Yurak v Chief Executive of the Department of Corrections
[2019] NZHC 2206
•5 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-890
[2019] NZHC 2206
IN THE MATTER of the Habeas Corpus Act 2001 BETWEEN
DANIEL MALCOLM YURAK
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
CRI-2019-404-168 BETWEEN
DANIEL MALCOLM YURAK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 June 2019 Appearances:
G H Vear and A Spika for the Appellant
J M Blythe and D B Dow for the Respondent
Judgment:
5 September 2019
JUDGMENT OF PALMER J
The judgment was delivered by me on 5 September 2019 at 4.30 pm.
……………………………… Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland
YURAK v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2206 [5
September 2019]
Summary
[1] In the District Court, Mr Daniel Yurak was sentenced to imprisonment. That was converted to home detention and then converted back to imprisonment. The Department of Corrections submits it was the re-sentencing judge’s function to take the first period of imprisonment into account. But he did not, presumably considering it was Corrections’ function, as Mr Yurak submits it was. I agree it was Corrections’ function to take into account the first period of imprisonment in calculating the total period of Mr Yurak’s detention and his statutory release date. Judges make discretionary sentencing decisions. It is for Corrections to make the mechanical calculations of pre-sentence detention. The Parole Act 2002 and the Sentencing Act 2002 need to be interpreted accordingly, purposively and in a rights-consistent manner. I make this decision in the context of an application for habeas corpus which has not yet been finally determined. Although Mr Yurak is not currently in custody, he would be returned to custody if I determined the matter in favour of Corrections. I grant Mr Yurak a writ of habeas corpus.
What happened?
[2] Mr Yurak pleaded guilty to three charges of receiving motor vehicles, two of failing to answer District Court bail, possession of a methamphetamine pipe, cannabis and an offensive weapon. He was in prison for the following periods:
(a)He was arrested and remanded in custody for 56 days, in two periods interrupted by a period of bail: 48 days (from 16 May 2018 until 2 July 2018) and 8 days (from 12 September 2018 to 20 September 2018).
(b)On 20 September 2018, in the Auckland District Court, Judge E P Paul sentenced Mr Yurak to 18 months’ imprisonment and granted him leave to apply for home detention.1 He served this sentence for 114 days.
1 New Zealand Police v Yurak [2018] NZDC 19843.
(c)Mr Yurak applied for home detention. On 11 January 2019, Judge J M Jelas granted the application and substituted his sentence of imprisonment with a sentence of four months’ home detention.
(d)On 28 January 2019, Mr Yurak cut off his home detention bracelet. He was remanded in custody for 14 days (from 15 February 2019 to 1 March 2019).
(e)On 1 March 2019, Judge D A Burns re-sentenced Mr Yurak.2 Mr Spika, for Mr Yurak, submitted the original sentence be reduced only by one month to allow for the time he had served on home detention. Relying on Department of Corrections v Fraser,3 he submitted Corrections was required to give credit for the time spent serving the original sentence in calculating his sentence expiry and release date. Although Judge Burns’ three-paragraph judgment is not explicit in its reasoning, he ordered accordingly and re-sentenced Mr Yurak to 17 months’ imprisonment. He served 76 days of that sentence, until 15 May 2019.
[3] In total, Mr Yurak was in prison for 260 days: 56 days on remand pending sentence; 114 days serving his sentence of 18 months’ imprisonment; 14 days on remand pending re-sentence; and 76 days serving his new sentence of 17 months’ imprisonment.
[4] If all those periods of time are taken into account, Mr Yurak’s statutory release date on his latest sentence of 17 months’ imprisonment would be 15 May 2019. But the Department of Corrections considers it cannot lawfully take into account the 114 days he spent serving his first sentence. It calculated his release date as 6 September 2019. Unsurprisingly, Mr Yurak disagrees.
[5] On 3 May 2019 Mr Yurak appealed his sentence, to which the Police respond. On 13 May 2019 he applied for a writ of habeas corpus, which the Chief Executive of
2 Department of Corrections v Yurak [2019] NZDC 3677.
3 Department of Corrections v Fraser HC Wanganui CRI-2010-083-090, 22 March 2011.
the Department of Corrections opposes. I refer to the respondents together as the Crown, the legal entity of which they are part.
