Palmer v Department of Corrections HC Auckland CIV 2010-404-2094
[2010] NZHC 560
•3 May 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2010-404-2094
UNDER Judicature Amendment Act 1972 Part 1
IN THE MATTER OF an application for judicial review
BETWEEN GRAHAM ASHLEY ROBERT PALMER
Plaintiff
AND DEPARTMENT OF CORRECTIONS
First Defendant
AND ATTORNEY-GENERAL
Second Defendant
Hearing: 3 May 2010
Counsel: Plaintiff in person
Lisa Fong for defendants
Judgment: 3 May 2010
[ORAL] JUDGMENT OF HUGH WILLIAMS J.
Mr Palmer’s application for judicial review seeking his release from prison on 5 May 2010 is dismissed.
Mr Palmer is due for release on Monday 10 May 2010, not at any earlier date.
Solicitors:
Crown Law Office, P O Box 2858 Wellington 6140. Email: [email protected]
Copy for:
G A R Palmer, Auckland Prison, West Division, P O Box 50-124 Albany.
Case Officer: [email protected]
GRAHAM ASHLEY ROBERT PALMER V DEPARTMENT OF CORRECTIONS AND ANOR HC AK CIV2010-404-2094 3 May 2010
Introduction
[ 1 ] In form, this is an application for judicial review based on grounds which
altered significantly, though unpleaded, between the commencement of the proceeding and its determination.
The plaintiff, Mr Palmer, is a serving prison in Auckland Prison at Paremoremo. He is due for release imminently. The principal issue for determination in this case is whether he will be released on Monday next, 10 May 2010, or whether, because of the circumstances relating to his arrest on 17 January 2008, he is entitled to an extra day’s reduction in sentence and accordingly would be due for release on Sunday, 9 May 2010. Because of the way in which the parole and release system works under the Corrections Act 2002, the advancement in his release date to Sunday, 9 May, would in fact mean he would be released on Wednesday of this week, 5 May 2010.
In terms of the relief sought in the statement of claim, Mr Palmer seeks a ruling that his remand time spent in custody on 17-18 January 2008 should be treated a time served in accordance with s 90 of the Parole Act 2002 resulting in his earlier release.
Facts
Turning to the facts, Mr Palmer was apprehended by the Police on 17 January 2008 on a charge of indecent assault. He was arrested at 1958 hrs that day and taken to the Manukau Police Station at 2020 hrs. A “Prisoner Management Sheet” put in evidence was criticised by Mr Palmer because it said that he did not require medication on his being taken to the Police Station and phone calls were debarred. He said that although at that point he did not need medication – he has a significant medical history – the way in which the Prisoner Management sheet is set out disadvantaged him. That is not a matter that was pleaded, and not a matter which can accordingly be subject to discussion in this judgment.
However, of importance, Mr Palmer draws attention to the “Charge Sheet” created for him which shows his arrest time and reception time, and he points to the fact that the Charge Sheet is dated 17 January 2008. For reasons to be developed later, Mr Palmer argues that is the commencement of the “proceedings” which entitles him to the additional reduction in his sentence now sought.
He was kept at the Manukau Police Station overnight on 17 January 2008.
He was charged with indecent assault and an information for that charge was laid indictably on 18 January 2008. It is agreed Mr Palmer was brought before the Manukau District Court that day at 0900 hrs. Mr Palmer had therefore spent 12 hours 40 minutes in custody.
He was bailed that day, having been arraigned before the Manukau District Court and in fact he was bailed thereafter right through the two prosecutions – about to be discussed – including remaining on bail during the course of the two trials which led to his present incarceration, and bailed again between his convictions and sentence. So there are no periods when Mr Palmer was not on bail up to the point where he was dealt with by Judge McAuslan and later Judge Swaran Singh.
The notice of bail for the indecent assault charge is dated 18 January 2008 and, as mentioned, he was on bail since that time in relation to that charge. That charge went to a jury trial but Mr Palmer was convicted on the one count of indecent assault and was sentenced by Judge McAuslan on 26 May 2009.
[ 10] During the course of her sentencing remarks, it is of interest – for reasons which will later appear – that the Judge noted Mr Palmer owed about $13,500 of unpaid fines and that:
“Collections are seeking alternative sentence in lieu of those. As you are shortly going to be sentenced on further dishonesty offending it is appropriate that those fines be remitted.”
