Kingi v New Zealand Parole Board
[2012] NZHC 3490
•18 December 2012
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2012-488-69 [2012] NZHC 3490
BETWEEN HONE PARAONE KINGI Appellant
ANDNEW ZEALAND PAROLE BOARD Respondent
Hearing: 3 December 2012
Counsel: H P Kingi, Appellant, in person
K A L Bicknell for Respondent
Judgment: 18 December 2012
JUDGMENT OF HEATH J
This judgment was delivered by me on 18 December 2012 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Law, PO Box 2858, Wellington
Copy to:Mr H P Kingi, in person
KINGI V NEW ZEALAND PAROLE BOARD HC WHA CRI 2012-488-69 [18 December 2012]
The appeal
[1] Mr Kingi seeks an extension of time within which to appeal against a decision made by the New Zealand Parole Board (the Board) on 17 April 2012. He seeks to challenge a decision of a Panel Convenor, Judge Lovegrove, to dismiss his application to review an interim order for his recall to serve the balance of a sentence.
The facts
[2] On 31 May 2002,1 Mr Kingi was sentenced to an effective term of imprisonment of 13 years following his conviction on charges of aggravated burglary, aggravated robbery and using a firearm against a law enforcement officer. A sentence of 13 years was imposed on the aggravated burglary charge and sentences of 12 years imprisonment on the remaining two. All sentences were to be served concurrently.
[3] It is common ground that Mr Kingi became eligible for parole on 9 February
2010 and was actually released into the community on 8 June 2010. The Board granted parole on standard and special conditions. Mr Kingi’s release licence expressly stated that he remained eligible for recall until 10 October 2011.2
[4] On 3 April 2012, a police officer notified Community Probation Services of alleged offending by Mr Kingi, while subject to parole conditions. It is alleged that Mr Kingi was involved in a burglary in Whangarei on 10 March 2012; assaulted his partner by wrapping his hands around her throat and punching her on 1 April 2012; and, on 2 April 2012, was in possession of a sawn-off shotgun and made threats to kill his partner. Charges have been laid and are scheduled to be heard in the District Court at Whangarei on 21 January 2013.
[5] On 4 April 2012, a probation officer applied for an order that Mr Kingi be recalled to continue serving the original sentence, on the grounds that he had committed an offence punishable by imprisonment and posed an undue risk to the safety of the community.3 An interim order for recall was made by a Panel Convenor, Judge Mahony, on 5 April 2012.
[6] Following his arrest, Mr Kingi sought to challenge the interim order. Mr Kingi contended that the Board had no jurisdiction to order his interim recall. His position was that he was only amenable to recall until 10 October 2011, the date to which his release licence referred. Judge Lovegrove did not accept that
submission. He held that grounds to review4 had not been established and dismissed
Mr Kingi’s application.
[7] In considering Mr Kingi’s submission that he could not be recalled to serve
the balance of his sentence after 10 October 2011, Judge Lovegrove said:
6. Expiration of liability to recall. When Mr Kingi was released on parole on 8 June 2012 he was mandatorily subject to recall until 3 months before his sentence expiry date on 8 February 2015, initially, under the Criminal Justice Act 1985 and, after 30 June 2002, under the Parole Act 2002. Therefore, he is liable to recall until 8
November 2014. The handwritten insertion in his release licence was patently misconceived and seems to have been incorrectly based
on the length of time his conditions of release were intended to run.
That was not the only error in a release licence which also failed to specify the length of his sentence. It is hardly surprising Mr Kingi has been confused by the impact of significant dates in the management of his sentence insofar as, quite apart from the extent of Mr Kingi’s liability to recall, his probation officer has incorrectly referred to the termination of his parole on 10 October 2011 in paragraph 8 of his affidavit before resurrecting parole in paragraph
16. Also, Mr Kingi’s Criminal Conviction History incorrectly refers
to 4 July 2002 as the sentencing date for his index offending.