[6] On 15 May 2019, Whata J released Mr Yurak from custody by way of an interim order for habeas corpus under s 11 of the Habeas Corpus Act 2001, pending final determination of the application for habeas corpus and the sentence appeal.4 Mr Yurak was subject to standard release conditions. Whata J considered the urgency of the situation warranted the interim order but observed nothing precluded an application for judicial review, seeking relevant declarations, as Corrections urged would be the proper approach.5
The law of calculating sentences
Statutory provisions
[7] Under s 22 of the New Zealand Bill of Rights Act 1990 (Bill of Rights), “everyone has the right not to be arbitrarily arrested or detained”. Under s 23(1)(c), everyone who is detained under any enactment “shall have the right to have the validity of the … detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful”. And s 6 requires that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”.
[8] The Parole Act 2002 and the Sentencing Act 2002 were enacted together and were intended to provide for a coherent approach to sentencing and parole.6 They should be read together, though necessarily explained in sequence.
[9] Subpart 3 of part 1 of the Parole Act 2002 governs the calculation of sentences including, under s 89 “determining how much of a sentence … an offender has served”. Relevantly:
4 Yurak v New Zealand Police (No 1) [2019] NZHC 1062; Yurak v New Zealand Police (No 2)
[2019] NZHC 1057.
5 Yurak v New Zealand Police (No 2), above n 4, at [10].
6 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 at [43] (per William Young J).
(a)The “general rule” under s 76 is the start date of a sentence of imprisonment is the date on which it is imposed, except as otherwise provided in ss 77 to 81.
(b)If a sentence is substituted for a sentence set aside on appeal, under s 79, the start date is the start date of the original sentence.
(c)Under s 82, “[t]he sentence expiry date of a determinate sentence is the date that is reached when the offender who is subject to the sentence has served the full term of the sentence”. “Sentence expiry date” is given a similar definition in s 4.
(d)Under s 86, the release date of a short-term sentence is, in general, the date on which the offender has served half of it. A “short-term sentence” is defined in s 4 to include a determinate sentence of 24 months or less.
(e)Section 88 imposes a statutory duty on the Chief Executive of the Department of Corrections to “ensure that the key dates and non-parole period of every sentence to which an offender is subject, and the offender’s parole eligibility date and statutory release date (if any) are determined in accordance with this Part [of the Act]”.
(f)Section 90 deems an offender to have been serving a sentence during any period the offender has spent in pre-sentence detention. “Pre- sentence detention” is defined in s 91 as:
91 Meaning of pre-sentence detention
(1)Pre-sentence detention is detention of a type described in subsection (2) 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.
(2)The types of detention that are pre-sentence detention are … detention on remand pursuant to a court order—
(a)in a prison … :
…
(5)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; or
…
(g)Section 92(1) requires a person in charge of a prison to keep a record of the date on which a person is admitted on detention, as referred to in s 91(2) and of “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”.
[10] Subpart 2A of part 2 of the Sentencing Act 2002 contains the following relevant provisions:
(a)Section 80F(1) empowers an offender who is subject to a sentence of home detention, or a probation officer, to apply for an order under subs (4)(d) cancelling the sentence and substituting any other sentence that could have been imposed on the offender at the time the offender was convicted. In determining the substitute sentence, s 80G(2) requires the court to take into account the portion of the original sentence that remains unserved at the time of the order.
(b)If a court has sentenced an offender to a short-term of imprisonment but, at the time of sentencing, the court would have imposed a sentence of home detention if a suitable residence had been available, s 80I requires the court to grant the offender leave to apply for cancellation
of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
(c)Where such an offender so applies, a court may cancel the sentence of imprisonment and substitute a sentence of home detention, on satisfaction of certain conditions, under s 80K(4). In doing so, the court is required by s 80K(6) to take into account the portion of the original sentence that remains unserved at the time of the order. Under s 80K(8), a sentence of imprisonment that is so cancelled is a “custodial sentence” for the purposes of any other enactment.
(d)Section 80ZB provides time ceases to run on a sentence of home detention from the date on which an application to cancel a sentence of home detention is lodged and until the date it is determined but “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” two factors including “the amount of time (if any) that the offender has spent in custody”.
(e)Section 82 provides 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 section 91 of the Parole Act 2002”.
