Kenneth Christopher v Rimutaka Prison

[2005] NZCA 34

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/05

BETWEENKENNETH CHRISTOPHER MORGAN

Appellant

ANDTHE SUPERINTENDENT, RIMUTAKA PRISON

Respondent

Hearing:28 February 2005

Court:McGrath, Hammond and O'Regan JJ

Counsel:Appellant in person

B Keith and J Davidson for Crown

Judgment:7 March 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.  There is no order for costs.

REASONS

McGrath and O’Regan JJ  [1]

Hammond J  (Dissenting)  [32]

MCGRATH AND O’REGAN JJ

(Given by McGrath J)

[1]       This is an appeal against the dismissal by the High Court of an application for habeas corpus by a prisoner serving a term of imprisonment for cultivation of cannabis. 

[2]       The appellant was charged with cultivation of cannabis, and possession of cannabis for the purpose of supply, on 17 September 2001.  Following trial, he was convicted on both charges on 20 November 2002.  In the meantime the Parole Act 2002 had been passed and had come into force, repealing the provisions of Part 6 of the Criminal Justice Act 1985.

[3]       On 17 January 2003 the appellant was sentenced to four years imprisonment on each charge, the terms to be served concurrently.  On appeal to this Court his conviction for possession of cannabis was quashed and the sentence on the cultivation charge reduced to three years imprisonment.

[4]       The appellant has, for some time, been eligible for parole but has not been granted parole by the Parole Board.  The basis on which he sought habeas corpus was that he had reached the point in his sentence where he would have been entitled to be released from prison under the legislation which governed the administration of terms of imprisonment at the time he committed the offence.  Under s 90(1)(b) of the Criminal Justice Act 1985, an offender who was subject to a sentence of imprisonment for a term of more than 12 months (not being a sentence for a serious violence offence) was entitled to be released on conditions on the expiry of two thirds of the sentence.  The appellant had served two thirds of his sentence on 17 November 2004.  Although that legislation had been repealed, and new legislative provisions governing dates of release were in force by the time he was sentenced, the appellant contends that he was entitled to the benefit of the more favourable final release date under the earlier Act.

[5]       The respondent’s contention, accepted by MacKenzie J in the High Court, is that the Parole Act 2002 applied on its terms, the appellant having been sentenced after it came into effect.  Under s 86(2) of that Act the applicable sentence expiry date is the date when the offender has served the full term of his sentence.  In the case of the appellant that will be on 19 November 2005.

[6]       The appellant has advanced to us several arguments in support of his view that the 1985 Act applies.  One can be disposed of immediately.  The appellant has argued that, if the 2002 Act were to apply to a person in his situation, the effect would be to subject the person to a form of legislative punishment aimed specifically at a particular person or group.  It would accordingly have the character of a bill of attainder.  We disagree.  The legislation concerned prescribes a new regime of general application for the administration of sentences, including terms of imprisonment, imposed by the Courts in their criminal jurisdiction.  The system enacted applies to all prisoners.  Parliament has decided that in the transition from the old system to the new, which Act applies to a particular prisoner’s sentence should turn on the date on which that person is sentenced by the Court.  That does not give rise to a specifically targeted punishment at the hands of the legislature which is directed at an individual or particular group.  There is nothing in this criticism and it is not necessary to consider the way in which the appellant developed the bill of attainder argument further in his submissions.

[7]       Next, the appellant contends that the application of the Parole Act provisions to his sentence is inconsistent with s 25(g) of the New Zealand Bill of Rights Act 1991 and Art 15(1) of the International Covenant on Civil and Political Rights.  He also invokes s 6 of the Sentencing Act 2002 which gives effect to the rights concerned.  The appellant’s argument is that there is a breach of the principle that if a penalty for an offence is varied between the date of offending and the date of sentence, then the lesser penalty should apply. 

[8]       Section 25(g) of the New Zealand Bill of Rights Act 1990 provides:

25.  Minimum standards of criminal procedure-

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

…
(g)   The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

The right derives from Art 15(1) of the International Covenant on Civil and Political Rights which, after stipulating that no-one is to be held guilty of a criminal offence on account of conduct which was not criminal at the time, provides:

Nor shall a heavier penalty be imposed than the one that is applicable at the time when the criminal offence was committed.

[9]       The right concerned was first given effect in New Zealand domestic law in s 22 of the Criminal Justice Act 1980.  In s 4(2) of the Criminal Justice Act 1985 it appeared in Part 1 of the Act, which was headed Sentencing Generally, in these terms:

…notwithstanding any other enactment or rule of law to the contrary, no court shall have the power, on the conviction of an offender of any offence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence, except with the offender’s consent.

