Chief Executive of the Department of Corrections v Yugova
[2025] NZHC 2830
•26 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000154
[2025] NZHC 2830
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v
OLESYA YUGOVA
Hearing: 19 September 2025;
Further (joint) submission 25 September 2025
Appearances:
M Davie for the Applicant
No appearance for the Respondent L Herbke as Counsel to Assist
Judgment:
26 September 2025
JUDGMENT OF WALKER J
This judgment was delivered by me on 26 September 2025 at 4 pm Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Corban Revell Lawyers, Auckland
Copy to: Ms Yugova
CORRECTIONS v YUGOVA [2025] NZHC 2830 [26 September 2025]
[1] This application by the Department of Corrections (Corrections) relates to this Court’s decision on 8 August 2024, allowing Ms Yugova’s appeal against sentence. In unusual circumstances the decision substituted the sentence of 24 months’ intensive supervision imposed in the District Court with a sentence of 21 months’ imprisonment.1
[2] The decision did not stipulate the commencement date for the sentence. Again, reflecting the unusual circumstances of the appeal and in response to a query by Corrections, I issued a minute stating that the start date of the sentence of imprisonment is 1 March 2024, which corresponds to the original sentencing date in the District Court.2 The signed warrant of commitment reflects this date.
[3] The Chief Executive of Corrections (Chief Executive) now applies under ss 180 and 181 of the Criminal Procedure Act 2011 (CPA) to correct the start date to 8 August 2024 — being the date on which this Court imposed the new sentence. The Chief Executive contends that it is the Chief Executive’s responsibility to determine the state date of Ms Yugova’s sentence and the Court did not have jurisdiction to order that the sentence commences at the earlier date.
[4]He seeks:
(a)Revocation of the existing order.
(b)A new order in substitution declaring that in accordance with s 88 of the Parole Act 2002 (Parole Act), the Chief Executive determines the start date of the sentence to be 8 August 2024.
(c)A new warrant of commitment be signed which records the amended start date.
[5] The application is supported by an affidavit of Kirsten Roderique, Deputy General Manager Community Operations (Corrections). She deposes that the
1 Yugova v Police [2024] NZHC 2209.
2 Yugova v Police HC Auckland CIV-2024-404-154, 8 August 2024.
application is in the public interest and the Court’s decision will have implications for other cases going forward where an appeal court quashes a community-based sentence and substitutes it with one of imprisonment.
[6] The Chief Executive gave notice of this application to Ms Yugova and the prosecutor.3 Ms Yugova did not participate in the application. In the absence of a contradictor and given the potential impact on Ms Yugova’s rights (albeit there is no possibility of further time in custody), Counsel was appointed to assist the Court.4
Preliminary issue
[7] Ms Yugova remains on custodial remand today on charges relating to alleged breaches of release conditions. Unless a successful bail application is made in the short period between now and the date of her upcoming trial, it seems likely (but not certain) that she will remain in custody until trial. The release conditions which underpin the present application will have expired by that time. Notwithstanding that, I am satisfied that the application is not moot; the issues are relevant to the charges Ms Yugova faces and Corrections is justified in pointing to potential implications for other cases going forward. This is despite the fact that this is far from a “run of the mill” situation.
Relevant background
District Court decision
[8] Ms Yugova pleaded guilty to 24 charges of threatening to kill and two burglary charges, following a sentence indication on 19 December 2023.5 At that time Ms Yugova had already been remanded in custody for nearly a year. The practical effect of the indicated sentence (21 months’ imprisonment) would have been immediate release because of time served — with release conditions in place for a period of up to six months following sentence expiry date. Despite the sentence
3 Criminal Procedure Act 2011, s 181(2).
4 Ms Yugova was entitled to immediate release on 8 August 2024 as she had already served pre-sentence detention equivalent to more than half her sentence of 21 months’ imprisonment. Parole Act 2002, s 86(1).
