Matara v Attorney-General
[2023] NZHC 2888
•16 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-80
[2023] NZHC 2888
UNDER the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for Declarations of Inconsistency and Declarations of Compensation under the NZBORA
BETWEEN
BILLY MARK MATARA
Applicant
AND
ATTORNEY-GENERAL
Respondent
Hearing: 7 August 2023 Appearances:
A J Ellis for the Applicant
K Laurenson and A J Vincent for the Respondent
Judgment:
16 October 2023
JUDGMENT OF COOKE J
[1] On 11 September 2017 the plaintiff was sentenced to 10 years and two months’ imprisonment for attempted murder.1 The Judge found that she was required to impose this sentence without parole in accordance with s 86C(4) of the Sentencing Act 2002, an aspect of the three strikes regime then in effect.2 She further indicated that she would otherwise have imposed a minimum period of imprisonment of 40 per cent of the sentence.3
1 R v Matara [2017] NZHC 2198.
2 At [20].
3 At [21].
MATARA v ATTORNEY-GENERAL [2023] NZHC 2888 [16 October 2023]
[2] On 7 October 2021 the Supreme Court released its decision in Fitzgerald v R which reinterpreted some of the statutory provisions that formed part of the three strikes regime in light of the right in s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).4 Subsequently, on 16 December 2021, the Court of Appeal allowed the plaintiff’s sentence appeal. The Court held that it followed inexorably from Fitzgerald that s 86C(4) of the Sentencing Act was to be read as subject to the unexpressed qualification that it was subject to s 9 of the Bill of Rights, and that the requirement to serve a sentence of 10 years and two months’ imprisonment without parole was disproportionately severe punishment.5 It substituted the order that the sentence was to be served without parole with the 40 per cent minimum period of imprisonment that the High Court had assessed. The Supreme Court subsequently declined leave to further appeal.6 The Three Strikes Legislation Repeal Act 2022 then repealed the relevant provisions with effect from 15 August 2022.
[3] The plaintiff’s new minimum term of imprisonment expired on 2 June 2020, prior to the Court of Appeal’s decision on 16 December 2021. The plaintiff was then promptly seen by the Parole Board on 14 January 2022, some 18 months after the end of his minimum term of imprisonment. He has since been seen again by the Parole Board on 19 January 2023 and 18 July 2023 but he has not been released on parole. He is next scheduled to be seen by the Board in December.
[4] In this proceeding he seeks declarations of inconsistency and an order that he be released from imprisonment or subject to a lesser sentence, or that he be awarded damages as a result of the infringement of his fundamental rights.
[5] For the reasons set out below I have reached the following conclusions in relation to the plaintiff’s claims:
(a)A declaration of inconsistency is not relevant to his claims. That is because, following Fitzgerald, the relevant statutory provisions have been reinterpreted in a way that made them consistent with s 9 of the
4 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
5 Matara v R [2021] NZCA 692 at [5] and [74].
6 Matara v R [2022] NZSC 68.
Bill of Rights. The Court of Appeal subsequently allowed the appeal against the sentence imposed so that the plaintiff’s sentence was so consistent.
(b)No breach of s 9 of the Bill of Rights arises because of the 18-month period when the plaintiff should have been considered for release by the Parole Board. When he was so considered by the Parole Board he was not considered appropriate for release. He continues to be considered unsuitable for release. The plaintiff has accordingly not been incarcerated for longer than is justified. A breach of s 9 does not arise simply because the Parole Board should have seen him, and declined parole, earlier than it did.
(c)For similar reasons there has been no breach of the plaintiff’s right against arbitrary detention under s 22 of the Bill of Rights. The evidence demonstrates that he would have still been detained had he been earlier seen by the Parole Board. So no part of the detention has arisen because of the High Court’s interpretation of s 86C(4) of the Sentencing Act. The 18-month delay in considering parole did not make the detention arbitrary in those circumstances.
(d)The plaintiff’s right to have his sentence determined by an independent and impartial court arising under s 25(a) of the Bill of Rights was initially breached by the sentencing Judge’s understanding of the effect of the three strikes regime, however. This right is breached if important terms of imprisonment are imposed without any judicial assessment. But in the plaintiff’s case that error was corrected on appeal, and no further remedy is necessary.
(e)The plaintiff has not established that he was subjected to any discriminatory treatment in breach of s 19 of the Bill of Rights. I accept that it is arguable that the provisions as initially interpreted were discriminatory given the plaintiff’s disabilities. But the plaintiff’s
sentence was corrected on appeal, and no remaining breach is established.
