 July 2013 + 17 years = 3 July 2030.

Step 2: the “net” due date of release

10. The “gross” due date of release is 3 July 2030. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted = 4 months; and

(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the sentence, ie 1/3 x 17 years = 5 years, 8 months; and

(c) the period of any suspension of sentence = 0.

11. The total period to be deducted from the “gross” due date of release is 6 years.

12. The “net” due date of release is 3 July 2030 minus 6 years = 3 July 2024.

CONCLUSION

13. The applicant’s due date of release from custody showing on her detainee file is 12 August 2024, which is incorrect. The correct date is 3 July 2024. She is not entitled to immediate release but is entitled to be released a month earlier than would have been the case if she had not brought this application to the court.

ORDER

(1) The application is granted, in that it is declared that the applicant is being detained with an incorrect due date of release. The correct due date of release is 3 July 2024.

(2) The Jail Commander, Bomana Correctional Institution, shall ensure that by 6 May 2024:

1. sealed copies of this order and judgment are placed on the applicant’s detainee file; and
2. 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.
   

(3) The matter shall be called on 8 May 2024 at 1.30 pm to check compliance with this order.