7. Two-thirds of sentence. Mr Kingi is quite correct in saying he had to be released no later than two-thirds of the way into his pre-cd sentence but he is not correct in suggesting he was not thereafter subject to liability to recall until 14 November 2014 (except in respect of conditions expiring on 10 October 2011).
[8] The probation officer’s application for final recall came before the Board on
1 May 2012.5 At that time, Mr Kingi had not entered pleas to the new charges. He was due to appear in the District Court on 1 June 2012.
[9] Mr Kingi was represented by counsel at the 1 May 2012 hearing. His counsel indicated that a final order could be made by consent. She requested that a further hearing be held in three months time, when the position with respect to the active criminal charges would be clarified. Having agreed to proceed in that way, the Board made a final order for recall, by consent.
[10] A further parole hearing was scheduled for 14 August 2012. Mr Kingi waived his right to appear at that hearing. The Board recorded that Mr Kingi was due to appear in the District Court on 17 August 2012, on the active charges. Parole was declined.6
[11] On 27 September 2012, Mr Kingi applied to review the final order for recall. The application was made out of time.7 His application came before Judge Lovegrove. He dismissed it, in a decision given on 1 October 2012. Judge Lovegrove was not minded to grant an extension given the delay since the final order was made (1 May 2012) and the fact that it was made by consent.8 The Board’s decision was upheld.
Competing submissions
[12] To support his application for an extension of time to appeal, Mr Kingi contends that he was not given adequate notice of his right to appeal against the Board’s orders. He acknowledged that the time limit fixed by the legislation was 28 days9 but submitted that the Board had failed to comply with its obligation to
provide information about rights of appeal.10
5 Judge Mahony, Ms K Snook and Mr A Shaw.
6 Judge Kiernan, Mr S Paul and Ms J Donaldson.
7 Section 67(1) of the Parole Act 2002 provides that any offender who is aggrieved by a decision of the Board may apply for a review within 28 days of the decision.
8 See para [9] above.
9 Parole Act 2002, s 68(1).
(a) Whether Judge Lovegrove, in his determination of 17 April 2012, was right to hold that, as at 5 April 2012, Mr Kingi was liable to be recalled to serve the balance of his sentence.
(b)Whether “there [have] been enough inconsistencies, unfairness and breaches during the administration of the Parole Act 2002 to warrant” the recall application being reheard.
[14] For the Board, Ms Bicknell raised both jurisdictional and merits-based
objections to Mr Kingi’s application to extend the time for appeal.
[15] First, she submitted that, having subsequently consented to a final recall order on 1 May 2012, Mr Kingi had waived his right to appeal against Judge Lovegrove’s decision to uphold the interim recall order. Second, even if (as he suggested at the hearing) Mr Kingi’s appeal was intended to be against Judge Lovegrove’s refusal to review the Board’s decision to make a final recall order, he should be barred from doing so because there is no basis for review of a consent order.
[16] As to the merits, Ms Bicknell submitted that Mr Kingi’s application was essentially premised on an assertion that an error on the face of a release licence as to recall eligibility should prevail over the statutory requirements. The statute must, she submitted, apply.
[17] I put to Ms Bicknell that Mr Kingi’s substantive grounds for appeal were not so much based on what was said in the release licence but on the true interpretation of the statutory provisions, particularly those relating to definitional requirements for “final release” and “statutory release” dates.11 I invited submissions on that issue.
Subsequently, I received a further memorandum from Ms Bicknell on that issue.
11 Those terms are defined in s 4(1) of the Parole Act 2002. See para [23] below.
(a) Application to extend time to appeal
[18] The right to appeal against a decision of the Board is conferred by s 68 of the
Parole Act 2002 (the 2002 Act). Section 68 provides:
68 Appeal to High Court against postponement orders, section 107 orders, and final recall orders
(1) An offender who is subject to a postponement order, an order under section 107, or a final recall order may, within 28 days of the date of the decision on a review under section 67 (or whatever longer time the court permits), appeal to the High Court against the decision on the grounds that the order ought not to have been made.