The context of legislative history
[11] The bare statutory provisions in these two Acts do not reveal the purposes of amendments to them in 2007 and 2013. The purpose of the Criminal Justice Reform Bill in 2006 was to arrest a sharp increase in New Zealand’s prison population.7 The Bill’s amendments to the Sentencing Act included establishing home detention as a sentence in its own right rather than as a way of serving a sentence of imprisonment.8 The Bill also sought to amend the Parole Act regarding the length of parole. The Bill
7 Criminal Justice Reform Bill 2006 (93–1) (explanatory note) at 1.
8 At 5.
became the Sentencing Amendment Act 2007 and Parole Amendment Act 2007, among others.
[12] But the 2007 reforms left some procedures for managing offenders in the community unclear. The Administration of Community Sentences and Orders Act 2013 effected further sentencing and parole reform in order to provide clarity.9 According to the Law and Order Committee, the Bill that became that Act sought to “make changes to home detention and community-based sentences by adding appropriate requirements in administering these sentences”.10 The Committee’s report shows that, in respect of some provisions, Parliament decided to grant judges a discretion in determining time served on home detention where the calculation was not purely mechanical. When considering the clause that would become s 80ZB of the Sentencing Act, the Committee explained:11
Sentencing Act
The integrity of community-based and home detention sentences
Under the Act, time continues to run on community-based or home detention sentences when an application to vary or cancel the sentence has been made because of failure to comply with conditions. Ideally, a period of compliance with sentence conditions would be considered time served, and non- compliance would not. However, it is unclear how to class periods in which an offender has complied with some conditions and not others. We recommend amending clauses 14, 16, 22, and 31 to allow a court to exercise discretion when considering periods of compliance since application in determining the amount of time served on the sentence.
[13]The recommended wording is reflected in s 80ZB.
Case law
[14] Aspects of these provisions have been interpreted by the courts. In 2011, Department of Corrections v Fraser concerned circumstances similar to those here.12 Mr Fraser’s sentence of 18 months’ imprisonment was substituted with home detention. After breach of home detention, Miller J delivered an oral judgment on an
9 Administration of Community Sentences and Orders Bill 2011 (339–1) (explanatory note) at 1.
10 Administration of Community Sentences and Orders Bill 2011 (339–2) (select committee report) at 1.
11 At 3.
12 Department of Corrections v Fraser, above n 3.
application by Corrections to substitute that with a further sentence of imprisonment. He based the new sentence on the original sentence of imprisonment. Miller J stated:13
Section 80G(2) requires that the substituted sentence must take into account the portion of the “original sentence that remains unserved”, but the original sentence referred to means in context the sentence of home detention. Of course an allowance must be made for the time spent on home detention. I reduce the sentence of imprisonment by four months for that reason. It is not necessary to reduce the sentence further for the time spent in custody while on remand awaiting the original sentence of imprisonment, under that sentence, and since arrest on 5 February, since he is being re-sentenced on the original charges and must be given credit for those matters when his sentence expiry date and his release date on those charges are calculated under the Parole Act.
[15] In 2016, in Booth v R, the Supreme Court considered the principles underlying the calculation of pre-sentence detention under the Parole Act, in respect of subsequently imposed sentences.14 The majority of the Court held the definition of pre-sentence detention in s 91(1) means it is calculated in the aggregate, rather than on a charge-by-charge basis, and without double counting where sentences are imposed cumulatively.15 This avoided the offenders receiving no credit for time they had served on custodial remand for some charges but not others. The Court gained support for its conclusion from “the record-keeping section, s 92” and the absence of a record-keeping requirement for cumulative or concurrent sentences.16 It considered the policy behind the Act, its legislative history and s 22 of the Bill of Rights confirmed its conclusion.17 The Court noted the policy, clear from s 92, that “the calculation of pre-sentence detention should be as simple and certain as possible”.18
[16] In a separate but largely concurring judgment, William Young J pointed out the alternative interpretation would mean a great deal would depend on the chance of whether a judge imposed a cumulative of concurrent sentence.19 The Judge also identified that taking a literal approach to the interpretation of s 90(2) “produces absurdities which cannot have been within the legislative purpose”, which involve arbitrary detention.20 Accordingly, he applied s 6 of the Bill of Rights to prefer a “non-
