Yurak v Police

[2019] NZHC 1057

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-168

[2019] NZHC 1057

BETWEEN

DANIEL MALCOLM YURAK

Appellant

AND

NEW ZEALAND POLICE

Respondent

CIV-2019-404-890

BETWEEN

DANIEL MALCOLM YURAK
Applicant

AND

PRISON DIRECTOR OF AUCKLAND PRISON

Respondent

Hearing:	By telephone
Counsel:	G Vear and A Spika for Appellant/Applicant J Blythe and D Dow for Respondent
Judgment:	15 May 2019

JUDGMENT (NO 2) OF WHATA J

This judgment was delivered by me on 15 May 2019 at 4.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Public Defence Service, Auckland

Meredith Connell, Auckland

YURAK v POLICE [2019] NZHC 1057 [15 May 2019]

[1]    These proceedings are about whether 114 days in prison prior to a short spell of substituted home detention should be counted by a resentencing Judge when fixing a new prison sentence, or, by the Department of Corrections (Corrections) when calculating the new statutory release date. All parties agree Mr Yurak must be released on 15 May 2019 (that is, today). They disagree, however, about the proper legal basis for that release date. Curiously, the appellant says Corrections must discount the time served when fixing the new release date, while Corrections says the Judge must take it into account when resentencing. This it is a matter of some complexity and the latest case of many dealing with the interface of the Sentencing Act 2002 and the Parole Act 2002.1 A full hearing is required to resolve it.

[2]    Given the urgency, I made the following interim orders pursuant to s 11 of the Habeas Corpus Act 2001:

(a)An interim order for the release from detention of Daniel Malcolm Yurak, pending final determination of the application for habeas corpus and the appeal against sentence.

(b)Mr Yurak is subject to the standard release conditions set out in the joint memorandum of counsel dated 14 May 2019 and listed in Appendix A.

[3]    I also recorded that, with agreement of counsel, the standard release conditions take effect and are enforceable as if they were imposed as part of the resentence.

[4]This judgment sets out my reasons for these orders.

Background in summary

[5]    On 20 September 2018, Mr Yurak was sentenced to 18 months’ imprisonment, with leave to apply for home detention. Having served 114 days of his sentence of imprisonment, his application to substitute home detention was granted on 11 January 2019. He was resentenced to four months’ home detention. He cut his bracelet off

1      See also Sutherland v Chief Executive of the Department of Corrections [2018] NZCA 623; Booth v R [2016] NZSC 127, [2017] 1 NZLR 223; and Department of Corrections v Fraser HC Wanganui CIV-2010-083-090, 22 March 2011.

after just two weeks and was remanded into custody on 15 February 2019. He was then resentenced to prison for 17 months on 1 March 2019. The Judge appears to have assumed that time served under the previous sentence of imprisonment would be considered by Corrections when fixing the date for statutory release.

[6]    It transpires, however, that Corrections does not accept this. Rather, Corrections submits that the sentencing Judge should have accounted for the 114 days in custody at the time of resentencing. Mr Yurak disagrees and contends that Corrections must discount the 114 days from the new sentence when fixing the release date. In any event, Mr Yurak appealed the resentence as manifestly excessive to secure his release by 15 May 2019. All parties agree a sentence beyond this date would be manifestly excessive.

Procedure

[7]    This matter came before me on the Criminal Appeals list on Friday, 10 May 2019. While both parties agreed that imprisonment beyond 15 May 2019 would be manifestly excessive, I was not prepared to simply allow the sentence appeal without examining the proper basis for fixing the release date. I therefore invited Mr Yurak to file an application for habeas corpus to provide an alternative basis for securing his release. With the benefit of that application, and corresponding submissions from the parties, it became evident that the issue raised by the appeal and the application was one of some complexity and could not be resolved summarily. I therefore convened a telephone conference to address how the matter might be properly dealt with. The parties agreed that it would be appropriate for there to be a full hearing.

[8]    It remained necessary, however, to deal with Mr Yurak’s release, given that there was agreement that any ongoing incarceration beyond 15 May 2019 would be unlawful or, in terms of the Sentencing Act 2002, manifestly excessive. In similar (though not identical) circumstances, Ellis J in Sutherland v Chief Executive of Department of Corrections made an interim order, pursuant to s 11 of the Habeas Corpus Act 2001.2 The Judge, however, expressed some misgivings subsequently about that approach and ultimately treated the habeas application as an application for

2      Sutherland v Chief Executive of Department of Corrections [2018] NZHC 1366.

judicial review with declarations as to the meaning of the relevant statutory provisions.3 For my part, in circumstances where, as here, there is (a) urgency and (b) agreement that any incarceration of Mr Yurak beyond 15 May 2019 would be unlawful (either for breach of statutory duty by Corrections or because any sentence beyond that date would be manifestly excessive), an interim order for habeas corpus pursuant to s 11 of the Habeus Corpus Act 2001 on that date is appropriate. It is the most efficient mechanism for securing his urgent release, without otherwise compromising rights and obligations Mr Yurak or powers and obligations of the Department of Corrections.

[9]    In this regard, it is agreed that Mr Yurak should be subject to standard release conditions, as required by s 93(2) of the Sentencing Act 2002, as if released on his statutory release date. I am satisfied that this is an available and proper course because, whatever the final outcome of the applications, the statutory release date is 15 May 2015. For avoidance of doubt, I record that Mr Yurak’s release is subject to those release conditions and that any breach of those release conditions is enforceable in the usual way. To assist me, I invited a joint memorandum of counsel which would specify what those release conditions should be. That has been done. Those conditions are listed as Appendix A.

[10]   For completeness, Corrections submitted to me that the proper approach to the present issue would be by way of judicial review, rather than habeas corpus. There is some force to that submission but, given the urgency with which this matter had to be dealt with, I was content to deploy the provisions of the Habeas Corpus Act 2001. Nothing in this judgment, however, precludes the parties from filing an application for judicial review seeking declarations as to the meaning and application of the relevant statutory provisions. That application could be heard alongside the present applications. In this regard, the substantive hearing of the applications is set down for one day on 24 June 2019 at 10.00 am.

[11]Accordingly, I made the orders set out above at [2].

3      At [5]-[8]

Appendix A

Mr Yural‹ must comply with the following conditions (s 14, Parole Act 2002):

1the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after release:

2the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the probation officer of his or her residential address and the nature and place of his or her employment when

3the offender must not move to a new residential address in another probation area without the prior written consent of the probation officer:

4if consent is given under paragraph (c), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender’s arrival in the new area:

5if an offender intends to change his or her residential address within a probation area, the offender must give the probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must ad\/ise the probation officer of the new address:

6the offender must not reside at any address at which a probation officer has directed the offender not to reside:

7the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:

8the offender must, if a probation officer directs, allow the collection of biometric information:

9the offender must not engage, or continue to engage, in any employment or occupation in which the probation officer has directed the offender not to engage or continue to engage:

10the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:

11the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.

probation area means an area designated by the chief executive for the administration of release conditions, community-based sentences, sentences of home detention (including post-detention conditions), or orders.

For the purposes of any provision of the Parole Act relating to the imposition of standard release conditions, those conditions must be treated as if they were imposed by the Board.