(2) No appeal may be made under this section until the decision to make the order has been reviewed under section 67.
(3) If an offender lodges an appeal, he or she remains subject to the order while the appeal is determined.
(4) In the case of an appeal against a final recall order, without limiting the matters that the court may consider in determining the appeal, the court must consider the need to protect the community, or any person or class of persons.
[19] It is distinctly arguable that no appeal lies against an interim decision to recall.12 Section 68(1) refers only to a final order. That approach would be understandable, given the need to proceed promptly to consider whether a final order should be made.13 However, for present purposes, I assume (without deciding the point) that a right of appeal does exist.
[20] The grant of an extension of time to appeal is a discretionary decision. It is one to be made in light of the reasons advanced for the delay and an assessment of the likely merit of the appeal.
[21] Although I do not accept Mr Kingi’s suggestion that he was unaware of
review and appeal rights, I am minded to grant leave to appeal out of time. I do so because the issue raised is jurisdictional in nature. If, as a matter of law, Mr King
12 Parole Act 2002, s 68(1).
13 Ibid, ss 63(3)(a) and 66(1).
were not liable for recall in April 2012, a decision (whether interim or final) to recall him could not be justified on grounds of consent or waiver. Further, the jurisdictional issue could readily be challenged in separate judicial review proceedings; or, possibly, on an application under the Habeas Corpus Act 2001.14 It is better that the argument be addressed now, so that all parties know where they stand. As I have received submissions from Ms Bicknell on these points, the Board’s
position is not prejudiced.
(b) Merits
(i) Jurisdiction to recall
[22] To determine the time at which a prisoner who is serving a sentence imposed before the Sentencing Act came into force is liable for recall involves the tortuous negotiation of a fog-bound statutory path. I commend Mr Kingi for the efforts that he has made, as a layman, to understand the complex statutory provisions. I also thank Ms Bicknall for her helpful submission on this issue.
[23] The relevant provisions are collected in various parts of the Act and the Criminal Justice Act 1985 (the 1985 Act). There are a series of definitions of relevant terms.15 They are:
final release date means the final release date of a pre-cd sentence, or the final release date of an offender who is subject to a pre-cd sentence, as determined under Parts 4 and 6 of the Criminal Justice Act 1985 and varied (if applicable) under section 106 of this Act.
release date means, in relation to a determinate sentence of imprisonment, the date on which the offender who is subject to the sentence ceases to be liable to be recalled to continue serving that sentence in a prison.
sentence expiry date means the date on which the offender who is subject to the sentence has served its full term and therefore ceases to be subject to it.
statutory release date means the date on which an offender who is subject to 1 or more sentences of imprisonment—
(a) must be released from detention; and
14 For example, see Taylor v The Superintendent of Manawatu Prison HC Wellington CP189/02,
13 September 2002 (Wild J).
15 Parole Act 2002, s 4(1).
(b) ceases to be liable to be recalled to continue serving any sentence in a prison.
[24] Mr Kingi was sentenced on 31 May 2002. The 2002 Act defines such a
sentence as a “pre-cd sentence”.16 The three concurrent sentences imposed on 31
May 2002 were all “long-term” pre-cd sentences.17
[25] Section 104(1) of the 2002 Act provides:
104 Release at final release date
(1) An offender who is detained under a long-term pre-cd sentence must be released from detention on his or her final release date, subject to the provisions of this section.
The final release date is determined by reference to Parts 4 and 6 of the 1985 Act.18
Those provisions of the 1985 Act to which I refer are all found in those Parts.19
[26] The purpose of s 104 of the 2002 Act is explained in s 103:
103 Purpose and effect of section 104
(1) The purpose of section 104 is to provide a special form of release for offenders who are subject to long-term pre-cd sentences and whose release would otherwise be delayed as a result of the operation of subparts 2 and 3.