5 Police v Yugova DC North Shore CRI-2023-044-321, 19 December 2023.
indication, on 1 March 2024, the Judge imposed a sentence of 24 months’ intensive supervision.6 The standard conditions of intensive supervision set out in s 54F of the Sentencing Act 2002 (Sentencing Act) automatically applied. In addition, the Court imposed a number of special conditions. By the time of sentence, Ms Yugova had already been in custody for 399 days.7
High Court decision on appeal
[9] On appeal, Ms Yugova argued that although the sentence of supervision was a lesser sentence in terms of sentencing hierarchy, in her circumstances the sentence was practically more restrictive. Informed by the practical reality of the length of time in custody, I concluded the sentence of intensive supervision for 24 months to be an undue restriction on Ms Yugova’s liberty which was not justified on the material before the Court.8 I quashed the sentence and substituted it with the previously indicated sentence which Ms Yugova had accepted in entering her guilty plea, with the same special release conditions imposed in the District Court for the six month statutory period.9 As already noted, I recorded in a minute that the start date of the sentence of imprisonment was to be 1 March 2024 — the date of the original sentence.
Implications of High Court decision
[10] Following issue of the appeal decision, a further query arose in terms of the period of the special release conditions. Corrections interpreted the judgment to mean that the special release conditions apply for six months after the expiry of the sentence since a short sentence was imposed. By minute of 8 October 2024, I confirmed this as the correct interpretation.10 It is required by a combination of s 18(1) of the Parole Act and s 93(2)(a) of the Sentencing Act.
[11] The sentence expiry date was expressed to be on or around 27 October 2024 (subject to final calculation by Corrections), taking into account the time Ms Yugova
6 Police v Yugova [2024] NZDC 4536.
7 At [2].
8 Yugova v Police, above n 1, at [39].
9 At [41].
10 Yugova v Police HC Auckland, CIV-2024-404-154, 8 October 2024.
had already served on remand before the (1 March 2024) sentence commencement date. The release licence for Ms Yugova states that Ms Yugova’s release date is 8 August 2024, the standard release conditions apply from the date of her release and cease to apply on 3 October 2025. It states that the special conditions apply until 3 October 2025.
Alleged breaches of release conditions
[12] Ms Yugova awaits trial on several charges of breaching her release conditions in the period between 8 November and 24 November 2024.11
[13] Corrections alleges that Ms Yugova breached her release conditions in November 2024. Most of the charges pursuant to s 96(1) of the Sentencing Act relate to alleged breach of the special conditions. However, one charge alleges that Ms Yugova breached the standard conditions by attempting to leave New Zealand without the written permission of a probation officer on 8 November 2024.12
[14] Ms Yugova was arrested in relation to those matters and remanded in custody on 12 December 2024. Ms Roderique deposes that Ms Yugova was offered electronically monitored (EM) bail but declined to comply with the conditions and insisted on being permitted to retrieve her vehicle from the North Shore.13
[15] The Chief Executive filed this application shortly before the first scheduled judge-alone trial of these charges.14 The application was accompanied by a request for urgency which fell away when the scheduled trial was adjourned due to Ms Yugova being unwell. A judge-alone trial is now scheduled for 5 November 2025.
Question for determination
11 For clarification purposes I note that when the alleged breaches occurred, the special conditions would have been in place regardless of the outcome of this application.
12 Charge Reference Number (CRN) 24070502116.
13 Department of Corrections v Yugova [2025] NZDC 7645. The judgment records said if a solution (i.e. if she agreed to the conditions) was found, then counsel could file again.
14 Application dated 1 July 2025.
[16] The core issue is whether there was jurisdiction to direct that the start date of the sentence of imprisonment imposed on appeal is the date on which the District Court imposed the original sentence of intensive supervision (1 March 2024).
[17] While this is a question of general application, in this case, the answer also relevantly determines the date on which Ms Yugova was subject to standard and special release conditions and therefore the charges she faces.
[18]Several sub-issues arise:
(a)Are the requirements of s 180 of the Criminal Procedure Act 2011 made out?
(b)Is the exception in s 79 of the Parole Act applicable only to cases in which the original sentence is one of imprisonment?
