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Haro v Commissioner of the Correctional Service [2024] PGNC 406; N11096 (11 November 2024)

-N11096

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NOS 32 & 51 OF 2024

HOBAI HARO & LOLO BELLAMY
Applicants

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 5^th & 11^th November

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – prisoners who were sentenced after retrial not issued with fresh warrants of commitment – application for fresh warrants – application for declaration as to due date of release from custody.

The prisoner applicants were originally convicted and sentenced by the National Court. They successfully appealed against their conviction to the Supreme Court, which ordered a retrial. They were again convicted and sentenced. They claimed that no fresh warrants of commitment were issued to reflect the new sentences and that they are detained under warrants that are no longer relevant. They applied for fresh warrants of commitment. They also sought a declaration as to their correct due dates of release.

Held:

(1) To enforce the right of the applicants to the full protection of the law under s 37(1) of the Constitution and to give effect to the recent order of the National Court as to their sentences, it is appropriate that the original warrants of commitment issued by the National Court be set aside and replaced by fresh warrants of commitment, to reflect their most recent sentences.

(2) The applicants’ due date of release from custody was recalculated as 12 December 2031.

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
The State v Haro & Bellamy (2021) N8821

Counsel

S Kuli, for the Applicants
A Kajoka, for the Respondents

11^th November 2024

1. CANNINGS J: Hobai Haro and Lolo Bellamy are prisoners at Bomana Correctional Institution. They were originally convicted in 2017 in a joint trial of multiple counts of rape and sentenced by the National Court to 26 years imprisonment. They successfully appealed against their conviction to the Supreme Court, which ordered a retrial. They were again convicted. They were each sentenced on 17 May 2021 to 26 years imprisonment (The State v Haro & Bellamy (2021) N8821).

2. They claim that no fresh warrants of commitment were issued to reflect the new sentences and that they are detained under warrants that are no longer relevant. They have applied for fresh warrants of commitment and a declaration as to their due dates of release from custody. They claim that their due date of release, presently showing on their detainee files as 14 February 2033, is incorrect.

WARRANTS OF COMMITMENT

3. I have no problem with issuing fresh warrants of commitment. This will enforce the rights of the applicants to the full protection of the law under s 37(1) of the Constitution and give effect to the decision of the National Court of 17 May 2021.
DUE DATES OF RELEASE

4. To calculate the due dates of release I will follow the approach 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.

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 sentences under s 120 of the Correctional Service Act; and
(c) the period of any suspension of sentence.

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

Step 1: the “gross” due date of release

7. The date of the only effective sentence is 17 May 2021. To that date is added:

(a) the total length of all sentences: 26 years imprisonment; and
(b) the period the prisoner was at large: zero.

8. The “gross” due date of release is 17 May 2021+ 26 years = 17 May 2047.

Step 2: the “net” due date of release

9. The “gross” due date of release is 17 May 2047. From that date is deducted:

(a) the pre-sentence period ordered by the National Court to be deducted, which is 6 years, 9 months, 5 days; and

(b) remission of sentence under s 120 of the Correctional Service Act, which is one-third of the head sentence of 26 years, ie 8 years, 8 months; and
(c) the period of any suspension of sentence, which is zero.

10. The total period to be deducted from the “gross” due date of release is 6 years, 9 months, 5 days + 8 years, 8 months = 15 years, 5 months, 5 days. The “net” due date of release is 17 May 2047 minus 15 years, 5 months, 5 days = 12 December 2031.

ORDER

11. To enforce the rights of the applicants to the full protection of the law under s 37(1) of the Constitution and to give effect to the order of the National Court of 17 May 2021 at Waigani in CR 487 & 489 of 2012, The State v Haro & Bellamy (2021) N8821 it is, pursuant to s 57(3) of the Constitution, ordered in relation to each applicant that:

(1) The warrant of commitment issued in 2017 by the National Court is set aside and replaced by a fresh warrant of commitment, deemed to be issued on 17 May 2021, in the following terms:

(2) It is declared that the applicants are being detained with an incorrect due date of release as the correct due date of release for each applicant is 12 December 2031.

(3) The Jail Commander, Bomana Correctional Institution, shall ensure that by 25 November 2024:

• (a) a sealed copy of this order is placed on each applicant’s detainee file; and
• (b) the detainee files 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 matter shall be called on 3 December 2024 at 1.30 pm to check compliance with this order.

Public Solicitor: Lawyer for the Applicants
Solicitor-General: Lawyer for the Respondents