Prince v Chief Executive of the Department of Corrections

[2019] NZHC 3381

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-000507

[2019] NZHC 3381

BETWEEN

BRADLEY RICHARD JOHN PRINCE

Appellant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	10 October 2019
Counsel:	D A Ewen and T W Luders for the Appellant I R Murray for the Respondent
Judgment:	18 December 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 18 December 2019 at 10.00 am pursuant to r 11.5 of the High Court Rules.

Deputy Registrar

Counsel:    D A Ewen, Wellington

I R Murray, Wellington

Solicitors: Ord Legal, Wellington

Crown Law, Wellington

PRINCE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 3381

[18 December 2019]

[1]    On 7 June 2019, Mr Prince was sentenced to seven months’ imprisonment with release conditions which expire six months from his “sentence expiry date”. That sentence was reduced to four months’ imprisonment on appeal, but the expiry date of the release conditions remained the same.

[2]    Mr Prince now seeks a declaration determining his “sentence expiry date” so as to fix the expiry date of the release conditions.

[3]    The issue arises because, due to the time Mr Prince spent on remand, he had already served more than half his sentence by the time it was imposed. Mr Prince was accordingly released on the same day he was sentenced. The reduced term of imprisonment imposed on appeal meant that at the time of his release, he had served approximately one month more than the four-month term of imprisonment.

[4]    Mr Prince argues that once the time spent on remand is taken into account as time served, Mr Prince’s sentence expiry date is 30 April 2019, that is, before the sentence was imposed. That means his release conditions expired on 30 October 2019.

[5]    The Chief Executive of the Department of Corrections (Corrections) says that Mr Prince’s sentence expiry date is 7 June 2019, the day the sentence was imposed. The release conditions therefore expired on 7 December 2019.

Key events

[6]    Mr Prince was charged with breaching a protection order and was remanded in custody on 29 December 2018.  He was subsequently granted bail on that charge on 4 January 2019. Mr Prince was then arrested on a separate charge of breaching a protection order and was remanded in custody on both charges on 8 January 2019.

[7]    On 13 March 2019, Mr Prince received a sentence indication of seven months’ imprisonment. He accepted that sentence indication and pleaded guilty the same day. A conviction was entered, and pre-sentence reports were ordered.

[8]    Mr Prince’s application for bail pending sentence was declined on 16 April 2019 and he remained in custody pending sentence. Sentencing was originally scheduled for 8 May 2019 but was subsequently adjourned to 7 June 2019.

[9]    On 7 June 2019, Mr Prince was sentenced to seven months’ imprisonment and made subject to standard release conditions and two special release conditions.1 The two special release conditions prohibited Mr Prince from associating with the victim and from going to, or being found in, the victim’s street of residence. The expiry date of those release conditions was six months after his sentence expiry date.

[10]   By the time he was sentenced, Mr Prince had spent 160 days on remand (approximately five months). As the custodial element of a seven-month sentence of imprisonment is three and a half months, or 106 days, he was released on the day he was sentenced, 7 June 2019.

[11]   Mr Prince appealed his sentence, and on 23 July 2019, it was reduced to four months’ imprisonment.2 The expiry date of the special conditions was left unchanged. The reduced term of imprisonment meant that Mr Prince served approximately one month more than the full sentence of imprisonment ultimately imposed.

The legal framework

[12]   Section 4 of the Parole Act 2002 defines key dates for an offender sentenced to imprisonment. These are the “start date”, “sentence expiry date” “and “release date” for a sentence. Each of these definitions, including others that are important for this appeal, are set out below.

Start date

[13]The “start date” of a sentence is defined in s 4 of the Parole Act as:

start date, in relation to a sentence of imprisonment, means the date on and from which an offender who is subject to the sentence begins to be subject to it (see sections 76 to 81).

