PRINCE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 3381 [18 December 2019]

PRINCE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 3381[18 December 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-000507[2019] NZHC 3381BETWEEN BRADLEY RICHARD JOHN PRINCEAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 10 October 2019Counsel: D A Ewen and T W Luders for the AppellantI R Murray for the RespondentJudgment: 18 December 2019JUDGMENT OF EDWARDS JThis judgment was delivered by me on 18 December 2019 at 10.00 ampursuant to r 11.5 of the High Court Rules.Deputy RegistrarCounsel: D A Ewen, WellingtonI R Murray, WellingtonSolicitors: Ord Legal, WellingtonCrown Law, Wellington[1] On 7 June 2019, Mr Prince was sentenced to seven months' imprisonment withrelease conditions which expire six months from his "sentence expiry date". Thatsentence was reduced to four months' imprisonment on appeal, but the expiry date ofthe release conditions remained the same.[2] Mr Prince now seeks a declaration determining his "sentence expiry date" soas to fix the expiry date of the release conditions.[3] The issue arises because, due to the time Mr Prince spent on remand, he hadalready served more than half his sentence by the time it was imposed. Mr Prince wasaccordingly released on the same day he was sentenced. The reduced term ofimprisonment imposed on appeal meant that at the time of his release, he had servedapproximately one month more than the four-month term of imprisonment.[4] Mr Prince argues that once the time spent on remand is taken into account astime served, Mr Prince's sentence expiry date is 30 April 2019, that is, before thesentence was imposed. That means his release conditions expired on 30 October 2019.[5] The Chief Executive of the Department of Corrections (Corrections) says thatMr Prince's sentence expiry date is 7 June 2019, the day the sentence was imposed.The release conditions therefore expired on 7 December 2019.Key events[6] Mr Prince was charged with breaching a protection order and was remanded incustody on 29 December 2018. He was subsequently granted bail on that charge on4 January 2019. Mr Prince was then arrested on a separate charge of breaching aprotection order and was remanded in custody on both charges on 8 January 2019.[7] On 13 March 2019, Mr Prince received a sentence indication of seven months'imprisonment. He accepted that sentence indication and pleaded guilty the same day.A conviction was entered, and pre-sentence reports were ordered.[8] Mr Prince's application for bail pending sentence was declined on 16 April2019 and he remained in custody pending sentence. Sentencing was originallyscheduled for 8 May 2019 but was subsequently adjourned to 7 June 2019.[9] On 7 June 2019, Mr Prince was sentenced to seven months' imprisonment andmade subject to standard release conditions and two special release conditions.1 Thetwo special release conditions prohibited Mr Prince from associating with the victimand from going to, or being found in, the victim's street of residence. The expiry dateof those release conditions was six months after his sentence expiry date.[10] By the time he was sentenced, Mr Prince had spent 160 days on remand(approximately five months). As the custodial element of a seven-month sentence ofimprisonment is three and a half months, or 106 days, he was released on the day hewas sentenced, 7 June 2019.[11] Mr Prince appealed his sentence, and on 23 July 2019, it was reduced to fourmonths' imprisonment.2 The expiry date of the special conditions was left unchanged.The reduced term of imprisonment meant that Mr Prince served approximately onemonth more than the full sentence of imprisonment ultimately imposed.The legal framework[12] Section 4 of the Parole Act 2002 defines key dates for an offender sentencedto imprisonment. These are the "start date", "sentence expiry date" "and "release date"for a sentence. Each of these definitions, including others that are important for thisappeal, are set out below.Start date[13] The "start date" of a sentence is defined in s 4 of the Parole Act as:start date, in relation to a sentence of imprisonment, means the date on andfrom which an offender who is subject to the sentence begins to be subject toit (see sections 76 to 81).1 New Zealand Police v Prince [2019] NZDC 11268.2 Prince v Police [2019] NZHC 1742.