13 At [8].
14 Booth v R, above n 6.
15 At [17] and [20].
16 At [22].
17 At [25].
18 At [27].
19 At [63].
20 At [112].
literal interpretation of s 90(2) which avoids (or at least limits) the scope for arbitrary detention and which I should prefer”.21
[17] In 2018, in Chief Executive of the Department of Corrections v Sutherland, the Court of Appeal considered how to treat a period spent in custody on remand, between an application to substitute imprisonment for home detention and its determination.22 The Court observed the amendments to the Parole and Sentencing Acts in 2007 and 2013 “appear to create overlaps between the two Acts that have not been easy to reconcile”.23 Judge Rowe, in the District Court, had assumed the relevant period would be taken into account as time served when Corrections calculated Ms Sutherland’s key dates.24 But it was not. As occurred here, although there were differences between the parties about who should have taken the period into account, they agreed Ms Sutherland should have been released. As also occurred here, the High Court made an interim habeas corpus order. But, unlike here, the parties agreed the application for habeas corpus be treated as an application for judicial review. Ellis J granted the application on the basis of legislative intent to retreat from leaving the calculation of pre-sentence detention to judges, relying on Booth and the Bill of Rights.25 She concluded, where both the Sentencing and Parole Acts potentially govern an offender’s situation, the Parole Act should prevail and pre-sentence detention should be deducted by Corrections where new charges have been laid.26
[18] The Court of Appeal agreed with Ellis J’s decision but not her reasoning. In interpreting ss 90 and 91 of the Parole Act, relying on Booth v R, the Court of Appeal considered a court “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”.27 The Court observed s 80G(2) meant the time served on home detention will be taken into account in fixing the new sentence but that does not relate to time served in custody awaiting re-sentence.28 The Court considered s 80ZB, as amended in 2013,
21 At [112].
22 Chief Executive of the Department of Corrections v Sutherland [2018] NZCA 623.
23 At [1].
24 At [3].
25 Sutherland v Chief Executive of the Department of Corrections [2018] NZHC 1366 at [69]
26 At [70].
27 Chief Executive of the Department of Corrections v Sutherland, above n 22, at [20].
28 At [24].
must be read together with the other relevant sections, particularly “the broad and unambiguous provision in s 82 of the Sentencing Act” and ss 90 and 92 of the Parole Act.29 It considered the word “sentence” in s 90 and 91(1) of the Parole Act includes re-sentencing.30 And the Court considered time spent in custody on remand is pre- sentence detention under s 91(1), even though the offender is still “subject to” a sentence of home detention.31
[19] The Court of Appeal in Sutherland acknowledged tension between s 80ZB and 82 of the Sentencing Act, in whether such a period of custodial remand should be taken into account by a re-sentencing judge, as well as s 90 stating Corrections is to take it into account.32 But it reconciled the provisions by holding:33
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 80AB. 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.
[20] The Court considered s 82 of the Sentencing Act prevails over s 80ZB, as does s 90 of the Parole Act.34 It considered there was no legislative intention in the 2013 amendments 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.35 The Court adopted the observations of the majority of the Supreme Court in Booth that sentencing decisions should be as simple and certain to administer as possible and considered that was effected by Corrections rather than a judge.36
29 At [29]
30 At [45]
31 At [46]–[48].
32 At [50].
33 At [51].
34 At [62].
35 At [53].
36 At [56]–[58].
When does Mr Yurak’s sentence end?
Submissions
[21] Ms Vear, for Mr Yurak, submits Parliament did not envisage multiple re- sentencing exercises bouncing from imprisonment to home detention and back to imprisonment. But, she submits, the intention is clear that such periods should count towards calculation of the sentence by Corrections. She submits the Court is constrained by s 82 of the Sentencing Act from taking pre-sentence detention into account in determining the length of a sentence of imprisonment under s 80G but not in determining a sentence of home detention under s 80K, which she submits the Court should do here. She submits the purpose of s 80ZB is to ensure those re-sentenced to a community-based sentence are entitled to that time, not to affect the calculation by Corrections of imprisonment periods.