Declarations of inconsistency
[6]I first briefly address the plaintiff’s claims for declarations of inconsistency.
[7] As I understood Mr Ellis to accept during argument, such declarations are ultimately not relevant to the plaintiff’s claims. Declarations of inconsistency are made when statutory provisions are found to be inconsistent with rights in the Bill of Rights. Here, however, as a consequence of the Supreme Court’s reinterpretation of the relevant provisions in Fitzgerald, which was subsequently applied to the particular statutory provisions applicable to the plaintiff on his sentencing appeal, the legislation has been interpreted so that it does not infringe the relevant right in the Bill of Rights, and his sentence has been corrected. The legislation has since been repealed. It follows that no relevant question of inconsistency remains.
[8] It can still be said that the High Court initially imposed a sentence understanding that the legislation required it to be imposed without parole leading to a sentence that was inconsistent with s 9 of the Bill of Rights, and arguably other rights. But the Court of Appeal subsequently overturned the High Court and adopted an interpretation of the provisions that was rights consistent.
[9] The remaining question is whether the plaintiff’s rights under the Bill of Rights were infringed in the meantime — that is the period between the High Court decision and his successful appeal — and whether he is entitled to any remedies for any such infringement. That claim needs to be assessed in light of the fact that, having been considered for parole he has not been released. So the claim that his rights have been infringed is limited to a claim that his position should have been considered earlier than it was, and notwithstanding the determination by the Parole Board that he should not be released in any event.
Were the plaintiff’s rights under s 9 of the Bill of Rights infringed?
[10] The plaintiff contends that the initial sentence imposed upon him, and the denial of a parole hearing for the 18-month period until his appeal was allowed means that his rights under s 9 of the Bill of Rights were infringed.
[11] Under s 9 of the Bill of Rights everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. In Fitzgerald the Supreme Court found that the imposition of the maximum sentence of seven years for offending under s 86D(2) of the Sentencing Act resulted in disproportionately severe conduct in the circumstances of the case, and it reinterpreted the provision as a consequence. In the plaintiff’s appeal the Court of Appeal reached a similar conclusion in relation to the imposition of a sentence under s 86C(4) without parole. When reaching these conclusions the Courts recognised that the right in s 9 involved a high standard. In Fitzgerald the Supreme Court applied its earlier interpretation of s 9 set out in Taunoa v Attorney-General.7 There Blanchard J said:8
It is therefore apparent that “disproportionately severe”, appearing in s 9 alongside torture, cruelty and conduct with degrading effect, is intended to capture treatment or punishment which is grossly disproportionate to the circumstances. Conduct so characterised can, in my view, when it occurs in New Zealand, be fairly called “inhuman” in the sense given to that term in the jurisprudence under art 7 of the ICCPR.
[12] There were some differences in the view of the Court in Taunoa on the boundaries of the s 9 right. In Fitzgerald, after summarising those differences Arnold J said:9
In summary, then, the Crown accepts that the sentence of seven years’ imprisonment imposed on the appellant crosses the high threshold set in s 9 – the sentence is grossly disproportionate, such as to shock the national conscience. Not only does the sentence breach s 9, but it is likely also to put New Zealand in breach of its international obligations.10 In their joint reasons
7 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
8 At [176]. See also [172], and Elias CJ at [91].
9 Fitzgerald (SC), above n 4, at [167]. See also Winkelmann CJ at [74]–[77], Young J at [256]– [260].
10 We have used the expression “is likely to” because, as noted above at n 219, a breach of s 9 may not always put New Zealand in breach of its international obligations as the breach may reflect the application of New Zealand, rather than international, values.
in the Court of Appeal, Clifford and Goddard JJ explained why they considered the appellant’s sentence breached s 9 in the following terms:11
A sentence of seven years’ imprisonment is grossly disproportionate in this case, having regard to the factors identified at [34] above: offending at the lower end of the range for the offence; reduced culpability by reason of Mr Fitzgerald’s impaired mental health; his impaired ability to act on the warnings given under the three strikes regime; and the disproportionately severe effect on him of a lengthy sentence of imprisonment. Mr Fitzgerald should be receiving care and support in an appropriate facility, not serving a lengthy term of imprisonment. He has ended up in prison for a very long term, in circumstances where he should not be there at all. The rationale that underpins this disproportionate response is that Mr Fitzgerald was given warnings that severe consequences would follow if he offended again, and he should have responded to those warnings. But his ability to respond to such warnings is materially impaired by his significant mental health issues. In these circumstances, a sentence of seven years’ imprisonment goes well beyond excessive punishment, and would in our view shock the conscience of properly informed New Zealanders who were aware of all the relevant circumstances including Mr Fitzgerald’s mental disability.
