Taylor v Superintendent of Auckland Prison

[2003] NZCA 159

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 201/03

ARTHUR WILLIAM TAYLOR

v

THE SUPERINTENDENT OF AUCKLAND PRISON

Hearing:23 July 2003

Coram:Gault P
Baragwanath J
Panckhurst J

Appearances:  C J Tennet for Appellant

S P France and S B Edwards for Respondent

Judgment:24 July 2003 

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]       The appellant is a prison inmate.  His appeal is by leave of the High Court under s144 of the Summary Proceedings Act 1957 against a judgment of that Court delivered by Priestley J on 11 March 2003.  In terms of the question of law referred for the consideration of this Court

Where a prisoner is already subject to custodial remand, and is subsequently charged with a second unrelated offence, does the remand credit to be attributed to the second unrelated offence (under s81(1) Criminal Justice Act 1985) run

·     from the time of initial remand; or

·     from the time when the person is charged with the second offence?

the Judge selected the second answer.

[2]       The appellant challenges a determination made by the respondent Superintendent as to the calculation of the period of detention on remand to be taken into account in fixing his final release date, which was upheld by the High Court.  The dispute principally concerns the 361 days of his period of detention on remand between the dates of his arrest  (30 August 1991) and sentence (16 July 1993) for a robbery at Te Kauwhata.  For the balance of that period he was not detained on remand, either being on bail or serving a sentence on unrelated matters.  The sentence, of nine years imprisonment, incorporated a credit by Penlington J as sentencing Judge of the 361 days remand period - a virtual year, as required by the then law, in reduction of the ten year term he considered appropriate for that robbery.

[3]       In the interim, on 2 June 1993 the appellant was arrested on an unrelated charge of aggravated robbery (the Antheas robbery) for which on 19 July 1994 a cumulative sentence of two years imprisonment was added to the nine year sentence.  On 28 March 1995 the appellant was sentenced to a one year further cumulative sentence for an attempt to pervert the course of justice on which he had been charged on 20 May 1993.  Finally on 4 August 1998 he was sentenced to yet a further cumulative sentence, this time of three years for escaping, breaking and entering.  So the total sentence was of 15 years.

[4]       Notwithstanding the 361 days credit for the remand period given by the High Court at sentence on 16 July 1993, it is common ground that the repeal of s81 of the Criminal Justice Act 1985 and its substitution by a replacement section on 1 September 1993 had the effect of entitling the appellant to a second credit of 361 days remand time in relation to the subsequent sentences.

[5]       The appellant now submits that the cumulative periods of imprisonment totalling six years are to be reduced by the period of 361 days which had been the subject of both the initial deduction by Penlington J and the second credit resulting from the legislative change.  The submission was described by Priestley J as an attempt at triple dipping.

[6]       The issue turns on the construction of s81(1) of the Criminal Justice Act 1985 (now replaced by the Parole Act 2002 – see ss 91-92) which provided

81.  Period on remand to be taken as time served – 

(1)       The superintendent of any penal institution or the person in charge of any hospital, as the case may require, shall for the purposes of this section cause a record to be kept of–

(a)The date on which any person is admitted to the institution on remand …; and

(b)The total period during which that person is detained in the institution on remand …–

at any stage of the proceedings leading to the person’s conviction or pending sentence, whether that period or any part of it relates to any charge [1] on which the person was originally arrested or [2] that the person faced at any time subsequent to his or her arrest and prior to conviction.

(Underlining and numbers added)

[7]       The dispute was described by Crown counsel in the following diagram of a simpler hypothetical case.

1 January  1 July  31 December

[8]       The appellant says that the period of remand time to be credited to the sentence on count B is one year.  The decision of Priestley J, supported by the Crown, is that the credit is limited to six months.  It is to be emphasised that the offending on Count B is unrelated to that on Count A.  It is undisputed that if Count A changed in nature – as from assault to manslaughter – the remand credit for the sentence on Count A, in whatever form the charge or charges finally take, starts from 1 January.

[9]       It is the appellant’s submission that

…the total period during which any person is detained in the institution on remand…at any stage of the proceedings leading to the person’s conviction or pending sentence…

includes prior unrelated proceedings: here, in the case of the cumulative sentences, those concerning the Te Kauwhata robbery.  Three main arguments are advanced in support of that submission. 

[10]     The first is that such is the literal construction of the legislation.