[14] Section 76 of the Act provides that the start date is the date on which thesentence is imposed, except otherwise provided for in ss 77 to 81. Under s 79, thestart date of a sentence that is substituted for a sentence that was quashed or otherwiseset aside on appeal is the start date of the original sentence. The effect of ss 76 and 79in this case is that the start date of Mr Prince's sentence of four months' imprisonmentimposed on appeal is 7 June 2019, which is the date of the original sentence.Pre-sentence detention[15] The calculation of time served by an offender must include the time served inpre-sentence detention.3 In Booth v R, the Supreme Court confirmed that the entireperiod spent on pre-sentence detention is to be taken into account under this section.4Release[16] The "statutory release date" for a sentence of imprisonment is defined in s 4 asfollows:statutory release date means the date on which an offender who is subject to1 or more sentences of imprisonment—(a) must be released from detention (see section 17); and(b) ceases to be liable to be recalled to continue serving any sentence in aprison.[17] That definition refers to s 17 of the Parole Act which relevantly provides:17 Release at statutory release date(1) The statutory release date of an offender is the release date of thesentence to which the offender is subject (including any notionalsingle sentences) that has the latest release date.(2) An offender who is detained in a prison on his or her statutoryrelease date must be released from detention on that date.3 Parole Act 2002, s 90.4 Booth v R [2016] NZSC 127.[18] The "release date", as referred to in this section, is defined in s 4 of the ParoleAct as:release date means, in relation to a determinate sentence of imprisonment, thedate on which the offender who is subject to the sentence ceases to be liableto be recalled to continue serving that sentence in a prison (see sections86 and 87).[19] That definition refers to the definition in s 86 which provides:86 Release date of sentence(1) The release date of a short-term sentence (including a short-termnotional single sentence) is the date on which the offender who issubject to the sentence has served half of it.(1A) Subsection (1) does not apply to a short-term sentence in respect ofwhich an order has been made under section 86C(4)(b) of theSentencing Act 2002, and the release date of such a sentence is itssentence expiry date.(2) The release date of a long-term determinate sentence (including along-term notional single sentence) is its sentence expiry date.(3) An indeterminate sentence has no release date.[20] As Mr Prince was sentenced to a short-term sentence, his release date was thedate on which he served half of it in accordance with s 86(1).Sentence expiry date[21] The definition of "sentence expiry date" in s 4 is as follows:sentence expiry date means the date on which the offender who is subject tothe sentence has served its full term and therefore ceases to be subject to it(see sections 82 and 83).[22] The definition refers to s 82 of the Parole Act which defines "sentence expirydate" to mean:82 Sentence expiry date(1) The sentence expiry date of a determinate sentence is the date that isreached when the offender who is subject to the sentence has servedthe full term of the sentence.(2) The sentence expiry date of a notional single sentence is the sentenceexpiry date of the last sentence in the series of sentences that formsthe notional single sentence.(3) An indeterminate sentence has no sentence expiry date.[23] In Mr Prince's case, the relevant definition is included in subs (1), that is, thesentence expiry date of a determinate sentence is the date that is reached when theoffender who is subject to the sentence has served the full term of that sentence.Release conditions[24] Under s 18 of the Act, an offender who is released at the release date of a long-term sentence will be subject to standard release conditions for a period of six monthsfrom the offender's release date. The Parole Board may impose special conditions fora period of up to six months from the offender's statutory release date.[25] Section 18 also provides that an offender subject to a short-term sentence is,on release, subject to any release conditions imposed by the Court on that sentence,(unless certain exceptions apply). The power to impose release conditions on a short-term sentence is provided for in s 93 of the Sentencing Act 2002. A Court has adiscretion whether to impose standard and special conditions on an offender sentencedto a term of imprisonment of 12 months or less. For terms between 12- and 24-months'imprisonment, the standard conditions automatically apply until the "sentence expirydate", unless the court specifies a different date. The Court has a discretion whetherto impose special conditions.[26] If a Court exercises its discretion to impose release conditions, then it mustspecify the expiry date of those conditions. Under s 93(2A), conditions may expireon the sentence expiry date; the date that is a specified period before the sentenceexpiry date; or the date that is a specified period up to six months after the sentenceexpiry date. Special conditions may apply for as long as, but no longer than, thestandard conditions that apply. "Sentence expiry date" has the meaning given to it ins 4 of the Parole Act (set out above).