We agree with that assessment.
[13] Similar conclusions were reached by the Court of Appeal in deciding that the plaintiff’s sentence, initially imposed without the possibility of parole, was disproportionately severe. The Court held:12
In the present case we consider that denial of parole for an additional six years is grossly disproportionate to the circumstances, especially having regard to Mr Matara’s mental illness and psychosis at the time of offending. The loss of opportunity for rehabilitation and release — the loss of hope — for a period two and a half times what would otherwise be justified is both exceptionally harsh and without rational justification.
[14] Given the standards so described I do not accept that the plaintiff’s rights under s 9 of the Bill of Rights were breached because he was denied the ability to be considered for parole for an 18-month period. First, given that he was subsequently denied parole, and has been denied parole since, it is apparent that this failure has not caused a detention. I am also not satisfied on the evidence that any detention has indirectly been caused by a failure for him to be considered earlier for parole. Secondly, a failure to have parole considered for an 18-month period cannot be considered a sufficiently serious breach of itself such that s 9 is infringed, particularly when no release has followed. It is well short of a treatment or punishment that is
11 Fitzgerald v R [2020] NZCA 292, (2020) 29 CRNZ 350 [CA judgment] at [43] per Clifford and Goddard JJ and [131] per Collins J.
12 Matara v R, above n 5, at [74].
grossly disproportionate. I accept that timely consideration for parole is important, and it is a necessary aspect of an imprisonment regime that those imprisoned have rights to have their continuing detention considered. But in my view the delay in the consideration of parole, particularly when it has not proved to be material in relation to the continuation of detention, is short of the kind of treatment that engages s 9 of the Bill of Rights.
[15] For these reasons I dismiss the plaintiff’s claims that his rights under s 9 of the Bill of Rights were infringed.
Arbitrary detention
[16] The plaintiff’s second argument is that his rights under s 22 of the Bill of Rights have been infringed — the right to be free from arbitrary detention.
[17] In the subsequent Bill of Rights compensation case bought by Mr Fitzgerald the High Court found that Mr Fitzgerald’s rights under s 22 were breached as well as his rights under s 9.13 When doing so Ellis J said:14
The word ‘arbitrary’ in s 22 has two meanings: unlawfulness (contrary to domestic law) or arbitrariness (contrary to standards of appropriate state conduct).15 In Nielsen v Attorney-General, the Court of Appeal observed that:16
Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive or the procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.
[18] This approach means that an assessment is made of the significance of the breach of any requirements associated with detention, and whether they have resulted in the detention becoming arbitrary. Ellis J concluded that Mr Fitzgerald’s detention was arbitrary because it had become grossly disproportionate. She held:17
13 Fitzgerald v Attorney-General [2022] NZHC 2465, [2023] 2 NZLR 214. This decision is under appeal.
14 At [56].
15 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis NZ, Wellington, 2015) at [19.8.18].
16 Nielsen v Attorney-General [2001] 3 NZLR 433 (CA) at 441.
17 Fitzgerald v Attorney-General, above n 13, at [65].
… it would be too simplistic to say that Mr Fitzgerald was subject to disproportionately severe punishment in that he was detained arbitrarily right from the start, or from the date the Crown prosecutor determined to prefer the charge of indecent assault or from the date of the (original) sentencing. Rather, it seems more logical to say that the period of his detention became arbitrary began at the time it stopped being a merely disproportionate punishment (judged by reference to the charge laid, the circumstances of the offending and the offender and the “ordinary” sentence he should have received) and became a grossly disproportionate one. So in my view the question is not whether his detention was arbitrary but for what period it can be said to be so. That question is not, of course, merely of academic interest, it potentially has a real bearing on his claim for damages in this case.