(2) By way of explanation, the effect of section 104 is that, if it applies to an offender, the Board is obliged to release the offender on parole at his or her final release date, but the offender is subject to release conditions, and is liable to recall until his or her statutory release date.
[27] Section 103(2) makes it clear that the “final release date” is earlier than the “statutory release date”. While the Board is obliged to release an offender on parole at his or her “final release date”, he or she remains subject to release conditions and
liability for recall “until his or her statutory release date”.20
16 Short for a “pre-commencement date” sentence. The term “pre-cd sentence” is defined by s 4(1)
as “a sentence of imprisonment that is imposed before the commencement date”.
17 In the context of a pre-cd sentence, one of more than 12 months is defined as a “long-term
sentence”: s 4(1) Parole Act 2002.
18 See para [23] above.
19 See paras [29]–[34] below.
20 See para [23] above.
[28] The “statutory release date” is the latest of the release dates of the sentence to which an offender is subject.21 Any recall application must be made before that date.22
[29] Section 105(1) of the 2002 Act requires the “final release date” of an offender who is subject to a pre-cd sentence to be determined under s 91 of the 1985 Act. Section 91 required the Chief Executive of the Department of Corrections23 to calculate the offender’s final release date in accordance with ss 90 and 92 of the
1985 Act and any regulations made under it.24
[30] Section 90(1)(b) and (d)(i), specify the “final release date” for an offender serving a pre-cd sentence of more than 12 months imprisonment:
90 Final release
(1) Subject to [provisions not relevant to this appeal], an offender shall be released—
...
(b) Where the offender is subject to a sentence of imprisonment for a term of more than 12 months, not being a sentence for a serious violent offence, after the expiry of two-thirds of the sentence:
...
(d) Where the sentence is in respect of a serious violent offence,—
(i) If no minimum period of imprisonment has been imposed under section 80(4) of this Act, after the expiry of two-thirds of the sentence:
....
[31] The difference between the “final release date” calculated by reference to s 90(1)(b) and (d) lies in whether the particular sentence was in respect of a defined
21 Parole Act 2002, s 17(1).
22 Ibid, s 60(2)(b).
23 The person defined as “Secretary” for the purposes of s 91.
24 Criminal Justice Act 1985, s 91. See also reg 8 of the Parole Regulations 2002, which provides that the final release date of an offender subject to a pre-cd sentence must be determined in accordance with reg 8A of the Criminal Justice Regulations 1985 and Hall’s Sentencing (LexisNexis looseleaf) at paras PA 104.1, PA 105.2 and PA 105.2.
“serious violent offence”.25 If not, s 90(1)(b) applies; if so, s 90(1)(d)(i) is the controlling provision. Section 89(7) of the 1985 Act made it clear that a person subject to a long-term sentence of imprisonment for a serious violence offence (of less than 15 years) was not eligible for discretionary parole.26
[32] In Mr Kingi’s case, the sentences of 12 years imprisonment for aggravated robbery and using a firearm against a law enforcement officer are each “serious violent offences”. In respect of those offences, Mr Kingi was sentenced to a term of
12 years imprisonment. The offence on which he was sentenced to the longest term was that of aggravated burglary, an offence which does not come within the definition of “serious violent offence”.
[33] Section 92(7), (8) and (9) of the 1985 Act provide:
92 Calculation of parole, final release, and sentence expiry dates
...
(7) An offender who is subject to 2 or more concurrent sentences of imprisonment shall not be eligible to be released on parole under this Part of this Act until he or she is so eligible under section 89 of this Act in respect of each of those sentences.
(8) Where, in a case to which subsection (7) of this section relates, the offender is subject to 1 or more sentences of imprisonment that do not carry eligibility for parole under section 89 of this Act, the final release date of each such sentence shall be treated for the purposes of this section as if the offender were eligible to be released on parole under that sentence at that date.
(9) For the purposes of this Part of this Act, references to an offender's final release date mean, in relation to an offender who is subject to 2 or more concurrent sentences, the later or latest date by which the offender shall be released in respect of each of those sentences.