[27] A special condition must not be imposed under s 93(3) unless it is designed to:(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of the offender;or(c) provide for the reasonable concerns of victims of the offender.[28] Subsection 3 reflects the purpose of release conditions which is partlyrehabilitative and partly protective. In Woods v New Zealand Police, the Court ofAppeal said that the point of release conditions:5[56] is to address the consequences of a sentence coming to an end incircumstances where the unrestricted release of the offender into thecommunity would result in unacceptable risk to the community and to victimsin particular through the prospect of reoffending. Also, conditions may beimposed to facilitate rehabilitation efforts if they are designed, for example, toincrease the likelihood that the offender will co-operate with rehabilitationefforts.[29] As the Court of Appeal recognised in Mitchell v Chief Executive of theDepartment of Corrections, the general effect of post-release conditions is restrictivein some way.6 It is an offence to breach a release condition, and such a breach carriesa maximum penalty of imprisonment for a term not exceeding one year, or to a finenot exceeding $2,000.7When is Mr Prince's "sentence expiry date"?[30] Determination of Mr Prince's "sentence expiry date" turns on the properinterpretation of the provisions of the Parole Act and the Sentencing Act canvassedabove. The meaning of an enactment is to be ascertained from its text and in light ofits purpose. In determining purpose, the Court must have regard to both the immediateand general context. The social, commercial or other objectives of the enactmentmight also be relevant.85 Woods v New Zealand Police [2019] NZCA 446.6 Mitchell v Chief Executive of the Department of Corrections [2017] NZCA 475 at [23].7 Sentencing Act 2002, s 96.8 Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007]NZSC 36, [2007] 3 NZLR 767 at [22].[31] Mr Ewen, for Mr Prince, submits that an offender's "sentence expiry date" isto be determined by simply applying the relevant provisions of the Parole Act. Thecalculation starts with the date the sentence of imprisonment is imposed. In hissubmission, the start date is a nominal date or a reference point for calculationpurposes only. The length of the sentence is then added on to that start date. Any timespent in pre-sentence detention is then deducted to reach the "sentence expiry date".Applying this methodology to Mr Prince's case results in a sentence expiry date of30 April 2019.[32] There is substantial merit in Mr Ewen's submission. A step-by-step applicationof the provisions allows for certainty and simplicity in the calculation of an offender'ssentence expiry date. In the ordinary run of cases, applying the provisions in this waywill not create any difficulties. But Mr Prince's case is not in the ordinary run of cases.The issues in this case arise because Mr Prince spent more time on remand than theultimate sentence imposed. The application of the statute in the way Mr Ewensuggests to those circumstances leads to a result at odds with the statutory regime.[33] Insofar as it relates to the duration of a sentence, the Parole Act regime isgenerally forward-looking in nature. The starting point is the definition of "start date"in s 76 of the Act, which is the date on which the sentence is imposed. I consider thisdefinition has more than just nominal value and is more than just a reference point forcalculation purposes. It marks a beginning; the start of the time at which an offendersentenced for a crime committed begins to serve that sentence. It is also intrinsicallyprospective; it anticipates a sentence stretching into the future. It should be construedto have substantive effect.[34] The next key date after that is the release date. That is the date that an offendermust be released from detention and ceases to be liable to be recalled. For a short-term sentence, the release date is the date on which an offender has served half of thesentence. For a long-term sentence, that date is the same as the sentence expiry date.Self-evidently, whether for a short-term or long-term sentence, the release date for anoffender must be after the start date of the sentence.[35] So too for the "sentence expiry date". The definition of "sentence expiry date"is the date that is reached when the offender who is subject to the sentence has servedthe full term of their sentence. The definition fixes a date that a sentence comes to anend. For short-term sentences, this must be after the statutory release date. That isbecause the release date is half the term of the sentence imposed, and the sentenceexpiry date is the full term of the sentence. For long-term sentences the release dateand the sentence expiry date are the same – it is the date that the offender will haveserved the full term of the sentence, ceased to be subject to it, and ceased to be liableto be recalled to continue serving it in prison. As a matter of logic, something thatends must come after it begins. The sentence expiry date must therefore be after thedate on which the sentence is imposed.