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  that  the offender has spent in pre-sentence detention.

(2)       When an offender is subject to 2 or more concurrent sentences,—

(a)       the  amount  of  pre-sentence  detention  applicable  to  each sentence must be determined; and

(b)       the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.

(3)       When an offender is subject to 2 or more cumulative sentences that make a notional single sentence, any pre-sentence detention that relates to the  cumulative  sentences  may  be  deducted  only  once  from  the  single notional sentence.

91       Meaning of pre-sentence detention

(1)       Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a)      any charge on which the person was eventually convicted; or

(b)       any  other  charge  on  which  the  person  was  originally arrested; or

(c)       any charge that the person faced at any time between his or her arrest and before conviction.

[7]      Mr Mills for the applicant submits that because the sentences on all charges are concurrent then they are related within the meaning of s 91(1).  Therefore, the calculation of credit for pre-sentence detention must start at the earliest date that pre- sentence detention commenced under any of the charges.

[8]      Ms Gordon for the respondent submits that the mere fact that sentences run concurrently does not make them related in the s 91(1) sense.  There is no other form of connection between the charges which would fall within that meaning.

[9]      I have been referred to three cases.  The first is a decision of the Court of Appeal in Taylor v Superintendent of Auckland Prison.1    This case turned on the construction of s 81(1) of the Criminal Justice Act 1985, which is the predecessor to s 91 of the Act.  It remains relevant because of the similarity of the wording in the two sections.

[10]     Taylor was a case in which an inmate sought credit for time on remand on unrelated charges.  That is to say, the applicant, for later charges, sought credit for the total time he had been on remand for earlier charges.

[11]     The Court of Appeal held that the key concept is that of “the proceedings” to

which the section is directed:

[14]      The meaning of the legislation is to be ascertained from its text and in the light of its purpose. As the Crown submits, the key concept is that of “the proceedings” to which the section is directed. Those “proceedings” are the ones leading to the “conviction” and subsequent “sentence” to which the calculation of what the section heading calls “Period on remand . . .” is germane. “The total period” embraces that between “charge” and the “conviction” or “sentence” under consideration; so too does “that period or any part of it”. There is no proceeding until charge; a proceeding commences with an information. Remand commences with the order of remand on that information. Any remand time served during the whole period from charge until ultimate sentence counts towards that proceeding.

[15]     The options following the clause “at any stage of the proceedings leading to the person’s conviction or pending sentence” are designed to cover the eventualities that arise in relation to an initial charge:

(1)      any charge on which the person was eventually convicted

(the case of a conviction upon the original charge); and

(2)       any  other   charge   that   the   person   faced   at   any  time subsequent to arrest and prior to conviction. That embraces any other remand time served whether on intermediate charges not originally brought and not subject of sentence resulting from the same series of events; and also, as held in R v Coward, remand on unrelated charges.

1      Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752 (CA).

[16]      The  essential  point  is  that  the  remand  credit  is  for  time  served between the time of original charge and the time of sentence on the same or a related charge. The alternative would be that a prisoner earned remand credit in relation to an offence not only unrelated to the reason for the prisoner being in jail, but one of which the prisoner has not been charged; of which the commission might not be known to the authorities; or indeed the commission of which might not even have occurred.

[12]     Accordingly,  the  Court  of Appeal  was  clear  that  later,  unrelated  charges cannot call on credit for pre-sentence detention served on earlier charges.

[13]     In  a  subsequent  case,  Maile  v  Manager,  Mt  Eden  Correction  Facility,2

Courtney J distinguished Taylor and adopted a more expansive approach.  In the case before Courtney J, the applicant was sentenced on various charges, including three of money laundering.  The charges were related in the sense that the money laundering charges arose from the other offences with which he was charged.  The problem for the applicant was that the money laundering charges were not laid until five months after the original charges and it was the money laundering charges which were the lead offences for sentencing.  All sentences were concurrent and, as here, the respondent began the calculation of credit for pre-sentence detention from the date on which the lead charge was brought.

[14]     Courtney J held:3

The  purpose  of  limiting  credit  for  pre-sentence  detention  time  to  time relating to the charge on which the accused is ultimately convicted is to ensure that offences do not go unpunished through the ability of prisoners to use  completely unrelated pre-sentence  detention as a  means  of avoiding imprisonment on other charges (including, even, offences not yet committed at the time of the pre-sentence detention). This case, however, could not give rise to any objection on that score. It is clear (as Mr Whittington acknowledged) that the money laundering charges fell directly within the scope of the series of incidents on which Mr Maile was originally charged. Charges could have been laid at that earlier stage and had that been done there could have been no question that Mr Maile would have been entitled to credit for the pre-sentence detention prior to the money laundering charges actually being laid.

[15]     Accordingly, Courtney J granted the application for Habeas Corpus.

2      Maile v Manager, Mt Eden Correction Facility HC Auckland CIV-2011-404-6101, 10 October

2011; [2012] NZAR 39.

[16]     Ronald Young J, in Jolly v Manager of Christchurch Men’s Prison,4  took a different view.  The factual situation was similar in kind to that before Courtney J. In other words, a series of factually related charges laid over a period of time and with the lead charge for sentencing being the latest in time.