1      New Zealand Police v Prince [2019] NZDC 11268.

2      Prince v Police [2019] NZHC 1742.

[14]   Section 76 of the Act provides that the start date is the date on which the sentence is imposed, except otherwise provided for in ss 77 to 81. Under s 79, the start date of a sentence that is substituted for a sentence that was quashed or otherwise set aside on appeal is the start date of the original sentence. The effect of ss 76 and 79 in this case is that the start date of Mr Prince’s sentence of four months’ imprisonment imposed on appeal is 7 June 2019, which is the date of the original sentence.

Pre-sentence detention

[15]   The calculation of time served by an offender must include the time served in pre-sentence detention.3 In Booth v R, the Supreme Court confirmed that the entire period spent on pre-sentence detention is to be taken into account under this section.4

Release

[16]   The “statutory release date” for a sentence of imprisonment is defined in s 4 as follows:

statutory release date means the date on which an offender who is subject to 1 or more sentences of imprisonment—

(a)must be released from detention (see section 17); and

(b)ceases to be liable to be recalled to continue serving any sentence in a prison.

[17]That definition refers to s 17 of the Parole Act which relevantly provides:

17       Release at statutory release date

(1)The statutory release date of an offender is the release date of the sentence to which the offender is subject (including any notional single sentences) that has the latest release date.

(2)An offender who is detained in a prison … on his or her statutory release date must be released from detention on that date.

…

3      Parole Act 2002, s 90.

4      Booth v R [2016] NZSC 127.

[18]   The “release date”, as referred to in this section, is defined in s 4 of the Parole Act as:

release date means, in relation to a determinate sentence of imprisonment, the date on which the offender who is subject to the sentence ceases to be liable to be recalled to continue serving that sentence in a prison (see sections     86 and 87).

[19]That definition refers to the definition in s 86 which provides:

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.

(1A) Subsection (1) does not apply to a short-term sentence in respect of which an order has been made under section 86C(4)(b) of the Sentencing Act 2002, and the release date of such a sentence is its sentence expiry date.

(2)The release date of a long-term determinate sentence (including a long-term notional single sentence) is its sentence expiry date.

(3)An indeterminate sentence has no release date.

[20]   As Mr Prince was sentenced to a short-term sentence, his release date was the date on which he served half of it in accordance with s 86(1).

Sentence expiry date

[21]The definition of “sentence expiry date” in s 4 is as follows:

sentence expiry date means the date on which the offender who is subject to the sentence has served its full term and therefore ceases to be subject to it (see sections 82 and 83).

[22]   The definition refers to s 82 of the Parole Act which defines “sentence expiry date” to mean:

82       Sentence expiry date

(1)The sentence expiry date of a determinate sentence is the date that is reached when the offender who is subject to the sentence has served the full term of the sentence.

(2)The sentence expiry date of a notional single sentence is the sentence expiry date of the last sentence in the series of sentences that forms the notional single sentence.

(3)An indeterminate sentence has no sentence expiry date.

[23]   In Mr Prince’s case, the relevant definition is included in subs (1), that is, the sentence expiry date of a determinate sentence is the date that is reached when the offender who is subject to the sentence has served the full term of that sentence.

Release conditions

[24]   Under s 18 of the Act, an offender who is released at the release date of a long- term sentence will be subject to standard release conditions for a period of six months from the offender’s release date. The Parole Board may impose special conditions for a period of up to six months from the offender’s statutory release date.

[25]   Section 18 also provides that an offender subject to a short-term sentence is, on release, subject to any release conditions imposed by the Court on that sentence, (unless certain exceptions apply). The power to impose release conditions on a short- term sentence is provided for in s 93 of the Sentencing Act 2002. A Court has a discretion whether to impose standard and special conditions on an offender sentenced to a term of imprisonment of 12 months or less. For terms between 12- and 24-months’ imprisonment, the standard conditions automatically apply until the “sentence expiry date”, unless the court specifies a different date. The Court has a discretion whether to impose special conditions.