[19] I agree with this view. A detention is not arbitrary because it has the capacity to become so. It is arbitrary when it does so cross the threshold of being contrary to appropriate standards of state conduct. Neither is detention arbitrary simply because it is established that it is too long, and ought not to have been imposed in the first place. Appeal courts regularly allow sentencing appeals. But the period of the sentence that is considered by the appeal court to be excessive does not mean that any detention for that period is arbitrary. By itself that does not cross the threshold. Equally the fact that parole is considered in relation to a sentence imposed by the Court will usually mean a sentence is not arbitrary.18 But a sentence initially lawfully imposed can become arbitrary if it became disproportionately long notwithstanding such decision-making.19 So whether a detention has become arbitrary is ultimately a matter of fact and degree.
[20] There are two key related difficulties with the argument that the plaintiff’s detention became arbitrary here. The first is that, whilst there was an illegitimate delay in the plaintiff being considered for parole, once he was considered for parole he was not released, and the Board still considers him inappropriate to release to this day. So his detention has not been caused by the challenged decision-making. Secondly, the illegitimate delay in him being considered for parole was not an unduly lengthy one. I accept that delays in considering potential release can have significant adverse consequences, including because of a loss of hope and delays in the provision of treatment or release-orientated programmes. Here the 18-month delay might have been of real significance if it had caused a period of detention. But I do not consider
18 Miller v New Zealand Parole Board [2010] NZCA 600 at [70]; Taylor v Chief Executive of the Department of Corrections [2016] NZHC 1805 at [52].
19 Vincent v New Zealand Parole Board [2020] NZHC 3316 at [84].
that such a delay in the consideration of parole of this length, when it has not caused any period of detention, results in the detention becoming an arbitrary one.
[21] In R (Sturnham) v Parole Board & Anor the United Kingdom Supreme Court considered claims by sentenced prisoners that their rights under art 5.4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention) to have the lawfulness of a detention “decided speedily by a Court” were infringed when the Parole Board failed to consider parole in a timely way due to resource constraints.20 The Court held that where it was established on the balance of probabilities that the violation resulted in the detention of a prisoner beyond the date when they would otherwise have been released, damages would ordinarily be awarded as compensation for the resulting detention.21 The Court also held that where an early hearing would not have resulted in earlier release, there was nevertheless a strong but not irrebuttable presumption that the delay involved a violation of the right which would have caused the prisoner feelings of frustration and anxiety which could result in the award of damages on a modest scale, but not where the delay was insufficiently severe to warrant such an award (such as a three-month delay).22 The range of awards summarised by the Court appears to have been between £645 and
€3,000.
[22] But as the decision made clear there must be a breach of a relevant right in the first place. The relevant right under the European Convention was effectively a right to speedy determinations by the Parole Board. The Court acknowledged there should be modest awards for a breach of this right when Parole Board hearings did not take place speedily even if there would have been no earlier release. But the rights in New Zealand are differently formulated. The closest equivalent right in the Bill of Rights is under s 23. This provides that everyone who is arrested or detained under any enactment has the right to have the validity of the arrest or detention determined without delay “by way of habeas corpus”. That is not the same as the right in the European Convention and it is not argued that it applies here.
20 R (Sturnham) v Parole Board & Anor (Nos 1 and 2) (SC)(E) [2013] UKSC 23, [2013] UKSC 47, [2013] 2 AC 254.
21 At [6].
22 At [12]–[15] and [67]–[75].
[23] Here the plaintiff relies on s 22. For the reasons I have already outlined I do not accept that this right was infringed. For that reason there is no basis for the kind of award described by the United Kingdom Supreme Court.
[24] For these reasons I do not uphold the plaintiff’s claims for breach of s 22 of the Bill of Rights.
Right to sentencing by a Court
[25] The plaintiff’s next claim is that his rights under s 25(a) of the Bill of Rights were infringed. This section 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:
(a)the right to a fair and public hearing by an independent and impartial court:
…
[26] The s 25 rights should be interpreted to apply to all stages of the determination of a charge, including sentencing and appeal.23 Indeed s 25(g) and (h) refer expressly to sentencing and appeal decisions. The plaintiff argues that his sentence was not determined by an independent and impartial court, at least in one significant respect. The non-parole period was not determined by the Court. Rather it was prescribed by a legislative provision. Indeed the sentencing Judge indicated the minimum period of imprisonment she would have applied but for the legislative provision which was considerably shorter than that mandated by the legislation.
