Sutherland v Chief Executive of the Department of Corrections

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA396/2018
[2018] NZCA 623

BETWEEN	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Appellant
AND	BELINDA ANN SUTHERLAND Respondent

CA442/2018
BETWEEN	BELINDA ANN SUTHERLAND Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	29 November 2018
Court:	French, Miller and Asher JJ
Counsel:	V McCall and J B Watson for Appellant in CA396/2018 and Respondent in CA442/2018 D A Ewen and E T Blincoe for Respondent in CA396/2018 and Appellant in CA442/2018
Judgment:	21 December 2018 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal in CA396/2018 is dismissed.
BThe appeal in CA442/2018 is allowed.
CThe declaration made at [71] of the High Court judgment is upheld, but for different reasons than those given in the High Court.
DThe direction in the High Court that there should be no costs award is quashed. If the parties cannot agree, High Court costs are to be fixed by that Court in the light of this judgment.
E The Chief Executive of the Department of Corrections must pay Ms Sutherland costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

This appeal raises the issue of how a judge should treat a period spent by an offender in custody on remand between the making of an application to vary or cancel a sentence of home detention and substitute a sentence of imprisonment, and the determination of that application (the contested period). This issue involves the interpretation of various sections in the Parole Act 2002 and the Sentencing Act 2002 which were enacted together in their original form, but have since been subject to extensive amendments. The amendments in relation to the issue before us appear to create overlaps between the two Acts that have not been easy to reconcile.

Factual background

Belinda Sutherland, the respondent in CA396/2018 and the appellant in CA442/2018, was sentenced on 15 June 2017 to five months’ home detention on two charges of refusing to provide a blood sample. She had pleaded guilty. The comparatively stern sentence was a consequence of Ms Sutherland having a long history of driving with excess blood alcohol. On 21 July 2017, Ms Sutherland, after she had been subject to home detention for just over a month, cut off her electronic bracelet and absconded from her home address. On 25 July 2017, two breaches of home detention charges were filed under s 80S of the Sentencing Act and an application was made to cancel her home detention sentence and substitute a sentence of imprisonment under s 80F of the Sentencing Act. She was immediately remanded in custody, and an application for electronically monitored bail was declined. She then spent between 26 July and 25 September 2017 in custody. Therefore, the contested period in Ms Sutherland’s case is approximately two months.
On 25 September 2017, Ms Sutherland appeared in front of Judge Rowe in the District Court at Palmerston North for re-sentencing. He granted the application under s 80F and cancelled her sentence of home detention.[1] In its place he substituted concurrent sentences of 16 months’ imprisonment on the charges of refusing to supply a blood sample.[2] He also imposed two-month concurrent sentences on the two new charges of breaching home detention.[3] The effect was that she would be released in what was described by the Judge as “a couple of months”.[4] The Judge, in making this, remark plainly assumed that the time spent by Ms Sutherland in custody during the contested period would be taken into account as time served when the Department of Corrections (Corrections) calculated her key dates, including her release date.
[1]Department of Corrections v Sutherland [2017] NZDC 21671.
[2]At [9] and [12].
[3]At [13].
[4]At [14].
If the contested period was taken into account as time served, Ms Sutherland should have been released by late November 2017. However Corrections was following a policy at this time, supported by a number of High Court decisions,[5] that the contested period was not to be taken into account in these circumstances. Rather, any recognition of time served between an application to cancel or vary a sentence and the determination of that application should have been by the re‑sentencing Judge in fixing the substitute sentence.
[5]Hawkins v Chief Executive of the Department of Corrections [2015] NZHC 1001; and Gardner v Department of Corrections [2017] NZHC 2895, [2018] NZAR 49.
On 15 December 2017, Ms Sutherland filed an application for habeas corpus on the grounds that her release date had been wrongly calculated by Corrections. She contended that Corrections had made an error in determining her release date in that the time she had spent in custody pending her re‑sentencing was not taken into account. Failure to take that into account was said to render her continued detention unlawful.
The application for habeas corpus was heard before Ellis J on 18 December 2017. Corrections took the position that there had been an error by the re-sentencing Judge in failing to take the time Ms Sutherland had spent in custody during the contested period into account in fixing the end sentence, rather than Corrections making an error in fixing the release date. Mr Ewen’s submission for Ms Sutherland in the High Court was that, on the contrary, there had been no error by the re-sentencing Judge, but an error by Corrections in failing to take into account time served during the contested period in calculating the release date.
In any event both sides were of the view on 18 December 2017 that Ms Sutherland should already have been released. Ellis J agreed. In the light of those circumstances, despite the differences in approach, the Judge made interim orders under s 11 of the Habeas Corpus Act 2001 for the immediate release of Ms Sutherland, with a view to determining the legal issues at a later date.[6] Accordingly Ms Sutherland was released. Out of an abundance of caution it was agreed that Mr Ewen should file an appeal against sentence so that Corrections’ position that the error was in the sentence, rather than in calculating the release date, could be determined. That was what happened. It also was agreed that Ellis J should treat the habeas corpus application as an application for judicial review in which declarations as to the meaning and application of the relevant statutory provisions were sought.
[6]Sutherland v Chief Executive of the Department of Corrections [2017] NZHC 3189.
After hearing the sentence appeal and judicial review application, the Judge issued a reasoned decision on 20 June 2018, granting judicial review.[7] In her view Corrections had made a legal error when it declined to take into account the contested period of two months Ms Sutherland spent in custody when calculating her release date. She made a declaration accordingly.[8] The effect of the declaration was that Ms Sutherland’s statutory release date was in late November 2017, prior to the first hearing in the High Court on 18 December 2017.[9]
[7]Sutherland v Chief Executive of the Department of Corrections [2018] NZHC 1366.
[8]At [71].
[9]At [71].
The Judge also, at the end of her decision, directed that, although Ms Sutherland had been successful, there would be no order as to costs.[10] She gave no reason for not ordering costs. Following that there was an application to recall her judgment on the issue of costs and a costs order in favour of Ms Sutherland was sought. In a minute dated 2 August 2018 the Judge declined the application for recall.[11] Ms Sutherland appealed that costs decision in a separate notice of appeal.[12] Given that the actual costs decision was in the original judgment, the challenge should have been filed by way of cross-appeal rather than a separate appeal. Nevertheless as the costs matter has proceeded through the Court as a stand-alone appeal, we deal with it on this basis.

