SUTHERLAND v DEPARTMENT OF CORRECTIONS [2018] NZHC 1366

SUTHERLAND v DEPARTMENT OF CORRECTIONS [2018] NZHC 1366 [20 June 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV 2017-485-1028[2018] NZHC 1366BETWEEN BELINDA ANN SUTHERLANDApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 11 April 2018Counsel: D Ewen and E Blincoe for ApplicantV McCall and J B Watson for RespondentJudgment: 20 June 2018JUDGMENT OF ELLIS J[1] In mid-2017, Ms Sutherland was serving a sentence of five months' homedetention on (inter alia) two charges of refusing to provide a blood sample.1 Followinga relatively early and fundamental breach of that sentence, further charges were laidand she was taken into custody. At the same time, a probation officer applied to haveher resentenced under s 80F(1)(a) of the Sentencing Act 2002 (the SA). On25 September, she was resentenced by Judge Rowe to 16 months' imprisonment. Thatsentence included a two- month concurrent sentence on charges relating to the breach.21 Contrary to s 60(1)(a) of the Land Transport Act 1998. Because they were her eleventh and twelfthconvictions for drink-driving related offences, the maximum penalty upon conviction was twoyears' imprisonment or a $6000 fine.2 Department of Corrections v Sutherland [2017] NZDC 21671.[2] On 15 December 2017, Ms Sutherland filed an application for habeas corpuson the grounds that her release date had been wrongly calculated by the Departmentof Corrections (Corrections). Her contention was that the time she had spent incustody pending her resentencing was "pre-sentence detention" which was deemed bys 90 of the Parole Act 2002 (the PA) to form part of the time she had served. Thefailure to take that period into account was said to render her continued detentionunlawful. Reliance was placed, by analogy, on the recent Supreme Court decision inBooth v R.3[3] In accordance with the Habeas Corpus Act 2001 (the HCA) the application wasset down for hearing quickly, on 18 December 2017 (the penultimate sitting day beforethe Christmas vacation). Relying on Mander J's (pre-Booth) decision in Hawkins vChief Executive of the Department of Corrections, the Crown did not accept that therehad been any error in calculating Ms Sutherland's release date.4 Nonetheless, itacknowledged that there had been an error by the resentencing Judge in failing to takethe time Ms Sutherland had spent in custody into account. Ms McCall submitted thatincluding that time in the resentence calculation would have yielded an end sentenceof 12 months' imprisonment and that Ms Sutherland should, therefore, already havebeen released.[4] Notwithstanding the Crown's position, Mr Ewen made it clear that he wishedto pursue his contention that it was not for the resentencing Judge but for Correctionsto make the relevant calculations. Regardless of whether Ms Sutherland was releasedimmediately (as the Crown accepted she should be) the point he wished to take wasboth of wider significance and of real and continued moment to Ms Sutherland. IfMr Ewen's contention proved correct, then Ms Sutherland would have a basis for afalse imprisonment claim relating to the period during which she was detained pasther statutory release date. By contrast, an error by the resentencing Judge could notfound such a claim, in the face of a valid warrant for her continued detention.3 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.4 Hawkins v Chief Executive of the Department of Corrections [2015] NZHC 1001.[5] In light of these circumstances, it was agreed that I should make interim ordersunder s 11 of the HCA for the immediate release of Ms Sutherland with a view todetermining the substantive matter at a later date.5 I considered that there weregrounds for making such an order given that:(a) Mr Ewen appeared to have a tenable argument that the earlier decisionin Hawkins needed to be reconsidered in light of Booth; and(b) in any event, the Crown agreed that a sentence appeal should result inMs Sutherland's release forthwith.[6] It was also agreed that, out of an abundance of caution, Mr Ewen should filean appeal against sentence and that no issue would be taken by the Crown as to itslateness.6 In other words, it was agreed that Ms Sutherland should be released fromcustody but with the precise legal basis for her release to be determined later.[7] Notwithstanding what I consider to be the practical sense of the outcomearrived at last year, with the benefit of subsequent reflection, it has created potentialdifficulties. In particular, the reality is that Ms Sutherland has been released fromprison and all are agreed that her return there could neither be sought nor warranted.On that analysis, the substantive application for habeas corpus is plainly moot. Butnor is the answer to be found simply by determining the sentence appeal inMs Sutherland's favour; Mr Ewen is adamant that there has been no judicial error hereand, as noted, the point he seeks to advance is not academic.[8] In the end, it was agreed that I should treat the habeas application as anapplication for judicial review in which declarations as to the meaning and applicationof the relevant statutory provisions are sought.75 Sutherland v Department of Corrections [2017] NZHC 3189.6 An appeal was filed on 30 January 2018.7 It was agreed that in the event that I were to determine that application against Ms Sutherland Ishould continue the interim orders under the HCA pending Mr Ewen's clearly foreshadowedappeal.[9] Before turning to the substantive issues raised by Mr Ewen it is necessary tosay a little more by way of background, in relation to the sentencing and resentencingof Ms Sutherland. I then set out the relevant legislation and case law, followed by myanalysis of the issues arising.Ms Sutherland's sentencing and resentencingSentencing by Judge Morris[10] On 28 November 2016, Ms Sutherland initially appeared and was remanded incustody on two charges of refusing to provide a blood specimen. She was remandedin custody for approximately four months until she was granted bail, on23 March 2017.[11] Ms Sutherland then pleaded guilty to the driving charges and, on 15 June 2017,Judge Morris sentenced Ms Sutherland to five months' home detention. The processby which she arrived at that end sentence is not expressly articulated in her notes. Allshe said was:8[10] You have spent some four months in custody already, so that hascertainly been a drying out period. It has been a period when you have had toreflect on what it is that you want out of life and for your daughter as well.That is the equivalent of an eight month sentence of imprisonment, so I thinkit enables me, with your guilty plea, to look at home detention as a vehiclewith which residential treatment could then be relooked at. And that is thereason that I am imposing home detention.