(c)If so, should the Court exercise its discretion under s 180 to grant the application?
Relevant statutory provisions
[19]Section 180 of the CPA reads:
180 Court may correct erroneous sentence
(1)If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—
(a)on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or
(b)on its own motion.
(2)The decision of the court may be made,—
(a)if sentence was imposed in the High Court, by the High Court Judge who imposed the sentence or, if that Judge is not available, by any High Court Judge; or
(b)if sentence was imposed in the District Court,—
(i)by the District Court Judge who imposed the sentence; or
(ii)by any District Court Judge if the Judge who imposed the sentence is not available or the sentence was imposed by 1 or more Community Magistrates or Justices.
(3)The court may, by order, remove the matter into the first appeal court described in section 297, and that court may deal with it as if it were an appeal on a question of law under section 296.
(4)In this section, sentence includes—
(a)an order, and references to the imposition of a sentence include references to the making of an order:
(b)a record of first warning and a record of subsequent warning (as those terms are defined in section 86J of the Sentencing Act 2002), and references to the imposition of a sentence include references to the giving and recording of a warning of either kind.
[20] Section 4 of the Parole Act defines key dates for an offender sentenced to imprisonment. These are the “start date”, “statutory release date”, “release date” and “sentence expiry date”.
[21]The start date is defined in s 4 as:
4 Interpretation
(1) In this Act, unless the context otherwise requires,—
…
start date, in relation to a sentence of imprisonment, means the date on and from which an offender who is subject to the sentence begins to be subject to it (see sections 76 to 81)
[22]Relatedly, ss 76 and 79 of the Parole Act relevantly provide:
76 General rules about start date of sentence of imprisonment
(1)The start date of a sentence of imprisonment imposed after the commencement date is the date on which the sentence is imposed, except as otherwise provided in sections 77 to 81.
(2)The start date of a pre-cd sentence is the date, determined under Part 4 of the Criminal Justice Act 1985, on which the sentence commences.
…
79 Start date if later sentence replaces original sentence
(1) The start date of a sentence that is substituted for a sentence that was quashed or otherwise set aside on appeal (the original sentence) is the start date of the original sentence.
…
[23]The “statutory release date” for a sentence of imprisonment is defined as:
4 Interpretation
(1)In this Act, unless the context otherwise requires,—
…
statutory release date means the date on which an offender who is subject to 1 or more sentences of imprisonment—
(a)must be released from detention (see section 17); and
(b)ceases to be liable to be recalled to continue serving any sentence in a prison (see sections 59 to 66)
[24]The “release date” is defined in s 4 as:
4 Interpretation
(1) In this Act, unless the context otherwise requires,—
…
release date means, in relation to a determinate sentence of imprisonment, the date on which the offender who is subject to the sentence ceases to be liable to be recalled to continue serving that sentence in a prison (see sections 86 and 87)
[25]Relatedly s 86 provides:
86 Release date of sentence
(1)The release date of a short-term sentence (including a short-term notional single sentence) is the date on which the offender who is subject to the sentence has served half of it.
(1A) [Repealed]
(2)The release date of a long-term determinate sentence (including a long-term notional single sentence) is its sentence expiry date.
(3)An indeterminate sentence has no release date.
[26] The calculation of time served must include the time served in pre-sentence detention.15
[27] As Ms Yugova was sentenced to a short-term sentence, her release date was the date on which she had served half of it. Due to time served on pre-sentence detention, her release date was stipulated by Corrections to be the date on which the sentence was handed down. In fact, Ms Yugova had already been in detention for more than half of the short-term sentence.16
[28]The definition of “sentence expiry date” in s 4 is:
4 Interpretation
(1) In this Act, unless the context otherwise requires,—
…
sentence expiry date means the date on which the offender who is subject to the sentence has served its full term and therefore ceases to be subject to it (see sections 82 and 83)
[29] Section 18 of the Parole Act provides that an offender subject to a short-term sentence is, on release, subject to any release conditions imposed by the Court unless certain exceptions apply. The Court has a discretion whether to impose standard and special conditions on an offender sentenced to a term of imprisonment of 12 months or less.17 For terms between 12 to 24 months’ imprisonment, the standard conditions automatically apply until the “sentence expiry date” unless the Court specifies a different date.18
[30] If a Court exercises its discretion to impose special release conditions, then it must specify the expiry date.19 The expiry options, set out under s 93(2A) of the Sentencing Act are: the sentence expiry date; the date that is a specified period before
