Mitchell v The Queen

[2016] NZHC 2718

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-893 [2016] NZHC 2718

UNDER	the Habeas Corpus Act 2001
IN THE MATTER	of an application for a writ of habeas corpus
BETWEEN	KERRYN MITCHELL Applicant
AND	THE QUEEN Respondent

Hearing:	9 November 2016
Counsel:	Applicant in Person V McCall for Respondent
Judgment:	17 November 2016

JUDGMENT OF CLIFFORD J

Introduction

[1]      Ms  Mitchell  is  currently  remanded  in  custody  on  two  charges:  one  of attempting  to  breach  a  protection  order  and  one  of  assault  on  a  police  officer. Ms Mitchell applies for a writ of habeas corpus for release from that custody.

[2]      Ms  Mitchell  accepts  that  she  is  in  custody  pursuant  to  regular,  lawful warrants.  But, pointing to the recent decision of the Supreme Court in the cases of Messrs Marino and Booth on the calculation of pre-sentence detention,1 she says this is  one  of  those  rare  cases  where  the  writ  can  be  used  to  challenge  unlawful

administrative decisions made prior to the issue of those warrants.

1      Booth and Marino v R [2016] NZSC 127.

MITCHELL v R [2016] NZHC 2718 [17 November 2016]

[3]      That is, properly calculated, the period she has and will spend in pre-sentence detention on the charges she now faces constitutes exceptional circumstances justifying her release now.

Facts

[4]      The factual context for this application is lengthy, dating back to the grant of temporary and final protection orders against Ms Mitchell in 2007  and 2008 in favour of the complainant, her former partner.   Ms Mitchell has breached those orders on numerous occasions and in a variety of ways.  Ms Mitchell has been in custody since she was first arrested on breach charges on 2 December 2012, save for a period on bail in July and September of this year.

[5]      Following a review of the District Court sentencing notes and subsequent Court of Appeal decisions relating to Ms Mitchell, I understand the position as regards Ms Mitchell’s pre-sentence detention to date to be as follows.

[6]      Following her arrest on 2 December 2012, Ms Mitchell pleaded guilty to charges of intentional damage and breach of a protection order.  On 10 September

2013 Judge Becroft sentenced her to two years and one months’ imprisonment.2

Taking  account  of  time  spent  in  custody  on  remand  since  2  December  2012, Ms Mitchell’s release date for that sentence would have been 2 January 2015.3

[7]      By 2 January 2015 Ms Mitchell was on remand in custody for charges related to breaches that had occurred in November 2012.  Accordingly, she was not released on that date.  On 11 March 2015 Judge Tuohy sentenced Ms Mitchell, then still in custody,  to  four  months’  imprisonment  on  those  charges,  a  sentence  of  short duration.  Taking account of that time on remand from 2 January 2016, the release date  for  Ms  Mitchell  from  Judge  Tuohy’s  sentence  would  therefore  have  been

2 March 2015 – two months after her previous sentence had expired.  This is because

2      R v Mitchell DC Wellington CRI-2012-032-3561, 10 September 2016.

3      That is the date, release on parole aside, Ms Mitchell’s sentence would have come to an end.

The release date for a sentence of imprisonment greater than two years is the sentence expiry date (Parole Act 2002, ss 82 and 86).  The sentence expiry date is when a person has served the full term of her sentence. As Ms Mitchell was in custody from 2 December 2012, that is the date from which her sentence expiry date is calculated.  According to s 90 of the Parole Act, her pre-sentence detention time is to be calculated from 2 December.

it was a short term sentence, so the release date per s 86(1) of the Parole Act is when the person has served half of it.

[8]      On 11 March 2015, Ms Mitchell was, however, again not released.  By that time she was on further remand in custody, for at least some “in prison” breach offending for which she was sentenced by Judge Kelly on 2 December 2015.   On that date the Judge sentenced her to two years and three months’ imprisonment, for some  61  breach  offences  committed  in  prison  between  November  2013  and May 2015.

[9]      On 1 July 2016 the Court of Appeal quashed Judge Kelly’s sentence, and substituted one of one year and seven months.   Taking (as s 90 of the Parole Act provides) 2 March 20154  as the start of Ms Mitchell’s pre-sentence detention on those relevant charges, the release date for that substituted sentence would have been

16 December 2015.

[10]     That meant Ms Mitchell was to be released the day the Court of Appeal handed down that decision.

