Sutherland v Chief Executive of the Department of Corrections
[2018] NZHC 1366
•20 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2017-485-1028
[2018] NZHC 1366
BETWEEN BELINDA ANN SUTHERLAND
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 11 April 2018 Counsel:
D Ewen and E Blincoe for Applicant
V McCall and J B Watson for Respondent
Judgment:
20 June 2018
JUDGMENT OF ELLIS J
[1] In mid-2017, Ms Sutherland was serving a sentence of five months’ home detention on (inter alia) two charges of refusing to provide a blood sample.1 Following a relatively early and fundamental breach of that sentence, further charges were laid and she was taken into custody. At the same time, a probation officer applied to have her resentenced under s 80F(1)(a) of the Sentencing Act 2002 (the SA). On 25 September, she was resentenced by Judge Rowe to 16 months’ imprisonment. That sentence included a two- month concurrent sentence on charges relating to the breach.2
1 Contrary to s 60(1)(a) of the Land Transport Act 1998. Because they were her eleventh and twelfth convictions for drink-driving related offences, the maximum penalty upon conviction was two years’ imprisonment or a $6000 fine.
2 Department of Corrections v Sutherland [2017] NZDC 21671.
SUTHERLAND v DEPARTMENT OF CORRECTIONS [2018] NZHC 1366 [20 June 2018]
[2] On 15 December 2017, Ms Sutherland filed an application for habeas corpus on the grounds that her release date had been wrongly calculated by the Department of Corrections (Corrections). Her contention was that the time she had spent in custody pending her resentencing was “pre-sentence detention” which was deemed by s 90 of the Parole Act 2002 (the PA) to form part of the time she had served. The failure to take that period into account was said to render her continued detention unlawful. Reliance was placed, by analogy, on the recent Supreme Court decision in Booth v R.3
[3] In accordance with the Habeas Corpus Act 2001 (the HCA) the application was set down for hearing quickly, on 18 December 2017 (the penultimate sitting day before the Christmas vacation). Relying on Mander J’s (pre-Booth) decision in Hawkins v Chief Executive of the Department of Corrections, the Crown did not accept that there had been any error in calculating Ms Sutherland’s release date.4 Nonetheless, it acknowledged that there had been an error by the resentencing Judge in failing to take the time Ms Sutherland had spent in custody into account. Ms McCall submitted that including that time in the resentence calculation would have yielded an end sentence of 12 months’ imprisonment and that Ms Sutherland should, therefore, already have been released.
[4] Notwithstanding the Crown’s position, Mr Ewen made it clear that he wished to pursue his contention that it was not for the resentencing Judge but for Corrections to make the relevant calculations. Regardless of whether Ms Sutherland was released immediately (as the Crown accepted she should be) the point he wished to take was both of wider significance and of real and continued moment to Ms Sutherland. If Mr Ewen’s contention proved correct, then Ms Sutherland would have a basis for a false imprisonment claim relating to the period during which she was detained past her statutory release date. By contrast, an error by the resentencing Judge could not found such a claim, in the face of a valid warrant for her continued detention.
3 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
4 Hawkins v Chief Executive of the Department of Corrections [2015] NZHC 1001.
[5] In light of these circumstances, it was agreed that I should make interim orders under s 11 of the HCA for the immediate release of Ms Sutherland with a view to determining the substantive matter at a later date.5 I considered that there were grounds for making such an order given that:
(a)Mr Ewen appeared to have a tenable argument that the earlier decision in Hawkins needed to be reconsidered in light of Booth; and
(b)in any event, the Crown agreed that a sentence appeal should result in Ms Sutherland’s release forthwith.
[6] It was also agreed that, out of an abundance of caution, Mr Ewen should file an appeal against sentence and that no issue would be taken by the Crown as to its lateness.6 In other words, it was agreed that Ms Sutherland should be released from custody but with the precise legal basis for her release to be determined later.
[7] Notwithstanding what I consider to be the practical sense of the outcome arrived at last year, with the benefit of subsequent reflection, it has created potential difficulties. In particular, the reality is that Ms Sutherland has been released from prison and all are agreed that her return there could neither be sought nor warranted. On that analysis, the substantive application for habeas corpus is plainly moot. But nor is the answer to be found simply by determining the sentence appeal in Ms Sutherland’s favour; Mr Ewen is adamant that there has been no judicial error here and, as noted, the point he seeks to advance is not academic.
[8] In the end, it was agreed that I should treat the habeas application as an application for judicial review in which declarations as to the meaning and application of the relevant statutory provisions are sought.7
5 Sutherland v Department of Corrections [2017] NZHC 3189.
6 An appeal was filed on 30 January 2018.
7 It was agreed that in the event that I were to determine that application against Ms Sutherland I should continue the interim orders under the HCA pending Mr Ewen’s clearly foreshadowed appeal.