The issue

[10]At [74].

[11]Sutherland v Chief Executive of the Department of Corrections HC Wellington CIV-2017-485-1028, 2 August 2018 (Minute of Ellis J) at [8].

[12]This is the proceeding in CA442/2018.

The timeline below illustrates the two months Ms Sutherland spent in custody, which we have described as the contested period:

As we have already indicated, the issue is at what point, and by whom, is the contested period (in this case two months) counted to reduce the time the convicted person spends in prison following re-sentencing. Is it the responsibility of the re‑sentencing judge to take the contested period into account to reduce the substitute sentence? Or is it the responsibility of Corrections to take that period into account when calculating the offender’s release date?
When Ms Sutherland was re-sentenced on 25 September 2017, Judge Rowe anticipated those two months would be taken into account by Corrections when determining Ms Sutherland’s release date. The Judge said:
[8] You have, as I say, spent four months in custody before being sentenced by Judge Morris. You have been in custody for about another two months since being charged with the breaches of home detention so in many ways the 16 months’ sentence I impose today will largely have been served by you. You will have about two months to go.
(Emphasis added.)
However, as we have indicated, Corrections did not take that two months into account. Ms Sutherland was caught between the two different approaches, the consequence being no recognition at all for the two months in custody.

The statutory background

The Sentencing Act and Parole Act were both enacted at the same time in 2002. Section 90 of the Parole Act deals with how time spent in pre-sentence detention is to be treated. It is expressed broadly to cover all pre-sentence detention, and instructs Corrections to treat all pre-sentence detention as time served:
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.
(2) When an offender is subject to 2 or more concurrent sentences,—
(a) the amount of pre-sentence detention applicable to each sentence must be determined; and
(b) the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.

(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.
(Emphasis added.)

The term “pre-sentence detention” is important, as s 90 only applies to such detention. It is relevantly defined in s 91(1) as:
… detention [in a prison] 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.
(Emphasis added.)
As could be expected, given that they were both enacted at the same time, s 82 of the Sentencing Act reflects s 90 of the Parole Act. It provides:
82Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.
(Emphasis added.)
The history of this legislation was reviewed by William Young J in his separate but largely concurring judgment in the Supreme Court’s decision in Booth v R.[13] He noted that both the Parole Act and Sentencing Act were enacted at the same time

and “were intended to provide for a coherent approach to sentencing and parole” and so must be read together.[14] He observed:

[48] As I will explain, prior to the enactment of the Criminal Justice Act 1985, sentencing judges could allow for pre-sentence detention by reducing the sentence which would otherwise have been imposed. Between 1985 and 1987 and from 1993 to 2002, the Criminal Justice Act provided for pre‑sentence detention to count as time served and thus form part of the calculations which determined parole eligibility and release dates. The same is generally true of the regime established by ss 90 and 91 of the Parole Act. Under this regime pre-sentence detention is irrelevant to the length of a term of imprisonment to be imposed at sentencing and should therefore be disregarded by sentencing judges. …
(Footnotes omitted.)
[13]Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
[14]At [43].

