Young v Chief Executive, Department of Corrections HC Auckland CIV 2010-404-6115

[2010] NZHC 1627

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006115

UNDER  the Habeas Corpus Act 2001

IN THE MATTER OF     an application for writ of Habeas Corpus

BETWEEN  CHRISTOPHER JAMES YOUNG Applicant

ANDCHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         16 September 2010

Appearances: Applicant in person assisted by McKenzie friend

A Powell for Respondent

Judgment:      16 September 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Law, Auckland

Copy to:            C J Young, Albany

YOUNG V CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS HC AK CIV-2010-404-006115  16

September 2010

Introduction

[1]      This is an application for a writ of habeas corpus brought by the applicant Mr Young on his own behalf.  Mr Young has been assisted by his mother as a McKenzie friend.

[2]      For  the  reasons  that  follow  the  application  for  habeas  corpus  must  be dismissed but there are matters that have been raised in the course of this application which should be considered further by the Court.   After discussing those matters with Mr Powell for the Chief Executive and the applicant, I have determined that the appropriate course of action in this case is for the application for habeas corpus to be dismissed, but these proceedings be effectively converted into review proceedings for determination of a question of law with the appointment of an amicus to assist the Court in relation to the determination of that question.

[3]      For the reasons that follow that should be done and the matter allocated a half day hearing as a matter of priority.

Background

[4]      The applicant, Mr Young, is presently an inmate at Paremoremo Prison.  He has had several terms of imprisonment imposed since initially being remanded in custody on 30 October 2006.  The history to his custody is set out in an affidavit of Mr Devine, the Acting Operations Adviser for the Department of Corrections.

[5]      On 2 July 2007 Mr Young was sentenced to imprisonment for one year six months.  As he had been remanded in custody on 30 October 2006 he was effectively released on 11 July 2007.  However, he remained in custody because at the time he was remanded on other charges.  He then received a further sentence of nine months at the Auckland District Court on 27 February 2008.  With pre-sentence detention credited to this sentence, the relevant release date was calculated as 27 February

2008.   But again on that date Mr Young reverted to custodial remand on other

matters.  He was then subsequently bailed on 25 August 2008 but on 3 October 2008 bail was revoked.  On 8 November 2008 Mr Young was sentenced to eight years’ imprisonment  on  a  charge of  aggravated  robbery.    At  the  time  the  Department credited 631 days as qualifying for pre-sentence detention relevant to this sentence. The 631 days was calculated as follows:

•from 15 January 2007 (the date the charge was laid) to 2 July 2007 (173 days) at which point Mr Young was in custody in relation to the first sentence outlined above;

•         from 11 July 2007 until 25 August 2008 when bailed (412 days);

•from 3 October 2008 when bail was revoked to 8 November 2008 when he was sentenced to eight years (46 days).

[6]      At that point in time Mr Young’s relevant dates were:

•         parole eligibility 17 October 2009;

•         statutory release/sentence expiry date 18 February 2015.

[7]      On 4 February 2009 a further sentence of imprisonment of one year was imposed to be served concurrently with the eight year sentence.

[8]      In the meantime Mr Young had appealed in respect of the conviction and eight year sentence.  On 2 October 2009 the Court of Appeal quashed the conviction and sentence and directed a retrial resulting in Mr Young reverting to remand from 2

October 2009.

[9]      On 23 October 2009 the Auckland District Court imposed a sentence of three years  nine  months  in  relation  to  unrelated  charges  of  burglary  and  aggravated robbery.

[10]     In terms of the relevant sections in the Parole Act the pre-sentence detention for the sentence of three years nine months was calculated at 724 days.   It was determined as follows:

•         from 30 October 2006 to 2 July 2007 (245 days);

•         from 11 July 2007 to 25 August 2008 and on bail (412 days);

•         from 3 October 2008 to 18 November 2008 (46 days);

•from 2 October 2009, the outcome of the appeal, to 23 October 2009, when sentenced to three years nine months (21 days).

[11]     In calculating the time on remand the Department has not credited the time from 18 November 2008 until 2 October 2009 (316 days) towards the three year nine month sentence Mr Young is serving, as during this time he was serving the sentence of eight years for the unrelated matter.

[12]     Putting that 316 days to one side Mr Young’s relevant dates for the three year nine month sentence he is currently serving are:

•         parole eligibility date 23 October 2009;

•         statutory release/sentence expiry date 29 July 2011.

