FORREST V DEPARTMENT OF CORRECTIONS HC AK CIV-2011-404-2357

FORREST V DEPARTMENT OF CORRECTIONS HC AK CIV-2011-404-2357 2 May 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-2357IN THE MATTER OF the Habeas Corpus Act 2001BETWEEN BRENDON DOUGLAS FORRESTApplicantAND CHIEF EXECUTIVE OF DEPARTMENTOF CORRECTIONSRespondentHearing: 2 May 2011Appearances: Applicant in personA R Longdill for RespondentJudgment: 2 May 2011JUDGMENT OF KEANE JSolicitors:Meredith Connell, Crown Solicitors, PO Box 2213, Auckland 1140Copy to:Brendon Douglas Forrest, Auckland Prison, Private Bag 50124, Albany, Auckland 0752[1] Brendon Forrest is presently serving a sentence of imprisonment of 11 years two months. According to the Chief Executive, his release date is 13 July 2015. On this application for a writ of habeas corpus Mr Forrest contends that his release date ought to be 13 September 2013; that the Chief Executive's calculation would wrongfully imprison him for one year ten months.[2] The total sentence, which Mr Forrest is serving, results from sentences imposed on him on five different occasions. On 30 July 2004 he was sentenced at Christchurch to four years six months imprisonment. On 10 February 2005 he was sentenced at Christchurch cumulatively to a further three years' imprisonment. After that he was sentenced to three further cumulative terms: to two years imprisonment on 12 February 2008 at North Shore; to one year, six months on 17 July 2009 at Nelson; and, finally, on 22 September 2010 at Christchurch, to a further two month term.[3] Mr Forrest contends that the release date fixed by the Chief Executive, 13 July 2015, gives inadmissible full effect to those last three cumulative terms, imposed on 12 February 2008, 17 July 2009 and 22 September 2010. Each, he contends, standing alone, was a short-term sentence. As to each, he contends, he is entitled to be released at the half date under s 86 of the Parole Act 2002. His total sentence is to be calculated accordingly.[4] The Chief Executive contends in response, that all five sentences together constitute, under s 75, a notional single sentence and, combined as they are, constitute equally a long-term sentence with an expiry and release date consistent with the Chief Executive's calculation.Habeas corpus inapt[5] The first and decisive issue is whether Mr Forrest can bring his application under s 6 of the Habeas Corpus Act 2001, which allows an application to be brought only to challenge the legality of an applicant's detention at the very time when it ismade. If the applicant is then detained legally there can be no foundation for the writ.1[6] As Mr Forrest himself accepts, he will be lawfully detained at least until, on his own calculation, 13 September 2013. On that basis alone his application must be dismissed. Mr Forrest invites me, however, to treat his application as one for judicial review; a challenge, presumably, to the Chief Executive's calculation in exercise of his power of decision under s 88.Judicial review[7] Mr Forrest is right to say that there may be instances when an application for habeas corpus should be resolved non-technically and treated as if it were an application for judicial review. Since giving this decision, in essence, orally I have reviewed the decision of the Court of Appeal to which Mr Forrest referred me, Greer v Parole Board at Auckland Prison & Ors.2[8] That decision, however, supports the Crown rather than Mr Forrest. For the Court said:3... a Judge considering an application for habeas corpus needs to undertake a proper assessment of the merits and determine positively that the interests of justice require that a habeas corpus application be treated as if it were an application for judicial review. If this is not done, there will be an incentive for applicants to utilise the habeas corpus procedure to secure an urgent fixture under s 9 of the Habeas Corpus Act, which would not be available if the application had been correctly filed as an application for judicial review. That is an abuse of the Court's process which should not be permitted.[9] As the Crown points out, Mr Forrest is no stranger to judicial review or to habeas corpus; and, the Crown contends, he has chosen to pursue habeas corpus, not review, to secure an urgent hearing and to avoid any filing fee. Even assuming that to be so, however, the interests of justice do require that his application be treated in the wider way he seeks. His substantive point lacks cogency. It ought not to be left hanging fire.1 Misiuk v the Chief Executive of the Department of Corrections [2010] NZSC 140 (SC).2 Greer v Parole Board at Auckland Prison & Ors CA271/06, 21 December 2006.3 At [7].Single notional sentence[10] Mr Forrest contends that the warrants recording, under s 91 of the Sentencing Act 2002, each of the last three sentences imposed record each as a discrete sentence. Each he contends, viewed discretely, is a short term sentence. So each, as an increment of his total sentence, ought to be halved. The release date for a short term sentence is the half date.4[11] The difficulty Mr Forrest faces is this. These three sentences were not imposed discretely. They were imposed cumulatively. The result under s 75 of the Parole Act is clear. It says plainly that where an offender is sentenced to imprisonment cumulatively on an earlier sentence, the two sentences form a notional single sentence for the purpose of determining whether the offender is subject to a long-term sentence or a short-term sentence, and on what dates the offender becomes eligible for parole or release.[12] Section 77 says that the start date of a notional single sentence is the start date of the first sentence in the series and s 82 says that the sentence expiry date is the expiry date of the last sentence in the series. Where the resulting total sentence is more than 24 months, as Mr Forrest's sentence is, it is a long-term sentence.5 Mr Forrest's release date is, therefore, the expiry date of the sentence last imposed.6[13] The result is that Mr Forrest is in the course of serving a notional single sentence of 11 years, two months and his release date will be, consistent with the Chief Executive's calculation, 13 July 2015.Costs[14] There remains the issue of costs. Section 14(4) of the Habeas Corpus Act makes that matter of discretion and the practice has been, as the Court of Appeal said4 Parole Act 2002, s 86(1).5 Section 4.6 Section 86.in Manuel v Superintendent, Hawkes Bay Regional Prison,7 not to impose costs on unsuccessful applicants, lest that inhibit applicants with merit.[15] Equally, the Court said, when an application is one in a vexatious series without merit, the integrity of the writ may need to be protected by an award. Such awards have been made. The Court of Appeal itself imposed $500 costs in a recent case.8 And, in this instance there is, I consider, the need for such an award.[16] Mr Forrest is no stranger to the remedies he seeks. He has made two previous unsuccessful habeas corpus applications, without incurring costs. He has applied unsuccessfully for judicial review. His decision to pursue habeas corpus in this instance, and not judicial review, as the Crown says, appears to have been made for the tactical reasons it identifies. That constitutes an abuse. He will pay $500 costs._____________P.J. Keane J7 Manuel v Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).8 Greer v The Prison Manager of Rimutaka Prison [2008] NZCA 331.