The ultimate procedure to account for pre-sentence detention, as set out in s 92 of the Parole Act, was summarised by William Young J as follows:
[53] The procedure for determining the length of pre-sentence detention is provided by s 92. For present purposes, it is sufficient to say that the calculations are carried out in the first instance within the prison and the prisoners have a right of internal review in relation to the calculations and, if dissatisfied with the result of such review, a right of appeal to the Court which imposed the sentence. …
(Footnotes omitted.)
It is to be noted that the words “sentence” and “pre-sentence” are not defined in ss 90–91. When an offender has been sentenced to home detention and then is later re‑sentenced to imprisonment for the same offending because of some circumstance that has arisen in relation to the home detention, there is no specific provision dealing with the question of whether time spent in custody pending re-sentence is in itself “pre-sentence detention”.
On the approach set out in Booth v R, a court, in interpreting these sections, will assume that it was the intention of Parliament to create a comprehensive regime where all pre-sentence custody is treated consistently as time served.[15]
[15]At [14] and [27] per Elias CJ, Glazebrook, Arnold and O’Regan JJ.
Up until 2007 home detention was not a sentence in itself, but a way of serving a sentence of imprisonment, and involved a court giving leave to the offender to apply to the Parole Board for home detention.[16] In 2007, as a result of the passage of the Sentencing Amendment Act 2007, ss 80A to 80ZI were inserted into the Sentencing Act to make home detention a stand-alone sentence. This was part of a number of changes to the Sentencing Act which increased the range of available non‑custodial sentences.[17]
[16]Sentencing Act 2002, ss 97–99 (repealed).
[17]Sentencing Act, s 10A sets out a hierarchy of sentencing options.
Section 80F provides that a probation officer can apply for, amongst other things, the cancellation of a sentence of home detention and the substitution of any other sentence that could have been imposed at the time that the offender was convicted where an offender has been unable to comply, or has failed to comply, with any detention conditions.
Section 80G(2) and (4) then provide:
80GMatters relating to orders under s 80F
…
(2) When determining a substitute sentence under section 80F(4)(d), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
…
(4) If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.
…
We observe that this section stands for the obvious proposition that the time the offender has spent on home detention and the time still to be served will be taken into account by the re-sentencing judge if, as in this case, there has been a breach of home detention part way through the term of the sentence, and a substitute sentence must be imposed. Therefore time served on home detention before the application to re-sentence, and the time still to be served at the time the application is made, will be taken into account in fixing the new sentence. This section does not relate to time served in custody awaiting the substitute sentence — the contested period.
Sections 80Z and 80ZA provide for when home detention ends and when detention conditions are suspended. Crucial to the issue in this case is s 80ZB. In its original form it provided:
80ZB Time ceases to run in certain circumstances
For the purpose of calculating how much time an offender who is subject to a sentence of home detention has served, time ceases to run on the sentence during any period—
(a)between the date on which an application for a variation or cancellation of the sentence under section 80F is lodged and the earlier of—
(i)the date on which the offender is next taken into custody; and
(ii)the date on which the offender resumes serving his or her sentence in accordance with his or her detention conditions; or
(b)in which an offender is released on bail pending an appeal.
It will be observed that this provision focussed on the time between an application under s 80F and the offender being taken into custody or resuming his or her sentence in accordance with the conditions. It did not apply to time the offender spent in custody awaiting re-sentencing. Therefore, under the original s 80ZB there was no suggestion that the contested period should be taken into account by the re‑sentencing judge.
However, in 2013 there was a further and important relevant amendment. The Administration of Community Services and Orders Act 2013 introduced new provisions specifying when time ceases to run on sentences of supervision, intensive supervision and community detention. The new s 80ZB provides:
80ZB Time ceases to run in certain circumstances
For the purpose of calculating how much time an offender who is subject to a sentence of home detention has served,—
(a)time ceases to run on the sentence during any period between the date on which an application under section 80F(1)(a) is lodged and the date on which the application is determined by the court; but
(b)some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account—
(i)the extent (if any) to which the offender has complied with any detention conditions; and
(ii)the amount of time (if any) that the offender has spent in custody.
(Emphasis added.)
Unlike its predecessor, the current s 80ZB addresses the status of the period between the date on which an application under s 80F is made and the date of its determination. That covers time spent in custody awaiting re-sentence — the contested period. Some or all of that time “may” be regarded by the court as time served.
The section must be read with the others we have already set out, in particular the broad and unambiguous provision in s 82 of the Sentencing Act, stating that in determining the length of any sentence of imprisonment to be imposed the court “must not” take into account any part of the period during which the offender was on pre‑sentence detention as defined in s 91 of the Parole Act. It must also be read with the specific words of ss 90 and 92 of the Parole Act, which instruct Corrections to take pre-sentence detention into account when calculating an offender’s release date.