[12] So on each of these charges, Ms Sutherland, you are convicted andsentenced to five months' home detention.9Subsequent events and resentencing by Judge Rowe[12] On 21 July 2017, Ms Sutherland cut off her electronic bracelet and abscondedfrom her home detention address. At that point, she had served a little over one monthof her sentence.8 New Zealand Police v Sutherland [2017] NZDC 12810 at [10] and [12].9 She was also disqualified from driving for 18 months.[13] On 25 July 2017, two breach of home detention charging documents were filedalong with an application for review of the home detention sentence under s 80F ofthe SA. Ms Sutherland was remanded in custody. An application for EM bail wasdeclined on 31 August. She then spent the two months (between 25 July and25 September 2017) in custody. Throughout the remainder of this judgment I willrefer to this as "the contested period".Resentencing by Judge Rowe[14] On 25 September, Judge Rowe resentenced Ms Sutherland on the drivingcharges to 16 months' imprisonment and sentenced her concurrently on the breachcharges to two months' imprisonment. In doing so, he relevantly said:10[2] Having read Her Honour's decision it appears she started with asentence of about 18 months' imprisonment, determined that home detention wasthe appropriate outcome for you, and gave you an allowance for the fact you hadspent four months in custody up to that time, which is the equivalent of an eightmonth sentence. Taking that eight months off the 18 months she got back toabout 10 months and arrived at the five months' home detention sentence.[3] You served about one month of the home detention sentence beforeyou removed your bracelet and left your address, which is why you are nowin custody. You are also before the Court for sentence having pleaded guiltytoday to charges of breach of home detention by removing your bracelet andleaving your address.[6] Clearly a breach of home detention is a serious matter. It is asentence that is imposed as an alternative to imprisonment. I am required touphold the integrity of home detention as a sentence.[7] Having said that, when I revisit Judge Morris' decision, if I again startat 18 months for the drink-driving offences, take into account the one monththat you spend on home detention which is the equivalent of about two monthsin custody that would bring me back to 16 months as an end-point sentence. Iregard that as an appropriate outcome for all matters.[8] You have, as I say, spent four months in custody before beingsentenced by Judge Morris. You have been in custody for about another twomonths since being charged with the breaches of home detention so in manyways the 16 months' sentence I impose today will largely have been served byyou. You will have about two months to go.10 Department of Corrections v Sutherland, above n 2.[9] I therefore grant the application for review of home detention. Yourhome detention sentence is cancelled. In its place I substitute sentences of16 months' imprisonment concurrently. So on charge 1694, that is refusing ablood sample on 23 November 2016, you are sentenced to 16 months'imprisonment as a substituted sentence.[12] On the refusing to permit a blood specimen charge of17 February 2017, charge 0294, you are sentenced to 16 months'imprisonment concurrently as a substituted sentence.[13] For the two breaches of home detention on 21 July you are convictedand sentenced to two months' imprisonment concurrently so they do not addto the 16 months' sentence.[14] You will be released as I say in a couple of months. I hope thingswork out better for once released. Please comply with your release conditionsso we do not see you back here.[15] It may usefully be observed at this point that the Judge's repeated expectationthat Ms Sutherland would have approximately two months left to serve, following theresentencing, appears to indicate a view that both the four months spent in custodybetween 28 November 2016 and 23 March 2017 and the two months spent in custodybetween her home detention breach and resentencing would be taken into account byCorrections when calculating her release date.11The issue[16] The issue raised by this case can be stated relatively simply. The question iswhether the contested period (the two months that Ms Sutherland spent in custodybetween 25 July 2017 and 25 September 2017) was:(a) required to be taken into account by Corrections as a period of"pre-sentence detention" when calculating her release date under s 90of the PA; or11 Section 86(1) of the Parole Act 2002 provides that the release date for a short-term sentence ofimprisonment (ie a sentence of two years or less) is the date on which the offender who is subjectto the sentence has served half of it, and s 90 (discussed below) provides that any period ofpre-sentence detention is to be regarded as time served. Accordingly, Ms Sutherland's releasedate would only be within two months of the resentencing if all of the 177 days she had alreadyspent in custody was deducted from half the sentence of imprisonment (which was eight months).(b) a discretionary consideration for the resentencing Judge under s 80ZBof the SA.[17] That question involves the interplay between the core pre-sentence detentionprovisions contained in the PA and the SA on the one hand, and the newer provisionsin the SA dealing with home detention and resentencing on the other.The core provisions – pre-sentence detention under the PA and the SA[18] Section 90 of the PA deems all pre-sentence detention to be time served. Moreparticularly, it provides:90 Period spent in pre-sentence detention deemed to be time served(1) For the purpose of calculating the key dates and non-parole period ofa sentence of imprisonment (including a notional single sentence) andan offender's statutory release date and parole eligibility date, anoffender is deemed to have been serving the sentence during anyperiod that the offender has spent in pre-sentence detention.(2) When an offender is subject to 2 or more concurrent sentences,—(a) the amount of pre-sentence detention applicable to eachsentence must be determined; and(b) the amount of pre-sentence detention that is deducted fromeach sentence must be the amount determined in relation tothat sentence.(3) When an offender is subject to 2 or more cumulative sentences thatmake a notional single sentence, any pre-sentence detention thatrelates to the cumulative sentences may be deducted only once fromthe single notional sentence.