[27] Ms Laurenson for the Attorney-General argued that this did not involve an infringement of s 25(a). She relied on decisions of the Canadian Supreme Court in relation to the equivalent provision in s 11(d) of the Canadian Charter of Rights and Freedoms. She argued that the right related only to concepts of institutional independence such as the assignment of judges and the sittings of a court which were
23 See, for example, Nicolls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 404 with respect of s 25(b).
matters entirely for the judiciary.24 But I do not see that much assistance is to be found in these decisions. They were addressing institutional independence questions. They were not directed to whether substantive decision-making could be controlled by legislative provisions. I also note that mandatory minimum sentences have been held to breach other provisions of the Charter.25 Similarly the views of the United Nations Human Rights Committee that art 14.1 of the International Covenant on Civil and Political Rights guarantees procedural equality, but is not to have been interpreted as guaranteeing a quality of results seems to me to be directed to a different question.26
[28] I see greater relevance in the decisions of the European Court of Human Rights which have found a breach of art 6(1) of the European Convention when there has been interference with the types of cases that could be examined by the courts,27 and when judicial decisions could only be regarded as binding if confirmed by other branches of government.28 That is because these decisions address situations where the substantive decision-making of a court, or the binding nature of its decisions, are compromised or controlled by the role of the other branches of government. The European Court has found that the right can be infringed in those circumstances.
[29] Mr Ellis relied on a line of Australian cases that seem to me to be of greatest relevance. These begin with the decision of the High Court of Australia in Kable v Director of Public Prosecutions (NSW) where it was held that a provision allowing a person to be detained if there were reasonable grounds to believe that there were more likely than not to commit an offence breached the Australian Constitution.29 In State of South Australia v Totani the High Court then addressed a provision that required the Court on the application of the Commissioner of Police to make a control order that prohibited a person associating with others if satisfied that the person was a member of a declared organisation.30 The High Court held that the provision was invalid as it
24 Valente v R [1985] 2 SCR 673 (SCC); Reference re Remuneration of Judges for the Provincial Court of Prince Edward Island [1997] 3 SCR 3 (SCC) at [117].
25 See R v Nur [2015] 1 SCR 773 (SCC).
26 Human Rights Committee Views: Communication No 273/1988 (B.V. v Netherlands) UN Doc CCPR/C/35/D/273/1988 (30 March 1989) at [6.4].
27 Stran Greek Refineries and Stratis Andreadis v Greece [1994] ECHR 48 at [49]; Papageorgiou v Greece ECHR 97/1996/716/913, 22 October 1997.
28 Findlay v The United Kingdom ECHR 22107/93, 25 February 1997 at [77].
29 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, (1996) 189 CLR 51.
30 State of South Australia v Totani [2010] HCA 39, (2010) 242 CLR 1.
authorised the executive to enlist the Court to implement decisions of the executive in a manner incompatible with the discharge of judicial functions. French CJ began his judgment by explaining that the issue was one of general principle, as “Courts and judges decide cases independently of the executive government. That is part of Australia’s common law heritage, which is antecedent to the Constitution and supplies principles for its interpretation and operation”.31 Crennan and Bell JJ said:32
Legislation which draws a court into the implementation of government policy, by confining the court's adjudicative process so that the court is directed or required to implement legislative or executive determinations without following ordinary judicial processes, will deprive that court of the characteristics of an independent and impartial tribunal – “those defining characteristics which mark a court apart from other decision-making bodies”.33 Such legislation would render that court an unsuitable repository of federal jurisdiction.
[30] More recently the High Court in Garlett v Western Australia held that provisions of Western Australian legislation allowing detention for the protection of the community did not infringe this principle as the legislation did not require the Court to give an effect to any decision of the legislature or the executive government.34 Kiefel CJ explained:35
The function of the Supreme Court of Western Australia under the [The High Risk Serious Offenders Act 2020] is not incompatible with the role of the Court as a repository of the judicial power of the Commonwealth. [The High Risk Serious Offenders Act 2020] does not require the Court to give effect to any decision of the legislature or the executive government. Rather, the Court, in making a restriction order, is required to act upon its own evaluative judgment, by reference to prescribed criteria, in order to determine whether such an order is necessary for the purpose of protecting the community from harm. The performance by the Court of this function proceeds by processes which are familiar aspects of the exercise of judicial power.36
[31] The authors of the New Zealand Bill of Rights Act: A Commentary have reviewed the Australian law and expressed a view that similar arguments are available in New Zealand with particular reference to any similar provisions where criminal
31 At [1] (footnote omitted).
32 At [428].
33 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [63], 78 [68] per Gummow, Hayne and Crennan JJ. See also Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 560 [39] per Gummow, Hayne, Heydon and Kiefel JJ.