[9] Before turning to the substantive issues raised by Mr Ewen it is necessary to say a little more by way of background, in relation to the sentencing and resentencing of Ms Sutherland. I then set out the relevant legislation and case law, followed by my analysis of the issues arising.
Ms Sutherland’s sentencing and resentencing
Sentencing by Judge Morris
[10] On 28 November 2016, Ms Sutherland initially appeared and was remanded in custody on two charges of refusing to provide a blood specimen. She was remanded in custody for approximately four months until she was granted bail, on 23 March 2017.
[11] Ms Sutherland then pleaded guilty to the driving charges and, on 15 June 2017, Judge Morris sentenced Ms Sutherland to five months’ home detention. The process by which she arrived at that end sentence is not expressly articulated in her notes. All she said was:8
[10] You have spent some four months in custody already, so that has certainly been a drying out period. It has been a period when you have had to reflect on what it is that you want out of life and for your daughter as well. That is the equivalent of an eight month sentence of imprisonment, so I think it enables me, with your guilty plea, to look at home detention as a vehicle with which residential treatment could then be relooked at. And that is the reason that I am imposing home detention.
…
[12] So on each of these charges, Ms Sutherland, you are convicted and sentenced to five months’ home detention.9
Subsequent events and resentencing by Judge Rowe
[12] On 21 July 2017, Ms Sutherland cut off her electronic bracelet and absconded from her home detention address. At that point, she had served a little over one month of her sentence.
8 New Zealand Police v Sutherland [2017] NZDC 12810 at [10] and [12].
9 She was also disqualified from driving for 18 months.
[13] On 25 July 2017, two breach of home detention charging documents were filed along with an application for review of the home detention sentence under s 80F of the SA. Ms Sutherland was remanded in custody. An application for EM bail was declined on 31 August. She then spent the two months (between 25 July and 25 September 2017) in custody. Throughout the remainder of this judgment I will refer to this as “the contested period”.
Resentencing by Judge Rowe
[14] On 25 September, Judge Rowe resentenced Ms Sutherland on the driving charges to 16 months’ imprisonment and sentenced her concurrently on the breach charges to two months’ imprisonment. In doing so, he relevantly said:10
[2] Having read Her Honour's decision it appears she started with a sentence of about 18 months' imprisonment, determined that home detention was the appropriate outcome for you, and gave you an allowance for the fact you had spent four months in custody up to that time, which is the equivalent of an eight month sentence. Taking that eight months off the 18 months she got back to about 10 months and arrived at the five months' home detention sentence.
[3] You served about one month of the home detention sentence before you removed your bracelet and left your address, which is why you are now in custody. You are also before the Court for sentence having pleaded guilty today to charges of breach of home detention by removing your bracelet and leaving your address.
…
[6] … Clearly a breach of home detention is a serious matter. It is a sentence that is imposed as an alternative to imprisonment. I am required to uphold the integrity of home detention as a sentence.
[7] Having said that, when I revisit Judge Morris' decision, if I again start at 18 months for the drink-driving offences, take into account the one month that you spend on home detention which is the equivalent of about two months in custody that would bring me back to 16 months as an end-point sentence. I regard that as an appropriate outcome for all matters.
[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.
10 Department of Corrections v Sutherland, above n 2.
[9] I therefore grant the application for review of home detention. Your home detention sentence is cancelled. In its place I substitute sentences of 16 months’ imprisonment concurrently. So on charge 1694, that is refusing a blood sample on 23 November 2016, you are sentenced to 16 months’ imprisonment as a substituted sentence.
…
[12] On the refusing to permit a blood specimen charge of 17 February 2017, charge 0294, you are sentenced to 16 months’ imprisonment concurrently as a substituted sentence.
[13] For the two breaches of home detention on 21 July you are convicted and sentenced to two months’ imprisonment concurrently so they do not add to the 16 months’ sentence.
[14] You will be released as I say in a couple of months. I hope things work out better for once released. Please comply with your release conditions so we do not see you back here.
[15] It may usefully be observed at this point that the Judge’s repeated expectation that Ms Sutherland would have approximately two months left to serve, following the resentencing, appears to indicate a view that both the four months spent in custody between 28 November 2016 and 23 March 2017 and the two months spent in custody between her home detention breach and resentencing would be taken into account by Corrections when calculating her release date.11
The issue
[16] The issue raised by this case can be stated relatively simply. The question is whether the contested period (the two months that Ms Sutherland spent in custody between 25 July 2017 and 25 September 2017) was:
(a)required to be taken into account by Corrections as a period of “pre-sentence detention” when calculating her release date under s 90 of the PA; or
11 Section 86(1) of the Parole Act 2002 provides that the release date for a short-term sentence of imprisonment (ie a sentence of two years or less) is the date on which the offender who is subject to the sentence has served half of it, and s 90 (discussed below) provides that any period of pre-sentence detention is to be regarded as time served. Accordingly, Ms Sutherland’s release date would only be within two months of the resentencing if all of the 177 days she had already spent in custody was deducted from half the sentence of imprisonment (which was eight months).