[19] And the term "pre-sentence detention" is relevantly defined in s 91(1) and (2)as: detention [in a prison] that occurs at any stage during the proceedingsleading to the conviction or pending sentence of the person, whether thatperiod (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 orher arrest and before conviction.[20] But s 91(5)(a) excludes from that definition detention where the offender was,during that detention, "under legal custody in accordance with the CorrectionsAct 2004 and serving a sentence of imprisonment".[21] Section 92 deals with the determination of the length of pre-sentence detentionand the review and appeal provisions. In relevant part it provides:92 Procedure for recording length of pre-sentence detention(1) The person who is in charge of a prison, social welfare residence,hospital, or secure facility referred to in section 91(2) (in this sectionreferred to as a detention place) must keep a record of—(a) the date on which a person is admitted to the detention placeon detention as referred to in section 91(2); and(b) the total period during which the person is subsequentlydetained before sentence in that detention place, whether onthe original charge or any other charge.(2) After sentencing, the person in charge of the detention place (otherthan a Police jail) must supply the offender with a copy of the recordkept under subsection (1) and, if the offender disputes the accuracy ofthe record, he or she may apply to the person who made it to reviewit.(3) A person in charge of a detention place (other than a Police jail) whoreceives an application under subsection (2) must immediately reviewthe record and, having reviewed it, must notify the offender in writingof—(a) whether the record is confirmed; or(b) the manner in which the record is amended.(4) If the offender is dissatisfied with the outcome of the review, he or shemay appeal the review to the court that imposed the sentence, in whichcase subpart 4 of Part 6 of the Criminal Procedure Act 2011 applies sofar as it is applicable and with any necessary modifications, to theappeal.[22] Section 82 of the SA, complements (and is the mirror image of) s 90 of the PA.It states:In determining the length of any sentence of imprisonment to be imposed, thecourt must not take into account any part of the period during which theoffender was on pre-sentence detention as defined in section 91 of the ParoleAct 2002.The decision in Booth[23] In Booth, the Supreme Court was concerned with the proper interpretation ofoperation of the core provisions just noted above. In that case the Court unanimouslyheld that the way in which the Courts had previously been interpreting the coreprovisions was wrong. As a consequence, Corrections' method of calculating periodsof pre-sentence detention (and therefore prisoners' statutory release dates) was alsowrong.[24] The plurality outlined the effect of s 91 as follows:12[17] Pre-sentence detention is calculated in the aggregate. There is nowarrant in the language of s 91(1) for it to be calculated on a charge by chargebasis. Treating "the proceedings" in the first part of s 91(1) as referable toeach charge is inherently inconsistent with the references to "any charge" and"any other charge" in the balance of the provision. Equally, the sentencereferred to in ss 90(1) and 91(1) is not the sentence for each charge. We cannotread the term "sentence" in the first part of ss 90(1) and 91(1) as referringother than to the sentence imposed at the end of the proceeding or proceedings,starting with the first remand into custody and ending with the sentence ofimprisonment.[25] The Court was expressly disavowing the approach mandated in earlierdecisions, beginning with Taylor v Superintendent of Auckland Prison, thatpre-sentence detention was to be assessed on a charge by charge (or "relatedness")basis.13 It held that the notion of "related" offending was an "unwarranted gloss onthe statutory language" that would lead to "evaluative decisions inevitably be[ing]uneven in application in an area that should be as certain and as simple to administeras possible".14 The Court said:[24] In summary, the s 91(1) definition of pre-sentence detention relates todetention during the whole of the court process or processes from the originalremand in custody on any charge up to the imposition of a sentence (orsentences) of imprisonment. The entirety of that period is deducted from eachsentence or sentences of imprisonment imposed in terms of s 90(1). Thisapplies whether the sentence of imprisonment relates to a single charge ormore than one, whether or not the sentence of imprisonment relates to thecharge for which a person was originally arrested, whether or not sentencesare imposed cumulatively or concurrently and whether or not the sentencesare imposed at the same time or subsequently as long as any charges for which12 Booth v R, above n 3, at [17] (footnotes omitted).13 Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752 (CA).14 Booth v R, above n 3, at [18].the sentence or sentences of imprisonment relate were faced after arrest andbefore conviction.[26] The history of the relevant legislation was comprehensively reviewed byWilliam Young J in a separate but concurring judgment. He emphasised that the SAand the PA were enacted "at the same time and were intended to provide a coherentapproach to sentencing and parole", and so must be read together.15 He traced the keydevelopments in the legislation dealing with pre-sentence detention both before andafter the enactment of the Criminal Justice Act in 1985 (the CJA). He said:[48] As I will explain, prior to the enactment of the Criminal Justice Act1985, sentencing judges could allow for pre-sentence detention by reducingthe sentence which would otherwise have been imposed. Between 1985 and1987 and from 1993 to 2002, the Criminal Justice Act provided forpre-sentence detention to count as time served and thus form part of thecalculations which determined parole eligibility and release dates. The sameis generally true of the regime established by ss 90 and 91 of the Parole Act.Under this regime pre-sentence detention is irrelevant to the length of a termof imprisonment to be imposed at sentencing and should therefore bedisregarded by sentencing judges.