Booth v R

Case [2016] NZSC 127


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NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND
SC 10/2016
[2016] NZSC 127
BETWEEN

EDWARD THOMAS BOOTH
Appellant

AND

THE QUEEN
Respondent

SC 35/2016

BETWEEN

MICHAEL MARINO
Appellant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent

Hearing:

5 July 2016 for SC 10/2016
6 and 26 July 2016 for SC 35/2016

Court:

Elias CJ, William Young, Glazebrook, Arnold and OʼRegan JJ

Counsel:

A J Bailey and K Paima for Appellant in SC 10/2016
D A Ewen and G K Edgeler for Appellant in SC 35/2016
B J Horsley and J E L Carruthers for Respondent in SC 10/2016
B J Horsley, D J Perkins and T P Westaway for Respondent in SC 35/2016

Judgment:

22 September 2016

JUDGMENT OF THE COURT

A        Mr Marino’s appeal is allowed.  Costs are reserved.

B         Mr Booth’s appeal is dismissed.

____________________________________________________________________

REASONS

Elias CJ, Glazebrook, Arnold and O’Regan JJ [1]
William Young J [40]

ELIAS CJ, GLAZEBROOK, ARNOLD AND O’REGAN JJ
(Given by Glazebrook J)

Table of Contents

Para No
Issue [1]
Background [2]
Mr Marino [2]
Mr Booth [6]
The legislation [10]
Interpretation [14]
Other factors [25]
What this means for the appellants [35]
Result [37]

Issue

  1. An offender is deemed, under s 90(1) of the Parole Act 2002, to have been serving a sentence of imprisonment during any period that he or she has spent in
    pre-sentence detention.  These appeals relate to the manner in which pre-sentence detention is calculated.

Background[1]

Mr Marino

[1]More detail on the background is in William Young J’s judgment at [41]–[42], [54]–[58] and [64]–[66].

  1. Mr Marino was remanded in custody on 12 February 2015 on charges of family violence.  On 18 March and 19 June 2015, charges of attempting to pervert the course of justice were laid as a result of telephone calls made by him from prison in February and March 2015.

  2. On 6 July 2015 Mr Marino pleaded guilty to all charges.  Judge Spear imposed concurrent sentences of 22 months imprisonment on both charges of attempting to pervert the course of justice and 12 months on the other charges.

  3. Mr Marino applied for a writ of habeas corpus, saying that he had served his sentence and should have been released on 12 January 2016.  He was unsuccessful in both the High Court[2] and the Court of Appeal.[3]

  4. On the approach taken by the courts below, Mr Marino’s pre-sentence detention is calculated on a charge by charge basis.[4]  As the second charge of perverting the…

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Details
AGLC
Booth v The Queen [2016] NZSC 127
Case
[2016] NZSC 127
Decision Date

CaseChat Overview and Summary

The appeals were brought by two prisoners who were contending that the Department of Corrections had miscalculated their release dates by not treating all the time they had spent in custody on remand prior to sentence as time served. Michael Marino, one of the appellants, had been sentenced on a single occasion for a number of offences and argued that the whole period from first remand in custody until sentence, was pre-sentence detention applicable to all charges. Edward Booth, the other appellant, argued that the 10 month period spent on remand from July 2012 (on the charges related to A) until his remand in May 2013 (on the charges related to B) will not count as pre-sentence detention. The court considered the statutory language, legislative history and the New Zealand Bill of Rights Act 1990 in determining that pre-sentence detention should be calculated in the aggregate. The court concluded that the periods of time spent in custody by Mr Marino on the family violence charges and Mr Booth on the assault charge involving A were relevantly within s 91(1)(a) and more generally occurred during the proceedings leading to the convictions on which each was sentenced. The time each spent in pre-sentence detention counts as time served in relation to the lead sentences of imprisonment. The appeals were determined in the manner proposed by the majority.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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