These provisions have been considered in a number of High Court cases. In Hawkins v Chief Executive of the Department of Corrections, Mander J held that the contested period should be taken into account by the re-sentencing judge under s 80ZB.[18] He said:
[16] I am satisfied that the period spent in custody between the date of application and its determination does not constitute pre-sentence detention for the purpose of calculating release dates under ss 90 and 91 of the Parole Act. I accept the Chief Executive’s submission that the legislature has provided specific provisions in the Sentencing Act to govern the status of this period in terms of how it is to be treated for the purpose of imposition of a substitute sentence. That period may be taken into account by the Court when determining the length of any substitute sentence.

[17] I am fortified in this view by the effect of s 80Z of the Sentencing Act. While time ceases to run on the sentence of home detention after an application has been lodged under s 80F(1)(a), the offender continues to be subject to the sentence until the Court cancels the sentence of home detention. It follows therefore that s 91(1) of the Parole Act does not have application, as the detention does not occur at a stage during the proceeding leading to the conviction or pending sentence. The offender remains sentenced to home detention pending the outcome of the application to cancel and substitute that sentence. Section 91(1) therefore does not have application to that period, and cannot constitute pre-sentence detention for the purposes of s 90 of the Parole Act.
[18]Hawkins v Chief Executive of the Department of Corrections, above n 5.

That approach was followed by Simon France J in Gardner v Department of Corrections.[19]

The High Court judgment

[19]Gardner v Department of Corrections, above n 5, at [7].

As we have set out, Ellis J determined the legal issue we have outlined approximately six months after Ms Sutherland was released from prison. The Judge granted Ms Sutherland’s application for judicial review, finding that Corrections had erred by failing to count the contested period as time served when calculating Ms Sutherland’s release date.[20]
[20]Sutherland v Chief Executive of the Department of Corrections, above n 7, at [71].
The Judge began her discussion by identifying that none of the previous cases on this issue has directly grappled with the implications of the existence of new charges when considering the interaction of the pre-sentence detention and the re‑sentencing regimes. That was, in her view, “the real issue raised by these cases”.[21] When an offender is detained pending re-sentence, and new charges are laid, that offender is also detained pending sentence on the new charges. The Judge was:[22]
… unable to discern why the general pre-sentence detention provisions in the [Parole Act] do not, on their face, govern [an offender’s] position just as the resentencing provisions in the [Sentencing Act] do. And the elephant in the room is that the two sets of provisions cannot both be applied.

[21]At [64].

[22]At [65] (original emphasis).

The Judge reasoned, by reference to the intention of the legislation outlined in the Supreme Court’s decision in Booth:[23]
That intent involved a clearly signalled retreat from leaving the calculation of pre-sentence detention to the discretion of judges. Moreover, the policy considerations underlying these developments are powerful. As both William Young J and the plurality in Booth observed, the right to be free from arbitrary detention confirmed by s 22 of the New Zealand Bill of Rights Act 1990 is in play here. Preferring the regime that requires that day for day account be taken of days spent in prison is surely more consistent with that right than the regime that leaves the relevant accounting to a judge’s discretion. Nor is it insignificant that the introduction of that discretionary aspect with the amendment to s 80ZB in 2007 appears to have occurred in a reasonably ad hoc manner, without consideration of that wider and more fundamental issue.
[23]At [69] (footnotes omitted).
Therefore:[24]
… in cases where both the [Sentencing Act] and the [Parole Act] both potentially govern an offender’s situation, the [Parole Act] should prevail. And if I am right in that, in a case where new charges have been laid, an application of Booth would then require the period of pre-sentence detention to be deducted by Corrections from the combined sentence and resentence, regardless of whether they are imposed cumulatively or concurrently.
[24]At [70].
On the Judge’s analysis, therefore, the application of the provisions we have referred to depends on whether an offender detained awaiting re-sentence is also facing sentence on new charges. If new charges have been laid, the provisions of the Parole Act apply and the contested period must be taken into account by Corrections in calculating a release date. Conversely, if an offender is detained awaiting re‑sentence, and no new charges are laid, s 80ZB applies and the re‑sentencing judge has a discretion to take into account time spent in custody during the contested period in fixing the end sentence.
The Judge acknowledged that her decision was in conflict with the previous decisions of the High Court in Hawkins v Chief Executive of the Department of Corrections and Gardner v Department of Corrections.[25]

Appeal submissions

[25]At [72].