[11]     At the time of her release on Friday 1 July Ms Mitchell was immediately re-arrested on a fresh charge of attempted breach of the protection order.5     That charge related to a letter written by Ms Mitchell to her former partner on 5 January

2016,  just  after  she  had  been  tried  and  sentenced  by  Judge  Kelly  for  similar

offending, but before the Court of Appeal’s July 2016 decision.

[12]     Following her arrest  that  day Ms  Mitchell  was  placed  in  custody at  the Manukau Police Station.   In the early hours of Saturday 2 July there was an altercation between Ms Mitchell and a police officer in the cell where she was detained.  She was then charged with assault on a police officer.

[13]     On 8 July Judge Jelas  granted Ms Mitchell bail in the District Court at

Waitakere, paying particular regard to what she described as “the real risk that

4      Ms Mitchell’s release date from Judge Tuohy’s 11 March 2015 sentence.

5      Ms Mitchell argues due to her “contemporaneous” re-arrest, she was not in fact released on that day.

Ms Mitchell will remain in custody far longer than any sentence that would  be imposed”.6     Ms Mitchell was able to provide a suitable address in the Northern Wairarapa.

[14]     On 5 September 2016, police conducted a curfew and residence check at Ms Mitchell’s bail address.   They were advised she was no longer residing there. Ms Mitchell was subsequently arrested and charged with breaching her bail and with three charges of breach of release conditions.

[15]     Ms Mitchell was declined bail by the District Court on 8 September.7    The next day, she applied for a writ of habeas corpus on the basis that she had unlawfully been declined bail.  Clark J dismissed that application that day, it being precluded by s 14(2)(b) of the Habeas Corpus Act 2001.8    Clark J advised Ms Mitchell that “the proper course is for Ms Mitchell to prosecute her bail appeal”.  Ms Mitchell did just that.  On 14 September Simon France J declined her appeal against the 8 September

2016 decision.9   Ms Mitchell has made two further applications in the District Court

for bail: those applications were heard and declined on 17 and 31 October respectively.10  Amongst other reasons given Ms Mitchell has been unable to propose either any or a satisfactory bail address.  Ms Mitchell has chosen not to appeal either of those decisions.

[16]     On 27 October the Department of Corrections wrote to Ms Mitchell.   The Department’s letter noted that, following the release of the Marino decision, the Department had been reviewing the way it had dealt with time spent in prison on remand.  It advised:

Corrections has reviewed your remand records and confirms that your sentence and any conditions have ended.   This means you are no longer subject to the conditions of your Release Conditions.

Further to this, we advise that the Department has sought leave formally to withdraw your three charges for breach of release conditions as at today’s date.

6      NZ Police v Mitchell [2016] NZDC 13832.

7      NZ Police v Mitchell [2016] NZDC 17481.

8      Mitchell v NZ Police [2016] NZHC 2148.

9      Mitchell v R [2016] NZHC 2180.

10     Mitchell v R [2016] NZDC 20579 (17 October 2016); NZ Police v Mitchell [2016] NZDC 21508 (31 October 2016).

This habeas corpus application

[17]     The gist of Ms Mitchell’s argument would appear to be that if – when seen in light of the Marino decision – the Department had made administrative errors when calculating Ms Mitchell’s release dates from previous sentences, as reflected by its

27 October recognition that she was no longer subject to release conditions, then those errors render her current detention unlawful.

[18]     The law is clear, however.  The legality of detention is determined as at the date of the habeas corpus application.   Ms Mitchell accepts the lawfulness of the warrants remanding her in custody on the most recent charges she faces.  She was admitted to bail on those charges.  Most recently, and after the charges for breach of release conditions had been withdrawn, the District Court declined bail.   On that basis the status quo, pending any appeal from that decision or a further application for bail, is that Ms Mitchell’s detention is lawful.  This application for habeas corpus must, as was Ms Mitchell’s earlier application before Clark J, therefore be declined.

[19]     This application, as did that earlier application, in effect challenges a bail decision.  Ms Mitchell’s remedy, in light of s 14(2)(b) is  to appeal her most recent bail decision or make a further application for bail.  Ms Mitchell is within time to appeal Judge Harrop’s decision.  In all the circumstances, and for reasons which will become apparent, I have considered whether to treat this application for habeas corpus as such an appeal, and determine it.  Although I have decided I may not go that far, it is appropriate I make the following comments.

[20]     I now consider the matters raised before me on that basis.

A bail appeal?

