BRANDON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 1586

BRANDON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 1586 [8 July 2015]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2015-485-000506[2015] NZHC 1586BETWEEN BRETTON DE BATHE BRANDONApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 7 July 2015Counsel: D A Ewen for ApplicantA M Powell and M J McKillop for RespondentJudgment: 8 July 2015Reasons: 13 July 2015JUDGMENT OF COLLINS JSummary of judgment[1] On 7 July 2015 I heard Mr Brandon's application for a writ of habeas corpus. His application alleged the Chief Executive of the Department of Corrections (the Department) was detaining him in prison unlawfully. Mr Brandon believed the Department had wrongly calculated when his sentence of three years and twomonths' imprisonment concluded. That sentence was imposed on 12 August 2014 in relation to seven charges. The sentences were concurrent.[2] Mr Brandon had been arrested and remanded in custody since 4 April 2012 in relation to two charges. Thereafter, a number of charges were added and dropped. All charges related to methamphetamine offending and alleged Mr Brandon conspired, sold, offered to supply, possessed for the purposes of supply or possessed methamphetamine. Mr Brandon believed the Department had failed to properly calculate the period of his pre-sentence detention in relation to all seven charges andthat the release date for all sentences was 4 June 2015. The Department asserted Mr Brandon's release date was 18 November 2016.[3] On 8 July 2015, I delivered an interim judgment in which I issued adeclaration that the Department's records were wrong and that Mr Brandon shouldhave been released on 4 June 2015. I allowed the Department until 4.00 pm on 8 July 2015 to amend its records and release Mr Brandon from prison. I warned that if Mr Brandon was not released I would issue a writ of habeas corpus at 4.00 pm on 8 July 2015. Mr Brandon was released from prison on 8 July 2015 without a writ of habeas corpus having to be issued.[4] This judgment explains the reasons for my decision. It comprises three parts:1. Context2. Law3. AnalysisPART ICONTEXT[5] In October 2011, Mr Brandon and others became the subject of a police investigation concerning suspected criminal activity relating to methamphetamine, a Class A controlled drug under the Misuse of Drugs Act 1975.[6] Mr Brandon was well known to the police. By October 2011, he had accumulated 19 convictions, including convictions in 2005, 2009 and 2010 for possessing methamphetamine and a conviction in 2010 for supplying methamphetamine for which he had been imprisoned.[7] The police commenced surveillance operations in relation to Mr Brandon on 20 October 2011. This in turn led to the police obtaining warrants on 1 December2011 to enable them to access telephone data relating to, amongst other matters, text and cellphone data relating to Mr Brandon.[8] The investigations undertaken by the police evolved into a large-scaleinvestigation, which became known as "Operation Marian". That code nameappears to have been first used on 16 March 2012. On that date the police obtained an interception warrant from the High Court to access private communications between Mr Brandon and three other suspects.[9] Operation Marian was terminated on 3 April 2012, at which time the police obtained in excess of 13,000 communications.[10] Operation Marian culminated in the arrest of 25 people for a variety of offences under the Misuse of Drugs Act 1975. Of the 25 people who were arrested, 23 were charged with indictable offences.[11] Mr Brandon was arrested on 4 April 2012 and charged with two offences:(1) conspiring with named others to supply methamphetamine between 16 March 2012 and 1 April 2012; and(2) possessing methamphetamine on 29 March 2012 for the purposes of supply.[12] Mr Ewen, counsel for Mr Brandon, described these charges as "holding"charges. Mr Powell, counsel for the Department, was not able to either agree with or refute this description of the 4 April 2012 charges. I explain in paragraphs [66] to [71] why I have concluded the 4 April 2012 charges were "holding" charges.[13] Mr Brandon was remanded in custody first on pre-sentence detention from 4 April 2012 and then as a sentenced prisoner until my interim judgment was delivered on 8 July 2015.[14] Understandably, it took the police many months to analyse the evidence which had been gathered prior to, and as part of, Operation Marian.[15] As the police gained a better understanding of the evidence, they laid further charges against Mr Brandon and withdrew some charges.[16] The two charges laid on 4 April 2012 were withdrawn on 16 August 2012. Mr Brandon remained in custody, however, in relation to three similar charges and one replacement charge that had been laid on 13 July 2012.