[36] On Mr Prince's interpretation, however, the sentence expired on 30 April 2019.That is before the sentence had begun. It is also before the date that Mr Prince wasreleased from detention. If Mr Prince's interpretation is taken to its logical extreme,it could lead to a sentence expiring before a conviction was even entered. That is ananachronism that Parliament cannot have intended.[37] The requirement to take into account pre-sentence detention as time servedunder s 90 of the Act is an exception to the prospective character of the statutoryprovisions. It requires Corrections to look backwards to the time before the sentencewas imposed in order to calculate the length of time spent in pre-sentence detention.But that does not mean the statutory provisions should be construed in the wayMr Prince suggests. The Parole Act does not anticipate offenders being held longeron remand than the ultimate sentence imposed. There is no provision for thatpossibility in the Act. The problem in Mr Prince's case is not a statutory interpretationproblem, but a problem that arises in fact. Construing the provisions to make them fitMr Prince's circumstances will contort their plain meaning and cut across the broadscheme of the statute.[38] Mr Prince's interpretation is also inconsistent with the provisions relating torelease conditions. Under s 18 of the Act, release conditions apply on an offender'srelease date. For those serving sentences of short duration, the release date is the datethat they have served half their sentence and are released from detention at that time.An interpretation of the statutory provisions which results in release conditionsapplying to an offender while still in custody is at odds with the definitions of statutoryrelease date, and release date in the Act.[39] Mr Prince's proposed interpretation would also be inconsistent with thepurpose of release conditions. The protective purpose of release conditions would beredundant, as the offender would already be in custody. So too would the rehabilitativeobjective of the conditions, as there would be no facilitation or promotion of thereintegration of an offender while he or she remained in prison.[40] This leaves the question of consistency with the New Zealand Bill of RightsAct 1990. Mr Ewen submits that Mr Prince's interpretation of the statutory provisionsis the most consistent with the right to be free from arbitrary detention and the right tobe tried without delay.[41] The difficulty with this submission is that Mr Prince's dilemma is not one ofstatutory interpretation. The issue arises because Mr Prince was held on remandlonger than his ultimate sentence imposed. Construing the statutory provisions so thatthe sentence expires prior to it being imposed will not change that. It will not reducethe time Mr Prince spent in prison, and it will not add further protection to the right tobe tried without delay.[42] This distinguishes Mr Prince's case from Attorney-General v Manga.9 Thatcase arose under the Criminal Justice Act 1985, a predecessor to the Parole Act. Theissue in that case was whether time spent on custodial remand was to be taken intoaccount in calculating the final release date of an offender who had been sentenced toa determinate term of imprisonment and who had also been paroled but recalled fromparole. The Court of Appeal rejected an interpretation that would have led to anoffender being incarcerated for a period longer than the nominal length of the term ofimprisonment imposed by the Court.[43] The construction of the provisions at issue in Manga had a real effect in termsof the restrictions on the offender's liberty. That is, there was a direct correlation9 Attorney-General v Manga [1999] 1 NZLR 129 (CA).between the interpretation question posed and the length of time spent on remand. Butthat correlation does not exist in this case. Even if the provisions are construed asMr Prince suggests, it will not result in Mr Prince (or others like him) serving any lesstime in prison.[44] It is true, however, that the interpretation preferred by Mr Prince will result inan effectively shorter term of the release conditions imposed as part of his sentence.That will mean that Mr Prince will not be subject to the restrictive nature of thoseconditions for as long as he would be otherwise. But I do not consider the term of therelease conditions should be determined by a statutory interpretation exercise. Rather,it is a matter to be considered by the Judge at the time of sentencing when the expirydate of those conditions is fixed in accordance with s 93(2A).