15 Parole Act, s 90.
16 According to the records of Corrections, she had been in detention for 399 days. The Chief Executive takes the view that the statutory release date cannot be earlier than 8 August 2024 because it cannot be before the sentence start date.
17 Sentencing Act 2002, s 93(1).
18 Section s 93(2)(a).
19 Section 93(2)(b).
the sentence expiry date; or the date that is a specified period up to six months after the sentence expiry date.
[31] Section 93(2AB) of the Sentencing Act provides that if the Court imposes special conditions on an offender, the special conditions may apply for as long as, but not longer than, the standard conditions apply to the offender.
[32] At the hearing some uncertainty arose around the computation of key dates made in Ms Yugova’s case because of its unique circumstances. After the hearing, counsel helpfully conferred and provided a joint chronology indicating where there was disagreement.
Submissions
The Chief Executive
[33] In summary, the Chief Executive argues that s 76 of the Parole Act is determinative and the exception under s 79 does not apply because the original sentence itself was not one of imprisonment. Mr Davie, on behalf of the Chief Executive, says that the context, policy and purpose of s 79 is the clearest indication that the phrase original sentence does not include community-based sentences or sentences of home detention and the reference to sentence in s 79 means sentence of imprisonment. Further, he contends that the Court had no jurisdiction to make a direction inconsistent with s 76.
[34] Mr Davie relies on other sections in the Parole Act where the term “sentence” without any reference to imprisonment self-evidently relates to sentences of imprisonment only and contrasts this with references in other sections to community-based sentences or sentences of home detention where those descriptors are explicitly used to denote such sentences (for example ss 14, 91(6)(b), 97, 98, 106(6), 107Q). He says that the fact that s 79 nests within Part 1 of the Parole Act entitled “Parole and other release from detention” supports this interpretation, given that s 8 provides that Part 1 applies to “all offenders who are subject to a sentence of imprisonment”.
[35] Mr Davie suggests that there could be perverse outcomes inconsistent with Parliament’s sentencing objectives if s 79 was applicable in situations involving community-based and home detention sentences. The example he posits is where a six-month sentence of supervision, imposed on 1 January, is then successfully appealed by the Solicitor-General. Under s 345(1) of the CPA, the sentence of supervision ceased to run from the day on which notice of appeal or of application for leave to appeal was filed. If the appellate court quashes the sentence in June, substituting a sentence of three months’ imprisonment, the sentence of imprisonment would commence on the date the sentence of supervision commenced if s 79 applies. The release date, being half the sentence, would arise in mid-February and the sentence expiry date would be 31 March. In this scenario, the offender, though sentenced to imprisonment, would face no incarceration. Mr Davie submits this would render the Solicitor-General’s right of appeal nugatory for practical purposes.
[36] Mr Davie also refers to the earlier iteration of s 79 of the Parole Act, in force between 30 June 2002 to 7 July 2004. It read:
79 Start date if new sentence replaces original sentence
(1)If a sentence of imprisonment is quashed or otherwise set aside and another sentence of imprisonment is substituted for it, the start date of the new sentence is the start date of the original sentence.
(2)If a sentence (the original sentence) ceases to apply because the conviction to which it relates is quashed and a retrial ordered, and if a sentence of imprisonment is imposed following the retrial, the start date of the later sentence is the start date of the original sentence.
…
(Emphasis added.)
[37] Acknowledging that the current iteration of s 79 of the Parole Act omits the words of imprisonment which were in the earlier legislation, Mr Davie submits that the Act’s legislative history nonetheless indicates that Parliament’s intention was to maintain the status quo despite the change in language.