[13]     Mr Young has bought this application for habeas corpus on the basis that the Department should have taken the 316 days into account as time on remand because the sentence he was serving at the time has been quashed along with the conviction underlying it.  If that period is taken into account, then on Mr Young’s assessment, his release date should have been Tuesday 14 September 2010.  For that reason the application for habeas corpus was pursued.    I note Mr Young has some documentation from the prison which suggests that was also the view taken by the prison, at least initially.

[14]     However, in the meantime, there has been further development.  Mr Young has pleaded guilty to a lesser charge in substitution for the charge which led to the sentence of eight years’ imprisonment.  He is to go to a disputed fact hearing in the District Court on 8 October 2010 in relation to that matter.

Decision

[15]     On an application for habeas corpus such as this the Court must determine whether the applicant for the writ is lawfully detained.

[16]     Mr  Devine  has  produced  to  the  Court  the  warrant  of  commitment  for sentence in relation to the sentence of three years nine months and has also produced an order from the District Court confirming that Mr Young is required to be held in custody until 8 October 2010 for the disputed facts hearing on the unrelated charge to which he has now pleaded guilty.

[17]     On that evidence I am satisfied that whatever the merits of Mr Young’s argument in relation to the effect of the 316 days he is presently held in custody by a lawful order of the District Court.   On that basis alone the application for habeas corpus must be dismissed.

[18]     However, the point Mr Young raises in relation to the time spent in custody under the sentence and whether that can properly be counted as pre-sentence detention is an important one, and perhaps not only just for Mr Young.

[19]     Mr Powell, who has appeared for the Chief Executive of the Department at short notice, accepts that the point raised is potentially of practical significance to others as well as Mr Young.   He is not aware of it having arisen or having been determined before.

[20]     It is a point of interpretation of the relevant provisions of the Parole Act

2002.  It has not been possible in the limited time available to counsel, Mr Powell and to the Court, to reach a definitive answer on the point.  Mr Young of course is

without legal representation and appears on his own behalf, albeit assisted by his mother as a McKenzie friend.

[21]     The  point  shortly  stated  arises  out  of  the  interpretation  of  the  relevant provisions of the Parole Act, in particular ss 90, 91, 92, 94, 96 and 79.

[22]     For  present  purposes,  importantly,  s  91(1)  provides  that  pre-sentence detention  is  detention  occurring  at  any  stage  during  proceedings  leading  to conviction or pending sentence, whether that relates to:

(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.

[23]     Section 91(5)(a) provides that:

Detention that would, under subsection (2) or subsection (3), be pre-sentence detention, is not pre-sentence detention for the purposes of subsection (1) if the offender was, during that detention,–

(a)under legal custody in accordance with the Corrections Act 2004 and serving a sentence of imprisonment;

[24]     The issue is whether s 91(5) applies to any period when a person is in custody under a sentence of imprisonment in relation to a conviction which is subsequently quashed on appeal.

[25]     The indication from the way s 91(5) is prefaced may be that such custody is not to be taken into account as pre-sentence detention.  Further, s 79 provides that, in the event of a subsequent sentence of imprisonment the start date for the sentence substituted for one that has previously been quashed or otherwise set aside, will be the date of the original sentence.   That suggests the time in custody may not be counted as pre-sentence detention.  But Mr Powell has conceded that the point is not clear and suggested that there may be issues arising out of interpretation of and application of the principles in the New Zealand Bill of Rights Act 1990 that should be considered in relation to the point.

[26]     For those reasons I do not propose to make a definitive finding on that issue at this stage.  I propose to convert these proceedings to review proceedings for that issue to be determined.

[27]     I make the following directions:

a)       The Court is to determine the  following question, (subject to any further amendment by the Court as may be considered appropriate):

Does s 91(5) of the Parole Act 2002 apply to a period of custody under a sentence of imprisonment in relation to a conviction subsequently quashed on appeal?

b)        No further pleadings are required to be served.

c)       The Registrar is to appoint an amicus to assist the Court in relation to that issue.

d)The respondent’s submissions on that issue are to be filed and served in seven days (by 23 September 2010).

e)        The amicus’ submissions are to be filed and served within 14 days (by

30 September 2010).

f)        Mr Young is to file and serve any submissions in addition to those of the amicus within 14 days (by 30 September 2010).  I anticipate that the amicus will contact Mr Young to discuss the matter with him prior to filing his or her submissions;

g)       The Registrar is then to allocate a two hour hearing at the earliest possible date after the expiry of that timetable (after 4 October 2010).

[28]     I confirm the application for habeas corpus is dismissed.

Venning J