[ 11 ] The Judge then considered Mr Palmer’s position in relation to the indecent
assault conviction, discussed relevant authority and sentenced him to eight months’
imprisonment on that charge. The Warrant of Commitment following the Judge’s decision was also dated 26 May 2009 and said:
The start date of the sentence is the date of this Order.
[ 12] Mr Palmer points to the fact that in the section of the warrant describing the charge he is said to have been convicted under s 135A of the Crimes Act 1961 a non-existent section - but that factor does not affect the outcome of the present litigation.
[13] Mr Palmer appealed against both conviction and sentence. His conviction appeal on this charge and the sentence appeal were dismissed by the Court of Appeal on 21 December 2009[1] following an appeal hearing which dealt with both this charge and the charge about to be mentioned. Mr Palmer indicated during argument at this hearing that he intends to seek leave to appeal to the Supreme Court in relation to the dismissal of his appeals on both counts. An application for leave has not yet been filed and accordingly forms no part of the consideration of this appeal.
[1] R v Palmer [2009] NZCA 616.
[ 14] Mr Palmer’s second conviction relates to a number of charges brought against him and a company called Rexon Limited for using documents to obtain pecuniary advantage. In broad terms sufficient for this hearing, the matters alleged were what could be colloquially called GST fraud. There were several charges. Again, Mr Palmer opted for a jury trial. Again, convictions resulted.
[15] Judge Singh sentenced Mr Palmer on 26 May 2009, that is to say only three days after Judge McAuslan had dealt with him. Judge Singh convicted and discharged the company but sentenced Mr Palmer to 15 months imprisonment, to be cumulative on the indecent assault sentence, with the start date of the sentence again being the date of the warrant.
[ 16] The first warrant put in evidence has a line drawn through the middle of it,
even though it was signed by Judge Singh, but an amended warrant was prepared
which Mr Palmer said occurred after he was brought back to the courtroom a little
later on 29 May 2009. That amended warrant also provides for the 15 month sentence cumulative on the indecent assault sentence and says:
“The start date of the sentence is the date of this order or the expiry of any sentence this order is cumulative upon (if applicable)”.
[ 17] As noted, Mr Palmer appealed both conviction and sentence on that matter. That appeal was heard jointly with the indecent assault appeal but delivery of the Court’s decision was postponed until 5 March 2010[2] . The appeal against both conviction and sentence was unsuccessful but, again, as mentioned earlier, Mr Palmer has indicated an intention to seek leave to appeal to the Supreme Court against the dismissal of both those appeals.
[2] Palmer v R [2010] NZCA 53
Issues Outside Pleadings
[18] There are a number of issues raised by Mr Palmer in his submissions which were not raised in the statement of claim. That notwithstanding, Ms Fong - who has been helpful to Mr Palmer throughout in providing copies of authorities and the like — had sufficient prior notice to be able to deal with the unpleaded allegations.
[ 19] The first of those relates to Mr Palmer’s fines.
He submits that when he was apprehended by the Police on 17 January 2008 the officer said to him:
“We want you to come down to the Station for questioning. If you don’t come voluntarily then you’ll be arrested for unpaid fines.”
In the time available it has not been possible to obtain an affidavit from the Police as to those events but Ms Fong said her understanding from the arresting officer is that that conversation would be denied. In any event, it seems clear that the statement, if made, might have been intended as no more than an encouragement to Mr Palmer to come to the Police Station without the necessity for an arrest. The interviewing officer plainly did not have a warrant for Mr Palmer’s arrest for the unpaid fines earlier mentioned..
Mr Palmer points to s 81 of the Parole Act 2002 which provides that if a term of imprisonment is imposed for non-payment of a sum of money:
“the start date of the sentence of imprisonment is the day on which the person is taken into custody to serve the term imposed”.
As already noted, Judge McAuslan discussed the question of the unpaid fines and remitted the substantial balance, but it is clear from her discussion and from the other material available at this hearing that Mr Palmer was never taken into custody for non-payment of a sum of money. Accordingly s 81 has no application to this case.