[21]     In her application for habeas corpus, and in light of the Department’s letter of

27 October, Ms Mitchell relies on Marino.  In doing so she suggests all the time she has spent in custody since 2 December 2012 is potentially relevant to what would be her release date were she to be convicted on either of the charges for which she is currently remanded in custody.  She points particularly to her period in custody from

16 December 2015 to 1 July 2016.   When that period of six and a half months,

together with the (approximately) two months she has now been in custody since her re-arrest in September, and any further such time in custody pending conviction and sentence  on  her  current  charges,  is  taken  account  of,  she  will  be  entitled  to immediate release when so sentenced and will have spent considerably more time in pre-sentence detention than the period of any possible such sentence.

[22]     Marino is a complex decision, as are the statutory provisions it interprets. Whether,  given the unusual  circumstances  of her arrest  on  1 July,  it  applies  to Ms Mitchell as she suggests is not clear to me.  In any appeal from Judge Harrop she may argue that it does.  What is clear is that her time in custody since 8 September, now two months and counting, would constitute pre-sentence detention if she is convicted on the current charges.

[23]     A conviction on the charge of assault could well expose Ms Mitchell to a sentence of imprisonment, but not a long one.  Were she also to be convicted on the most recent breach of protection order charge then, given the sentence imposed by the Court of Appeal in its July decision for very similar offending, it is difficult to contemplate a total sentence of imprisonment on both charges of anything greater than, say, three months at the very maximum.  This would of course be halved as regards a release date, as it would be a short term sentence.

[24]     The length of Ms Mitchell’s pre-sentence detention on those charges alone provides the basis for a reasonably compelling submission that a release on bail would now be appropriate.

[25]     Judge Harrop in his 31 October bail decision referred to the significance for Ms Mitchell of s 8(5) of the Bail Act.  Where a person is charged with an offence against s 49 of the Domestic Violence Act 1995 (i.e. breach of protection order) in making the decision whether or not to grant bail the Court’s paramount consideration is the need to protect the victim of the alleged offence.  Assessing that mandatory consideration here, I refer again to the somewhat concerning circumstances relating to the charge that was laid on 1 July.  Moreover, and when Judge Harrop declined Ms Mitchell’s  application  for  bail,  he  did  so  on  the  basis  that  by  travelling  to Wellington she had breached a condition of her bail.  It is not clear to me that is the

case.  As I now understand matters, that particular restriction was one of her post- release conditions, which Corrections has subsequently stated should not have applied. The bail terms set by Judge Jelas included the following:

(i)        You are not to go to, or be found within, a 15 kilometre radius of [her former partner’s address] except if travelling to and from the Wellington central business district by the most direct route.

[26]     That condition implies that, during daylight hours, Ms Mitchell could travel to Wellington.  Ms Mitchell says that, on the day in question, she had travelled to Wellington to attend Court.   If that were to be the case, that would also go to the significance of her breach of curfew in and of itself, and in terms of the risks that breach represented for the complainant.

[27]     Ms  Mitchell  may  also,  even  if  Marino  does  not  apply  in  the  way  she suggests, be able to rely on the time she spent in custody in the first half of 2016 in terms of ss 8(1)(b) and (8)(2)(h) of the Bail Act.

[28]     In  all  these  circumstances,  and  had  this  been  an  appeal  against  Judge

Harrop’s decision, I would have been minded to grant that appeal provided that:

(a)      the occupant of the northern Wairarapa address confirms that that address remains available for bail for Ms Mitchell, or an alternative, suitable, address is workable;

(b)      Judge  Jelas’ bail  terms  did  not  preclude  Ms  Mitchell  coming  to

Wellington, albeit during daylight hours; and

(c)      there was no other material consideration of which I was unaware.

[29]     I cannot, of course, speak for my fellow Judges and to whether such an appeal would be allowed.  I do note, however, that I have liaised with the Criminal List Judge, and any appeal Ms Mitchell did file from Judge Harrop’s decision would, in these circumstances and subject to current disruptions, be dealt with urgently.

[30]     It may also be that, in light of this judgment, Ms Mitchell and the respondent might agree on terms of renewed bail. That, of course, is a matter for the respondent.

[31]     At the time I heard this habeas corpus application, I also heard argument as regards  the  mootness  or  otherwise  of  four  sets  of  judicial  review  proceedings Ms Mitchell has commenced.  My decision on that matter will now be delayed by the consequences of the recent earthquake.

“Clifford J”

Solicitors:

Crown Law, Wellington