[17]     In discussing ss 90 and 91 of the Act, Young J said:

[18]     The intention of those sections is to ensure that where there are unrelated charges, the pre-sentence detention calculation relates to the actual detention with respect to each individual charge. This avoids the obvious problem of a credit for pre-sentence detention when a particular charge has not  been laid and  a defendant is not  yet in jeopardy of  conviction  and sentence. This is the basic proposition expressed in s 90.

[19]      However, where the charges are related (see s 91(1)) then the longest pre-sentence detention period should apply to all charges for the purpose of calculating the deduction for pre-sentence detention from the ultimate sentence of imprisonment. For example, if a defendant faces charge A which is later withdrawn and substituted with charge B, then the charges will be related and so the pre-sentence remand period starting at charge A should apply to the sentence imposed for charge B.

[18]     Young J referred to Taylor:

[24]     In Taylor an example of “related” was given. An original charge of assault was later amended to manslaughter after the death of the person assaulted. Here, the two charges are related in a direct sense. They relate to the very same event.

[25]      In this case in a broad sense the charges do relate to the same event. This can be described broadly as the unlawful access of the internet but they are not in the sense of the example given in Taylor “related”. They are not effectively the same charge subsequently amended by circumstances. They are quite separate events. One is obtaining an internet device when that was prohibited. The other was accessing the internet when that was prohibited. They involve quite separate physical acts committed at different times. They are related only in the sense that possession of one enabled the commission of the second offence.

[19]     Accordingly, Young J accepted that the narrow definition is the correct one. The question is whether the charge faced is essentially a replacement or substitution or amendment of the original charge.  It is a related charge if it is, for the purposes of

s 91(1), but not otherwise:5

4      Jolly v Manager of Christchurch Men’s Prison [2014] NZHC 1398.

... Is the charge now faced essentially a replacement or substitution or amendment of the original charge? If it is, then it is related to the original charge in the sense meant by s 91(1) and the longer period of pre-sentence detention can be taken into account. But if the charges arise from a series of events  even  on  the  same  day  and  a  multitude  of charges  result,  then  I consider they are not related for the purpose of s 91(1) on that basis alone. There the relationship between the charges is no more than the coincidence they have been discovered on the same day.

[20]     The decision of the Court of Appeal in Taylor is binding on me.  I consider that the interpretation of s 90 and s 91 of the Act by Ronald Young J is in conformity with Taylor.

[21]     Section 90 makes it clear that where there are concurrent sentences, there must be a calculation of pre-sentence detention credit for each sentence.

[22]     The definition of pre-sentence detention in s 91 is based on the key concept of “the proceedings”.  In this case, the lead charge was laid on 29 November 2013, a date  when  the  applicant  was  in  custody.    Therefore,  “that  period”  began  on

29 November 2013.   There is no backdating of credit for pre-sentence detention possible unless the 29 November 2013 charge was an amended or substituted charge for an earlier charge.

[23]     I consider that the options in s 91(1)(a), (b) and (c) simply make explicit that pre-sentence detention credit is not to be split between charges for the purposes of the s 90 calculations.   That is to say, if a person is remanded in custody on a particular charge then pre-sentence detention credit begins to accrue on the date of that  event,  and  will  continue to  accrue until  the date of sentence  regardless  of whether the person  is  already in  pre-sentence  detention  on  other  charges,  or is subsequently remanded on pre-sentence detention on further charges.

[24]     If I am wrong in this, I would still dismiss the application:

(a)      The charges are not related except by having concurrent sentences.

(b)The law does not permit a prisoner to gain pre-sentence detention credit for later offences by reference to time in detention for earlier unrelated offences.  All the cases agree on that.

(c)       A concurrent sentence does not create a relationship between charges, even under the broader view of s 90(1).

[25]     Mr  Mills  pointed  to  the  injustice  of  the  applicant  serving  pre-sentence detention for which he will get no credit.  He submits that Parliament would not have intended that result.  If it were simply accepted that where sentences are concurrent pre-sentence detention credit is calculated from the first date in custody, then the result would be avoided.  It would also be a simple arithmetical calculation for the respondent, avoiding the practical difficulties discussed in the cases relating to the position of the respondent if he had to make decisions on which sentences were related.

[26]     The possibility of such injustice was recognised by the Court of Appeal in Taylor and by Ronald Young J in Jolly.   In cases that warrant it, there can be an appeal against sentence.  If the problem is realised at sentence, the sentencing Judge can take it into account in fixing the sentence.  I acknowledge Mr Mills’ point that s 82 of the Sentencing Act 2002 prohibits the Court taking into account in fixing a sentence of imprisonment the time spent on pre-sentence detention.  However, that prohibition relates only to pre-sentence detention “as defined in s 91 of the Parole Act 2002”.  I consider that that would not prevent a Judge from taking into account pre-sentence detention that would not, pursuant to s 91, be counted for the charges upon which the offender was for sentence.

Decision

[27]     The application is dismissed.

[28]     I make no order for costs.

Brewer J