Christopher Holland v The Superintendent of Auckland Prison
[2002] NZCA 295
•21 November 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA242/02 |
| BETWEEN | CHRISTOPHER HOLLAND |
| Appellant |
| AND | THE SUPERINTENDENT OF AUCKLAND PRISON |
| Respondent |
| Hearing: | 14 November 2002 |
| Coram: | Keith J Blanchard J Anderson J |
| Appearances: | G E Minchin for Appellant S P France for Respondent |
| Judgment: | 21 November 2002 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
In 1993 Mr Holland was sentenced to a term of imprisonment for aggravated robbery. It is agreed that his final release date correctly calculated under s90 of the Criminal Justice Act 1985 was 18 January 1998. But in 1997 he was charged with the manslaughter of another prison inmate and was remanded in custody in respect of that matter. Thus when his final release date arrived he was not able to be released. He was found guilty of manslaughter and on 6 March 1998 was sentenced to a further term of seven years imprisonment.
The prison authorities considered that, taking into account the period spent on remand from 18 January to 6 March 1998, Mr Holland’s final release date on the manslaughter sentence was 19 September 2002. The Parole Act 2002 replaced the relevant provisions of the Criminal Justice Act as from 1 July 2002. Section 107 of the Parole Act enables an application to be made to the Parole Board at any time before the offender’s final release date for an order that the offender not be released before “the applicable release date”, as defined in subs(9), which in Mr Holland’s case is the date three months before his sentence expiry date. On 18 September 2002 an application was made for such an order and a copy of the application was served on him in prison.
Mr Holland is of the view, however, that s93 of the Criminal Justice Act 1985 affected the position by bringing forward the time at which he ceased to be subject to the aggravated robbery sentence and began to be on remand on the manslaughter charge; and that accordingly the number of remand days to be taken into account was increased by four. Section 93 read:
93 Date of release to avoid weekends and holidays
Except in the case of a sentence of imprisonment for a term of 14 days or less but notwithstanding anything in this Part of this Act, whenever an offender is due to be discharged or released on any Thursday, Friday, Saturday, or Sunday or on New Year's Day, Waitangi Day, Easter Monday, Anzac Day, the Sovereign's Birthday, Labour Day, Christmas Day, or Boxing Day the offender shall be discharged or released on the nearest preceding day that is not one of those days.
18 January 1998 was a Sunday. It is contended that Mr Holland was entitled to be treated as discharged or released as from the previous Wednesday, 14 January 1998. The flow-on effect, it is said, is that when he was sentenced on the manslaughter charge he had actually spent the intervening four days on remand. They have to be deducted in calculating the final release date on the manslaughter sentence, which accordingly was 15 September 2002. So, it is said, the s107 application was made too late. Hence, Mr Holland’s continuing imprisonment is said to be unlawful.
Mr Holland applied to Heath J in the High Court at Auckland for a writ of habeas corpus and, that application having been refused on 15 October 2002, has on 11 November brought an appeal to this Court under s16 of the Habeas Corpus Act 2001. The appeal has been given the priority required by s17(1).
In his oral judgment Heath J concluded that s93 had
a temporal effect in that it is applicable only whenever an offender is due to be discharged on a particular day. That temporal effect tends to militate against a construction which would include the days to which s93 refers in the calculation of a precise final release date for the purposes of an Act such as the Parole Act 2002.
The Judge said he was satisfied that the express reference to s91 of the Criminal Justice Act 1985 in s105(1) of the Parole Act 2002 [Calculation of final release dates], coupled with a reference to ss90 and 92 of the 1985 Act in s91 of that Act, demonstrated that the final release date was intended to be “the date certain calculated in accordance with ss90 and 92 of the Criminal Justice Act.”
Accordingly the Judge held that the time to be taken into account in calculating Mr Holland’s final release date was the lesser period for which the Crown contended. That being so, Mr Holland had been served with the s107 application in time and, by virtue of s104(3)(b) of the Parole Act, could not be released while subject to an application under s107.
In his submissions Mr Minchin, for the appellant, said that the Criminal Justice Act and the Parole Act provisions governing release from custody must be given a meaning which will not only lead to certainty in their application but which will also be seen by those to whom they apply to be rules which operate fairly. He asserted that a clear and fair regime will provide a good example for inmates which may persuade them to observe society’s rules. Counsel said that s93 must have been intended to operate whenever the release date calculated under ss90 to 92 fell on one of the days specified in s93, notwithstanding that the particular offender might not actually be going to be released. That view was said to be demonstrated by the two references in the section to a discharge as well as a release. Mr Minchin suggested that what the section was contemplating was that an offender kept in prison on account of some other circumstance was nevertheless discharged from his sentence in terms of s93 at the earlier date.
Quite apart from the fact that nowhere else in the Act is there any reference to any concept of a “discharge” from a sentence – that term otherwise being used only in relation to the very different circumstance of persons detained as special patients (see s117) – s93 is very plainly directed at avoiding the release of a prisoner into the community close to or during a weekend or on a public holiday. This can easily be seen in the heading to the section. The purpose of the provision is no doubt to assist released persons, and indirectly society, by ensuring that they do not come out into the community when agencies and facilities to which they may immediately need to resort are closed or about to close. No such purpose would be served if the section were applied to the case of someone who for whatever reason is to remain in prison. It would be particularly odd if it should have an application in such circumstances when it does not have the effect of moving forward the release date fixed under ss90 and 92, but merely directs that the release will in fact occur on an earlier day. Sections 90 and 92, which under the 1985 Act provided for the manner of ascertaining or calculating when an offender was to be released from, respectively, a single sentence or more than one sentence, made no reference to s93; and s91, which directed the Secretary (the chief executive of the Department of Corrections) to determine an offender’s final release date, said that it was to be done in accordance with ss90 and 92, again with no mention of s93. That, as well, strongly suggests that s93 was intended to operate only when there was a practical need to avoid a release on a weekend or a holiday.
We consider that the use of the expression “discharged” as well as “released” in s93 was quite possibly intended to cover a situation in which for some reason, such as illness or bereavement, an offender whose release date would fall at a weekend or on a holiday had already been licensed to leave prison, but subject to abiding by certain conditions. For consistency with what would have occurred if that offender had not already been at large, it may have been thought necessary for the section to provide for the discharge of those conditions. Be that as it may, the term “discharged” was not apt to describe, as Mr Minchin would have it do, some kind of notional release from a sentence. We note that it does not appear in the equivalent provision in the Parole Act, s52(2).
We therefore consider that the Judge was right to take the view that s93 had no application to Mr Holland in January 1998 and that accordingly his final release date in respect to the manslaughter sentence was 19 September 2002. That day was a Thursday. Consequently, in terms of s52(2) of the Parole Act, which applies by virtue of s104(5)(e), he was actually to be released on Wednesday 18 September. The application under s107 was however made on 18 September. Since s52(2) does not alter the release date, it was made before the release date and so was in time.
The appeal is accordingly dismissed.
Solicitors:
Otene & Ellis, Onehunga, for Appellant
Crown Law Office, Wellington
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