O'Neill v Attorney-General - [2017] NZHC 1491

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2016-404-002475

[2017] NZHC 1491

BETWEEN
CHRISTOPHER JOSEPH OʼNEILL

Plaintiff

AND

ATTORNEY-GENERAL

First Defendant

THE DEPARTMENT OF CORRECTIONS

Second Defendant

AND

SERCO NEW ZEALAND LIMITED

Third Defendant

Hearing: 22 June 2017

Appearances:

C J OʼNeill the Plaintiff in person S Earl for the Second Defendant L Clark for the Third Defendant

Judgment:

30 June 2017

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
30.06.17 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

C J OʼNEILL v ATTORNEY-GENERAL [2017] NZHC 1491 [30 June 2017]

The applications

[1] The defendants apply to strike out Mr O’Neill’s proceeding. Mr O’Neill is unrepresented.

Background

[2] On 31 October 2012 Mr O’Neill was sentenced by Judge Blackie in the Manukau District Court on five charges of criminal harassment laid under the Harassment Act 1997, four charges of breaching a restraining order laid under the same Act, and 10 charges relating to breaches of the Postal Services Act 1998.

[3] Mr O’Neill was sentenced to two years imprisonment in respect of the criminal harassment charges, and two months imprisonment in respect of the charges of breaching the restraining order. The latter sentence was imposed by Judge Blackie cumulatively on the sentence for the criminal harassment charges and therefore the overall sentence imposed was two years and two months imprisonment.

[4] Later two warrants of commitment were signed by Judge Blackie, each being in respect of the set of charges for which he was sentenced to imprisonment. The second of those did not state whether that sentence was imposed concurrently or cumulatively on the first set of charges. As the warrants did not refer to the sentences being imposed cumulatively the second defendant calculated Mr O’Neill’s release date on the basis that he was sentenced to a total sentence of 24 months and was therefore a short term prisoner. The effect of this was that Mr O’Neill was assessed to be eligible for automatic release after serving half of his sentence as ss 20 and 86 of the Parole Act 2002 provides. He was released on 7 August 2013 (his statutory release date), on standard release conditions.

[5] However, and because of the cumulative effect of his two sentences Mr O’Neill was to serve longer than two years. Therefore he should have been treated as eligible for parole after serving the non-parole period of one third of his sentence. Ms Earl for the second defendant confirms that on the basis of a sentence of two years two months

imprisonment, and in taking into account the period Mr O’Neill spent on remand, Mr O’Neill’s parole eligibility date was 24 February 2013 and his statutory release date was 6 June 2014.

[6] Counsel advises Mr O’Neill’s release date was calculated in accordance with the practice that existed prior to the Supreme Court’s decision in Booth v R1. If he was in fact a short term prisoner (i.e. two years…

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: [2017] NZHC 1491
Decision Date: 30 June 2017

CaseChat Overview and Summary

The case involves Christopher Joseph O'Neill, the plaintiff, who was sentenced to two years and two months imprisonment for various charges. O'Neill was released on 7 August 2013, but he claims that his release was unlawful and he was held for an additional 164 days. He argues that he should have been considered for parole after serving one-third of his sentence, which would have been 24 February 2013, but was not. O'Neill filed a lawsuit against the Attorney-General, the Department of Corrections, and Serco New Zealand Limited, alleging unlawful detention, threats to kill, and errors in prison records. The defendants filed applications to strike out O'Neill's claims.

The court had to decide whether O'Neill's claims were reasonably arguable and if the defendants were fairly informed of the case against them. The court examined the warrants of commitment, the statutory release date, and the Parole Act 2002. It found that O'Neill's detention was lawful, as the warrants complied with the Sentencing Act 2002 and the Department of Corrections was entitled to rely on them. The court also found that O'Neill's claims of threats to kill, illegal bail/probation, and falsified prison records did not disclose a reasonably arguable cause of action.

The court granted the defendants' applications to strike out O'Neill's claims, finding that they were not reasonably arguable and caused prejudice or delay. The court also ruled that the defendants did not need to respond to the claims related to unnamed parties. Costs were to be fixed upon application being made.

In summary, the court found that O'Neill's claims of unlawful detention and other allegations against the defendants were not reasonably arguable and could not succeed. The court struck out all causes of action against the defendants and dismissed the proceeding.

Orders