(b)a discretionary consideration for the resentencing Judge under s 80ZB of the SA.
[17] That question involves the interplay between the core pre-sentence detention provisions contained in the PA and the SA on the one hand, and the newer provisions in the SA dealing with home detention and resentencing on the other.
The core provisions – pre-sentence detention under the PA and the SA
[18] Section 90 of the PA deems all pre-sentence detention to be time served. More particularly, it provides:
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.
[19] And the term “pre-sentence detention” is relevantly defined in s 91(1) and (2) 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.
[20] But s 91(5)(a) excludes from that definition detention where the offender was, during that detention, “under legal custody in accordance with the Corrections Act 2004 and serving a sentence of imprisonment”.
[21] Section 92 deals with the determination of the length of pre-sentence detention and the review and appeal provisions. In relevant part it provides:
92 Procedure for recording length of pre-sentence detention
(1)The person who is in charge of a prison, social welfare residence, hospital, or secure facility referred to in section 91(2) (in this section referred to as a detention place) must keep a record of—
(a)the date on which a person is admitted to the detention place on detention as referred to in section 91(2); and
(b)the total period during which the person is subsequently detained before sentence in that detention place, whether on the original charge or any other charge.
(2)After sentencing, the person in charge of the detention place (other than a Police jail) must supply the offender with a copy of the record kept under subsection (1) and, if the offender disputes the accuracy of the record, he or she may apply to the person who made it to review it.
(3)A person in charge of a detention place (other than a Police jail) who receives an application under subsection (2) must immediately review the record and, having reviewed it, must notify the offender in writing of—
(a)whether the record is confirmed; or
(b)the manner in which the record is amended.
(4)If the offender is dissatisfied with the outcome of the review, he or she may appeal the review to the court that imposed the sentence, in which case subpart 4 of Part 6 of the Criminal Procedure Act 2011 applies so far as it is applicable and with any necessary modifications, to the appeal.
[22] Section 82 of the SA, complements (and is the mirror image of) s 90 of the PA. It states:
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.
The decision in Booth
[23] In Booth, the Supreme Court was concerned with the proper interpretation of operation of the core provisions just noted above. In that case the Court unanimously held that the way in which the Courts had previously been interpreting the core provisions was wrong. As a consequence, Corrections’ method of calculating periods of pre-sentence detention (and therefore prisoners’ statutory release dates) was also wrong.
[24]The plurality outlined the effect of s 91 as follows:12
[17] Pre-sentence detention is calculated in the aggregate. There is no warrant in the language of s 91(1) for it to be calculated on a charge by charge basis. Treating “the proceedings” in the first part of s 91(1) as referable to each charge is inherently inconsistent with the references to “any charge” and “any other charge” in the balance of the provision. Equally, the sentence referred to in ss 90(1) and 91(1) is not the sentence for each charge. We cannot read the term “sentence” in the first part of ss 90(1) and 91(1) as referring other than to the sentence imposed at the end of the proceeding or proceedings, starting with the first remand into custody and ending with the sentence of imprisonment.
[25] The Court was expressly disavowing the approach mandated in earlier decisions, beginning with Taylor v Superintendent of Auckland Prison, that pre-sentence detention was to be assessed on a charge by charge (or “relatedness”) basis.13 It held that the notion of “related” offending was an “unwarranted gloss on the statutory language” that would lead to “evaluative decisions … inevitably be[ing] uneven in application in an area that should be as certain and as simple to administer as possible”.14 The Court said:
[24] In summary, the s 91(1) definition of pre-sentence detention relates to detention during the whole of the court process or processes from the original remand in custody on any charge up to the imposition of a sentence (or sentences) of imprisonment. The entirety of that period is deducted from each sentence or sentences of imprisonment imposed in terms of s 90(1). This applies whether the sentence of imprisonment relates to a single charge or more than one, whether or not the sentence of imprisonment 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
12 Booth v R, above n 3, at [17] (footnotes omitted).
13 Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752 (CA).
14 Booth v R, above n 3, at [18].
the sentence or sentences of imprisonment relate were faced after arrest and before conviction.