The 1985 Act also made provision for parole for sentenced prisoners in Part VI under the heading Administration of Full-Time Custodial Sentences.

[10]     In these provisions the principle has accordingly been directed to the courts, in relation to their sentencing function.  The principle was expressed in absolute terms. It was not however addressed to the administration of the full-time custodial sentences imposed by the Courts.  That was also provided for by the 1985 Act in the Part VI provisions which set out the regime for release on parole.

[11]     In 2002 the 1985 Act was repealed and separate statutes (the Sentencing Act and the Parole Act) were enacted to deal respectively with sentencing and parole.  The principle that a heavier penalty should not be imposed than that applicable when the criminal offence was committed was carried forward to the Sentencing Act.  Section 6 provides:

Penal enactments not to have retrospective effect to disadvantage of offender

(1)  An offender has the right if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

(2)  Subsection (1) applies despite any other enactment or rule of law.

Consistently with the earlier approach the principle was not applied in the Parole Act. 

[12]     The appellant’s argument raises the issue of whether the principle against retrospective effect of legislation giving effect to a detrimental change in the penalty for an offence, is breached by changes in statutory provisions for release on parole, which operate to extend the time by which a prisoner must be released within the limits of the term of imprisonment imposed by the sentencing court.

[13]     As indicated, the text of the Bill of Rights provision, and the legislation giving it effect in 1985 and 2002, is addressed only to the judicial acts of sentencing and not to the administrative regime for early release. Section 25 also makes it clear that the rights set out in the section are rights conferred on a person charged with an offence “in relation to the determination of the charge” and, like s 6 of the Sentencing Act, focuses on the variation of the penalty for an offence not the variation of the administration of a sentence imposed by a Court or even the rights of sentenced prisoners to serve their sentences in a particular way.  As well, there is no provision giving effect to the principle against retrospectivity at all in the Parole Act 2002.  This suggests that it was not seen as necessary by Parliament, or part of its purpose to apply the principle to the area administration of sentences including early release.

[14]     Furthermore, recent judgments of this Court have seen the distinction between the imposition of a custodial penalty, and the administration of that sentence, as of importance in considering the scope of application of the principle against retrospectivity.  In Fulcher v Parole Board (1997) 15 CRNZ 222 the appellant claimed that changes in legislation, which extended the length of the time during which he would be subject to conditions following release on parole after serving two thirds of his sentence, amounted to a retroactive penalty.  The case largely concerned whether his position was disadvantaged in relation to what it would have been had an amendment to the 1985 Act not been passed, but several members of the Court made comments concerning the application of the principle against retrospectivity. Gault J said at 227:

I do not see any conflict with the principle against retrospectivity in giving s 58(2) its stated effect.  The sentence imposed was for 14 years.  That is not affected.  Changes in the administration of the sentence do not impose any greater penalty and would seem in principle to be little different from the adoption of a stricter prison discipline regime.

Henry J said at 231:

Part VI is concerned with the administration of prison sentences, not with their imposition…I think it clear that an offender would be subject to parole and release provisions which came into force after commission of the offence but before sentence.  I can see no objection in principle to such a result, and doubt whether the principles of the doctrine would be offended if provisions of this nature are altered while a prison sentence is being served…

and Thomas J said at 243

I do not therefore consider that the imposition of the new conditions for a longer duration than previously permitted should be regarded as part of the penalty or punishment imposed on the offender.  Once sentenced, there is no sound reason why an offender in full-time custody should not be subject to whatever administrative facilities or provisions the Legislature considers should be applicable to the release of those offenders.  It would no doubt be otherwise if the application of the conditions extended beyond the term of their imprisonment or were otherwise punitive in character.

and later at 244:

An offender must accept the consequences of a change in legislation following his or her sentencing in relation to the administration of their sentence provided that the penalty or punishment, as such, is not increased.  Changing the conditions which will or may attach to the offender’s release within the overall term of his or her imprisonment does not have that effect.

The dissenting judgment of Keith and Blanchard JJ at 250 also expressed the view that the administration of a full-time custodial sentence was a quite distinct matter from its imposition.

[15]     The appellant argues that these observations must be placed in the context of the circumstances which the appellant in Fulcher claimed to be a retroactive penalty.  He was of course subject to a variation in the terms of parole, which was only concerned with the length of time that he was to be subject to conditions after release.  In the appellant’s case, the legislative change may have the effective result of an additional year in prison.  Certainly that different context is reflected in the discussions in Fulcher, but in the passages referred to all judgments draw the distinction between sentencing as the imposition of penalty and early release on parole as part of sentence administration. The decision accordingly supports the Crown’s argument that a change in legislation governing terms of parole including early release is of a different character to a disadvantageous change in penalty for an offence which is proscribed by the Bill of Rights.