The second matter which needs to be dealt with before focusing on the matters principally in issue in the case is what Mr Palmer describes as “double jeopardy”. His submission suggested that following his being sentenced by Judge Singh, he was called back into Court and “advised that this sentence also included reparation for the fines”. Disclosure has been unsuccessfully sought.
The only comment that needs to be made in relation to that issue is that there would be likely to be some record of what occurred if Mr Palmer’s version of events is correct. In any case, the fines having been remitted by Judge McAuslan on 26 May, there was nothing for Judge Singh to deal with in that regard.
The next matter which needs to be addressed before discussing the matters principally at issue is that Mr Palmer asserts that the way in which he was treated, and the way in which he and others are treated, amounts to discrimination in contravention of s 19(1) of the New Zealand Bill of Rights Act 1990 (“NZBoRA”), the right to be free from discrimination. Mr Palmer’s argument is that if a person is arrested at any time on a Friday, he or she would normally be brought before the District Court on the following day, the Saturday. But if the arrest is at any time after about mid-day on a Saturday, the person under arrest will be kept in Police custody until the next availability of the District Court, usually on the following Monday, but occasionally in the event of a long weekend, the following Tuesday. He submits that people in rural and other remote areas are similarly and singularly disadvantaged in those circumstances.
[27] It may be the case that the vagaries of the calendar or the vagaries of location mean that persons in those circumstances are disadvantaged, but again it is not a matter which can assist Mr Palmer in this case. He was brought before the Court the morning after his arrest.
[28] The next issue Mr Palmer raises is that his detention was arbitrary and thus in breach of s 22 of the NZBoRA and consequently also in breach of s 6.
[29] In that regard this Court is bound by the decision of the Court of Appeal in Neilson v Attorney- General[3] which says:
[3] Neilson v Attorney-General [2001 ] 3 NZLR 433 at 441 paras [33] and [34].
[33] There is no tension in this regard between s 315 of the Crimes Act and s 22 of the Bill of Rights. They are congruent. Section 22 affirms the fundamental principle of our law that no person should be arbitrarily arrested or detained by agents of the state. It applies as much to a short deprivation of liberty as to a long-term deprivation.
[34] Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures. Read together, s 22 affirms and infuses values underlying s 315 that are reflected, too, in the relevant general instructions issued by the commissioner to all members of the police and in the Manual for Detectives.
(See also Manga v Attorney-General[4]).
[4] Manga v Attorney-General [2000] 2 NZLR 65.
[30] It is sufficient to deal with this issue to say that there appears to be nothing arbitrary as described by the Court of Appeal in the manner of Mr Palmer’s arrest and processing. It was obviously a straightforward everyday arrest processed in the ordinary way.
Issues Pleaded
[31] Having dealt with those issues, the Court turns to the matters which are at the nub of the present claim.
[32] Mr Palmer was arrested without warrant on 17 January 2008 pursuant to s 315(2)(b) of the Crimes Act 1961. The matter for which he was arrested was “punishable by imprisonment”. Having regard to that, it was the obligation of the Police, under s 316(5) of the Crimes Act 1961 to bring Mr Palmer before a Court “as soon as possible to be dealt with according to law”.
When Mr Palmer was arrested late on the evening of Thursday, 17 January, he was brought before a court at 9:00am the following morning. There can be no doubt that amounts to his being brought before the Court “as soon as possible to be dealt with according to law”. Accordingly, that aspect of the matter is satisfied.
One of the difficulties facing this issue is, of course, the two sentences imposed by the District Court Judges within three days of each other, with the longer following the shorter.
Under s 75 of the Parole Act 2002, the cumulative sentences imposed on Mr Palmer are defined as a “notional single sentence” and become a “short-term sentence” under s 4 of that Act.
Mr Palmer’s release date is therefore to be calculated in accordance with s 86(1) of the Parole Act 2002 which reads:
86 Release date of sentence
(1) The release date of a short-term sentence (including a short-term
notional single sentence) is the date on which the offender who is subject to the sentence has served half of it.
It seems to be agreed in this case that half the short-term sentence imposed on Mr Palmer is 350 days.