[26] The history of the relevant legislation was comprehensively reviewed by William Young J in a separate but concurring judgment. He emphasised that the SA and the PA were enacted “at the same time and were intended to provide a coherent approach to sentencing and parole”, and so must be read together.15 He traced the key developments in the legislation dealing with pre-sentence detention both before and after the enactment of the Criminal Justice Act in 1985 (the CJA). He said:
[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.
[27]Later, he elaborated:
[68] Prior to the enactment of the Criminal Justice Act 1985, an allowance for time spent on remand in custody could be made by reducing what would otherwise have been the appropriate sentence. Practice as to the allowance of such deductions was uneven, and where allowances were made, there was not much, if any, engagement with parole considerations with the result that time spent in custody pending trial was not necessarily fully accounted for on sentence. For instance, an offender who had been on bail prior to sentence and was sentenced to two years’ imprisonment would serve less time than an equally culpable prisoner whose 12 months on remand was deducted from an otherwise appropriate sentence of two years and was thus sentenced to 12 months. Assuming a release after half the sentence was served, the first offender would spend 12 months in prison and the second 18 months in prison (12 on remand and six as a sentenced prisoner).
[28] A footnote to that paragraph notes that a survey of judges in 1982 revealed that where defendants had spent time in custody on remand prior to conviction:16
15 At [43] per William Young J.
16 At [68] citing Ministry of Justice Attitudinal Assessment of New Zealand Judiciary about Sentencing and Penal Policy: Part 1 Analytical Summary (1982) at 93–94.
(a)43 per cent of Judges always took that into account when sentencing;
(b)31 per cent of Judges frequently took that into account when sentencing;
(c)22 per cent of Judges sometimes took that into account when sentencing;
(d)one per cent never took it into account; and
(e)three per cent either did not know or did not provide an answer.
[29]The Judge then summarised subsequent legislative developments, as follows:17
(a)between 1 October 1985 and 1 August 1987,18 s 81 of the CJA required the sentencing judge to determine the extent of any pre-sentence detention and to specify that period on the warrant of commitment;19
(b)between 1 August 1987 and 1 September 1993,20 s 81 required a sentencing judge to take into account time spent in pre-sentence detention by reducing the sentence of imprisonment that would otherwise be appropriate;
(c)from 1 September 1994, s 81 was amended again by reinstating the 1985-1987 position but shifting the recording function to Corrections. While the earlier version had required a sentencing judge to “determine as nearly as practicable on the information available to it” the total time spent in pre-sentence detention, the 1994 iteration required precise calculations of dates by the prison.
17 Booth v R, above n 3, at [70] – [75] per William Young J.
18 When s 8 of the Criminal Justice Amendment Act (No 3) 1987 came into force.
19 This provision was extensively criticised by Holland J in R v Jarvis HC Christchurch BF S47A, 6 March 1987 noted in [1987] BCL 599.
20 When s 40 of the Criminal Justice Amendment Act 1993 came into force.
[30] In 2002, this last approach was effectively re-enacted in the form of ss 89 and 90 of the PA. Section 92 of the PA expressly authorises and facilitates the record keeping the post-1994 approach requires. In that regard, William Young J said:21
[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…
[31] Importantly, ss 89 to 90 of the PA are complemented and supported by s 82 of the SA, which also addresses the problem of arbitrary and inconsistent sentencing practices of the kind noted by William Young J and to which I refer at [26] – [27] above. Section 82 makes it clear beyond doubt that taking appropriate account of custodial remand time and calculating the precise duration of pre-sentence detention a task for Corrections, not sentencing judges.
[32]The key themes that seem to me to emerge from the decisions in Booth are that:
(a)pre-sentence detention is calculated in the aggregate and is not to be assessed on a charge by charge basis (as long as the period of detention relates to “any charge on which the person was convicted”);22
(b)sentencing decisions should be as simple to administer as possible;23
(c)glossing the statutory language by requiring that pre-sentence detention to be on a “related” charge is unwarranted and will lead to evaluative decisions which will inevitably be uneven in application;24
21 Booth v R, above n 3, at [53] per William Young J (footnotes omitted).
22 At [18].
23 At [18]
24 At [18].
(d)no distinction is to be drawn between cumulative and concurrent sentences for the purposes of crediting pre-sentence detention;
(e)given the single notional sentence treatment of cumulative sentences, there will be no double counting;25
(f)section 92 of the PA is a record keeping section to ensure that pre-sentence detention is credited on a precise day for day calculation;26
(g)pre-sentence detention relates to detention during the entirety of the court process from original remand in custody on any charge up to the imposition of a sentence of imprisonment;27
(h)the underlying policy of the PA is that all pre-sentence detention counts as long as the charges on which the person is sentenced were faced during the period of detention;28
(i)evaluative decisions about the question of “relatedness” result in arbitrary and uneven decision-making which could not simply be addressed through the exercise of an appeal right;29 and
(j)legislative interpretations where “a great deal depends on chance” are undesirable.30
