Forrest v Chief Executive, Department of Corrections

[2015] NZHC 1254

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-404-1140 [2015] NZHC 1254

UNDER	the Habeas Corpus Act 2001
IN THE MATTER OF	an application for writ of habeas corpus
BETWEEN	BRENDON DOUGLAS FORREST Applicant
AND	THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Respondent

Hearing:	5 June 2015
Appearances:	Applicant in person (via AVL) P J Gunn and M Reddy for respondent
Judgment:	5 June 2015

RESERVED JUDGMENT OF DOBSON J

[1]      Mr Forrest is no stranger to the Court’s jurisdiction under the Habeas Corpus Act 2001.  On this occasion, he has challenged the lawfulness of his detention on the ground of alleged error by the Department of Corrections (the Department) in calculating his release date at the end of a sequence of sentences imposed on him between July 2004 and September 2010.  He says he has not been given due credit for periods spent remanded in custody.

[2]      The application was filed with the Auckland Registry of the Court on 25 May

2015 and promptly transferred to this Registry because Mr Forrest has relocated to the Wellington region.  It was first called on 28 May 2015 when Mr Forrest accepted he had no ground to challenge his present detention pursuant to an order under s 23

of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP).

FORREST v DEPARTMENT OF CORRECTIONS [2015] NZHC 1254 [5 June 2015]

[3]      Notwithstanding  that  point,  a  senior  adviser  with  the  Department  of Corrections, Mr Lance Alexander, provided an affidavit explaining the calculations relied on by the Department to determine Mr Forrest’s release date as 14 July 2015. I accordingly afforded Mr Forrest the opportunity of considering his challenge in light of that explanation and, by consent, adjourned his present application for a writ of habeas corpus until today.

[4]      An issue arises as to the Court’s jurisdiction.  Under the Habeas Corpus Act, applications  are  dealt  with  as  a  matter  of  urgency  because  an  applicant  raises concerns that his or her present detention is unlawful.   That is not Mr Forrest’s present position, so his  complaint about alleged errors in the calculation of his release date is only contingently relevant.   It could be relevant only after he is released from his present detention pursuant to the order under CPMIP.

[5]      There might be some efficiency in dealing with this complaint by treating the application  for  a  writ  of  habeas  corpus  as  an  application  for  a  declaration. Mr Forrest urged that I do so in light of the explanation before the Court on behalf of the Department.

[6]      However, there is a legitimate concern that to do so would be inconsistent with the procedure provided for under s 92 of the Parole Act 2002.   That section provides  the  procedure  for  recording  the  length  of  pre-sentence  detention  and advising the result of the calculation to the sentenced prisoner, who may apply to the person who made the calculation to have it reviewed.1   If that person is dissatisfied with the outcome of such a review, then he or she may appeal, under s 92(4) of the Parole Act, to the Court that imposed the sentence.

[7]      Mr Forrest   advised   that   he   pursued   that   means   of   challenging   the Department’s calculation of his release date some years ago.  He remained unhappy with the outcome.

[8]      It would be undesirable to address Mr Forrest’s concerns as an application for declaratory  orders,  when  to  do  so  would  cut  across  the  procedure  specifically

1      Parole Act 2002, s 92(2).

provided for in the Parole Act for questioning the correctness of the calculation of his release date.  This Court would not be the appropriate one to hear an appeal from that process, and under the Parole Act it would need to go back to the sentencing court.

[9]      Mr Forrest was concerned that he could not pursue the s 92 procedure again, because the Department might refuse to consider such an application for review on the basis that he could only do so once.   It appears that the difference between Mr Forrest and the Department may now be better defined than it was previously. Mr Gunn  indicated  that  he  would  advise  the  Department  to  entertain  a  further application by Mr Forrest to review the calculation of his release date.  In reliance on that, I am satisfied that the present application should be dealt with on its existing terms, and not treated as amended in any way.

[10]     The application is accordingly declined.

Dobson J

Solicitors:

Crown Law, Wellington for respondent

Copy to:

B D Forrest