Gray v Manager, Waikeria Prison - [2014] NZHC 1745

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2014-463-119 [2014] NZHC 1745

UNDER
the Habeas Corpus Act 2001 and the

Parole Act 2002, s 91(1)(b)

BETWEEN

CONRAD GRAY Applicant

AND

THE MANAGER, WAIKERIA PRISON Respondent

Hearing: 25 July 2014

Counsel:

S Mills for Applicant
AJ Gordon for Respondent

Judgment:

25 July 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 25 July 2014 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Lance Lawson (Rotorua) for Applicant
Gordon Pilditch (Rotorua) for Respondent

GRAY v THE MANAGER, WAIKERIA PRISON [2014] NZHC 1745 [25 July 2014]

Introduction

[1] The applicant is an inmate at Waikeria Prison. He applies for an order of

Habeas Corpus directing his release.

[2] The application turns on the credit that should be given to the applicant for the period he spent in pre-sentence detention.

Factual background

[3] On 28 May 2014, the applicant was sentenced to 16 months’ imprisonment
by a Judge of the District Court. There were eight charges involved in the sentencing:

CRN Laid date Offence date Offence

13063502092 12 September 2013 8 August 2013 Breach release conditions

13063004629 24 October 2013 14 October 2013 Unlawfully in building

13063004974 14 November 2013 13 November 2013
Theft property (under

$500)

13063005170 29 November 2013 25 October 2013
Theft ex person ($500-

$1000)

13063005168 29 November 2013 3-24 October 2013 Causes loss by deception

13063005169 29 November 2013 30 October 2013
Theft ex person (under

$500)

13063005161 29 November 2013 2 July 2013
Theft ex dwelling ($500-

$1000)

13063005338 14 December 2013 13 December 2013 Wilful damage

[4] The applicant was remanded in custody on 14 November 2013 in respect of the charge laid on that date and the two preceding charges. The District Court Judge, however, fixed as the leading charge on sentence the charge of causing loss by deception which was laid on 29 November 2013 (CRN suffix 5168). This was the charge to which the 16 months sentence was attached. On all the other charges, nominal sentences of one month’s imprisonment were imposed, with all to be concurrent with the lead charge.

[5] The applicant contends that the calculation of credit for his period of pre- sentence detention should commence on the date of his first remand in custody,
14 November 2013. The respondent, however, has taken the start date for the

calculation of such credit as 29 November 2013, being the date on which the lead charge was laid.

Discussion

[6] The relevant statutory provisions are ss 90 and 91(1) of the Parole Act 2002 (the Act). These provide as follows:

90 Period spent in pre-sentence detention deemed to be time served

(1) For the purpose of calculating the key dates and non-parole period of a sentence of imprisonment (including a notional single sentence) and an offender's statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period…

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.

Continue reading Gray v Manager, Waikeria Prison

Details

AGLC: Gray v Manager, Waikeria Prison [2014] NZHC 1745
Case: [2014] NZHC 1745
Decision Date: 25 July 2014

CaseChat Overview and Summary

The applicant, Conrad Gray, an inmate at Waikeria Prison, sought an order of Habeas Corpus to secure his release. The primary issue before the court was the appropriate calculation of credit for the period Gray spent in pre-sentence detention. The applicant argued that the credit for his pre-sentence detention should commence from the date of his first remand in custody, 14 November 2013, while the respondent contended that the credit should start from 29 November 2013, the date the lead charge was laid. The court considered the relevant statutory provisions, namely sections 90 and 91(1) of the Parole Act 2002, which determine how pre-sentence detention is calculated for the purposes of sentencing.

The applicant's counsel argued that because the sentences were concurrent, the credit for pre-sentence detention should begin from the earliest date of detention under any of the charges. In contrast, the respondent's counsel maintained that the concurrent nature of the sentences did not establish a relationship between the charges within the meaning of section 91(1). The court examined several cases for guidance. In Taylor v Superintendent of Auckland Prison, the Court of Appeal held that pre-sentence detention credit is for time served between the original charge and the sentence on the same or related charge, and not for unrelated charges. In Maile v Manager, Mt Eden Correction Facility, the court adopted a more expansive approach, granting credit for pre-sentence detention when the charges were factually related. However, in Jolly v Manager of Christchurch Men’s Prison, Young J took a narrower view, stating that pre-sentence detention credit relates to the actual detention for each individual charge unless they are effectively the same charge subsequently amended by circumstances. The court concluded that the correct interpretation aligned with Taylor and Ronald Young J's decision in Jolly, holding that the lead charge date determined the start of the pre-sentence detention credit. The court dismissed the application, finding that the charges were not related except by having concurrent sentences and that the law did not permit credit for pre-sentence detention for later offences based on time in detention for earlier unrelated offences.

The court did not make any order for costs.

Orders