Mitchell v Department of Corrections

[2017] NZHC 737

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2017-454-000002 [2017] NZHC 737

BETWEEN

KERRYN MITCHELL

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	11 April 2017
Counsel:	K M Mitchell in person C A Brook for Respondent
Judgment:	12 April 2017

JUDGMENT OF WILLIAMS J

[1]      Ms Mitchell was originally sentenced on 2 December 2015 to two years’ and three months’ imprisonment.1   She appealed to the Court of Appeal, which on 1 July

2016 reduced her sentence to 19 months.2    She was released immediately.  As the

sentence was now a short-term sentence, the sentencing court, rather than the Parole Board, became responsible for imposing release conditions.3   The Crown applied to the Court of Appeal to recall its judgment and impose release conditions.  The Court of Appeal declined to do so on 14 July, stating that the matter  would be more appropriately dealt with in the District Court because a hearing was required and because this would better preserve appeal rights.4

[2]      Corrections then applied to the District Court, and on 29 July, Judge Rowe imposed special release conditions.5   Ms Mitchell attempted to file an appeal against

that  decision  in  the  Court  of Appeal,  but  her  application  was  rejected  by  the

1      R v Mitchell [2015] NZDC 23977.

2      Mitchell v R [2016] NZCA 299, [2016] NZFLR 487.

3      Sentencing Act 2002, s 93.

4      R v Mitchell [2016] NZCA 331.

5      The reasons decision was released on 10 August.  Department of Corrections v Mitchell [2016] NZDC 14908.

MITCHELL v DEPARTMENT OF CORRECTIONS [2017] NZHC 737 [12 April 2017]

Registrar, apparently because she had already exercised her right of appeal to the Court of Appeal in the context, of the 1 July 2016 decision.  She then filed an appeal and an application for judicial review in this Court.  The judicial review has not yet been set down. The appeal came before me yesterday.

[3]      This case raises the issue of whether there is a right of appeal against the imposition of release conditions in short duration sentences.  In my recent decision in Patterson v R, I found that there is such a right.6   The Crown now says that case was wrongly decided, and Ms Mitchell has no right of appeal.  It is common ground that the issue is moot in this particular case either because as a result of the decision of  the  Supreme  Court  in  Marino  v  Chief  Executive  of  the  Department  of Corrections7, Judge Rowe did not have jurisdiction to impose conditions at all, or, if he had jurisdiction (the Crown suggests that Marino may only have prospective effect) the conditions have long since expired anyway.   Both parties in this case nonetheless want the question resolved, because, they say, it is in the public interest to have a clear answer.   In any event, whether that is enough to overcome the mootness issue is not for me.  That is because this Court is not the appropriate forum to address the issues raised by this appeal.  If there is jurisdiction it is the Court of Appeal, not the High Court that is the correct first appeal court.8    The Crown has indicated that it would not oppose an extension of time for filing an appeal in the Court of Appeal.

[4]      Accordingly,  the  appeal  is  dismissed  due  to  lack  of  jurisdiction.    The appellant is invited to re-file in the Court of Appeal.

Williams J

Solicitors:

Crown Law, Wellington for Respondent

6      Patterson v R [2017] NZHC 49.

7      Marino v Chief Executive of the Department of Corrections [2016] NZSC 127, [2017] 1 NZLR

223.

8      Criminal Procedure Act s 247.