....
[34] The effect of those provisions is that the final release date for an offender who is subject to concurrent long-term pre-cd sentences is fixed by reference to the date of eligibility for parole; after serving two-thirds of the longest determinate
sentence. That is because, even though there was no ability to release Mr Kingi on
25 The term “serious violent offence” is defined by s 2(1) of the Criminal Justice Act 1985.
26 The exception carved out for sentences of 15 years or more is found in s 89(4) of the Criminal
Justice Act 1985.
discretionary parole in respect of the two “serious violent offence” sentences,27 s
92(8) treats Mr Kingi as if he were eligible for parole under s 89 of the 1985 Act. In determining the final release date, account is taken of time served on remand before sentence.28
[35] The “release date” of a long term determinate pre-cd sentence is fixed by reference to a date that is three months before its sentence expiry date.29 Section
87(2) of the 2002 Act states:
87 Release date of pre-cd sentence
...
(2) The release date of a long-term determinate pre-cd sentence is the date that is 3 months before its sentence expiry date.
....
The “sentence expiry date” means the date on which the offender subject to the
sentence has served its full term and ceases to be subject to it.30
[36] The “statutory release date” of an offender serving a long-term concurrent pre-cd sentence is the latest of the release dates attaching to those sentences.31 That is fixed by reference to the sentence of 13 years imprisonment. Taking account of time served on remand, that date was 8 February 2015. In terms of s 87(2) of the
2002 Act, Mr Kingi was liable to recall until 8 November 2014, 3 months before his statutory release date.32
[37] Section 60(2) of the Act entitles a probation officer to make a recall application to the Board, in respect of any offender who is subject to a determinate sentence, has not yet reached his or her statutory release date and is on parole.33 Mr
Kingi met all three of those criteria.
27 Criminal Justice Act 1985, s 89(7).
28 Ibid, s 81(7).
29 Parole Act 2002, s 87(2).
30 Ibid, ss 4(1), (definition of “sentence expiry date”) and 83.
31 Ibid, s 17(1).
32 Ibid, s 103(2), set out at para [26] above.
33 Ibid, s 60(2). All three criteria were met by Mr Kingi.
[38] It follows that the Board had jurisdiction to make interim and final recall orders.
(ii) Was a decision to recall justified?
[39] Briefly, I consider whether an interim decision to recall was justified. The grounds for such an order are set out in s 61 of the Act. Those relevant to this case are found in s 61(a) and (c):
61 Grounds for recall
The grounds for recall are that—
(a) the offender poses an undue risk to the safety of the community or any person or class of persons; or
...
(c) the offender has committed an offence punishable by imprisonment, whether or not this has resulted in a conviction; or
....
[40] Given the serious active charges faced by Mr Kingi, there is no doubt that the Board was right to find that Mr Kingi fell within both s 61(a) and (c). The Panel Convenor was entitled to make an interim order for recall. Even in the absence of consent, the Board would have been entitled to make a final order.
(c) Conduct of those responsible for administering sentence
[41] There is no doubt that the release licence made available to Mr Kingi stated inaccurately the position with regard to his liability for recall to serve the balance of his sentence. Undoubtedly, preparation of the document was undertaken in a sloppy manner. I endorse Judge Lovegrove’s comments that it was “hardly surprising [that] Mr Kingi [had] been confused by the impact of significant dates in the management
of his sentence”.34
34 See para [7] above.
[42] However, administrative error, no matter how bad, cannot change the legal requirements and override the statutory right to seek recall. It would be strange to suggest that a person may commit an offence only because he or she is not liable for recall. In those circumstances, there is no basis on which I can lawfully interfere with the conduct of those involved in preparing the release licence. Nor would I be prepared to do so if I had the requisite discretion.
Result
[43] The application for an extension of time to appeal is granted but the appeal is dismissed.
P R Heath J
Delivered at 4.00pm on 18 December 2012
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