Corrections has brought this appeal to resolve the conflicting High Court authorities. Ms McCall for Corrections argued that the Judge’s approach to the provisions in question was in error because it sets too much store by police charging decisions. Parliament cannot have intended that the application of the relevant provisions concerning pre-sentence detention would be controlled by whether further or additional charges had been laid alongside an application to re-sentence. However, Corrections acknowledged that the approach in Hawkins v Chief Executive of the Department of Corrections and Gardner v Department of Corrections, which involves the re‑sentencing judge exercising a discretion as to whether or not to take into account the time served during the contested period under s 80ZB, did not ensure that all days spent in custody count against a subsequent sentence of imprisonment. They also acknowledged that the means by which detention during the contested period is counted should be as clear and simple as possible.
Mr Ewen also submitted that the Judge erred in her approach. He submitted that time in custody during the contested period is “pre-sentence detention” within the meaning of s 91 of the Parole Act. Therefore, applying s 82 of the Sentencing Act, a re-sentencing judge must not take the contested period into account when determining the length of any new sentence of imprisonment. Rather, that time must be taken into account by Corrections in calculating an offender’s release date on a day-for-day basis. He submitted that s 80ZB does not apply when the substitute sentence is one of imprisonment, because it must be read subject to the general rule in s 82.
During oral argument Ms McCall accepted that the approach suggested by Mr Ewen was available on the words of the legislation. Ms McCall also accepted that there were no practical difficulties in that approach for Corrections. Fundamentally, Corrections brought this appeal seeking clarification of the law so that it may give clear instructions to its ground staff.

Our analysis

As we see it, the determination of the issue before us turns on the answer to the three questions. First, what is the meaning of “sentence” in ss 90 and 91(1) in the Parole Act? The second related question is whether the time spent in custody during the contested period is “pre‑sentence detention” as referred to in s 90 and 91(1) of the Parole Act and s 82 of the Sentencing Act? And third, what is the effect of the specific provisions that followed the 2013 amendments to the Sentencing Act, in particular s 80ZB?

The meaning of “sentence”

We turn first to the meaning of the word “sentence”. The issue is whether that word covers re-sentencing, that is the imposition of a substitute sentence under s 80F.
The word “sentence” is not itself specifically defined in either of the Parole Act or the Sentencing Act, although phrases including the word “sentence” are referred to in the interpretation sections of both Acts. The word was defined in pt 13 of the Crimes Act 1916, “Appeals”. “Sentence” was defined as including “any order of the Court made on conviction”.[26] The Courts gave that definition a broad meaning, extending it to most penalties imposed following conviction.[27] The provisions relating to criminal appeals now appear in the Criminal Procedure Act 2011 (the CPA). We set out the current definition of “sentence” in the CPA:[28]
sentence—
(a) includes any method of disposing of a case following conviction; but
(b) does not include—
(i) a decision, on conviction, to make or decline to make an order against the convicted person for the payment of costs under section 364 or under the Costs in Criminal Cases Act 1967; or
(ii) a decision, on conviction, to make or decline to make an order under any of sections 200, 202, or 205 (suppression orders); or
(iii) a decision, on conviction, under section 208 to vary or revoke an order under any of those sections specified in subparagraph (ii).
[26]Crimes Act 1961, s 379 (repealed).
[27]For example in R v Liddell [1995] 1 NZLR 538 (CA) at 544 it was held that the definition could extend to the making of a suppression order on sentence.
[28]Criminal Procedure Act 2011, s 212 (emphasis added).
It can be seen that this is a very broad definition encompassing “any method of disposing a case following conviction”.[29] We acknowledge this definition appears in a different Act and does not directly impact on the meaning of “sentence” in the two Acts of relevance in this case, but it is an indication of how the word is to be read in the New Zealand criminal law context.
[29]We note also that the Criminal Appeal Act 1968 (UK), s 50(1) defines “sentence” broadly as “any order made by a court when dealing with an offender”.
Section 80F of the Sentencing Act specifies what happens when an offender who has been sentenced to home detention is given a substitute sentence. What happens under s 80F(4)(d) is that the earlier sentence is cancelled and the court “substitute[s] any other sentence (including another sentence of home detention) that could have been imposed on the offender at the time that the offender was convicted”. Plainly then the substitute sentence is within the definition of “sentence” in s 212 of the CPA; it is a method of “disposing of a case following conviction”. The fact that there has been an earlier disposition of the case (the earlier sentence of home detention) does not affect the fact that the penalty imposed on Ms Sutherland by Judge Rowe on 25 September 2017 was a sentence, albeit a substituted sentence. It was part of the disposal of the case against Ms Sutherland following her conviction on the charges for refusing to provide a blood sample.