25 At [20].
26 At [22].
27 At [24].
28 At [26].
29 At [27].
30 At [32] and [63].
The home detention resentencing provisions in the SA
[33] Sections 80A to 80ZI were inserted into the SA as a result of the passage of the Sentencing Amendment Act 2007. They formed part of a package of changes to the SA aimed at increasing the range of available non-custodial sentences. Three such sentences were introduced: home detention, community detention and intensive supervision.31
[34] The amendments provide that any of the new community-based sentences can, in certain specified circumstances, be reviewed. And as a result of such a review, any such sentence can be cancelled and another sentence substituted.
[35]For present purposes, the starting point is s 80F. It materially provides:32
(1)An offender who is subject to a sentence of home detention, or a probation officer, may apply for an order under subsection (4) on the grounds that—
(a)the offender is unable to comply, or has failed to comply, with any detention conditions:
…
(4) On an application under subsection (1), (2), or (3), the court may, if it is satisfied that the grounds on which the application is based have been established,—
(a)remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions; or
(b)vary the home detention residence; or
(c)cancel the sentence; or
(d)cancel the sentence and substitute 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 of the offence for which the sentence was imposed.
…
31 Prior to the passage of the amendments, home detention was available only to offenders who had already been sentenced to imprisonment, and meant that a portion of their sentence could be undertaken in a monitored community environment. The amendments provided that home detention could be imposed as a separate sentence and would no longer be available to those sentenced to imprisonment. While the amendments changed the status of home detention, the way it was administered essentially remained the same.
32 The review provisions are materially identical for all the new community based sentences.
(6) Section 72 applies, with any necessary modifications, to an application under this section.33
[36]Next, s 80G relevantly provides:
(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.
[37]Also relevant are ss 80Z and 80ZA, which provide:
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;34 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.
80ZA When detention conditions suspended
The detention conditions of an offender serving a sentence of home detention are suspended during any period that the offender spends in custody under a court order (for example, on remand), but time continues to run during any period that they are suspended.
[38] The last key provision is s 80ZB. For reasons that will become evident, it is necessary to consider the way in which this provision has evolved over time.
33 Subsection 6 is notable principally because its incorporation of s 72 means that an application for variation or cancellation is deemed to be a charging document if an arrest warrant is issued.
34 The term “detention end date” is defined in s 4 as “the date on which an offender who is subject to a sentence of home detention ceases to be subject to detention conditions”. In turn, “detention conditions” are defined as the standard conditions set out in s 80C and any special conditions imposed under s 80D.
[39]As originally enacted in 2007, s 80ZB 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.
[40] It can usefully be observed at this point that because, in Ms Sutherland’s case the application under s 80F(1) was made on the same day that she was taken into custody, this provision (had it remained in force) would have meant that all her time in custody was counted as time served on her home detention sentence.35 That is, of course, consistent with:
(a)the position under s 80Z, which is that the home detention sentence continues in force until it is cancelled; and
(b)the position under what is now s 80ZA, namely that time continues to run on a home detention sentence notwithstanding that the offender is in custody.
[41] And in terms of the resentencing process, s 80G would have required the Court to take that time into account by deducting it, presumably on a “day for day” basis, from the original home detention sentence (less any time actually spent on home detention) in order to determine what portion of that sentence remained unserved.
35 Presumably on a “day for day” basis. I put to one side for the moment the issue discussed later, namely whether it makes a difference that she was also facing fresh charges at this time.
[42] The Administration of Community Sentences and Orders Bill 2011 (the ACSOB) contained an amendment to s 80ZB. Initially, the only proposed change was to replace the reference to “section 80F” with a reference to “section 80F(1)(a)”.
[43] At the same time, however, the ACSOB introduced new provisions specifying when time ceases to run on sentences of supervision, intensive supervision and community detention. As introduced, those clauses (which now find form in ss 54AA, 54KA and 69IA of the SA) each provided that time stopped running on those sentences during any period between the date on which an application for variation or cancellation of the particular sentence was made and the date on which the offender resumed his or her sentence in accordance with the relevant conditions.
[44] Submissions received by the Select Committee from the Legislation Advisory Committee and the Law Society expressed concern that such provisions would, by not permitting the intervening period to be counted as time served, penalise those offenders who continued to comply with their sentence conditions during that period. So, in response, Corrections recommended to the Select Committee that the draft sections be amended to provide that:
… when determining an application to vary or cancel a community-based sentence because of an offender’s inability or failure to comply with conditions, the court must either confirm that time did not run on the sentence for any of the period between the application and its determination, or stipulate the period or periods since the application during which the time has been running on the sentence.