[27] Later, he elaborated:[68] Prior to the enactment of the Criminal Justice Act 1985, an allowancefor time spent on remand in custody could be made by reducing what wouldotherwise have been the appropriate sentence. Practice as to the allowance ofsuch deductions was uneven, and where allowances were made, there was notmuch, if any, engagement with parole considerations with the result that timespent in custody pending trial was not necessarily fully accounted for onsentence. For instance, an offender who had been on bail prior to sentence andwas sentenced to two years' imprisonment would serve less time than anequally culpable prisoner whose 12 months on remand was deducted from anotherwise appropriate sentence of two years and was thus sentenced to12 months. Assuming a release after half the sentence was served, the firstoffender would spend 12 months in prison and the second 18 months in prison(12 on remand and six as a sentenced prisoner).[28] A footnote to that paragraph notes that a survey of judges in 1982 revealed thatwhere defendants had spent time in custody on remand prior to conviction:1615 At [43] per William Young J.16 At [68] citing Ministry of Justice Attitudinal Assessment of New Zealand Judiciary aboutSentencing and Penal Policy: Part 1 Analytical Summary (1982) at 93–94.(a) 43 per cent of Judges always took that into account when sentencing;(b) 31 per cent of Judges frequently took that into account when sentencing;(c) 22 per cent of Judges sometimes took that into account whensentencing;(d) one per cent never took it into account; and(e) three per cent either did not know or did not provide an answer.[29] The Judge then summarised subsequent legislative developments, as follows:17(a) between 1 October 1985 and 1 August 1987,18 s 81 of the CJA requiredthe sentencing judge to determine the extent of any pre-sentencedetention and to specify that period on the warrant of commitment;19(b) between 1 August 1987 and 1 September 1993,20 s 81 required asentencing judge to take into account time spent in pre-sentencedetention by reducing the sentence of imprisonment that wouldotherwise be appropriate;(c) from 1 September 1994, s 81 was amended again by reinstating the1985-1987 position but shifting the recording function to Corrections.While the earlier version had required a sentencing judge to "determineas nearly as practicable on the information available to it" the total timespent in pre-sentence detention, the 1994 iteration required precisecalculations of dates by the prison.17 Booth v R, above n 3, at [70] – [75] per William Young J.18 When s 8 of the Criminal Justice Amendment Act (No 3) 1987 came into force.19 This provision was extensively criticised by Holland J in R v Jarvis HC Christchurch BF S47A,6 March 1987 noted in [1987] BCL 599.20 When s 40 of the Criminal Justice Amendment Act 1993 came into force.[30] In 2002, this last approach was effectively re-enacted in the form of ss 89 and90 of the PA. Section 92 of the PA expressly authorises and facilitates the recordkeeping the post-1994 approach requires. In that regard, William Young J said:21[53] The procedure for determining the length of pre-sentence detention isprovided by s 92. For present purposes, it is sufficient to say that thecalculations are carried out in the first instance within the prison and theprisoners have a right of internal review in relation to the calculations and, ifdissatisfied with the result of such review, a right of appeal to the Court whichimposed the sentence[31] Importantly, ss 89 to 90 of the PA are complemented and supported by s 82 ofthe SA, which also addresses the problem of arbitrary and inconsistent sentencingpractices of the kind noted by William Young J and to which I refer at [26] – [27]above. Section 82 makes it clear beyond doubt that taking appropriate account ofcustodial remand time and calculating the precise duration of pre-sentence detentiona task for Corrections, not sentencing judges.[32] The key themes that seem to me to emerge from the decisions in Booth are that:(a) pre-sentence detention is calculated in the aggregate and is not to beassessed on a charge by charge basis (as long as the period of detentionrelates to "any charge on which the person was convicted");22(b) sentencing decisions should be as simple to administer as possible;23(c) glossing the statutory language by requiring that pre-sentence detentionto be on a "related" charge is unwarranted and will lead to evaluativedecisions which will inevitably be uneven in application;2421 Booth v R, above n 3, at [53] per William Young J (footnotes omitted).22 At [18].23 At [18]24 At [18].(d) no distinction is to be drawn between cumulative and concurrentsentences for the purposes of crediting pre-sentence detention;(e) given the single notional sentence treatment of cumulative sentences,there will be no double counting;25(f) section 92 of the PA is a record keeping section to ensure thatpre-sentence detention is credited on a precise day for day calculation;26(g) pre-sentence detention relates to detention during the entirety of thecourt process from original remand in custody on any charge up to theimposition of a sentence of imprisonment;27(h) the underlying policy of the PA is that all pre-sentence detention countsas long as the charges on which the person is sentenced were facedduring the period of detention;28(i) evaluative decisions about the question of "relatedness" result inarbitrary and uneven decision-making which could not simply beaddressed through the exercise of an appeal right;29 and(j) legislative interpretations where "a great deal depends on chance" areundesirable.3025 At [20].26 At [22].27 At [24].28 At [26].29 At [27].30 At [32] and [63].The home detention resentencing provisions in the SA[33] Sections 80A to 80ZI were inserted into the SA as a result of the passage of theSentencing Amendment Act 2007. They formed part of a package of changes to theSA aimed at increasing the range of available non-custodial sentences. Three suchsentences were introduced: home detention, community detention and intensivesupervision.31[34] The amendments provide that any of the new community-based sentences can,in certain specified circumstances, be reviewed. And as a result of such a review, anysuch sentence can be cancelled and another sentence substituted.[35] For present purposes, the starting point is s 80F. It materially provides:32(1) An offender who is subject to a sentence of home detention, or aprobation officer, may apply for an order under subsection (4) on thegrounds that—(a) the offender is unable to comply, or has failed to comply, withany detention conditions:(4) On an application under subsection (1), (2), or (3), the court may, if itis satisfied that the grounds on which the application is based have beenestablished,—(a) remit, suspend, or vary any special conditions imposed by thecourt, or impose additional special conditions; or(b) vary the home detention residence; or(c) cancel the sentence; or(d) cancel the sentence and substitute any other sentence(including another sentence of home detention) that couldhave been imposed on the offender at the time that theoffender was convicted of the offence for which the sentencewas imposed.31 Prior to the passage of the amendments, home detention was available only to offenders who hadalready been sentenced to imprisonment, and meant that a portion of their sentence could beundertaken in a monitored community environment. The amendments provided that homedetention could be imposed as a separate sentence and would no longer be available to thosesentenced to imprisonment. While the amendments changed the status of home detention, the wayit was administered essentially remained the same.32 The review provisions are materially identical for all the new community based sentences.(6) Section 72 applies, with any necessary modifications, to anapplication under this section.33[36] Next, s 80G relevantly provides:(2) When determining a substitute sentence under section 80F(4)(d), thecourt must take into account the portion of the original sentence thatremains unserved at the time of the order.(4) If the court cancels the sentence, the sentence expires on the date thatthe order is made or on any other date that the court may specify.[37] Also relevant are ss 80Z and 80ZA, which provide:80Z When home detention ends(1) An offender ceases to be subject to a sentence of home detentionwhen—(a) the offender reaches his or her detention end date;34 or(b) a court cancels the sentence of home detention.(2) If the offender's detention end date falls on a non-release day, theoffender ceases to be subject to detention conditions on the nearestpreceding day that is not a non-release day.80ZA When detention conditions suspendedThe detention conditions of an offender serving a sentence of home detentionare suspended during any period that the offender spends in custody under acourt order (for example, on remand), but time continues to run during anyperiod that they are suspended.[38] The last key provision is s 80ZB. For reasons that will become evident, it isnecessary to consider the way in which this provision has evolved over time.33 Subsection 6 is notable principally because its incorporation of s 72 means that an application forvariation or cancellation is deemed to be a charging document if an arrest warrant is issued.34 The term "detention end date" is defined in s 4 as "the date on which an offender who is subjectto a sentence of home detention ceases to be subject to detention conditions". In turn, "detentionconditions" are defined as the standard conditions set out in s 80C and any special conditionsimposed under s 80D.[39] As originally enacted in 2007, s 80ZB provided:80ZB Time ceases to run in certain circumstancesFor the purpose of calculating how much time an offender who is subject to asentence of home detention has served, time ceases to run on the sentenceduring any period(a) between the date on which an application for a variation orcancellation of the sentence under section 80F is lodged and the earlierof -(i) the date on which the offender is next taken into custody; and(ii) the date on which the offender resumes serving his or hersentence in accordance with his or her detention conditions;or(b) in which an offender is released on bail pending an appeal.[40] It can usefully be observed at this point that because, in Ms Sutherland's casethe application under s 80F(1) was made on the same day that she was taken intocustody, this provision (had it remained in force) would have meant that all her timein custody was counted as time served on her home detention sentence.35 That is, ofcourse, consistent with:(a) the position under s 80Z, which is that the home detention sentencecontinues in force until it is cancelled; and(b) the position under what is now s 80ZA, namely that time continues torun on a home detention sentence notwithstanding that the offender isin custody.[41] And in terms of the resentencing process, s 80G would have required the Courtto take that time into account by deducting it, presumably on a "day for day" basis,from the original home detention sentence (less any time actually spent on homedetention) in order to determine what portion of that sentence remained unserved.35 Presumably on a "day for day" basis. I put to one side for the moment the issue discussed later,namely whether it makes a difference that she was also facing fresh charges at this time.[42] The Administration of Community Sentences and Orders Bill 2011 (theACSOB) contained an amendment to s 80ZB. Initially, the only proposed change wasto replace the reference to "section 80F" with a reference to "section 80F(1)(a)".[43] At the same time, however, the ACSOB introduced new provisions specifyingwhen time ceases to run on sentences of supervision, intensive supervision andcommunity detention. As introduced, those clauses (which now find form in ss 54AA,54KA and 69IA of the SA) each provided that time stopped running on those sentencesduring any period between the date on which an application for variation orcancellation of the particular sentence was made and the date on which the offenderresumed his or her sentence in accordance with the relevant conditions.[44] Submissions received by the Select Committee from the Legislation AdvisoryCommittee and the Law Society expressed concern that such provisions would, by notpermitting the intervening period to be counted as time served, penalise thoseoffenders who continued to comply with their sentence conditions during that period.So, in response, Corrections recommended to the Select Committee that the draftsections be amended to provide that: when determining an application to vary or cancel a community-basedsentence because of an offender's inability or failure to comply withconditions, the court must either confirm that time did not run on the sentencefor any of the period between the application and its determination, or stipulatethe period or periods since the application during which the time has beenrunning on the sentence.[45] And it was at this point that Corrections also proposed that a parallelamendment should be made to s 80ZB. It is this amendment that finds form in thepresent iteration of the section, as follows:80ZB Time ceases to run in certain circumstancesFor the purpose of calculating how much time an offender who is subject to asentence of home detention has served,—(a) time ceases to run on the sentence during any period betweenthe date on which an application under section 80F(1)(a) islodged and the date on which the application is determined bythe court; but(b) some or all of the period between those dates may be regardedby the court as time served, as the court thinks appropriate inthe circumstances, after taking into account—(i) the extent (if any) to which the offender has compliedwith any detention conditions; and(ii) the amount of time (if any) that the offender has spentin custody.[46] On any analysis, this amendment has transformed what was formerly amoderately coherent position into one that is much less so. More particularly:(a) section 80ZB now sits uneasily with both ss 80Z and 80ZA because theamended provision states that time on the home detention sentenceceases to run during the any period between the date on which anapplication under section 80F(1)(a) is lodged and the date on which theapplication is determined, notwithstanding that:36(i) the home detention sentence remains in force (s 80Z); and(ii) time on that sentence prima facie continues to run when theoffender is in custody (s 80ZA); and(b) what was (and viewed in isolation remains) an arguably straightforwardand mandatory requirement under s 80G that any time unserved(including any time spent in custody) be taken into account onresentencing, has now been muddied by s 80ZB providing that, for thepurpose of that exercise the Court has a discretion about whether to taketime spent in custody into account.37[47] But although the amendments as a result of the ACSOB have created a ratherinelegant and paradoxical discretionary overlay to the previously non-discretionaryposition, it does not seem to me that they can sensibly be interpreted as representing36 It is, perhaps, notable that there are no equivalents to ss 80Z and 80ZA in relation to sentences ofsupervision and intensive supervision.37 Sections 80G and 80ZB can, presumably, be read together by requiring the Judge first to determinewhat portion of the contested period should be taken as time served under s 80ZB and then takingthat period into account under s 80G.any kind of volte face. In other words, I am unable to accept that there was anyintention to change the original thrust of s 80ZB, namely that time spent in custodypending resentencing could be taken into account as time served, not as pre-sentencedetention. So while the existence of a new discretion may be seen as contrary to oneof the key themes in Booth, that case was not concerned with interpreting theresentencing provisions and it is, in my view, impossible to justify a departure fromtheir fairly plain wording. To the extent that conclusion conflicts with s 82, it isresolved by the interpretive rule that the specific overrides the general.38The cases[48] There are a number of decisions in which this Court has considered theinterplay of the statutory provisions presently at issue.39 I do not intend to discuss allof them here as each follows the first in time, namely Mander J's pre-Booth decisionin R v Hawkins.40 It is, however, necessary to say a little more about that case,Dunningham J's decision in Broadhurst v New Zealand Police,41 andSimon France J's decision in Gardner v Department of Corrections.42Hawkins[49] Mr Hawkins was serving a sentence of home detention when he was arrestedfor breaching the conditions of his sentence. An application was made under s 80F ofthe SA to cancel that sentence and substitute a sentence of imprisonment, and freshbreach charges were laid. Mr Hawkins was remanded in custody between 2 April2015 until 30 April 2015 (the contested period). On 30 April, Mr Hawkins' sentenceof home detention was cancelled and a sentence of two months' imprisonment wassubstituted.38 There is only a conflict if the reference to "pending sentence" in the definition of pre-sentencedetention in s 91 of the PA is said to include "pending re-sentence".39 As well as the three cases specifically discussed below, the cases are Peita v New Zealand Police[2017] NZHC 1568; Longman v Police [2017] NZHC 2928 and Tesema v Department ofCorrections [2018] NZHC 1002.40 Hawkins v Chief Executive of the Department of Corrections, above n 4.41 Broadhurst v New Zealand Police [2017] NZHC 498. This decision is notable becauseMr Broadhurst's sentence was cancelled at the time the application for resentence was made.Dunningham J therefore held that the period between cancellation and resentence waspre-sentence detention.42 Gardner v Department of Corrections [2017] NZHC 2895, [2018] NZAR 49.[50] Counsel for Mr Hawkins submitted that the contested period constitutedpre-sentence detention under s 91 of the PA. But relying on R v Te Aho, Corrections'position is recorded as being that any reduction for time spent in pre-sentencedetention is limited to the sentence for an offence to which that detention relates andthat not all time on remand will qualify as pre-sentence detention.43 Corrections saidits position was strengthened by the existence of ss 80G(2) and 80ZB of the SA.44[51] Mander J held that the resentencing provisions applied. He said:[16] I am satisfied that the period spent in custody between the date ofapplication and its determination does not constitute pre-sentence detentionfor the purpose of calculating release dates under ss 90 and 91 of the ParoleAct. I accept the Chief Executive's submission that the legislature hasprovided specific provisions in the Sentencing Act to govern the status of thisperiod in terms of how it is to be treated for the purpose of imposition of asubstitute sentence. That period may be taken into account by the Court whendetermining the length of any substitute sentence.[17] I am fortified in this view by the effect of s 80Z of the Sentencing Act.While time ceases to run on the sentence of home detention after anapplication has been lodged under s 80F(1)(a), the offender continues to besubject to the sentence until the Court cancels the sentence of home detention.It follows therefore that s 91(1) of the Parole Act does not have application, asthe detention does not occur at a stage during the proceeding leading to theconviction or pending sentence. The offender remains sentenced to homedetention pending the outcome of the application to cancel and substitute thatsentence. Section 91(1) therefore does not have application to that period, andcannot constitute pre-sentence detention for the purposes of s 90 of the ParoleAct.Broadhurst[52] The (post-Booth) decision in Broadhurst is worthy of mention because ithighlights the potential randomness in the operation of s 80ZB.[53] There, Mr Broadhurst's home detention sentence had been cancelled when theapplication for resentence was made. Dunningham J therefore held (rightly, in myrespectful view) that the period he had spent in custody between theapplication/cancellation date and resentence was pre-sentence detention. As a matterof principle, it appears to me to be undesirable that the quality of that period (and the43 At [12] citing R v Te Aho [2013] NZCA 47 at [15] and [26] – [27]. There can be little doubt thatthe decision in Te Aho could not survive the decision in Booth.44 At [13].exactness with which it is required to be counted) should depend upon the date onwhich the cancellation application is granted. Indeed, it might be observed that theoperation of s 80ZB could be avoided entirely by the resentencing Court cancellingthe original sentence retrospectively. Section 80G(4) appears to contemplate thatpossibility.Gardner[54] The tension between the Booth principles and the discretion conferred bys 80ZG was recognised by Simon France J in Gardner. The facts of that case werethat:(a) on 1 December 2016, Ms Gardner was sentenced to 11 months' and twoweeks' home detention;(b) on 10 August 2017, she was arrested and charged with breaching herhome detention conditions;(c) on 14 August 2017, an application for review of her home detentionsentence was made; and(d) on 25 September 2017, Ms Gardener was resentenced in the DistrictCourt to nine months' imprisonment.[55] The nine months' imprisonment imposed by the District Court comprised:(a) seven months' imprisonment, which was intended to reflect the homedetention time unserved;45(b) an uplift of two months for the breaches.45 It is not entirely clear how Judge Mackintosh reached a substitute sentence of seven months'imprisonment for the "balance that was outstanding [on the home detention sentence] at10 August". At 10 August 2017, Ms Gardner had served 253 days of her sentence, with 96 daysremaining. The Judge appears to have doubled the 96 days to reach a sentence of just oversix months' and then rounded up to seven.[56] She appealed her sentence to the High Court.[57] Although Simon France J agreed with and applied Mander J's analysis inHawkins, he observed that the principles set out in Booth meant that the resentencingCourt should have taken the contested period into account. He said:46 I consider the full period should be credited by the sentencing Court.The legislation does not mandate a direct day for day correlation (s 80ZB(b)of the Sentencing Act is clearly discretionary) but for the moment I cannotenvisage a good reason not to give full credit. It is real time served in prison,and full credit would be consistent with the Supreme Court decision in Boothv R.[58] In terms of the mathematical exercise required, the Judge said:[10] Turning to the other issue of the assessment of the amount of the homedetention sentence remaining, the relevant period is 14 August to15 November 2017. This is 92 days. The orthodox approach is to double thatin order to get the equivalent imprisonment period (because the offender willonly serve half the jail term). That is a sentence of 184 days which equates toa six month' sentence.[11] I accordingly calculate matters this way:(a) six months' imprisonment for the balance of the sentence;(b) two months' imprisonment cumulative for the furtheroffending (as assessed by the District Court); but(c) less an allowance for 43 days for time served (also to bedoubled to ensure the credit is effective).[59] He then substituted a sentence of six months' imprisonment for the existingnine-month sentence.[60] Based on that substituted sentence, Ms Gardner would have been required tobe released three months or 92 days after her original re-sentencing.4746 Gardner v Department of Corrections, above n 42, at [8].47 See "I.03.Res.03 Sentence Calculations on or after 30 June 2002" Department of Corrections<http://www.corrections.govt.nz/resources/policy_and_legislation/Prison-Operations-Manual/Public-RL/I.03.Res-3.html>. Short-term determinate sentences are calculated bydetermining the number of days in the total sentence (in this case, six months being 182.5 days isrounded up to 183 days), then halved (being 91.5 days, rounded up to 92 days). Even if therounding only occurs at the end, the 182.5 days becomes 91.25 days rounded up to 92 days.Corrections' policy is that "part days are always rounded up".[61] Notwithstanding the Judge's stated intention to give "day for day" and "fullcredit" for the contested period,48 however, had that period been calculated byCorrections as pre-sentence detention, she would have been released almost two weeksearlier. The calculations would then have been as follows:(a) the 92 days remaining on Ms Gardner's home detention sentence wouldhave been doubled to give an equivalent sentence of 184 days/sixmonths' imprisonment; and(b) a two months' cumulative sentence would have been imposed for thebreach charges;giving an end substituted sentence of eight months' imprisonment.[62] On that analysis, Corrections would have halved her sentence to four months'imprisonment (122 days) and then subtracted the 43 days spent in pre-sentencedetention,49 giving Ms Gardener 79 days left to serve after her original sentence.Discussion[63] All the relevant cases determined in this Court other than Broadhurst haveinvolved an offender who is both facing resentence on old charges and a new sentenceon fresh charges. Although such new charges are likely to relate to the breach that ledto the application for resentence that is not always so.5048 It is not entirely clear whether Simon France J rounded the 86 days credit down to a 61 day creditin reaching a final sentence of six months' imprisonment, or whether he reduced the nine months'sentence imposed by a full three months' (the 86-day contested period, rounded up to three months'credit) from the nine month sentence imposed. On either analysis, the release date for Ms Gardnerwas still almost two weeks later than it would have been if Corrections had applied the contestedperiod as pre-sentence detention.49 There were three days between 10 August 2017 and 14 August 2017 which were counted as timeserved on the home detention sentence by Simon France J. This was because s 80ZA providesthat time continues to run on a sentence of home detention, despite being in custody. The remaining43 days were not, however, captured by s 80ZA because an application for review of the homedetention sentence was made on 14 August 2017.50 For example, in R v Peita, above n 39 the appellant had been sentenced to eight months' homedetention, community work and supervision on charges of theft and receiving but, while servingthat sentence, he was arrested on two charges of intimidation. He then spent 161 days in custodypending resentencing on the earlier charges and pending sentence on the later charges.