[16]     Subsequently, in his dissenting judgment in R v Poumako [2000] 2 NZLR 695, at [54] Henry J described a minimum term of imprisonment as being part of the sentencing process which was “in direct contrast to any question of administration of a Court-imposed sentence”. That observation was endorsed in the judgment of Gault, Keith and McGrath JJ in R v Pora [2001] 2 NZLR 37 at [82] which noted that the minimum period of imprisonment provision was:

in a part of the (1985) Act concerned with sentences and sentencing (Part IV) and not with the administration of sentences once they have been imposed (see Part VI).

[17]     The distinction is also reflected in the recent decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Uttley [2004] 1 WLR 2278 in relation to the principle against retrospectivity in Art. 7(1) of the European Convention on Human Rights. In that case an offender was not prosecuted until 1995 for multiple sexual offending prior to 1983. He was sentenced to an effective term of 12 years imprisonment. That sentence was within the limits prescribed by law when the offending took place. A new release regime had come into effect in 1992. Under the previous regime, subject to his good behaviour, the appellant would have been released on remission after serving two thirds of his sentence. Under the new regime his release at that date was on terms that included a liability to be recalled to prison if he was in breach. He sought from the Court a declaration of the incompatibility of the 1992 legislation with Article 7.

[18]     The House of Lords allowed the Crown’s appeal against the decision of the Court of Appeal which had been in favour of Mr Uttley.  For present purposes the two most important speeches are those of Lord Rodger of Earlslerry and Baroness Hale of Richmond.

[19]     Article 7(1) of the European Convention on Human Rights, which is headed “No punishment without law”, is expressed in these terms:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

[20]     The argument in the House of Lords for Mr Uttley was that Article 7(1) was breached because, by virtue of the legislation that came into force in 1992, a heavier penalty was imposed on him than the one which was applicable when the criminal offences in question were committed.  Lord Rodgers said at [38]:

The respondent’s argument is misconceived.  For the purposes of article 7(1) the proper comparison is between the penalties which the court imposed for the offences in 1995 and the penalties which the legislature prescribed for those offences when they were committed around 1983.  As I have explained, the cumulative penalty of 12 years’ imprisonment that the court imposed for all the offences in 1995 was not heavier than the maximum sentence which the law would have permitted it to pass for the same offences at the time they were committed in 1983.  There is accordingly no breach of article 7(1).

On this basis he concluded that the argument was based on a misinterpretation of Art 7(1).

[21]     Similarly, Baroness Hale at [45] said that the words in Art 7, proscribing imposition of a heavier penalty than the one applicable at the time of commission of the offence:

refer to the penalty or penalties prescribed by law for the offence in question at the time when it was committed.  It does not refer to the actual penalty which would probably have been imposed upon the individual offender had he been caught and convicted shortly after he had committed the offence.

[22]     Each of these speeches cites in support the decision of the European Court of Human Rights in Coëme v Belgium Reports of Judgments and Decisions 2000-VII p75.  That judgment said:

The court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision…

[23]     The principal judgment of Lord Phillips of Worth Matravers in Uttley only indirectly addresses the point.

[24]     The speeches of Lord Rodgers and Baroness Hale reflect a closely similar approach to the fundamental right to that taken by this Court.  The principle against retrospective punishment is breached if the penalty imposed is more onerous than that open to the Court at the time of the commission of the offence.  A change in legislative provisions allowing release earlier than the full term of the sentence, with the effect that a longer period of imprisonment must be served, does not breach the principle.  That is because what is altered is not part of the penalty, which may not be retrospectively increased.

[25]     Lord Rodgers at [40] also discusses the rationale for the principle and its limits observing that changes in the law designed to allow heavier punishment for an offence already committed may tend to be made to impose punishment of the past acts of particular individuals.  We have already noted that we do not regard this as the case with the new provisions of the 2002 legislation. 

[26]     Academic commentary also supports the limited scope of the principle.  Harris, O’Boyle, and Warbrick in Law of the European Convention on Human Rights (Butterworths 1995) at 281 say:

Article 7 applies only to the “penalty” imposed, not to the manner of its enforcement.  Hence it does not prevent any retroactive alteration in the law or practice concerning the parole or conditional release of a prisoner.