The next step is under s 88, which requires the Chief Executive of Corrections to determine key dates in accordance with that part of the Parole Act and any Regulations made, that is to say, it is for the Chief Executive to both determine the key dates and thus, in effect, to calculate the release date. In performing that calculation the Chief Executive is required to take account of pre-sentence detention. That is mandated by s 90(1) and (3):
90 Period spent in pre-sentence detention deemed to be time served
(1) For the purpose of calculating the key dates and non-parole period of
a sentence of imprisonment (including a notional single sentence) and an offender's statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.
...
(3) When an offender is subject to 2 or more cumulative sentences that
make a notional single sentence, any pre-sentence detention that relates to the cumulative sentences may be deducted only once from the single notional sentence.
[39] That calculation then results in what is called “pre-sentence detention”. The meaning of that phrase is carefully delineated in s 91(1) and (2). They read:
Meaning of pre-sentence detention
(1) Pre-sentence detention is detention of a type described in
subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—
(a)any charge on which the person was eventually convicted; or
(b)any other charge on which the person was originally arrested; or
(c)any charge that the person faced at any time between his or her arrest and before conviction.
[40] And subs (2) relevantly reads:
(2) The types of detention that are pre-sentence detention are detention
under an order made under section 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and detention on remand pursuant to a court order
(a) in a prison (or in a police station in accordance with section 35 of the
Corrections Act 2004):
The sub-subsections following subs (2) are not of present relevance.
[41] The question is, first, whether Mr Palmer was subject to pre-sentence
detention “at any stage during the proceeding leading to the conviction”; secondly,
whether the pre-sentence detention was either under what is colloquially called
“CPMIP” or detention on remand “pursuant to a Court order in a prison or a police station”.
The Manukau Police station is in fact a gaol designated as such under s 32 of the Corrections Act 2004 pursuant to the Corrections (Wiri Station Road (Manukau) Police Jail) Notice 2007[5]. Whether that is relevant will be discussed a little later.
[5] Corrections (Wiri Station Road (Manukau) Police Jail) Notice 2007 SR2007/283.
The first question therefore is whether Mr Palmer was subject to pre-sentence detention occurring at any stage during the proceedings leading to his conviction.
What falls within that definition was decided by the Court of Appeal in Taylor v Superintendent of Auckland Prison[6] where the following appears:
[14] ... the key concept is that of “the proceedings” to which the section is
directed. Those “proceedings” are the ones leading to the “conviction” and subsequent “sentence” to which the calculation of what the section heading calls “Period on remand ...” is germane. “The total period” embraces that between “charge” and the “conviction” or “sentence” under consideration, so too does “that period or any part of it”. There is no proceeding until charge; a proceeding commences with an information. Remand commences with the order of remand on that information. Any remand time served during the whole period from charge until ultimate sentence counts towards that proceeding .
[6] Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752, 755 at [14].
Just reverting to the facts for a moment, the information under which Mr Palmer was charged with indecent assault was the information laid on and dated 18 January 2008. It follows, therefore, during this stage of the inquiry, that the time he spent in the Manukau police station between 2020 hrs on 17 January 2009 and 0900 hrs on 18 January 2008 was time spent under arrest, under s 315 of the Crimes Act 1961 and pending his being taken to the Court at the earliest possible time, as required by s 316 but not time under which he was held pursuant to the information.
Mr Palmer, however, drew attention to s 12(1) of the Summary Proceedings Act 1957 which reads:
12 Commencement of proceedings
(1) Except where the defendant has been arrested without warrant, all proceedings brought under this Part of this Act shall, subject to sections 20A and 21 of this Act, be commenced by the laying of an information or the making of a complaint.
In fact, s 12 appears in Part 2 of the Summary Proceedings Act 1957, that is to say the Part dealing with the correct procedure to be followed when a defendant is proceeded against summarily. Although a number of the sections in Part 2 are imported into the indictable procedure by the former s 146 of the Summary Proceedings Act 1957 (now s 149), s 12 is not amongst them. However, the former s 147 of the Summary Proceedings Act 1957 does deal with the procedure where a defendant such as Mr Palmer due to be dealt with indictably. That subs (1)(a) reads:
When an information has been laid any District Court Judge or Justice or Community Magistrate or Registrar not being a constable may issue a summons to the defendant in the prescribed form.
