Rerekura v Prison Director at Auckland South Corrections Facility

[2021] NZHC 651

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002254

[2021] NZHC 651

UNDER THE

Judicial Review Procedure Act 2016 New Zealand Bill of Rights 1990

IN THE MATTER OF

an application for judicial review

BETWEEN

PETER REREKURA

Applicant

AND

PRISON DIRECTOR AT AUCKLAND SOUTH CORRECTIONS FACILITY

First Respondent

WAITAKERE DISTRICT COURT
Second Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS – ARA POUTAMA AOTEAROA

Third Respondent

Hearing:

29 March 2021

Appearances:

Applicant in Person

E Boshier for First Respondent
D Jones for Third Respondent (by AVL)

Judgment:

29 March 2021

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Law, Wellington

Duncan Cotterill, Wellington

Copy to:            Applicant

REREKURA v PRISON DIRECTOR AT AUCKLAND SOUTH CORRECTIONS FACILITY [2021] NZHC 651

[29 March 2021]

[1]                 This is an application for judicial review. At the time the application was filed Mr Rerekura was a serving prisoner. In the proceedings he claimed that his sentence had been miscalculated and that on more than one occasion he had been given incorrect information about his release date.

[2]                 Mr Rerekura raised a number of causes of action under the New Zealand Bill of Rights Act 1990 (BORA) and also challenged the respondents’ actions as unreasonable. He sought declaratory relief and immediate discharge from legal custody.

[3]                 Mr Rerekura has appeared to support his application this morning. He initially sought an adjournment for three months to enable him to reflect on his position and to consider whether he wished to pursue the proceedings further. I note that Mr Rerekura was released from prison on 25 February 2021 following a successful appeal against sentence. In the circumstances, and given the nature of the issues raised in these proceedings, I declined his application for adjournment. There are a number of judicial review proceedings before the Court involving allegations as to the treatment of prisoners. The Court’s resources are limited. The fixture has been allocated for some time. The Court has time to hear this application this morning. Given the change in Mr Rerekura’s custodial status it is important that there be some finality in these particular proceedings. The hearing proceeded.

[4]                 The background to the proceedings arises from a somewhat complicated series of offending and subsequent sentences imposed on Mr Rerekura. For present purposes the starting point and the source of the confusion for a number of the parties, including Mr Rerekura, was his last sentencing hearing before Judge Glubb in the District Court at Waitakere on 21 July 2020.1 Following a sentence indication Mr Rerekura had pleaded guilty to three charges: one of reckless driving, one of failing to stop, and one of aggravated assault (using a car). Judge Glubb sentenced him to seven months’ imprisonment cumulative on his current sentence. He was also disqualified.

[5]                 On 8 March 2012 Mr Rerekura had been sentenced in this Court on three sets of offending:

1      New Zealand Police v Rerekura [2020] NZDC 14212.

(a)first, offending against his daughter;

(b)next, unlawful taking of motor vehicle; and

(c)finally, what the Judge described as a spree of offending involving motor vehicles, aggravated robbery and other offending.

[6]He was sentenced to imprisonment for nine years and six months. The

applicant’s release date for that sentence was 23 September 2020.

[7]                 Mr Rerekura was released on parole on 17 February 2020. However, he was recalled because of the further offending which Judge Glubb ultimately dealt with. Mr Rerekura was then transferred to the Auckland South Corrections Facility on 26 April 2020. Mr Rerekura says that when he was processed following his sentence hearing before Judge Glubb on 21 July he was told that his sentence release date was 23 September 2020. The first warrant provided by the District Court was incorrect. That is accepted by the respondent. As explained by Mr van der Veen, a Senior Advisor Sentence Calculation officer in the Department for Corrections, the original warrant issued by the District Court tagged the sentence to run cumulatively with an offence, which was not part of the sentence imposed by this Court in 2012 of nine years, six months.

[8]                 When Mr Rerekura’s sentence release date was reviewed, the error was noted, and it was recalculated to be 23 April 2020 to reflect Judge Glubb’s imposition of a cumulative sentence of seven months on the then current sentence of this Court. An amended warrant was prepared by the District Court that reflected the correct date. On 20 October 2020 Mr Matelau, a Reintegration Officer, saw Mr Rerekura and explained the correct release date to him.

[9]                 Following the issue of these proceedings on 23 November 2020 the file was comprehensively reviewed by Walker J at a telephone conference hearing on 21 December. In the minute issued following that hearing the Judge noted Mr Rerekura’s understanding that in pleading guilty to the offences before Judge Glubb, he understood he would be released before the end of 2020. However, the Judge also

noted at that time, with respect quite correctly, that Judge Glubb intended the sentence to be cumulative on the existing sentences, which had an end date of 23 September 2020. In those circumstances, as Walker J noted, Mr Rerekura’s remedy was to seek leave to appeal the sentence out of time rather than pursue his release through judicial review proceedings. The applicant took that suggestion up and successfully appealed the sentence. As a result, as noted, he was released on 25 February 2021.

[10]              To that extent Mr Rerekura’s application for relief directed at obtaining his release from prison is no longer necessary. It was no longer necessary from and after 25 February 2021. But in any event, at the time he filed these proceedings, Mr Rerekura was lawfully detained under the correct warrant. His claims under BORA based on his detention cannot succeed.

[11]              Mr Rerekura’s claim under s 21 of BORA was always misconceived. That section has no application to his circumstances. His claim under s 22 is met by the valid warrant for commitment and the fact his detention was in accordance with the sentence of the District Court Judge.

[12]              Mr Rerekura’s claim under s 23(5) is also misconceived. On the evidence before the Court, even given the initial error, Mr Rerekura was treated appropriately by the authorities.

[13]              Finally, apart from confirming his right to pursue judicial review proceedings, which as Walker J observed, were misdirected, s 27 of the BORA has no relevance.

[14]              The remaining cause of action is based on an error of law and alleges unreasonableness. There was no error of law in that Mr Rerekura was at all times detained in accordance with the sentence of the District Court Judge.

[15]              In summary, while there was an apparent mistake in the first warrant of commitment issued by the District Court, and on Mr Rerekura’s unsworn evidence, he was advised of the incorrect release date, neither of those factors supports the relief sought. I further note Mr Matelau’s evidence of his discussions with Mr Rerekura regarding the issue.

Result

[16]The application for judicial review is dismissed.

Costs

[17]              As discussed with counsel, this may be a case where costs should lie where they fall.

[18]              However, at the request of counsel for the respondents, I reserve the issue of costs. If the respondents wish to pursue that issue they are to file a memorandum within 14 days, and Mr Rerekura can file a response seven days thereafter.

Venning J