[45] And it was at this point that Corrections also proposed that a parallel amendment should be made to s 80ZB. It is this amendment that finds form in the present iteration of the section, as follows:
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.
[46] On any analysis, this amendment has transformed what was formerly a moderately coherent position into one that is much less so. More particularly:
(a)section 80ZB now sits uneasily with both ss 80Z and 80ZA because the amended provision states that time on the home detention sentence ceases to run during the 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, notwithstanding that:36
(i)the home detention sentence remains in force (s 80Z); and
(ii)time on that sentence prima facie continues to run when the offender is in custody (s 80ZA); and
(b)what was (and viewed in isolation remains) an arguably straightforward and mandatory requirement under s 80G that any time unserved (including any time spent in custody) be taken into account on resentencing, has now been muddied by s 80ZB providing that, for the purpose of that exercise the Court has a discretion about whether to take time spent in custody into account.37
[47] But although the amendments as a result of the ACSOB have created a rather inelegant and paradoxical discretionary overlay to the previously non-discretionary position, it does not seem to me that they can sensibly be interpreted as representing
36 It is, perhaps, notable that there are no equivalents to ss 80Z and 80ZA in relation to sentences of supervision and intensive supervision.
37 Sections 80G and 80ZB can, presumably, be read together by requiring the Judge first to determine what portion of the contested period should be taken as time served under s 80ZB and then taking that period into account under s 80G.
any kind of volte face. In other words, I am unable to accept that there was any intention to change the original thrust of s 80ZB, namely that time spent in custody pending resentencing could be taken into account as time served, not as pre-sentence detention. So while the existence of a new discretion may be seen as contrary to one of the key themes in Booth, that case was not concerned with interpreting the resentencing provisions and it is, in my view, impossible to justify a departure from their fairly plain wording. To the extent that conclusion conflicts with s 82, it is resolved by the interpretive rule that the specific overrides the general.38
The cases
[48] There are a number of decisions in which this Court has considered the interplay of the statutory provisions presently at issue.39 I do not intend to discuss all of them here as each follows the first in time, namely Mander J’s pre-Booth decision in R v Hawkins.40 It is, however, necessary to say a little more about that case, Dunningham J’s decision in Broadhurst v New Zealand Police,41 and Simon France J’s decision in Gardner v Department of Corrections.42
Hawkins
[49] Mr Hawkins was serving a sentence of home detention when he was arrested for breaching the conditions of his sentence. An application was made under s 80F of the SA to cancel that sentence and substitute a sentence of imprisonment, and fresh breach charges were laid. Mr Hawkins was remanded in custody between 2 April 2015 until 30 April 2015 (the contested period). On 30 April, Mr Hawkins’ sentence of home detention was cancelled and a sentence of two months’ imprisonment was substituted.
38 There is only a conflict if the reference to “pending sentence” in the definition of pre-sentence detention in s 91 of the PA is said to include “pending re-sentence”.
39 As well as the three cases specifically discussed below, the cases are Peita v New Zealand Police [2017] NZHC 1568; Longman v Police [2017] NZHC 2928 and Tesema v Department of Corrections [2018] NZHC 1002.
40 Hawkins v Chief Executive of the Department of Corrections, above n 4.
41 Broadhurst v New Zealand Police [2017] NZHC 498. This decision is notable because Mr Broadhurst’s sentence was cancelled at the time the application for resentence was made. Dunningham J therefore held that the period between cancellation and resentence was pre-sentence detention.
42 Gardner v Department of Corrections [2017] NZHC 2895, [2018] NZAR 49.
[50] Counsel for Mr Hawkins submitted that the contested period constituted pre-sentence detention under s 91 of the PA. But relying on R v Te Aho, Corrections’ position is recorded as being that any reduction for time spent in pre-sentence detention is limited to the sentence for an offence to which that detention relates and that not all time on remand will qualify as pre-sentence detention.43 Corrections said its position was strengthened by the existence of ss 80G(2) and 80ZB of the SA.44
[51]Mander J held that the resentencing provisions applied. 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.
Broadhurst
[52] The (post-Booth) decision in Broadhurst is worthy of mention because it highlights the potential randomness in the operation of s 80ZB.
[53] There, Mr Broadhurst’s home detention sentence had been cancelled when the application for resentence was made. Dunningham J therefore held (rightly, in my respectful view) that the period he had spent in custody between the application/cancellation date and resentence was pre-sentence detention. As a matter of principle, it appears to me to be undesirable that the quality of that period (and the
43 At [12] citing R v Te Aho [2013] NZCA 47 at [15] and [26] – [27]. There can be little doubt that the decision in Te Aho could not survive the decision in Booth.