34 Garlett v Western Australia [2022] HCA 30, (2022) 404 ALR 182.
35 At [107].
36 See Fardon v Attorney-General (Qld) (2004) 223 CLR 575.
liability is involved.37 I agree. The right in s 25(a) of the Bill of Rights cannot be confined to institutional requirements. It is an individual right of a person charged to have that charge determined by an independent and impartial court. Indeed the institutional requirements exist in order to ensure that independent and impartial decision-making duly occurs in individual cases. The more direct requirement is for the independent and impartial court to actually make the decisions. Indeed it seems to me that the right reflects the separation of powers in a parliamentary democracy.38 For that reason I accept that the line of analysis in the Australian cases is applicable in New Zealand.
[32] The real question concerns the extent to which legislative provisions may control the Court’s decision-making in the context of sentencing notwithstanding s 25(a). The determination of the sentence is an important part of the determination of the charge. But it is legitimately part of the legislative function to enact legislation that establishes sentencing policies. That includes not just setting maximum penalties for offences, but other provisions that regulate, sometimes tightly, the approach required to be taken on sentencing. The legislature also enacts criminal offences, and provisions regulating criminal procedure. Such provisions do not seem to me to interfere with the s 25(a) right provided that the judicial function, and accordingly the separation of powers, is preserved.
[33] In my view, however, the right is infringed when judicial decision-making is removed entirely, and a mandatory sentence is prescribed that a court must impose. When that occurs it means that the sentence is not substantively determined by the court at all. There must be some judicial assessment associated with the appropriateness of the sentence if the s 25(a) right is to be complied with. That is usually so even in relation to the most serious offences. So the requirement that life imprisonment be imposed for murder is subject to an ability to impose a lesser sentence if life imprisonment would be “manifestly unjust”.39 When offending is more
37 Andrew Butler and Petra Butler, above n 15, at [23.13.22]. They refer to provisions which presume a certain quantity of drugs is possession for supply as an example.
38 It is only in totalitarian regimes that the government determines whether a citizen is guilty of an offence and/or imposes the penalty.
39 Sentencing Act 2002, s 102. Without this there is also a prospect that the sentence will be disproportionately severe – see de Boucherville v State of Mauritius [2008] UKPC 37, [2009] 3 LRC 147.
minor the need for judicial assessment will be less necessary, such as with issues of mandatory disqualification. But the key principle is that there must be some assessment by the impartial and independent court associated with the sentence, and ability for that court to impose an alternative sentence in particular circumstances, particularly when imprisonment will follow. A substantive assessment by the court cannot be entirely removed. The court cannot be reduced to a nodding automaton that imposes a sentence stipulated for it.
[34] Here the three strikes regime, as initially implemented by the Sentencing and Parole Reform Act 2010, contained little room for judicial assessment. Under s 86C(4) the Court was required to sentence the offender without parole if the offender had committed a second qualifying offence. Under s 86D(2) the Court was required to sentence the offender to the maximum term of imprisonment on committing a third qualifying offence. If murder was the qualifying offence the Court was required under s 86E to sentence the offender to life imprisonment without parole “… unless the Court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so”, with the section going on to provide that the minimum period of imprisonment was required to be not less than 20 years. So the judicial role was apparently limited to the circumstances described in s 86E, at least prior to the Supreme Court’s reinterpretation of the provisions in Fitzgerald.40
[35] In those circumstances I do not consider that it can be said that the sentences imposed under that regime were determined by an independent and impartial court. They were prescribed by the legislation. Other than under s 86E the only meaningful decision-making was that exercised by the prosecutor when deciding what charges to lay — that is the executive.41 For that reason I accept that the legislation on its face was inconsistent with s 25(a) of the Bill of Rights.
[36] I accept that for the plaintiff, who was only on a second strike, judicial assessment was involved in the determination of his sentence. It was only the non- parole period that was dictated by the legislation under s 86C(4). But the non-parole
40 Fitzgerald (SC), above n 4.
41 A feature that led the High Court to award Bill of Rights damages in the case of Mr Fitzgerald –
Fitzgerald v Attorney-General, above n 13.
period was a very important aspect of the plaintiff’s sentence as it determined how much time he would likely spend in prison. It was this aspect of the sentence which was determined by the legislation, and not by the Court. Were it not for the reinterpretation of the provisions by the Supreme Court and Court of Appeal I consider that a breach of s 25(a) would have occurred.