The meaning of pre-sentence detention

As we have set out, pre-sentence detention is defined at s 91(1) of the Parole Act as “detention in a prison” occurring “at any stage” during the proceedings “pending sentence”. Once the broad interpretation of the word “sentence” is adopted as we have set out, the time spent in custody during the contested period is pre-sentence detention. Ms Sutherland plainly was on such pre-sentence detention as defined in s 91(1) of the Parole Act during the contested period, as she was in custody, and that detention was “pending sentence”, which includes re-sentence. We emphasise that the fact that the sentence was a substitute sentence does not change the fact that it was, in ordinary parlance and under s 90–91of the Parole Act, a “sentence”.
We acknowledge s 80Z of the Sentencing Act, which provides:
80Z      When home detention ends
(1) An offender ceases to be subject to a sentence of home detention when—
(a)       the offender reaches his or her detention end date; or
(b)       a court cancels the sentence of home detention.
(2)If the offender’s detention end date falls on a non-release day, the offender ceases to be subject to detention conditions on the nearest preceding day that is not a non-release day.
In Ms Sutherland’s case, as will almost invariably occur, the sentence of home detention was cancelled upon the determination of the application to re-sentence. According to s 80Z, therefore, she was still “subject to” the sentence of home detention during the contested period. Ms McCall submitted that, because Ms Sutherland was still subject to her previous sentence, she could not readily be described as being detained “pre-sentence”. We do not accept that. She was detained to await the imposition of a new sentence. That she was technically also still subject to a previous sentence does not change that.
We conclude that the contested period (time spent in custody between an application under s 80F and the determination of that application) is properly treated as pre-sentence detention for the purposes of the application of the provisions of the Sentencing Act and Parole Act.

The 2007 and 2013 Sentencing Act amendments

Clearly there is a tension between the present s 80ZB of the Sentencing Act and s 82 of that Act and s 90 of the Parole Act, in that these provisions can be seen as governing, in different ways, how the contested period is to be treated. Section 82 of the Sentencing Act states that pre-sentence detention, which includes the contested period, must not be taken into account by the re-sentencing judge. Section 80ZB appears to give the re-sentencing judge a discretion to take that time into account. Meanwhile, s 90 of the Parole Act states that the contested period is to be taken into account by Corrections.
However, in our view, the sections can be reconciled. Section 82 of the Sentencing Act states that a judge “must not” take into account pre-sentence detention. In contrast, s 80ZB states that the contested period “may” be treated by the re‑sentencing judge as time served. In our view, when an offender is re-sentenced to a sentence of imprisonment, the mandatory words of s 82 prevail over the permissive words of s 80ZB; Parliament’s intention is for s 80ZB to apply only when the substituted sentence is less than imprisonment. Clearly legislative provision had to be made for the situation where an offender has been in custody during the contested period, but the judge does not consider a substituted sentence of imprisonment is appropriate. In those circumstances, s 82 could not apply and it will be up to the re‑sentencing judge to give appropriate credit for time spent in custody when fixing the substitute non-custodial sentence under s 80ZB. We see that as the purpose and application of s 80ZB, rather than it overriding s 82 when a substitute sentence of imprisonment is imposed.
Ellis J considered that, insofar as there is a conflict between ss 82 and 80ZB, the specific overrides the general.[30] She took the view that Parliament must have intended to impose a specific method of dealing with the contested period in s 80ZB.
[30]Sutherland v Chief Executive of the Department of Corrections, above n 7, at [47].
Respectfully, we do not agree with that reasoning. A general principle of interpretation cannot outweigh the clear intention of Parliament, shown by context and background, where the words or provisions, although ambiguous, can be read consistently with that context and background. There is nothing that we have been able to see in the materials leading up to the enactment of s 80ZB in 2007 or its amendment in 2013 indicating an intention to create an exception to the general approach to time served in s 90 of the Parole Act and s 82 of the Sentencing Act. Rather, as the Judge observed, the amendments to 80ZB in 2013 appear to have been directed at concern that, in its original form, the provision would penalise offenders who continued to comply, or substantially comply, with their home detention conditions after the application to re-sentence was made but before it was determined.[31] To respond to that concern, s 80ZB gives the judge a discretion to credit the offender with some or all of the contested period, depending on the degree of compliance with the conditions of the home detention sentence during the contested period. The materials surrounding the amendment in no way suggest that Parliament intended to interfere with the general approach to pre-sentence detention. To the contrary, the assumption that time served should be considered on re-sentence seems to us to overlook the broad intention that can be discerned in the provisions of the Parole Act and Sentencing Act as to time served.
[31]At [44].
This broad intention was described by the majority of the Supreme Court in Boothv R:[32]
[14] Sections 90(1) and 91(1) apply to all sentences of imprisonment and establish the general approach to the treatment of pre-sentence detention. Section 90(1) provides that for the purposes of calculating the key dates and non-parole period of a sentence of imprisonment (including a single notional sentence), an offender is deemed to have been serving the sentence during any period the offender has spent in pre-sentence detention.
[32]Booth v R, above n 13 (footnotes omitted and emphasis added).
Considering Parliament’s intention, it was held by the majority in that case that all pre-sentence detention, from the time of the first arrest and remand in custody until a person started a sentence as a convicted prisoner, is to be taken into account by Corrections. This applies whether the sentence of imprisonment relates to a single charge or more than one, whether or not the sentence relates to the charge for which a person was originally arrested, whether or not sentences are imposed cumulatively or concurrently and whether or not the sentences are imposed at the same time or subsequently, as long as any charges for which the sentence or sentences of imprisonment relate were faced after arrest and before conviction.[33]
[33]At [24].
Relevantly to the current issue, the majority in Booth v R emphasised that sentencing decisions should be as simple and certain to administer as possible.[34] It was noted that the intention was to get rid of anomalies in giving offenders credit for time served.[35] Credit should be given for all time spent in pre-sentence detention. Interpretations that depend on chance are undesirable.[36]
[34]At [18].
[35]At [32].
[36]At [32]. See also at [63] per William Young J.
We respectfully adopt these observations. It is plain in our view that it was the intention of Parliament in ss 90(1) and 91(1) of the Parole Act, and also in s 82 of the Sentencing Act, to establish a general approach over the two Acts for the treatment of pre-sentence detention. It was an across-the-board approach. Simplicity of administration was the key. Essentially the position adopted by Corrections is at odds with that general approach and creates complexity. Indeed, it can be seen as creating an anomaly, the anomaly being that, because of the happenstance of the trigger for the pre-sentence detention being an application for re-sentence, the pre-sentence detention is treated in the opposite way to other pre-sentence detentions.
There is simplicity and predictability in all pre-sentence detention being treated the same way. The arithmetical calculation for Corrections to apply is relatively straightforward. It also ensures credit for time served on a day-by-day basis. As was pointed out in Booth v R, this is in contrast to the difficulties posed for a judge when the judge has to take into account pre-sentence detention in calculating a sentence.[37] The calculation becomes complex, because the judge has to make difficult assumptions as to the time an offender will actually serve before the Parole Board chooses to grant parole, in calculating a fair discount for time served.
[37]At [68] per William Young J.