[38] To summarise, on the Chief Executive’s case the expiry date of Ms Yugova’s sentence of imprisonment should have been 3 April 2025, not 27 October 2024 as this
Court indicated; the expiry date of her release conditions is six months after that date; and the standard release conditions are of the same duration as the special conditions. He argues that this must be so since the Sentencing Act does not contemplate that special conditions should apply in the absence of standard conditions.20
Counsel appointed to assist the defendant
[39] Mr Herbke, counsel assisting, reframes the question before the Court by emphasising the practical impact on Ms Yugova.21 He suggests that the application cannot fairly be described as correcting an erroneous decision but rather amounts to challenging a substantive decision of the High Court. He submits that the approach taken by Corrections (on the release licence) was inconsistent with this Court’s direction, meaning that Ms Yugova was subject to standard release conditions for a longer period than she ought to have been, thereby prejudicing her position. It was one of these conditions which Ms Yugova allegedly breached in November 2024. Mr Herbke points out that, if the current start date is retained, it must follow that this charge is dismissed because the standard conditions had in fact expired.
[40] He emphasises the plain or literal language of s 79. He submits there is nothing in the section preventing an appeal court from substituting a non-custodial sentence with imprisonment with a start date coinciding with the original sentence. He submits the Court has jurisdiction to make orders in the interests of justice in relation to all facets of the sentence, including the start date recorded in the warrant of commitment. Moreover, the concept of substitution is consistent with retaining the original start date and the plain meaning of s 79(1).
[41] Addressing Mr Davie’s submission as to the potential perverse outcomes should s 79 apply to community-based sentences, Mr Herbke suggests there may be other unreasonable outcomes if it does not. Under s 345(1) of the CPA, community detention, community work, supervision, or intensive supervision sentences cease to run on the day on which notice of appeal or of application for leave to appeal is filed,
20 Sentencing Act, s 93(2AB).
21 I note that Mr Herbke is also counsel appointed to assist Ms Yugova in respect of the District Court prosecutions.
while a sentence of home detention is not suspended. On the Chief Executive’s approach, should an appeal succeed and a term of imprisonment is substituted, Mr Herbke suggests that the appellate court would be unable to take account of the period that the person spent on home detention awaiting the outcome of the appeal.
[42] I pause to interpolate that, as Mr Davie also submits, while a sentence of home detention is not automatically suspended when an appeal is filed, an offender can apply for such a suspension and for bail pending appeal.22 In the case of a successful Solicitor-General appeal of a sentence of home detention, resulting in imposition of a sentence of imprisonment, the sentence start date would be the day the appellate court imposes the sentence of imprisonment (unless the start date is deferred). The court would take into account the time the offender served on home detention, presumably in the same or similar way that time spent on restrictive bail conditions is taken into account.
[43] More materially, Mr Herbke submits that the hypothetical scenario painted by Mr Davie does not stand up to scrutiny. He points out that s 86 of the Parole Act defines “release date” as the date on which the offender who is subject to the sentence, has served half of it. While there is no definition of “serve”, a commonsense interpretation is that it requires actual custodial detention rather than a mere chronological computation from the date a sentence commences. If no part of the sentence of imprisonment has been served, the perverse outcome posited by Mr Davie does not arise.
[44] Finally, Mr Herbke submits that Ms Yugova’s standard release conditions expired on 27 October 2024 (being the sentence expiry date this Court directed) and this Court did not specify a different date or explicitly turn its mind to the duration of standard conditions.
Analysis
Is s 180 of the Criminal Procedure Act 2011 available to “correct” the sentence in the present circumstances?
22 Criminal Procedure Act, s 343; Bail Act 2000, ss 14 and 54. See Hoffman v R [2016] NZCA 531.
[45] Under s 180, the Court may impose a new sentence if the sentence is one that could not be imposed by law. Section 180 explicitly includes an order within the meaning of “sentence”. 23 If the sentence is one that could not be imposed by law, the Court has discretion as to whether to exercise its jurisdiction to impose a new sentence.24
[46] The inclusion of an order within the definition of “sentence” satisfies me that the contemporaneous minute specifying the start date of the sentence falls within the ambit of s 180. It is sufficiently impactful on the sentence handed down so as to be part of the sentence. I find there is jurisdiction under s 180 of the CPA.