[37] I do not address whether the scope of judicial assessment established as a consequence of the Supreme Court’s reinterpretation of the three strikes provisions in Fitzgerald, or the subsequent decisions of the Court of Appeal such as those in the plaintiff’s case, mean that the provisions as reinterpreted were consistent with s 25(a). Neither do I assess whether the scope of the judicial decision-making under s 86E sufficiently preserved the judicial function, at least under that provision. Such questions go to more detailed matters that do not require determination in this case. Moreover the legislation has since been repealed and such issues would only need to be confronted if similar legislation was contemplated in the future.
[38] In the case of the plaintiff, however, the reinterpretation of these provisions by the Supreme Court in Fitzgerald meant that they were subject to a limitation — the sentence so imposed could not be disproportionately severe in accordance with s 9 of the Bill of Rights. On the plaintiff’s appeal the Court of Appeal adopted a similar interpretation and the sentence ultimately imposed was the one that was judicially assessed by the High Court, and then confirmed by the Court of Appeal. In those circumstances there was ultimately no breach of s 25(a) that affected the plaintiff. The plaintiff may have had an 18-month delay in the consideration of parole as a consequence of the earlier decision, but by itself this does not lead to a breach of s 25(a). The delay was the consequence of a decision that was corrected on appeal, and it did not ultimately lead to any unjustified detention. For these reasons I also do not accept that there is a basis to direct that there should be a reduction of the plaintiff’s sentence as argued by Mr Ellis.42
[39] Mr Ellis emphasised the plaintiff’s mental health issues, and the need for him to attend treatment programmes before he could realistically be released. He argued
42 Relying on Mills v Her Majesty’s Advocate and Anor [2004] 1 AC 441.
that those programmes had been delayed by the 18-month period and that his ultimate release had accordingly been delayed. That possibility was referred to by the Court of Appeal.43 I agree that it is possible that such adverse implications might have arisen, but I do not accept it has been established on the evidence that the plaintiff has or will be detained longer than he otherwise would have been because of the 18-month delay. The Parole Board’s decisions have included advice and directions on the treatment and programmes to be followed by the plaintiff, and his response to those measures. In the Board’s last decision dated 18 July 2023 it noted the progress the plaintiff had made with such programmes, but it recorded that the Board also had regard to his very serious offending and the plaintiff’s high static risk rating, noting that he had three years left on his sentence. So he has not been released notwithstanding the treatment programmes that have been made available to him. I am not satisfied on the evidence available to me that the 18-month delay has caused a longer detention.
[40] For the above reasons, whilst I accept that the terms of the three strikes legislation, and particularly s 86C(4) of the Sentencing Act, were apparently inconsistent with s 25(a) of the Bill of Rights, the decision on the plaintiff’s appeal sufficiently remedied any such breach in his case. For these reasons I dismiss this aspect of the plaintiff’s case.
[41] For the avoidance of doubt I do not dismiss the plaintiff’s claims on the basis that Bill of Rights damages are not available for judicial acts as a consequence of the decision of the Supreme Court in Attorney-General v Chapman.44 This was pleaded by the Attorney-General, and the approach adopted in Chapman was criticised in Mr Ellis’ submissions. Whether Chapman will be reconsidered by the Supreme Court is something that might be addressed in the context of the proceedings involving Mr Fitzgerald.45 But in any event, my conclusions are based on the fact that any preliminary breach of the right under s 25(a) was remedied by the decision of the Court of Appeal.
43 Matara v R, above n 5, at [68].
44 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.
45 See Fitzgerald v Attorney-General, above n 13.
Discrimination
[42] Finally the plaintiff contends that his right under s 19 of the Bill of Rights was infringed because he was discriminated against on the grounds of mental disability.
[43] I accept that there is a factual basis for contending the plaintiff suffered from a relevant disability, and that this could have materially disadvantaged him on sentencing. The Court of Appeal recorded that at the time of his second strike offending he was “… mentally unwell and probably psychotic, [and] he did not turn his attention to, and act on, the warning given to him some four years earlier”.46 The plaintiff’s psychiatric conditions have been further outlined in the decisions of the Parole Board. The Court of Appeal referred to the potential discrimination in its decision. It said:47
It is not necessary for us to consider, in this case, whether the unexpressed qualification that must be read into s 86C(4) extends to inconsistency with other provisions of [the Bill of Rights], as suggested by O’Regan and Arnold JJ, and whether other [the Bill of Rights] provisions are engaged in this case.48 It might be arguable that the three strikes regime discriminates against Mr Matara on the basis of mental disability.49 It might also be arguable that the non-parole order required by s 86C(4) limits the enjoyment of other rights affirmed by [the Bill of Rights] (in particular, rights to freedom of movement and freedom of association) in a manner that — because it is not rationally connected to the purposes of sentencing under the Sentencing Act — is not demonstrably justified in a free and democratic society, as required by s 5 of [the Bill of Rights].50 These issues would require careful consideration after full argument and evidence, possibly involving intervenors.
