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Morgan v Superintendent, Rimutaka Prison

Morgan v Superintendent, Rimutaka Prison

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IN THE SUPREME COURT OF NEW ZEALAND

SC 13/2005 [2005] NZSC 26

BETWEEN KENNETH CHRISTOPHER MORGAN Appellant

ANDTHE SUPERINTENDENT, RIMUTAKA PRISON
Respondent

Hearing: 14 April 2005
Court: Elias CJ, Gault, Blanchard, Tipping and Henry JJ Counsel: Appellant in Person
A S Butler and B Keith for Respondent

Judgment: 19 May 2005

JUDGMENT OF THE COURT

A. The appellant is granted leave to appeal.

B. The appeal is dismissed.

REASONS

Para No

Elias CJ [1] Gault J [28] Blanchard J [36] Tipping J [81] Henry J [108]

ELIAS CJ

[1] Parliament has enacted by s 6 of the Sentencing Act 2002 that anyone convicted of “an offence in respect of which the penalty has been varied between the

MORGAN V THE SUPERINTENDENT, RIMUTAKA PRISON SC 13/2005 [19 May 2005]

commission of the offence and sentencing” has “the right … to the benefit of the lesser penalty”:

6. 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.

The same right is also enacted in s 25(g) of the New Zealand Bill of Rights Act

1990. To the extent relevant, s 25 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:

…

[2] Kenneth Christopher Morgan is serving a sentence of three years imprisonment imposed after his conviction for cultivating cannabis in November
2002. Between his arrest and trial, the Criminal Justice Act 1985, which then governed both sentencing and release, was repealed and replaced with the Sentencing Act 2002 and the Parole Act 2002.1 If sentenced under the Criminal Justice Act, Mr Morgan would have been entitled by s 90(1)(b) to release on conditions after serving two-thirds of his sentence, although he would have remained liable to recall for breach of the conditions until three months before his three year sentence expired.2 Under the Parole Act those sentenced to imprisonment for determinate terms longer than twenty-four months are not entitled to release under that Act until the full terms of their sentences have expired3 (although they are eligible for earlier release at the discretion of the Parole Board as they were under

1     The two measures were introduced in the same Bill, but were later separated. Both were enacted on 5 May 2002 and came into effect on 30 June 2002.
2     Sections 107A and 107I Criminal Justice Act 1985.
3     Section 86(2) Parole Act 2002.

the Criminal Justice Act). The difference in the mandatory release provisions amounts to an additional year…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NZSC 26
Decision Date: 19 May 2005

CaseChat Overview and Summary

Kenneth Christopher Morgan was convicted of cultivating cannabis in November 2002 and sentenced to three years imprisonment. He was imprisoned at Rimutaka Prison and commenced proceedings for habeas corpus, contending that his continued detention was unlawful because he was entitled to release after serving two-thirds of his sentence. Morgan argued that, under the Criminal Justice Act 1985, he would have been entitled to release on conditions after serving two years of his sentence. He sought to rely on s 6 of the Sentencing Act 2002 and s 25(g) of the New Zealand Bill of Rights Act 1990, which provide that an offender is entitled to the benefit of the lesser penalty if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing. Morgan contended that the change in the law regarding release entitlement between the time he committed the offence and his sentencing amounted to an increase in penalty. He sought to have the provisions of the Parole Act 2002 set aside. Morgan was unsuccessful before the High Court and the Court of Appeal and sought leave to appeal to the Supreme Court of New Zealand. The Supreme Court allowed the appeal but dismissed it. The appeal was allowed because Morgan was entitled to bring his application for leave with the substantive appeal. The appeal was dismissed because Morgan's contention that the change in the law regarding release entitlement amounted to an increase in penalty was incorrect. The Court found that release entitlements were integral to the penalty imposed upon an offender. They were not properly to be characterised as matters of administration of penalty. Nor can penalty be treated as coextensive with sentence where release regimes modify the penal consequences of sentence. The Court also held that the penalty for which Morgan was liable under the legislation in force at the time of the offence was to be detained for two-thirds of the sentence lawfully able to be imposed by the Court up to a statutory maximum of seven years, and to be then at risk of recall for the balance of the term of the sentence. The effect of applying the new provisions of the Parole Act to Morgan was to increase his penalty by withdrawing his entitlement to release from detention on conditions after serving two years of his sentence. However, Morgan's sentence was three years, which was within the effective maximum for cultivating cannabis at the time he committed the offence. There had therefore been no breach of his s 6 right.

Orders