Is s 79 of the Parole Act applicable in the present circumstances?
[47] Other than as provided for in ss 77–81 of the Parole Act, there is no statutory basis on which to determine that the start date of a sentence of imprisonment is an earlier date than the date the sentence is imposed. The question before the Court is whether s 79 of the Parole Act applies where the original sentence was not a sentence of imprisonment. This turns on the meaning of “original sentence” in s 79. More specifically, whether “sentence” encompasses all manner of disposition of a case after sentencing (consistent with the interpretation in the CPA)25 and therefore includes a non-custodial sentence or only a sentence of imprisonment.
[48] The meaning of legislation mut be ascertained from its text and in the light of its purpose and its context.26 Purpose and how that is put into effect are of central importance. Although the starting point is the text itself, even apparently clear text requires cross-checking against purpose.27 Context includes both the internal context or scheme of an Act and external context. The need for a purposive interpretation is not overridden or even lessened by the penal character of the provision to be construed.
23 Criminal Procedure Act, s 180(4)(a).
24 Morrell v Police HC Napier CRI-2008-441-12, 12 June 2008; McGregor v Police [2023] NZHC 3118.
25 Criminal Procedure Act, s 212.
26 Legislation Act 2019, s10(1).
27 Ross Carter (ed) Burrows and Carter Statute Law in New Zealand (6th ed, Lexis Nexis, Wellington, 2021) at 294.
[49] Mr Herbke’s submission that the section (in particular the word “sentence”) should be understood literally as it reads has some attraction, but I am ultimately persuaded by Mr Davie’s argument that the purpose, context and policy of the Parole Act militate against that interpretation. I conclude that the omission of any express reference to “imprisonment” is no more than drafting shorthand where the drafter considered the implication was clear enough from the immediate context and scheme of the Parole Act. I set out my reasons, acknowledging that these generally adopt Mr Davie’s comprehensive analysis.
[50] The Sentencing Act and Parole Act were both enacted in 2002. The legislative history was reviewed by William Young J in his separate but largely concurring judgment in the Supreme Court’s decision in Booth v R.28 He noted that both the Parole Act and Sentencing Act “were intended to provide for a coherent approach to sentencing and parole” and so must be read together.29 Such a holistic approach can indirectly inform the present interpretive exercise.
[51] There is no definition of “sentence” in the Parole Act (although the Act does define a “sentence of imprisonment” and “short-term sentence”) nor in the Sentencing Act, although phrases which include the word “sentence” are found in the interpretation provisions of both Acts.
[52] The definition of “sentence” in the CPA, in respect of appeals, is broad. It reads:30
sentence—
(a)includes any method of disposing of a case following conviction; but
(b)does not include—
(i)a decision, on conviction, to make or decline to make an order against the convicted person for the payment of costs under section 364 or under the Costs in Criminal Cases Act 1967; or
(ii)a decision, on conviction, to make or decline to make an order under any of sections 200, 202, or 205 (suppression orders); or
28 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
29 At [43].
30 Criminal Procedure Act, s 212 (emphasis added).
(iii)a decision, on conviction, under section 208 to vary or revoke an order under any of those sections specified in subparagraph (ii).
[53] The Court of Appeal in Chief Executive of the Department of Corrections v Sutherland31 referred to the CPA definition of “sentence” in the context of interpreting various (inter-related) sections in the Parole Act and Sentencing Act. As the definition appeared in a different Act, it did not directly impact the meaning of “sentence” in the two Acts of relevance in that particular case. Nonetheless, the Court considered it to indicate how the word is to be understood in the New Zealand criminal law context.32
[54] The purpose of the Parole Act is to “reform the law relating to the release of offenders serving sentences of imprisonment, and to replace the provisions of Parts 4 and 6 of the Criminal Justice Act 1985.” Those parts of the Criminal Justice Act 1985 related to “full-time custodial sentences” and “administration of full-time custodial sentences”.