[44] I similarly accept that it can be argued that the three strikes regime was discriminatory for those suffering from disabilities that inhibited their ability to understand, and act on the warnings that provide the essential rationale for the more serious terms of imprisonment for offending committed after those warnings are given.
46 Matara v R, above n 5, at [67].
47 At [75].
48 Fitzgerald (SC), above n 4, at [220] per O’Regan and Arnold JJ.
49 See [the Bill of Rights Act 1990], s 19; Human Rights Act 1993, s 21(1)(h).
50 The report presented to the House of Representatives by the Attorney-General in respect of the original three strikes regime, under s 7 of [the Bill of Rights Act] , concluded that the Sentencing and Parole Reform Bill 2009 (17-1) appeared to be inconsistent with [the Bill of Rights Act] for a number of reasons including disparities between offenders that were not rationally based: See Fitzgerald (SC), above n 4, at [189], quoting from Christopher Finlayson Report of the Attorney- General under the New Zealand Bill of Rights Act 1990 on the Sentencing and Parole Reform Bill (18 February 2009) at [15].
But I do not consider that I have sufficient evidence to reach a concluded view on this issue.
[45] Individual circumstances, such as intellectual disabilities, are normally appropriately addressed in the sentencing exercise. So this issue is a further illustration of the difficulties that arise from eliminating any judicial consideration of the appropriateness of a sentence for the individual offender. But the issue concerning s 19 does not take the plaintiff’s case any further. That is because the plaintiff’s sentence was overturned on appeal and the appropriate sentence, which took into account his personal circumstances, was imposed. There was accordingly no ultimate breach of s 19. Neither could it be said that there was a breach of s 19 arising from the 18-month delay in him being considered for parole, at least not one that requires any further remedy other than that arising from the successful appeal.
[46]For these reasons I also dismiss this claim.
Conclusion
[47] For the above reasons I conclude that none of the grounds advanced by the plaintiff are made out and his proceedings should be dismissed.
[48] The plaintiff was originally made subject to a sentence that had the potential of becoming disproportionately severe, and also in breach of his other rights under the Bill of Rights. But that sentence was overturned by the Court of Appeal before that point. Whilst he was still considered for parole some 18 months later than he should have been, his parole was declined in any event. I consider that the potential breach of his fundamental rights was effectively addressed before such breaches manifested themselves.
[49] I accept that the plaintiff’s rights under s 25(a) of the Bill of Rights were breached when he was sentenced by the High Court, however. That is because an important element of his sentence was not determined by an independent court, but was pre-determined by a legislative provision. Legislative provisions which eliminate any judicial assessment of sentences of imprisonment may not be consistent with the separation of powers, and potentially involve a breach of the s 25(a) rights. But given
the plaintiff’s successful appeal the Court ultimately determined a sentence in accordance with s 25(a). No further relief is required in those circumstances.
[50]For these reasons the plaintiff’s claims are dismissed.
[51] In relation to costs my preliminary view is that, even if the plaintiff is not legally aided (a position that was not clear at the hearing) no costs should be awarded against him. I note that the Courts of the United Kingdom contemplate a modest award of compensation when a prisoner has had their parole decision-making delayed even if this has not caused any detention.51 The plaintiff’s parole decision-making was so delayed here, and his original sentence could have involved breaches of fundamental rights. In those circumstances I do not consider it appropriate that costs be awarded against him even though the claims have been unsuccessful. Such awards would inhibit the bringing of proceedings which are directed to ensuring that fundamental rights are respected. In those circumstances r 14.7(e) of the High Court Rules 2016 seems to me to apply.52 But leave is reserved for memoranda to be filed in relation to costs.
Cooke J
Solicitors:
Nat Dunning Law, Wellington for the Applicant Crown Law, Wellington for the Respondent
51 R (Sturnham) v Parole Board & Anor (Nos 1 and 2), above n 20.
52 See Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186]–[187].
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