Repia v Chief Executive of the Department of Corrections
[2021] NZHC 36
•28 January 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-000053
[2021] NZHC 36
IN THE MATTER of ss 90 & 91 of the Parole Act 2002 and 6 of the Habeas Corpus Act 2001 BETWEEN
TORHAN CHEVY APIANGA REPIA
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 28 January 2021 Counsel:
H T Rogers for the Applicant S M Earl for the Respondent
Judgment:
28 January 2021
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 28 January 2021 at 4.30pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Liberty Law, Kumeu
Meredith Connell, Auckland
REPIA v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 36 [28
January 2021]
Introduction
[1] On 13 January 2012, Judge C J Field sentenced Torhan Chevy Apianga Repia to concurrent sentences of imprisonment as follows:1
(a)Two years’ imprisonment for dangerous driving causing injury;
(b)Nine months’ imprisonment for ill-treatment of a child;
(c)Three months’ imprisonment for breach of a protection order, possession of a utensil for cannabis, and other charges.
[2] Judge Field signed a warrant of commitment for Mr Repia’s imprisonment the same day, 13 January 2021.
[3] On 25 January 2021, Mr Repia filed a writ of habeas corpus challenging the lawfulness of his detention.
[4] Mr Repia’s application was heard on Thursday, 28 January 2020, within three working days of the date of Mr Repia’s application, as required by s 9(3) of the Habeas Corpus Act 2001.
[5] Under s 14(1) of the Habeas Corpus Act, if the defendant, in this case the Chief Executive of the Department of Corrections,2 fails to establish that Mr Repia’s detention is lawful, the Court must grant a writ of habeas corpus ordering Mr Repia’s release.
[6] At the conclusion of the hearing, I dismissed Mr Repia’s application and said my reasons would follow.
1 Police v Repia [2021] NZDC 400.
2 The application initially named the Prison Manager, Mount Eden Corrections Facility as the defendant. By agreement, the Chief Executive of the Department of Corrections was substituted as defendant at the hearing.
Mr Repia’s position
[7] Mr Repia’s position, as advanced in the application prepared by his counsel, Ms Rogers, is that by the date of his sentence Mr Repia had spent 364 days in custody. Therefore, in accordance with s 86 of the Parole Act 2002, Mr Repia’s release date from prison was 14 January 2021, at which point Mr Repia would have spent half of his short-term sentence and should have been released.
[8] This position is based on the proposition that the 87 days Mr Repia spent in two drug and alcohol residential rehabilitation centres, Wings Trust and Higher Ground, under a treatment programme agreed to by the Alcohol and Drug Treatment Court, should be taken into account in the calculation of the time Mr Repia spent in pre-sentence detention when that time is calculated in accordance with ss 90 and 91 of the Parole Act 2002.
[9] Mr Repia’s application acknowledges that time spent in a rehabilitation facility is not included in the definition of pre-sentence detention in s 91 of the Parole Act. It also acknowledges that, as confirmed in guidance published by Alcohol and Drug Treatment Court, time spent in a treatment programme agreed to by that Court is release on bail. However, the application contends that deprivation of liberty in a residential rehabilitation centre as directed by the Alcohol and Drug Treatment Court fits both the definitions of custody and detention. The application also refers to observations by Woolford J in Courtney v NZ Police3 where Woolford J appeared to accept that time spent in residential rehabilitation centres constituted time in custody.
[10] The application notes that bail to a rehabilitation centre is very restrictive and, unlike electronically monitored (EM) bail, is not subject to a statutory direction that bail of this kind is not custody.4 The application also notes, that unlike the situation with EM bail, the Sentencing Act 2002 does not expressly provide that time spent on EM bail is to be considered a mitigating factor on sentencing.
3 Courtney v Police [2020] NZHC 1722 at [9].
4 Section 30Q of the Bail Act 2000 provides that a defendant on bail with an EM condition is not in custody.
[11] The application submits that the consequence of these provisions is that a person who is directed by the Alcohol and Drug Treatment Court to spend time in a residential rehabilitation programme through a restrictive bail condition is in a state of legal limbo and their situation is not recognised in the Sentencing Act or the Parole Act.
[12] The application concludes that Mr Repia should be considered as having served half of his sentence on a pre-sentence detention basis which should include the 87 days spent in residential rehabilitation and that Mr Repia should therefore be released from custody immediately.
Chief Executive’s position
[13] Ms Earl, counsel for the Chief Executive, submits that the time Mr Repia spent in residential rehabilitation was time spent on bail, was not pre-sentence detention and, in accordance with s 95 of the Parole Act, cannot be taken into account under s 90 of that Act as time already served. Ms Earl also submits that Mr Repia was not detained in the rehabilitation centres by court order so time spent in those centres was not pre- sentence detention and cannot be credited as time served under for the purposes of s 90 of the Parole Act. Consequently, it would not be lawful for the Department of Corrections to treat time spent in a residential rehabilitation facility as pre-sentence detention and, therefore, as time served.