The way in which that form of proceeding is to be approached was discussed in Rose v Police[7] where the Court of Appeal said: (lines 34-41)
Accordingly we hold that when a defendant has been arrested without warrant the police summons procedure may only be used to charge him with what may reasonably be described, having regard to the requirements of s 316(1) of the Crimes Act, as the charge on which he has been arrested. If the police wish to proceed with that charge but do not think it prudent to release him without bail, they will have to follow the charge sheet procedure under s 12(2) of the Summary Proceedings Act and then either take a bail bond under s 51 or bring him immediately before a Court. ...
[7] Rose v Police [1982] 2 NZLR 225 at 228.
Mr Palmer also drew attention to the Court of Appeal decision in R v Keir[8] where the Court of Appeal said:
In our view the proceedings are commenced once the Police charge sheet has been completed and the defendant is released with a summons requiring him to appear in answer to the charge. In that, a similar view was taken under similar legislation by Blair J in Clarke v Inspector of Police [1943] GLR 105.
[8] R v Keir (1994) 11 CRNZ 532 at 535.
Also relevant in this context is the former s 145 of the Summary Proceedings Act 1957, the section actually in force when Mr Palmer was being processed and now, from 29 June 2009, s 147.
Section 145 formerly said:
This Part shall apply in any case where the defendant is to be proceeded against by indictment subject to the provisions of s 44 and 66 [which are not relevant in the present case] or proceedings to which this Part applies shall be commenced by information in Form 2 of Schedule 2 substantiated on oath before a District Court Judge or Justice or Community Magistrate or before any Registrar not being a constable.
The position in this case, therefore, is that Mr Palmer was proceeded against indictably. As a result of that, the proceedings were, under the former s 145, to be “commenced by information”. The information, as earlier mentioned, against Mr Palmer was sworn, as required by law, on 18 January 2008.
As demonstrated by cases such as Rose and Keir, where defendants are to be proceeded against, the Police have an option of either initiating the charge sheet procedure and issuing a summons and releasing the person under investigation on Police bail, or they can retain that person in custody, if they are able to comply with ss 315 and 316 of the Crimes Act 1961, until they are able to bring that person before the Court at the earliest possible time.
Now in this case, the Court’s view is that it was purely coincidental that the Manukau Police Station was gazetted as a “Jail” under s 32 of the Corrections Act 2004 because Mr Palmer was not in Police custody in a way which triggered that gazetting. He was in Police custody as a result of the Police actions against him under ss 315 and 316, not because the Manukau Police station was a jail.
Under s 91 of the Parole Act 2002 there are only, in broad terms, two types of pre-sentence detention which qualify for a reduction in sentence under ss 88 and 90 of that Act. There is detention under CPMIP. There is detention on remand pursuant to a Court order in one of the facilities for which s 91(2)(a)ff provide.
During the night of 17-18 January 2008 Mr Palmer was held under ss 315 and 316 of the Crimes Act 1961. He was brought before the Court the following day and remanded on bail. His detention in the Manukau Police station could not qualify as “remand pursuant to a Court order” prior to his being brought before the Court at 0900 hrs on 18 January 2008. Prior to that time he was not remanded.
Accordingly, his was not a “detention on remand pursuant to a Court order” simply because he could not and had not been brought before a court for the District Court to make such an order.
His being held in the Manukau Police station over night on 17-18 January 2008 was similarly not detention in a prison, despite the coincidental fact that the Manukau Police station had been gazetted as a jail. He was simply not sentenced or remanded in prison at that stage.
He was in a Police station and it was a Police station which was gazetted under s 35 of the Corrections Act 2004 but, despite the fact that he was in the Police station his detention was not “on remand pursuant to a Court order” for the reasons just mentioned. There had been no opportunity to bring him before the Court until he was brought before the Court the following day in accordance with s 316 of the Crimes Act 1961.
Having regard to all of that, on the central issue in this case, the conclusion must be that Mr Palmer’s detention in the Manukau Police station from the late evening of 17 January up until 0900 hrs on 18 January 2008 was not “detention on remand pursuant to a Court order” and it did not qualify as “pre-sentence detention”. Accordingly Mr Palmer is due for release on Monday 10 May 2010 not at any earlier date. His application for judicial review seeking his release on 5 May 2010 must accordingly be dismissed.
HUGH WILLIAMS J.
3 May 2010
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