To similar effect is the observation of Professor Nowak that Art 15(1) of the Covenant:

prohibits not only the imposition of a penalty lacking a basis in law at the time the offence was committed but also the imposition of a heavier penalty than the one that was applicable at the time the offence was committed.  UN Covenant on Civil and Political Rights: CCPR Commentary (Engel (1993)) at 278.

[27]     The approach of the Courts is criticised by Professor Rishworth in The New Zealand Bill of Rights Oxford University Press (2003) at 708-712, but as the author acknowledges it represents a uniform judicial response to the contention that changed parole provisions which have the effect of increasing a period of imprisonment are a retroactive increase in penalty under the protected right.

[28]     It is readily understandable that a serving prisoner, in the position of the appellant in this case, will regard such an alteration to the early release provisions applying to his sentence as an increase in the punishment he faced at the time of offending.  In law, however, the particular variation is to the manner in which the appellant is to serve his sentence of three years imprisonment rather than to the separate matter of the sentence itself.  We acknowledge that this is an extreme case, because the change in the law has affected an entitlement to early release at the expiry of two thirds of the sentence, not just a change to the terms of release or to the discretionary factors to be considered by the Parole Board in deciding whether or not to allow the release.  The change has converted the practical effect of a three year sentence, from one requiring the offender to serve between one and two years in prison to one requiring that he or she must serve between one and three years.  The fundamental right does not however protect the appellant against that eventuality, provided the sentence was one available at the time of his offending and he is not required to serve a longer sentence than that imposed by the court.  That is because, in terms of the Bill of Rights provision, what has been varied by the 2002 Act is not the penalty for the offence for which the appellant was convicted.  This settled interpretation reflects the ordinary meaning of the legislative provisions as well as the international principle of human rights on which they are based. 

[29]     This result highlights the fact that the protection provided by s 25(g) of the Bill of Rights and s 6 of the Sentencing Act is narrowly confined to the outcome of the judicial sentencing process.

[30]     It is clear that if the appellant is unable to derive interpretative assistance from the principle against retrospectivity, or his other incidental arguments which were related to it, the ordinary meaning of ss 86(2) and 82(1) of the Parole Act 2002 must apply to his situation.  Their plain effect is that, unless and until he is granted parole, the appellant must serve the full term of his sentence.  That remains his present situation.

[31]     The appeal against the dismissal of his application for habeas corpus by the High Court is accordingly dismissed.  There will be no order for costs.

HAMMOND J

[32]     I take the view that Mr Morgan is presently unlawfully incarcerated, and that pursuant to the powers of this Court on a habeas corpus application, his release should be directed, forthwith, from prison.  Mr Morgan’s sentence has been served; indeed it has been exceeded.

[33]     I am conscious of the fact that this proceeding is for habeas corpus.  It has therefore been given the appropriate urgency.  I will therefore give my reasons in short form.  In so doing, I am grateful to McGrath J for having set out the relevant background.

[34]     The issue before us is a narrow one:  if the “penalty” to be served by Mr Morgan has been increased, to his disadvantage, between the date of the offence and the date of sentence, then he is entitled to the benefit of the lesser penalty (s 6 Sentencing Act 2002).

[35]     The statute contains no definition of “penalty”.  In the law, generally, the term “penalty” has a very wide and varied meaning, depending on the context.  A penalty may be as little as a direction to do something (such as attend counselling), or a fine, or as much as a hanging.  The latter observation alone ought to be sufficient to ring legal alarm bells, for things may get much worse for prisoners - as well as better - in the swirling climate of penal policy change which prevails today.

[36]     Faced with the difficulties created by transitions and changes in penal policy and administration, courts of the highest authority have drawn a distinction between a penalty (“the sentence”) and the “administration” of that sentence (with all its trappings).

[37]     The distinction is a sound, and even necessary one, in pragmatic terms.  For instance if a criminal justice system increases the “lock-down hours in prisons” that is a matter of present administration, and it would be unworkable and invidious if that event could be prayed in aid by a prisoner to challenge his terms of incarceration as having been “changed to his detriment”.

[38]     But like all distinctions, this one can only be pressed so far, or real (and quite inappropriate) injustice will result.

[39]     In this case, the term to be actually served by Mr Morgan was set (by legislation) in absolute terms, on his sentence:  at the conclusion of his (then) required term, this man was entitled to walk onto the street, of course on (at least) the standard conditions.

[40]     That requirement of sentence - the penalty - was not a matter of administration.  It was prescriptive of the actual term to be served by him.  Or, to put it another way, the required term was integral - by legislation - to the actual sentence passed upon him.  The living penalty imposed upon him had nothing to do with remission or terms of service.  What was passed upon him was what a three years sentence then actually represented.

Solicitors:
Crown Law Office, Wellington