[26]   If a Court exercises its discretion to impose release conditions, then it must specify the expiry date of those conditions. Under s 93(2A), conditions may expire on the sentence expiry date; the date that is a specified period before the sentence expiry date; or the date that is a specified period up to six months after the sentence expiry date. Special conditions may apply for as long as, but no longer than, the standard conditions that apply. “Sentence expiry date” has the meaning given to it in s 4 of the Parole Act (set out above).

[27]A special condition must not be imposed under s 93(3) unless it is designed to:

(a)reduce the risk of reoffending by the offender; or

(b)facilitate or promote the rehabilitation and reintegration of the offender; or

(c)provide for the reasonable concerns of victims of the offender.

[28]   Subsection 3 reflects the purpose of release conditions which is partly rehabilitative and partly protective. In Woods v New Zealand Police, the Court of Appeal said that the point of release conditions:5

[56] … is to address the consequences of a sentence coming to an end in circumstances where the unrestricted release of the offender into the community would result in unacceptable risk to the community and to victims in particular through the prospect of reoffending. Also, conditions may be imposed to facilitate rehabilitation efforts if they are designed, for example, to increase the likelihood that the offender will co-operate with rehabilitation efforts.

[29]   As the Court of Appeal recognised in Mitchell v Chief Executive of the Department of Corrections, the general effect of post-release conditions is restrictive in some way.6 It is an offence to breach a release condition, and such a breach carries a maximum penalty of imprisonment for a term not exceeding one year, or to a fine not exceeding $2,000.7

When is Mr Prince’s “sentence expiry date”?

[30]   Determination of Mr Prince’s “sentence expiry date” turns on the proper interpretation of the provisions of the Parole Act and the Sentencing Act canvassed above. The meaning of an enactment is to be ascertained from its text and in light of its purpose. In determining purpose, the Court must have regard to both the immediate and general context. The social, commercial or other objectives of the enactment might also be relevant.8

5      Woods v New Zealand Police [2019] NZCA 446.

6      Mitchell v Chief Executive of the Department of Corrections [2017] NZCA 475 at [23].

7      Sentencing Act 2002, s 96.

8      Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22].

[31]   Mr Ewen, for Mr Prince, submits that an offender’s “sentence expiry date” is to be determined by simply applying the relevant provisions of the Parole Act. The calculation starts with the date the sentence of imprisonment is imposed. In his submission, the start date is a nominal date or a reference point for calculation purposes only. The length of the sentence is then added on to that start date. Any time spent in pre-sentence detention is then deducted to reach the “sentence expiry date”. Applying this methodology to Mr Prince’s case results in a sentence expiry date of 30 April 2019.

[32]   There is substantial merit in Mr Ewen’s submission. A step-by-step application of the provisions allows for certainty and simplicity in the calculation of an offender’s sentence expiry date. In the ordinary run of cases, applying the provisions in this way will not create any difficulties. But Mr Prince’s case is not in the ordinary run of cases. The issues in this case arise because Mr Prince spent more time on remand than the ultimate sentence imposed. The application of the statute in the way Mr Ewen suggests to those circumstances leads to a result at odds with the statutory regime.

[33]   Insofar as it relates to the duration of a sentence, the Parole Act regime is generally forward-looking in nature. The starting point is the definition of “start date” in s 76 of the Act, which is the date on which the sentence is imposed. I consider this definition has more than just nominal value and is more than just a reference point for calculation purposes. It marks a beginning; the start of the time at which an offender sentenced for a crime committed begins to serve that sentence. It is also intrinsically prospective; it anticipates a sentence stretching into the future. It should be construed to have substantive effect.

[34]   The next key date after that is the release date. That is the date that an offender must be released from detention and ceases to be liable to be recalled. For a short- term sentence, the release date is the date on which an offender has served half of the sentence. For a long-term sentence, that date is the same as the sentence expiry date. Self-evidently, whether for a short-term or long-term sentence, the release date for an offender must be after the start date of the sentence.