These difficulties are demonstrated in some of the High Court decisions, where this issue has been grappled with. In particular, in the High Court decision of Gardner v Department of Corrections the Court endeavoured to calculate a sentence which recognised time served.[38] In the judgment under appeal, the Judge pointed to problems and potential unfairness in that calculation.[39] As she said, the sentence carefully imposed by the Judge in that case would have required the offender’s release 92 days after her original re-sentencing. However, the period of detention would have been the lesser period of 79 days if the pre-sentence detention had been treated as time served by Corrections. Such differences, depending on the happenstance of the trigger for the pre‑sentence detention being an application for re-sentence, should not cause this difference in result, to the detriment of the offender.
[38]Gardner v Department of Corrections, above n 5.
[39]Sutherland v Chief Executive of the Department of Corrections, above n 7, at [59]–[62].
It follows that we are unable to agree with the High Court decision of Hawkins v Chief Executive of the Department of Corrections.[40] As we have set out, in Hawkins it was held that the time that an offender spent in custody after an application had been lodged under s 80F(1)(a) was not pre-sentence detention in terms of s 91(1) of the Parole Act.[41] We disagree with this analysis. For the reasons that we have outlined, the contested period between the application under s 80F(1)(a) and the imposition of a substituted sentence is pre-sentence detention.
[40]Hawkins v Chief Executive of the Department of Corrections, above n 5.
[41]At [16].
It also follows that we do not agree with the Judge’s approach of only treating the contested period as “pre-sentence” detention if new charges are laid. The Judge considered that she was able to apply s 82 of the Sentencing Act to Ms Sutherland because, as well as being held in custody because of the s 80F(1)(a) application, Ms Sutherland was also held in custody on new charges and could properly be regarded as being held on pre-sentence detention for that reason.[42] For the reasons we have set out it was not necessary for her to make that distinction, as both types of remand in custody were pre-sentence detention. In other words, time spent in custody during the contested period will still be pre-sentence detention even if no new charges are laid.
[42]Sutherland v Chief Executive of the Department of Corrections, above n 7, at [70].
Therefore, through a different reasoning process, we have reached the same view as the Judge. Corrections erred in law when they declined to take the contested period into account when calculating Ms Sutherland’s release date. For the avoidance of doubt we make it clear that in our view s 82 of the Sentencing Act prevails over s 80ZB, as does s 90 of the Parole Act, when a sentence of home detention is sought to be varied or cancelled and the substitute sentence is one of imprisonment. In those circumstances, time spent in custody during the contested period is properly counted by Corrections in calculating an offender’s key dates. It is not a matter for the re‑sentencing judge. This was the approach taken by Judge Rowe when he re‑sentenced Ms Sutherland. It was correct. We dismiss the appeal in CA396/2018.

