Morgan v Superintendent, Rimutaka Prison

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.