[11]     The second is that this Court has recognised that the later reference, numbered [2], to

any… charge… that the person faced at any time subsequent to his or her arrest and prior to conviction

embraces unrelated charges: see R v Coward & Hall CA 182/87, 183/87; 18 December 1987; R v Harris CA 283/89, 5 October 1989.  It is said that these authorities require unrelated charges to be recognised as among “the proceedings leading to the person’s conviction or pending sentence”.

[12]     The third is the policy consideration that a person might be arrested in relation to an offence of kind A with the purpose, or at least with the effect, of receiving no credit for that when those proceedings are not pursued and sentence is later imposed upon offending of Count B.

[13]     We did not find it necessary to call on the Crown to add to the written submissions by Mr France and Ms Edwards.  The appellant’s argument cannot succeed for the following independent reasons.

[14]     The meaning of the legislation is to be ascertained from its text and in the light of its purpose.  As the Crown submits, the key concept is that of “the proceedings” to which the section is directed.  Those “proceedings” are the ones leading to the “conviction” and subsequent “sentence” to which the calculation of what the section heading calls “Period on remand…” is germane.  “The total period” embraces that between “charge” and the “conviction” or “sentence” under consideration; so too does “that period or any part of it”.  There is no proceeding until charge; a proceeding commences with an information.  Remand commences with the order of remand on that information.  Any remand time served during the whole period from charge until ultimate sentence counts towards that proceeding. 

[15]     The options following the clause “at any stage of the proceedings leading to the person’s conviction or pending sentence” are designed to cover the eventualities that arise in relation to an initial charge:

[1]       any charge on which the person was eventually convicted (the case of a conviction upon the original charge);

[2]       any other charge that the person faced at any time subsequent to arrest and prior to conviction.  That embraces any other remand time served whether on intermediate charges not originally brought and not subject of sentence resulting from the same series of events; and also, as held in R v Coward & Hall, remand on unrelated charges.

[16]     The essential point is that the remand credit is for time served between the time of original charge and the time of sentence on the same or a related charge.  The alternative would be that a prisoner earned remand credit in relation to an offence not only unrelated to the reason for the prisoner being in jail, but one of which the prisoner has not been charged; of which the commission might not be known to the authorities; or indeed the commission of which might not even have occurred. 

[17]     The authorities do not support the argument. As Priestley J observed

[28]     There is no authority… for the proposition that s81(1) extends to time spent on remand before a prisoner is charged for the particular crime in respect of which remand day credit is sought.

In R v Coward and Hall this Court stated at page 2

…now the Court must give credit for remand custody in fixing the length of any prison sentence it imposes…time spent in custody on remand in respect of any charge the offender faced during the period between arrest on the charge under consideration and conviction or sentence thereon is to be taken into account.

[18]     We accept the Crown’s submission that Hall is direct authority for the respondent’s position.  Hall’s position was set out in the Crown’s diagram:

17 Feb 1986     28 Feb bailed   9 July 1986     18 September   19 December 1986

10 days remand  97 days remand

Remanded on heroin charge

Custodial remand.  New Opium charge added

Sentenced on opium

Sentenced on heroin

 

[19]     The issue in Hall was whether, on the heroin charge, he was entitled to credit for all the remand days between 17 February 1986 and 19 December 1986 (i.e. 10 days and 97 days).  As in Harris the answer was “yes”.  From when the heroin proceedings commenced he served 107 days on remand.

[20]     The equivalent issue to the present case is what remand credit Hall should get for the opium charge.  On the appellant’s argument he would get 107 days on that as well.  But he received 97 days credit.  In short, the remand credit ran only from the date of charge; Hall did not receive credit for the extra 10 days he served on remand before he was charged.  The decision is direct authority in support of the respondent’s argument.

[21]     The final submission, of possible injustice by lack of credit on sentence in proceedings of kind B for time spent on remand on proceedings of kind A, is met by the sentencing court’s power to take that into account.  That is what occurred in R v Afu CA390/96, 22 October 1996 where a casus omissus, later rectified, was dealt with in that way.

[22]     We agree with the Judge’s analysis and conclusion.  The question of law is answered as follows

Where a prisoner is already subject to custodial remand, and is subsequently charged with a second unrelated offence, the remand credit to be attributed to the second unrelated offence (under s81(1) Criminal Justice Act 1985) runs from the time when the person is charged with the second offence

[23]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington