GREER V THE ATTORNEY-GENERAL OF NZ HC AK CIV 2007-404-6901

GREER V THE ATTORNEY-GENERAL OF NZ HC AK CIV 2007-404-6901 20 November 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-6901BETWEEN ALAN IVO GREER Applicant AND THE ATTORNEY-GENERAL OF NEW ZEALAND Respondent Hearing: 15 November 2007 Appearances: Mr Greer in person M A Woolford for Respondent Judgment: 20 November 2007 at 3:00PM(RESERVED) JUDGMENT OF ANDREWS JThis judgment was delivered by Justice Andrews on 20 November 2007 at 3:00 pm pursuant to r 540(4) of the High Court Rules. Registrar/Deputy Registrar Date: Parties/Solicitors: Mr A I Greer Crown Solicitors, PO Box 2213, Downtown, AucklandIntroduction[1] Mr Greer has applied for a writ of habeas corpus under the Habeas Corpus Act 2001. Mr Greer is currently an inmate at Auckland Prison, Paremoremo. [2] The grounds on which Mr Greer seeks a writ of habeas corpus are that his detention is unlawful in that, he claims, it has extended beyond "the mandatory two- thirds release date."Background[3] On 14 January 2004 Mr Greer was sentenced in the District Court at Wellington to concurrent terms of seven years' imprisonment on each of three convictions for sexual violation by unlawful sexual connection. On the same date he was sentenced to concurrent terms of three years' imprisonment on each of six convictions for indecent assault on a female under 12 years of age. His effective term of imprisonment is, therefore, seven years. [4] On 16 December 2004 Laurenson J heard an application by Mr Greer for a writ of habeas corpus on grounds including that the Department of Corrections had incorrectly calculated the number of days Mr Greer had spent in custody prior to the sentencing (referred to in s 90 of the Parole Act 2002 as "pre-sentence detention"), thus delaying the time at which he could apply for parole. In his judgment delivered on 10 February 2005 Laurenson J held that Mr Greer had spent 553 days in custody prior to being sentenced. 1[5] Accordingly, the date on which Mr Greer became eligible for parole having served one-third of his sentence 2 was required to take into account 553 days of pre- sentence detention. 3[6] Mr Greer has accordingly been eligible for release on parole since 9 May 2005. He has appeared before the Parole Board on a number of occasions since then, but no order has been made for his release.1 HC AK CIV2004-404-5374 10 February 2005, at [32]2 Parole Act 2002, s 843 Parole Act 2002, s 91[7] Pursuant to the Parole Act, Mr Greer's statutory release date 4 and sentence expiry date 5 are both 6 January 2010, again taking into account the 553 days of pre-sentence detention.Mr Greer's argument[8] Mr Greer argued that he was required to be released at the expiry of two- thirds of his sentence. He calculated that as at the time of his application, he had been detained for more than 24 days after his "mandatory 2/3rds release date". [9] In support of that argument Mr Greer said that the offences on which he was convicted had occurred between May and August 2000. At that time, s 90 of the Criminal Justice Act 1985 required him to be released at the expiry of two-thirds of his sentence. He further argued that s 104 of the Parole Act, which relates to "offenders subject to long-term pre-cd sentences", applied to him and that that section together, with s 25 of the New Zealand Bill of Rights Act 1990 ("the NZBORA"), prevented other provisions of the Parole Act from being applied to him, with retrospective effect.Discussion[10] The issue for determination of Mr Greer's claim for habeas corpus is whether his continued detention is lawful. That requires me to answer two questions: a) Whether his sentence is, as he claims, a "pre-cd sentence" and b) If it is not, whether the provisions of the Parole Act, other than s 104, apply to him. [11] At the time of Mr Greer's offending in 2000, the Criminal Justice Act 1985 was in force. Under s 90(1)(b) in Part 6 of that Act, a person who was subject to sentence of more than 12 months' imprisonment (not being a sentence for a serious violent offence) was required to be released after the expiry of two-thirds of the sentence.4 Parole Act 2002, s 175 Parole Act 2002, s 82[12] The Parole Act came into force on 30 June 2002, replacing Part 6 of the Criminal Justice Act. 6 Section 86(2) of the Parole Act 2002 provides that the release date for an offender serving a long-term sentence (that is, one of more than two years) is the "sentence expiry date". In Mr Greer's case, that is 6 January 2010. [13] Under ss 103 and 104 of the Parole Act 2002, a special form of release is provided for offenders who are subject to "long term pre-cd sentences". If those sections apply to Mr Greer he would be required to be released on a date determined under Part 6 of the Criminal Justice Act. [14] The statutory definition of a "pre-cd sentence" is crucial. In s 4 of the Parole Act 2002 it is defined as follows:pre-cd sentence means a sentence of imprisonment that is imposed before the commencement date.The commencement date of the Parole Act was 30 June 2002. A "pre-cd sentence" is, therefore, one imposed before 30 June 2002. [15] Mr Greer's sentence of imprisonment was imposed on 12 July 2004. Clearly, it is not a "pre-cd sentence", so Mr Greer's argument that his is a "pre-cd sentence" must fail. Mr Greer does not come under ss 103 and 104 of the Parole Act 2002, and his release is governed by the other sections of the Act. He is therefore not subject to a "mandatory release date" after serving two-thirds of his sentence. [16] A second argument made by Mr Greer was that, notwithstanding the clear terms of the Parole Act, the Parole Board should have given him the benefit of the provisions of s 90 of the Criminal Justice Act when considering whether to exercise its discretion to grant him parole, and that to do so would be consistent with "common law duties" and the NZBORA. [17] The issue of whether an offender adversely affected by the repeal of s 90 of the Criminal Justice Act should be given the benefit of the mandatory release date6 See Parole Act 2002, s 3formerly provided under that Act was considered by the Supreme Court in Morgan v Superintendent, Rimutaka Prison.7[18] Mr Morgan was charged with cultivation of cannabis in September 2001. At that time, Part 6 of the Criminal Justice Act was in force. Mr Morgan was convicted in November 2002 and sentenced in January 2003. By then, Part 6 of the Criminal Justice Act had been replaced by the provisions of the Parole Act. [19] Mr Morgan argued that the application of the Parole Act provisions to his sentence was inconsistent with s 25(g) of the NZBORA. Section 25 sets out "minimum standards of criminal procedure" and includes at subpara (g), as a "minimum right" the right for an offender, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty. Section 6 of the Parole Act is in similar terms. Mr Morgan argued not to give him the benefit of Part 6 of the Criminal Justice Act was a breach of the principle set out in s 25(g) of the NZBORA and s 6 of the Parole Act. [20] That, essentially, was Mr Greer's argument before me. He argued that to apply the provisions of the Parole Act to him (apart from s 104) would be to apply them with retrospective effect. [21] Mr Morgan's argument was rejected in the High Court, the Court of Appeal, and then (by a 4:1 majority) in the Supreme Court. In the Supreme Court, the majority found no breach of the principle of non-retrospectivity, under which the lesser penalty is to be applied. Each of the majority members held that "penalty" referred to the maximum penalty the Court could have imposed, rather than to the period of time he was actually required to serve before being released. 8[22] There had been no change in the maximum penalty available to the Court in Mr Morgan's case, nor has there been in Mr Greer's case. Accordingly, as inMorgan, there has been no breach of the New Zealand Bill of Rights Act. There was7 Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 18 See fn 7, Gault J at [29], Blanchard J at [79], Tipping J at [107] and Henry J at [113], [114]no duty or requirement for the Parole Board to consider a "mandatory release date" when exercising its discretion whether to grant Mr Greer parole.Result[23] For the reasons set out above, I find that Mr Greer's continued detention is lawful. His application seeking a writ of habeas corpus is refused. _____________________________ Andrews J