44 At [13].
exactness with which it is required to be counted) should depend upon the date on which the cancellation application is granted. Indeed, it might be observed that the operation of s 80ZB could be avoided entirely by the resentencing Court cancelling the original sentence retrospectively. Section 80G(4) appears to contemplate that possibility.
Gardner
[54] The tension between the Booth principles and the discretion conferred by s 80ZG was recognised by Simon France J in Gardner. The facts of that case were that:
(a)on 1 December 2016, Ms Gardner was sentenced to 11 months’ and two weeks’ home detention;
(b)on 10 August 2017, she was arrested and charged with breaching her home detention conditions;
(c)on 14 August 2017, an application for review of her home detention sentence was made; and
(d)on 25 September 2017, Ms Gardener was resentenced in the District Court to nine months’ imprisonment.
[55]The nine months’ imprisonment imposed by the District Court comprised:
(a)seven months’ imprisonment, which was intended to reflect the home detention time unserved;45
(b)an uplift of two months for the breaches.
45 It is not entirely clear how Judge Mackintosh reached a substitute sentence of seven months’ imprisonment for the “balance that was outstanding [on the home detention sentence] at 10 August”. At 10 August 2017, Ms Gardner had served 253 days of her sentence, with 96 days remaining. The Judge appears to have doubled the 96 days to reach a sentence of just over six months’ and then rounded up to seven.
[56]She appealed her sentence to the High Court.
[57] Although Simon France J agreed with and applied Mander J’s analysis in Hawkins, he observed that the principles set out in Booth meant that the resentencing Court should have taken the contested period into account. He said:46
… I consider the full period should be credited by the sentencing Court. The legislation does not mandate a direct day for day correlation (s 80ZB(b) of the Sentencing Act is clearly discretionary) but for the moment I cannot envisage a good reason not to give full credit. It is real time served in prison, and full credit would be consistent with the Supreme Court decision in Booth v R.
[58]In terms of the mathematical exercise required, the Judge said:
[10] Turning to the other issue of the assessment of the amount of the home detention sentence remaining, the relevant period is 14 August to 15 November 2017. This is 92 days. The orthodox approach is to double that in order to get the equivalent imprisonment period (because the offender will only serve half the jail term). That is a sentence of 184 days which equates to a six month’ sentence.
[11]I accordingly calculate matters this way:
(a)six months’ imprisonment for the balance of the sentence;
(b)two months’ imprisonment cumulative for the further offending (as assessed by the District Court); but
(c)less an allowance for 43 days for time served (also to be doubled to ensure the credit is effective).
[59] He then substituted a sentence of six months’ imprisonment for the existing nine-month sentence.
[60] Based on that substituted sentence, Ms Gardner would have been required to be released three months or 92 days after her original re-sentencing.47
46 Gardner v Department of Corrections, above n 42, at [8].
47 See “I.03.Res.03 Sentence Calculations on or after 30 June 2002” Department of Corrections
< Short-term determinate sentences are calculated by determining the number of days in the total sentence (in this case, six months being 182.5 days is rounded up to 183 days), then halved (being 91.5 days, rounded up to 92 days). Even if the rounding only occurs at the end, the 182.5 days becomes 91.25 days rounded up to 92 days. Corrections’ policy is that “part days are always rounded up”.
[61] Notwithstanding the Judge’s stated intention to give “day for day” and “full credit” for the contested period,48 however, had that period been calculated by Corrections as pre-sentence detention, she would have been released almost two weeks earlier. The calculations would then have been as follows:
(a)the 92 days remaining on Ms Gardner’s home detention sentence would have been doubled to give an equivalent sentence of 184 days/six months’ imprisonment; and
(b)a two months’ cumulative sentence would have been imposed for the breach charges;
giving an end substituted sentence of eight months’ imprisonment.
[62] On that analysis, Corrections would have halved her sentence to four months’ imprisonment (122 days) and then subtracted the 43 days spent in pre-sentence detention,49 giving Ms Gardener 79 days left to serve after her original sentence.
Discussion
[63] All the relevant cases determined in this Court other than Broadhurst have involved an offender who is both facing resentence on old charges and a new sentence on fresh charges. Although such new charges are likely to relate to the breach that led to the application for resentence that is not always so.50
48 It is not entirely clear whether Simon France J rounded the 86 days credit down to a 61 day credit in reaching a final sentence of six months’ imprisonment, or whether he reduced the nine months’ sentence imposed by a full three months’(the 86-day contested period, rounded up to three months’ credit) from the nine month sentence imposed. On either analysis, the release date for Ms Gardner was still almost two weeks later than it would have been if Corrections had applied the contested period as pre-sentence detention.