[55] Sections 76-81 of the Parole Act sit within Part 1 of the Act which is entitled “Parole and other release from detention”. Section 8 of the Parole Act provides that Part I applies “to all offenders who are subject to a sentence of imprisonment”.
[56] The previous iteration of s 79 (specifically referring to a “sentence of imprisonment” was amended by s 28 of the Parole (Extended Supervision) Amendment Act 2004.33 The reference to imprisonment was removed. The Select Committee Report on the Bill does not explicitly mention this amendment and the Hansard reports of that time also do not expressly address the matter. There is nothing to indicate that the amendment to s 79 by s 28 of the Parole (Extended Supervision) Amendment Act 2004 intended to substantively change the law. Had the intention been to change the existing law in such a substantive manner, it could be expected that some explanation would be provided.
31 Chief Executive of the Department of Corrections v Sutherland [2018] NZCA 623.
32 At [44].
33 This section originated in clause 43 of the Parole (Extended Supervision) and Sentencing Amendment Bill 2003.
[57] Relatedly, the explanatory note to the Bill refers to the situation where a conviction is quashed and following retrial, another sentence of imprisonment is imposed. Mr Davie submits that the use of the word “another” tends to support the Crown’s argument. I agree.
[58] There are many other sections within the Parole Act in which “sentence” is referred to, but the immediate context makes it abundantly clear that this is shorthand for “sentence of imprisonment.” Two examples suffice. Section 17 (Release at statutory release date) says “The statutory release date of an offender is the release date of the sentence”. A release date only arises in respect of a sentence of imprisonment. Section 20 (Parole Eligibility date) states “The parole eligibility date of an offender who is subject only to 1 or more sentences…” Parole only relates to sentences of imprisonment.
[59] When the Parole Act refers to community-based sentences and sentences of home detention, it uses these terms explicitly.34
[60] Construing s 79 purposively, and notwithstanding the literal text, I accept that the exception in s 79 is limited to substitution of an original of imprisonment. There was therefore no jurisdiction to direct that Ms Yugova’s sentence commenced on 1 March 2024. Rather, it is s 76 of the Parole Act which is engaged.
Should the Court exercise its discretion under s 180 to grant the application?
[61] Mr Davie submits that it is appropriate for the Court to make the orders sought to enable the Chief Executive to discharge his responsibilities under s 88 of the Parole Act to regularise Ms Yugova’s sentence and release conditions. He argues that the delay in making this application has not prejudiced Ms Yugova because, even had the application been made earlier, it would not have made any difference to Ms Yugova as she has been in custody for other reasons.
[62] It is apparent that Ms Yugova was faced with an inconsistent record of the sentence start date (the minute accompanying the appeal judgment and the release
34 Parole Act 2002, ss14, 91(6)(b), 97, 98, 106(6), 107Q.
licence issued by Corrections). That is unsatisfactory, particularly in circumstances where it is alleged that Ms Yugova breached standard release conditions, the expiry of which is directly impacted by the outcome of this application.
[63] However, Mr Davie’s submission is correct. The conditions of the intensive supervision sentence carried over in this Court comprised both standard and special conditions. Both expired or expire at the same time. This is the implication of the imposition of the six-month post-expiry period of the special conditions combined with s 93(2AB) of the Sentencing Act.
[64] In those circumstances, and despite the delay in making this application, I exercise the discretion to revoke the order that the start date of the sentence of imprisonment was 1 March 2024.
[65] For completeness, having clarified the proper interpretation of s 79 of the Parole Act, I consider it unnecessary to grant the declaration sought that it is the responsibility of the Chief Executive to determine the start date of Ms Yugova’s sentence of imprisonment. I decline to do so. I record only that the start date according to the proper interpretation of the Parole Act was 8 August 2024, the date on which the sentence of imprisonment was imposed.
Result
[66] I grant the application by revoking the direction as to the start date of the sentence of imprisonment.
............................................................
Walker J
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