[22] Ms Vear submits there is nothing to indicate Parliament intended to create an exception to the general approach to time served in providing for substituted sentences in subpart 2A of the Sentencing Act. She submits s 82 takes precedence over s 80G here, as the Court of Appeal stated in Sutherland. Ms Vear submits the main impediment is s 91(5) of the Parole Act, the purpose of which was to capture being held in custody under a different term of imprisonment. She relies on Booth v R to argue against a literal approach to interpretation.37 She submits calculating days of imprisonment is not straightforward, it is of utmost importance to keep the calculations as simple as possible and it is for Corrections, rather than the Court, to take into account all periods spent in custody.
[23] Ms Blythe, for the Crown, submits Corrections correctly calculated Mr Yurak’s statutory release date as 6 September 2019, in accordance with the correct interpretation of the Parole Act 2002 because:
(a)under s 76 of the Parole Act, the start date of the sentence is the date on which it was imposed, which was 1 March 2019 for the new sentence;
37 Booth v R, above n 6.
(b)the wording of ss 90 and 91, especially s 91(5) of the Parole Act confirmed by s 80K(8) of the Sentencing Act, is clear that the time served under the first sentence is not “pre-sentence detention”;
(c)that clear wording cannot be overridden by a purposive approach to statutory interpretation, even having regard to Booth and Sutherland;
(d)it was up to the sentencing judge to take the previous sentence into account under ss 80I and 80G of the Sentencing Act.
[24] Ms Blythe submits Department of Corrections v Fraser was wrongly decided to the extent it means otherwise.38 But the Crown concedes that the time Mr Yurak spent serving his first sentence should have been taken into account by Judge Burns and was not. She submits the most principled approach would have been for the Judge to determine what portion of the original sentence had been served, in prison or on home detention, and to impose the remainder as a sentence, taking into account the time on remand pending the original sentence and re-sentence. Ms Blythe submits the amount of time spent in custody was a fixed period of time that should be readily apparent to the re-sentencing judge. That would have resulted, on 1 March 2019, in an end sentence of 9 months and 16 days’ imprisonment, ending on 6 September 2019, with a statutory release date of 15 May 2019. Accordingly, the Crown concedes the new sentence of 17 months’ imprisonment was manifestly excessive and the appeal against sentence ought to be allowed.
Decision
[25] It is plain that the time Mr Yurak spent in prison serving his original sentence must be taken into account in calculating when his sentence ends. To hold otherwise would be a breach of Mr Yurak’s fundamental right not to be arbitrarily detained, under s 22 of the Bill of Rights. The issue is whether that period should be taken into account by the judge in re-sentencing Mr Yurak or whether it should be taken into account by Corrections in calculating and determining the key dates of Mr Yurak’s sentence, parole eligibility date and statutory release. I consider that, if the re-sentencing judge
38 Department of Corrections v Fraser, above n 3.
sentences an offender in Mr Yurak’s position to imprisonment, it is up to Corrections to take into account the previous time served in prison in its calculations.
[26] Mr Yurak’s original sentence of imprisonment and his re-sentence of imprisonment (if that is a word) are both for the same offences. Accordingly, I interpret the general rule in s 76 of the Parole Act as meaning the start date of his sentence of imprisonment was the date it was first imposed: 20 September 2018. That has the advantage of being consistent with the reality for Mr Yurak. And it has a similar effect as is provided explicitly by s 79, in respect of sentences substituted for a sentence set aside on appeal. By the terms of s 76, it is subject to exceptions provided in ss 77 to 81. But no exceptions apply.
[27] Under ss 4 and 82 of the Parole Act, the sentence expiry date occurs when the offender “has served the full term of the sentence”. There is no dispute that Mr Yurak’s sentence must take into account the first period of imprisonment. Accordingly, he will have served his full term with that period included in the calculation.
[28] Section 90 of the Parole Act deems an offender to have been serving a sentence “during any period the offender has spent in pre-sentence detention”. Mr Yurak’s original period of imprisonment qualifies as “pre-sentence detention” under s 91(1)(a) because “pending sentence” includes pending re-sentence, following the Court of Appeal in Sutherland.39 Section 91(5) does not change that because its purpose is to except offenders serving sentences of imprisonment for different offences. It does not except the sentence for the same offence as that for which the pre-sentence detention is being calculated. Neither does 80K(8) affect that. This interpretation is consistent with the purpose of the Act and with the purpose of the 2007 Amendment Acts. It must be preferred under s 6 of the Bill of Rights in order to avoid the arbitrariness of such a period of detention possibly not being taken into account by a judge, as it was not here. Such a purposive, and rights-consistent, interpretation is consistent with the approach of the majority and, by William Young J, in Booth.40