[14] Ms Earl also submits that an application for habeas corpus was not the appropriate route to challenge the decision by the Department of Corrections to decline to take into account Mr Repia’s time in a residential rehabilitation centre in its calculation of the time Mr Repia has spent in custody. Ms Earl notes that Judge Field did take account of the time Mr Repia had spent in residential rehabilitation. Ms Earl submits that if Mr Repia considers that insufficient account had been taken of that factor, the appropriate course would have been for Mr Repia to appeal his sentence.
[15] Ms Earl also provides a copy of the warrant for Mr Repia’s commitment for a sentence of imprisonment signed by Judge Field to demonstrate that Mr Repia has been lawfully detained.
Discussion
[16] There is no dispute that Mr Repia was sentenced in the District Court on 13 January 2021 to a term of imprisonment of 24 months. Ms Rogers does not challenge the validity of the warrant for Mr Repia’s imprisonment.
[17]In Bennett v Superintendent of Rimutaka Prison, the Court of Appeal said:5
In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation … it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances.
[18] Mr Repia’s position, as advanced by Ms Rogers in the application, is not really that Mr Repia has been unlawfully detained. Rather, it is that Mr Repia should have been released because time spent in the drug and alcohol rehabilitation programmes ought to have been taken into account by the Department of Corrections as pre- sentence detention, even though time spent in such facilities is time spent on bail and the Parole Act defines “pre-sentence detention” in terms that do not include time spent in a rehabilitation centre.
[19] At the hearing, Ms Rogers acknowledged that if time spent in a rehabilitation centre is not pre-sentence detention, Mr Repia’s application cannot succeed. It became apparent that the underlying purpose of the application was to draw attention to the observation made by Woolford J in Courtney v Police that time in a rehabilitation centre was time in custody. It appears Ms Rogers is concerned that, as a consequence of that observation, District Court judges may exclude time spent in a rehabilitation centre from consideration when sentencing because s 82 of the Sentencing Act provides that pre-sentence detention as defined in s 91 of the Parole Act must not be taken into account determining the length of a sentence.
[20] The writ of habeas corpus is directed at ensuring that persons are not unlawfully detained. It is not a lever to be used as a means of appealing the sentence of the person in custody or to obtain judicial comment on another judge’s decision in
5 Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 (CA) at [70].
a quite separate appeal. To that extent, Mr Repia’s application was not the appropriate procedure for considering Mr Repia’s allegations and, in accordance with s 14(1A)(b) of the Habeas Corpus Act, could have been refused without requiring the Chief Executive to establish that Mr Repia’s detention was lawful.
[21] However, because both counsel provided careful and comprehensive submissions, it is appropriate to record the legal position as it applies to Mr Repia.
[22] That position is well-stated in the submissions of Ms Earl. In brief, it is as follows:
(a)Mr Repia has been detained in custody pursuant to a warrant, the validity of which is not in dispute;
(b)Under s 86(1) of the Parole Act, Mr Repia’s release date from prison is half of the short-term sentence imposed by Judge Field;
(c)Under s 90(1) of the Parole Act, time spent in pre-sentence detention is to be included in the calculation of time served when determining Mr Repia’s release date;
(d)Section 91(2) of the Parole Act defines pre-sentence detention as follows:
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):
(b)in a residence established under section 364 of the Oranga Tamariki Act 1989, or detention in Police custody under section 238(1)(e) of that Act:
(c)in a hospital or secure facility under any of sections 23, 35, 38(2), and 44(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:
(d)in a hospital or secure facility pursuant to an order under—
(i)section 171(2) or 184T(3) or (4) of the Summary Proceedings Act 1957; or
(ii)section 169 of the Criminal Procedure Act 2011:
(e)in a hospital following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992:
(ea) in asecure facility following an application under section 29(1) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:
(f)in a hospital under section 46 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
The definition is exhaustive and does not include time spent in a rehabilitation centre.
(e)As is made clear in the guidance of the Alcohol and Drug Treatment Court, persons who agree to participate in the Court and to take part in an alcohol and drug treatment programme are on bail while they are in the programme;
(f)Section 95(2) of the Parole Act provides that, for the avoidance of doubt, time spent on bail is not re-sentence detention.
[23] It is apparent, therefore, that the 87 days that Mr Repia spent in two rehabilitation centres may not be taken into account by the Department of Corrections when calculating Mr Repia’s release date. As a consequence, Mr Repia has some time to serve before he will have reached his release date.
[24] Mr Repia, therefore, is not being unlawfully detained and his application is dismissed.
[25] The question of whether time spent in a rehabilitation centre may be taken into account when sentencing was not before me. I note, however, that because time spent in a rehabilitation centre is not pre-sentence detention, it follows that, when sentencing or otherwise dealing with an offender, a court is not prevented from taking such time into account as a mitigating factor in accordance with s 9(4) of the Sentencing Act.
[26] As Ms Earl observed, Judge Field appears to have done so when sentencing Mr Repia.6
G J van Bohemen J
6 Above n 1, at [6].
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