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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.
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
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].
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.
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.
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]
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.