39 Chief Executive of the Department of Corrections v Sutherland, above n 22, at [45].
40 Booth v R, above n 6, at [112].
[29] In re-sentencing an offender in Mr Yurak’s circumstances, a judge is required decide whether imprisonment is to be substituted or not, as the Court of Appeal noted in Sutherland.41 The judge must also take into account the portion of the original sentence of home detention that remains unserved, under s 80G(2) of the Sentencing Act, consistent with s 80ZB and according to Sutherland.42 This decision is not mechanistic as it requires consideration of how the aspects of home detention should be calibrated in terms of imprisonment. Parliament’s purpose was to grant discretion to judges in relation to such decisions, as the Law and Order Committee’s report states.
[30] But the “mandatory words” of s 82 of the Sentencing Act, emphasised in Sutherland, require the judge not to take into account the mechanical calculation of how the original period of imprisonment impacts on the time left to serve. While mechanical, that is not always a straightforward calculation and is best undertaken carefully by Corrections rather than by a judge in what could be a matter of minutes in a busy list court. As Miller J held in Fraser, it is not a matter for the discretion of the re-sentencing judge. That could open up the possibility of arbitrariness in a period of detention, from which an offender must be protected under the Bill of Rights.
[31] The Chief Executive of Corrections is under a statutory duty, imposed by s 88 of the Parole Act, to ensure the “key dates” and “parole eligibility date and statutory release date” are determined in accordance with the relevant part of the Act. And Corrections is also under a statutory duty, imposed by s 92(1), to keep a record of the date on which a person is admitted on detention and of “the total period” of subsequent detention, broadly defined. As in Booth, these record-keeping sections support the interpretation I prefer. So does the emphasis, by the Supreme Court in Booth and the Court of Appeal in Sutherland, on simplicity and certainty in calculation of pre- sentence detention.
41 Chief Executive of the Department of Corrections v Sutherland, above n 22, at [51].
42 At [24].
Should a writ of habeas corpus issue?
Submissions
[32] Ms Vear acknowledges judicial review is an available avenue for Mr Yurak. But she submits that does not preclude the application for habeas corpus to determine whether Mr Yurak would be unlawfully detained if the interim order for habeas corpus were rescinded. Compared with the situation in Sutherland, she submits the application is not moot and is capable of determination. In Booth, by contrast, she submits the Supreme Court did determine a habeas corpus application even though it was moot.43 Otherwise, she submits Mr Yurak would, technically, be liable to be re- imprisoned. In that case, she would revert to the appeal against sentence. Mr Yurak does not expressly seek judicial review.
[33] Ms Blythe submits the Court has no jurisdiction to issue a writ of habeas corpus because Mr Yurak is not in custody. She submits, if the Department incorrectly calculated Mr Yurak’s release date, and it should be 15 May 2019, then he is lawfully released and the application for habeas corpus must fail. She submits the matter is more appropriately dealt with as an application for judicial review.44
Habeas corpus v judicial review
[34] Mr Yurak has not applied for judicial review. He is currently on release pursuant to an interim order under s 11 of the Habeas Corpus Act 2001. Under the terms of that section, the order is interim “pending final determination of the application”. In this judgment I am finally determining the application. If the application were not successful, Mr Yurak would be subject to recall. Accordingly, I consider I have jurisdiction to order, by way of a final writ of habeas corpus, that Mr Yurak is no longer subject to lawful detention. Otherwise I would uphold the sentence appeal and substitute a sentence of imprisonment ending on 15 May 2019.
43 Marino v Chief Executive of the Department of Corrections [2016] NZSC 52 (substantive decision in Booth v R, above n 6.)
44 Campbell v Superintendent of Wellington Prison [2007] NZAR 52 (CA).
Result
[35] I do not consider Corrections has established the detention of Mr Yurak, to which he is subject other than as a result of the habeas corpus proceeding, is lawful. Accordingly, under s 14 of the Habeas Corpus Act 2001, I must grant, as a matter of right, a writ of habeas corpus ordering his release from detention. I so order.
Palmer J
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4
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