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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1057
Decision Date: 15 May 2019

CaseChat Overview and Summary

This case involved Daniel Malcolm Yurak, who was appealing against his sentence and seeking his immediate release from prison. The respondents were the New Zealand Police and the Prison Director of Auckland Prison. The primary legal issue the court had to decide was whether the 114 days Yurak had already served in prison should be counted by the resentencing judge when fixing a new prison sentence, or whether the Department of Corrections should discount that time when calculating the new statutory release date. The urgency of the matter necessitated an interim order for Yurak's release pending the final determination of the application for habeas corpus and the appeal against sentence. The court concluded that given the urgency and the agreement that any ongoing incarceration beyond 15 May 2019 would be unlawful or manifestly excessive, an interim order for habeas corpus pursuant to s 11 of the Habeas Corpus Act 2001 on that date was appropriate. The court made an interim order for Yurak's release from detention, subject to standard release conditions, as if released on his statutory release date. The substantive hearing of the applications was set down for one day on 24 June 2019 at 10.00 am.

Orders