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 Between his arrest and trial, the Criminal Justice Act 1985, which then governed both sentencing and release, was repealed and replaced with the Sentencing Act 2002 and the Parole Act 2002.1 If sentenced under the Criminal Justice Act, Mr Morgan would have been entitled by s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…
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- Case
- [2005] NZSC 26
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