The appeal in relation to costs

As we have set out, the Judge refused to order costs to Ms Sutherland in the High Court. In a later minute the Judge explained her reasons for not ordering costs. She stated:[43]
[7] In any event, the signal point here is that I did make a determination as to costs. That determination was that costs should not follow the event in the ordinary way. I acknowledge that reasons should have been given. For the record, my reasons were simply that the judicial review proceeding was in the nature of a test case; the Chief Executive had no real choice but to defend the claim, given that all existing High Court authority on the matter at issue supported his position both in Court and in practice. Moreover, my judgment does not adopt (or does not wholly adopt) the submissions advanced on Ms Sutherland’s behalf at the hearing.
[43]Minute of Ellis J, above n 11.
Although the two reasons given in the minute are not technically part of the judgment, they have been adopted by Corrections and we consider them. As can be seen, they were first, that Corrections was bound to defend the claim given existing High Court authorities which supported its position, and second, that not all of the submissions advanced on Ms Sutherland’s behalf were successful.
Given our decision, where we have effectively adopted the approach put forward by Mr Ewen, the second reason relied on by the Judge falls away. Ms Sutherland can be seen as wholly successful in these proceedings. This is judicial review and the civil scale applies. Under r 14.2(1)(a) of the High Court Rules 2016 costs would ordinarily follow the event. The party that loses pays.
As to the other reason of public interest, we accept that Corrections has faced an interpretation dilemma in considering s 80ZB, which arguably falls under r 14.7(e) of the High Court Rules. That rule provides that the court may refuse to make an order for costs or reduce costs if:
(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; …
Corrections’ position was reasonable and was supported by the High Court judgments we have referred to. However, although Corrections cannot be said to have acted unreasonably, in the end the Corrections’ approach has been shown to be wrong.
It is commonplace for unsuccessful parties who have acted reasonably and indeed on the basis of authority to lose and to still have to pay costs. The simple rule of costs following the event is intended to avoid the need to calibrate moral fault in the regular task of determining costs. It is intended that the approach to costs can be relatively formulaic when one side has won and the other has lost, save for certain specified instances where reduced, increased or indemnity costs can be ordered.
While on occasions the usual rule is not applied because the proceedings are brought in the public interest and r 14.7(e) applies, this is normally when the unsuccessful party is under-resourced or, at the very least, is not a part of the government funded by the community purse. It seems to us that when a government department takes a position that ultimately is shown to be wrong, and a private person who is successful is obliged to meet costs to protect her liberty, that government department should not be permitted to rely on the public interest and the fact that it is a test case as a way of avoiding the usual rule that costs follow the event.
Looking at costs from Ms Sutherland’s point of view (who is not legally aided), why should she have to partly fund the clarification of an important point in the public interest? Particularly when, at the outset, Ms Sutherland had, as a matter of urgency, to bring her habeas corpus proceedings as she was being wrongfully detained. She was being held by Corrections longer than she should have been. Her approach in seeking habeas corpus has been ultimately vindicated. Before the High Court and before this Court she has been doing no more than seeking to establish what has been shown ultimately to be the correct legal position.
It could be said that the issue was moot, as Ms Sutherland was promptly released with the consent of Corrections, and did not have to pursue the High Court case to a hearing. However that would have left a most unsatisfactory state of affairs, as habeas corpus would have been granted without full argument or reasons. The Judge when she granted habeas corpus plainly expected full argument in due course, which she received.
We therefore allow the appeal against the costs decision. We see no basis for reducing the usual scale awards.
It also follows from this analysis that costs should be awarded in Ms Sutherland’s favour in this Court in the usual way.

Result

The appeal in CA396/2018 is dismissed.
The appeal in CA442/2018 is allowed.
The declaration made at [71] of the High Court judgment is upheld, but for different reasons than those given in the High Court.
The direction in the High Court that there should be no costs award is quashed. If the parties cannot agree, High Court costs are to be fixed by that Court in the light of this judgment.
The Chief Executive of the Department of Corrections must pay Ms Sutherland costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Crown Law Office, Wellington for Appellant in CA396/2018 and Respondent in CA442/2018
Ord Legal, Wellington for Respondent in CA396/2018 and Appellant in CA442/2018

[2018] NZCA 623

21 December 2018