[35]   So too for the “sentence expiry date”. The definition of “sentence expiry date” is the date that is reached when the offender who is subject to the sentence has served the full term of their sentence. The definition fixes a date that a sentence comes to an end. For short-term sentences, this must be after the statutory release date. That is because the release date is half the term of the sentence imposed, and the sentence expiry date is the full term of the sentence. For long-term sentences the release date and the sentence expiry date are the same – it is the date that the offender will have served the full term of the sentence, ceased to be subject to it, and ceased to be liable to be recalled to continue serving it in prison. As a matter of logic, something that ends must come after it begins. The sentence expiry date must therefore be after the date on which the sentence is imposed.

[36]   On Mr Prince’s interpretation, however, the sentence expired on 30 April 2019. That is before the sentence had begun. It is also before the date that Mr Prince was released from detention. If Mr Prince’s interpretation is taken to its logical extreme, it could lead to a sentence expiring before a conviction was even entered. That is an anachronism that Parliament cannot have intended.

[37]   The requirement to take into account pre-sentence detention as time served under s 90 of the Act is an exception to the prospective character of the statutory provisions. It requires Corrections to look backwards to the time before the sentence was imposed in order to calculate the length of time spent in pre-sentence detention. But  that does  not  mean  the statutory provisions should be construed in the way  Mr Prince suggests. The Parole Act does not anticipate offenders being held longer on remand than the ultimate sentence imposed. There is no provision for that possibility in the Act. The problem in Mr Prince’s case is not a statutory interpretation problem, but a problem that arises in fact. Construing the provisions to make them fit Mr Prince’s circumstances will contort their plain meaning and cut across the broad scheme of the statute.

[38]   Mr Prince’s interpretation is also inconsistent with the provisions relating to release conditions. Under s 18 of the Act, release conditions apply on an offender’s release date. For those serving sentences of short duration, the release date is the date that they have served half their sentence and are released from detention at that time.

An interpretation of the statutory provisions which results in release conditions applying to an offender while still in custody is at odds with the definitions of statutory release date, and release date in the Act.

[39]   Mr Prince’s proposed interpretation would also be inconsistent with the purpose of release conditions. The protective purpose of release conditions would be redundant, as the offender would already be in custody. So too would the rehabilitative objective of the conditions, as there would be no facilitation or promotion of the reintegration of an offender while he or she remained in prison.

[40]   This leaves the question of consistency with the New Zealand Bill of Rights Act 1990. Mr Ewen submits that Mr Prince’s interpretation of the statutory provisions is the most consistent with the right to be free from arbitrary detention and the right to be tried without delay.

[41]   The difficulty with this submission is that Mr Prince’s dilemma is not one of statutory interpretation. The issue arises because Mr Prince was held on remand longer than his ultimate sentence imposed. Construing the statutory provisions so that the sentence expires prior to it being imposed will not change that. It will not reduce the time Mr Prince spent in prison, and it will not add further protection to the right to be tried without delay.

[42]   This distinguishes Mr Prince’s case from Attorney-General v Manga.9 That case arose under the Criminal Justice Act 1985, a predecessor to the Parole Act. The issue in that case was whether time spent on custodial remand was to be taken into account in calculating the final release date of an offender who had been sentenced to a determinate term of imprisonment and who had also been paroled but recalled from parole. The Court of Appeal rejected an interpretation that would have led to an offender being incarcerated for a period longer than the nominal length of the term of imprisonment imposed by the Court.

[43]   The construction of the provisions at issue in Manga had a real effect in terms of the restrictions on the offender’s liberty. That is, there was a direct correlation

9      Attorney-General v Manga [1999] 1 NZLR 129 (CA).

between the interpretation question posed and the length of time spent on remand. But that correlation does not exist in this case. Even if the provisions are construed as  Mr Prince suggests, it will not result in Mr Prince (or others like him) serving any less time in prison.