[64] Despite this, none of the cases to which I have referred have directly grappledwith the implications of the existence of new charges, in terms of the interaction of thepre-sentence detention and the resentencing regimes. And in my view, that is the realissue raised by these cases. The question is whether the operation of those two regimescan be reconciled.[65] The starting point is that the reasoning in Hawkins does not assist. I agree withMander J that, in a case involving resentencing simpliciter, detention pendingresentence does not fall within the s 91(1) definition of pre-sentence detention becausean offender could not be said to be "pending sentence" if he or she remained subjectto a sentence of home detention. But, with respect, that ignores the fact thatMr Hawkins was indisputably also "pending sentence" on the new (breach) chargesduring the contested period. I am unable to discern why the general pre-sentencedetention provisions in the PA do not, on their face, govern his position just as theresentencing provisions in the SA do. And the elephant in the room is that the two setsof provisions cannot both be applied. The answer cannot be (for example) simply tofetter the s 80ZB discretion out of existence.[66] Mr Ewen's submissions as to the potential reconciliation of the two regimeswere predicated on reading down s 80ZB in a way that, for the reasons already given,I do not regard that as tenable.51 Nor am I able to accept Ms McCall's submission thatthe answer lies in s 91(5). That provision applies where an offender is in custody andis already serving a sentence of imprisonment.52 Ms Sutherland (for example) was notserving a sentence of imprisonment during the contested period. And while she mayat the same time have still been "subject to" a sentence of home detention, she was not"serving" that sentence, because time on it was not running.51 Essentially his submission was that s 80ZB could only apply when the resentence was anothersentence of home detention.52 See also Booth v R, above n 3, at [24], fn 19.[67] Nor are the ordinary rules of statutory interpretation of much assistance in theface of such a conflict. The rule about the specific overriding the general does notdeal with cases where there are two competing "specifics" namely the provisionswhich deal with detention pending sentence (on the new charges) and those which dealwith detention pending resentence (on the old charges). So too with the rule thatprovisions enacted later can override those enacted earlier.[68] Of greater help is the discussion in Statute Law in New Zealand relating tooverlapping statutes.53 After referring to cases involving broadly similar difficulties,54the authors say:55In the end, this problem, like many others, comes down to a question ofconstruction of the relevant provisions to determine what Parliament musthave intended. Wording, purpose, values (including the freedoms in the Billof Rights Act) and context (including extrinsic materials) are as relevant to theresolution of this as any other question of construction.[69] It is, accordingly, at this juncture that Mr Ewen's reliance on Booth comes intoplay. The specific legislative intent behind the relevant PA provisions was elucidatedin the judgment of William Young J and I have summarised them earlier. That intentinvolved a clearly signalled retreat from leaving the calculation of pre-sentencedetention to the discretion of judges. Moreover, the policy considerations underlyingthese developments are powerful. As both William Young J and the plurality in Boothobserved, the right to be free from arbitrary detention confirmed by s 22 of the NewZealand Bill of Rights Act 1990 is in play here. Preferring the regime that requiresthat day for day account be taken of days spent in prison is surely more consistent withthat right than the regime that leaves the relevant accounting to a judge's discretion.56Nor is it insignificant that the introduction of that discretionary aspect with theamendment to s 80ZB in 2007 appears to have occurred in a reasonably ad hoc manner,without consideration of that wider and more fundamental issue.53 JF Burrows and RI Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at480 – 482.54 Butler v Attorney-General for Victoria (1961) 106 CLR 268; R v Allison [2002] NZLR 679 (CA);Police v Hicks [1974] 1 NZLR 763 (SC) and Registrar-General of Land v New Zealand LawSociety [2001] 2 NZLR 745 (CA).55 JF Burrows and RI Carter, above n 53, at 482.56 The difference is not hypothetical. As the decision in Gardner shows, even an express judicialintention to give "day for day" credit for the contested period does not necessarily lead to the sameresult as the process for which Corrections is responsible under the PA.[70] In my view, these factors point in favour of a conclusion that in cases whereboth the SA and the PA both potentially govern an offender's situation, the PA shouldprevail. And if I am right in that, in a case where new charges have been laid, anapplication of Booth would then require the period of pre-sentence detention to bededucted by Corrections from the combined sentence and resentence, regardless ofwhether they are imposed cumulatively or concurrently. In my view that is whatshould have happened here. I therefore part company with the cases to which I havereferred above.Result[71] The application for judicial review is granted. In my view, Corrections erredin law when they declined to take into account the contested period when calculatingMs Sutherland's release date and I make a declaration accordingly. The effect of thisdeclaration is that Ms Sutherland's statutory release date was in late November 2017,prior to the first hearing before me on 18 December 2017. There can be no questionthat she is now lawfully at large.[72] I appreciate entirely that, in reaching a different conclusion from that reachedby other Judges of this Court, I am creating difficulties for the Department. But thereality is that this case would be going on appeal either way. So all I can do is leaveit there.[73] For completeness, the appeal against sentence is dismissed.[74] There will be no order as to costs._________________________Rebecca Ellis J