[45] The term of the release conditions must be set in accordance with the purposesset out in s 93(3). Those purposes include the need to restrict the liberty of an offenderin order to reduce the risk of reoffending or provide for the reasonable concerns ofvictims of the offender. They also include the rehabilitation and reintegration of theoffender in society. A Judge will be able to weigh and balance all these factors togetherto ensure that the duration of any condition imposed meets these purposes. That is theprocess contemplated in the Act and is to be preferred to an outcome mandated by anexercise of statutory interpretation.[46] It is against the background of that statutory scheme that the definition of"sentence expiry date" must be construed. I set out the definitions in s 4 and s 82 againfor ease of reference:sentence expiry date means the date on which the offender who is subject tothe sentence has served its full term and therefore ceases to be subject to it(see sections 82 and 83).(emphasis added)82 Sentence expiry date(1) The sentence expiry date of a determinate sentence is the date that isreached when the offender who is subject to the sentence has servedthe full term of the sentence.[47] Mr Ewen submits that to interpret these definitions as Corrections suggestinvolves reading in the following (emboldened) additional text into s 82:82 Sentence expiry date(1) The sentence expiry date of a determinate sentence is the later of thedate on which it is imposed and the date that is reached when theoffender who is subject to the sentence has served the full term.[48] I do not agree that it is necessary to read this additional text into s 82. Forreasons I have already explained, the chronological order relating to the service of asentence of imprisonment is already implicit in the provisions of the Parole Act: thesentence expiry date must be after the date that it was imposed.[49] The only way of construing the definition consistently with the statutoryregime, and in Mr Prince's circumstances, is to interpret "full term" as being the actualdate that the term was served in full, rather than the date that Mr Prince should havebeen found to have served his full term. A calculation of the full term of Mr Prince'ssentence could only be made on the date that it was imposed. Before that date the fullterm of his sentence was unknown. By the time it was imposed he had already servedmore than half of his sentence. And, by the time it was reduced on appeal he hadserved more than the full term.[50] This construction of "sentence expiry date" receives support from theadditional words in the s 4 definition " and therefore ceases to be subject to it". Asa matter of fact, Mr Prince was still subject to his sentence as at 30 April 2019 and wasstill in custody at that time. He only ceased to be subject to his sentence when theterm of imprisonment was reduced on appeal. By then he had served his full term ofimprisonment and been released from detention.[51] The only way of making sense of the statutory provisions as they apply toMr Prince is to interpret the date that he served his full term, and ceased to be subjectto the sentence, as the date that the sentence was imposed, being the date the reducedsentence substituted on appeal took effect.[52] Finally, I record Mr Murray's submission, on behalf of Corrections, that I wasbound to reach this result in any respect because that was the effect of the Court ofAppeal's decision in Mitchell v Chief Executive of the Department of Corrections.10 Ido not agree. The issue in that case was the Court's jurisdiction to impose releaseconditions some seven months after the offender's sentence expiry date. For thepurposes of the appeal, it was agreed that the sentence expiry date was the same daythat the sentence was imposed, taking into account the time spent on pre-sentencedetention. There was no discussion of the definition of "sentence expiry date" or whatit means to have served a sentence in full.[53] To conclude, I consider Mr Prince's "sentence expiry date" was the date thatthe sentence was imposed, that is, 7 June 2019. Accordingly, his release conditionsexpired six months after that date, on 7 December 2019.Result[54] The application for a declaration is dismissed.[55] The parties are encouraged to agree costs. If agreement cannot be reached,then a memorandum of counsel in support of costs may be filed and served 10 workingdays from the date of this judgment, with a memorandum in opposition filed fiveworking days thereafter.___________________Edwards J10 Mitchell v Chief Executive of the Department of Corrections [2017] NZCA 475.