49 There were three days between 10 August 2017 and 14 August 2017 which were counted as time served on the home detention sentence by Simon France J. This was because s 80ZA provides that time continues to run on a sentence of home detention, despite being in custody. The remaining 43 days were not, however, captured by s 80ZA because an application for review of the home detention sentence was made on 14 August 2017.
50 For example, in R v Peita, above n 39 the appellant had been sentenced to eight months’ home detention, community work and supervision on charges of theft and receiving but, while serving that sentence, he was arrested on two charges of intimidation. He then spent 161 days in custody pending resentencing on the earlier charges and pending sentence on the later charges.
[64] Despite this, none of the cases to which I have referred have directly grappled with the implications of the existence of new charges, in terms of the interaction of the pre-sentence detention and the resentencing regimes. And in my view, that is the real issue raised by these cases. The question is whether the operation of those two regimes can be reconciled.
[65] The starting point is that the reasoning in Hawkins does not assist. I agree with Mander J that, in a case involving resentencing simpliciter, detention pending resentence does not fall within the s 91(1) definition of pre-sentence detention because an offender could not be said to be “pending sentence” if he or she remained subject to a sentence of home detention. But, with respect, that ignores the fact that Mr Hawkins was indisputably also “pending sentence” on the new (breach) charges during the contested period. I am unable to discern why the general pre-sentence detention provisions in the PA do not, on their face, govern his position just as the resentencing provisions in the SA do. And the elephant in the room is that the two sets of provisions cannot both be applied. The answer cannot be (for example) simply to fetter the s 80ZB discretion out of existence.
[66] Mr Ewen’s submissions as to the potential reconciliation of the two regimes were predicated on reading down s 80ZB in a way that, for the reasons already given, I do not regard that as tenable.51 Nor am I able to accept Ms McCall’s submission that the answer lies in s 91(5). That provision applies where an offender is in custody and is already serving a sentence of imprisonment.52 Ms Sutherland (for example) was not serving a sentence of imprisonment during the contested period. And while she may at the same time have still been “subject to” a sentence of home detention, she was not “serving” that sentence, because time on it was not running.
51 Essentially his submission was that s 80ZB could only apply when the resentence was another sentence of home detention.
52 See also Booth v R, above n 3, at [24], fn 19.
[67] Nor are the ordinary rules of statutory interpretation of much assistance in the face of such a conflict. The rule about the specific overriding the general does not deal with cases where there are two competing “specifics” namely the provisions which deal with detention pending sentence (on the new charges) and those which deal with detention pending resentence (on the old charges). So too with the rule that provisions enacted later can override those enacted earlier.
[68] Of greater help is the discussion in Statute Law in New Zealand relating to overlapping statutes.53 After referring to cases involving broadly similar difficulties,54 the authors say:55
In the end, this problem, like many others, comes down to a question of construction of the relevant provisions to determine what Parliament must have intended. Wording, purpose, values (including the freedoms in the Bill of Rights Act) and context (including extrinsic materials) are as relevant to the resolution of this as any other question of construction.
[69] It is, accordingly, at this juncture that Mr Ewen’s reliance on Booth comes into play. The specific legislative intent behind the relevant PA provisions was elucidated in the judgment of William Young J and I have summarised them earlier. 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.56 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.
53 JF Burrows and RI Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 480 – 482.
54 Butler v Attorney-General for Victoria (1961) 106 CLR 268; R v Allison [2002] NZLR 679 (CA); Police v Hicks [1974] 1 NZLR 763 (SC) and Registrar-General of Land v New Zealand Law Society [2001] 2 NZLR 745 (CA).
55 JF Burrows and RI Carter, above n 53, at 482.
56 The difference is not hypothetical. As the decision in Gardner shows, even an express judicial intention to give “day for day” credit for the contested period does not necessarily lead to the same result as the process for which Corrections is responsible under the PA.
[70] In my view, these factors point in favour of a conclusion that in cases where both the SA and the PA both potentially govern an offender’s situation, the PA 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. In my view that is what should have happened here. I therefore part company with the cases to which I have referred above.
Result
[71] The application for judicial review is granted. In my view, Corrections erred in law when they declined to take into account the contested period when calculating Ms Sutherland’s release date and I make a declaration accordingly. The effect of this declaration is that Ms Sutherland’s statutory release date was in late November 2017, prior to the first hearing before me on 18 December 2017. There can be no question that she is now lawfully at large.
[72] I appreciate entirely that, in reaching a different conclusion from that reached by other Judges of this Court, I am creating difficulties for the Department. But the reality is that this case would be going on appeal either way. So all I can do is leave it there.
[73]For completeness, the appeal against sentence is dismissed.
[74]There will be no order as to costs.
Rebecca Ellis J
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