[44]   It is true, however, that the interpretation preferred by Mr Prince will result in an effectively shorter term of the release conditions imposed as part of his sentence. That will mean that Mr Prince will not be subject to the restrictive nature of those conditions for as long as he would be otherwise. But I do not consider the term of the release conditions should be determined by a statutory interpretation exercise. Rather, it is a matter to be considered by the Judge at the time of sentencing when the expiry date of those conditions is fixed in accordance with s 93(2A).

[45]   The term of the release conditions must be set in accordance with the purposes set out in s 93(3). Those purposes include the need to restrict the liberty of an offender in order to reduce the risk of reoffending or provide for the reasonable concerns of victims of the offender. They also include the rehabilitation and reintegration of the offender in society. A Judge will be able to weigh and balance all these factors together to ensure that the duration of any condition imposed meets these purposes. That is the process contemplated in the Act and is to be preferred to an outcome mandated by an exercise of statutory interpretation.

[46]   It is against the background of that statutory scheme that the definition of “sentence expiry date” must be construed. I set out the definitions in s 4 and s 82 again for ease of reference:

sentence expiry date means the date on which the offender who is subject to the sentence has served its full term and therefore ceases to be subject to it (see sections 82 and 83).

(emphasis added)

82       Sentence expiry date

(1) The sentence expiry date of a determinate sentence is the date that is reached when the offender who is subject to the sentence has served the full term of the sentence.

…

[47]   Mr Ewen submits that to interpret these definitions as Corrections suggest involves reading in the following (emboldened) additional text into s 82:

82       Sentence expiry date

(1) The sentence expiry date of a determinate sentence is the later of the date on which it is imposed and the date that is reached when the offender who is subject to the sentence has served the full term.

[48]   I do not agree that it is necessary to read this additional text into s 82. For reasons I have already explained, the chronological order relating to the service of a sentence of imprisonment is already implicit in the provisions of the Parole Act: the sentence expiry date must be after the date that it was imposed.

[49]   The only way of construing the definition consistently with the statutory regime, and in Mr Prince’s circumstances, is to interpret “full term” as being the actual date that the term was served in full, rather than the date that Mr Prince should have been found to have served his full term. A calculation of the full term of Mr Prince’s sentence could only be made on the date that it was imposed. Before that date the full term of his sentence was unknown. By the time it was imposed he had already served more than half of his sentence. And, by the time it was reduced on appeal he had served more than the full term.

[50]   This construction of “sentence expiry date” receives support from the additional words in the s 4 definition “… and therefore ceases to be subject to it”. As a matter of fact, Mr Prince was still subject to his sentence as at 30 April 2019 and was still in custody at that time. He only ceased to be subject to his sentence when the term of imprisonment was reduced on appeal. By then he had served his full term of imprisonment and been released from detention.

[51]   The only way of making sense of the statutory provisions as  they apply to Mr Prince is to interpret the date that he served his full term, and ceased to be subject to the sentence, as the date that the sentence was imposed, being the date the reduced sentence substituted on appeal took effect.

[52]   Finally, I record Mr Murray’s submission, on behalf of Corrections, that I was bound to reach this result in any respect because that was the effect of the Court of

Appeal’s decision in Mitchell v Chief Executive of the Department of Corrections.10 I do not agree. The issue in that case was the Court’s jurisdiction to impose release conditions some seven months after the offender’s sentence expiry date. For the purposes of the appeal, it was agreed that the sentence expiry date was the same day that the sentence was imposed, taking into account the time spent on pre-sentence detention. There was no discussion of the definition of “sentence expiry date” or what it means to have served a sentence in full.

[53]   To conclude, I consider Mr Prince’s “sentence expiry date” was the date that the sentence was imposed, that is, 7 June 2019. Accordingly, his release conditions expired six months after that date, on 7 December 2019.

Result

[54]The application for a declaration is dismissed.

[55]   The parties are encouraged to agree costs. If agreement cannot be reached, then a memorandum of counsel in support of costs may be filed and served 10 working days from the date of this judgment, with a memorandum in opposition filed five working days thereafter.

Edwards J

10     Mitchell v Chief Executive of the Department of Corrections [2017] NZCA 475.