[17] A total of 35 charges were laid against Mr Brandon between 4 April 2012 and 19 September 2013.1 Those charges alleged possession, offering to supply, supplying, possessing for the purposes of supply and conspiring to supply methamphetamine on various dates between 7 November 2011 and 4 April 2012.[18] On 18 June 2013, three charges which alleged methamphetamine offending between 8 November 2011 and 8 March 2012 were added to the charges against Mr Brandon. The Crown explained that it had not laid those charges earlier becauseof "an oversight" and that Mr Brandon would "not be prejudiced" by the newcharges being laid.2[19] By 12 September 2013, a number of those who had been arrested as part of Operation Marian had pleaded guilty and been sentenced.[20] On 12 August 2014, Mr Brandon received a sentence indication from Judge Barry in the Wellington District Court in relation to seven counts contained in a consolidated indictment. Judge Barry indicated he would sentence Mr Brandon tothree years and two months' imprisonment if he pleaded guilty.[21] Mr Brandon accepted the sentence indication and was sentenced on 12 August 2014 to three years and two months' imprisonment in relation to sevencounts. Those sentences were concurrent. The remaining charges against Mr Brandon in the consolidated indictment were withdrawn.1 A Courts Management System report dated 16 July 2014 on Mr Brandon's District Court file lists 33 charges relating to Mr Brandon. That report does not list the two charges laid on 4 April 2012.2 Crown memorandum, 18 June 2013, at [3] and [6].[22] The following table sets out the charges in the consolidated indictment which Mr Brandon pleaded guilty to and for which he was sentenced on 12 August 2014:TABLE 1Count Charge Offence Dates1 Conspiracy to supplymethamphetamine7 November 2011 to16 March 20122 Supplyingmethamphetamine(representative charge)8 November 2011 to14 November 20113 Offering to supplymethamphetamine(representative charge)8 November 2011 to24 November 20114 Conspiring to supplymethamphetamine15 March 2012 to 4 April20127 Supplyingmethamphetamine20 March 20128 Offering to supplymethamphetamine19 March 2012 to30 March 201210 Possession ofmethamphetamine forsupply29 March 2012[23] At the time Mr Brandon was sentenced on 12 August 2014, a warrant of commitment was prepared by staff in the District Court. That warrant was signed by Judge Barry and accompanied Mr Brandon to Rimutaka Prison.[24] At the time the warrant of commitment was prepared, a staff member in the District Court entered into a computer system key information about Mr Brandon's convictions. The computer system is called "Courts Management System" (CMS).The information entered into CMS included:(1) the charges Mr Brandon was convicted of;(2) the sentences imposed; and(3) when the charges were laid.[25] The information about when each charge was laid was crucial in this case. This is because Mr Brandon had been remanded in custody and it was necessary to accurately record when each charge was commenced in order to properly calculateMr Brandon's pre-sentence detention. I will explain the legal significance of this in paragraphs [42] to [60] of this judgment.[26] Unfortunately, it was not an easy task for the District Court's staff toaccurately enter into CMS when each charge commenced. The difficulties arose because:(1) a number of charges had been laid and withdrawn;(2) some charges replicated withdrawn charges; and(3) two indictments and a consolidated indictment had been laid. Not all counts in the indictment matched charges that had been set out in informations.[27] As a consequence, the information entered into CMS recorded the seven charges commenced on the following dates:TABLE 2Count Commencement Date1 13 July 20122 13 July 20123 19 September 20134 18 June 20137 13 July 20128 13 July 201210 4 April 2012[28] It is now apparent the person who entered the commencement date data into CMS did not accurately record when some of the charges were commenced.[29] There is an interface between CMS and the Integrated Offender Management System (IOMS), the computer system run by the Department.[30] When Mr Brandon returned to Rimutaka Prison on 12 August 2014 to commence his prison sentences, staff in the Department were able to access through IOMS the information which had been entered into CMS by staff at the WellingtonDistrict Court. When staff of the Department ascertained Mr Brandon's pre-sentence detention, they obtained the information I have set out in Tables 2 and 3.[31] In IOMS, the commencement date of each charge is referred to as the "JPD",which stands for Judicial Proceeding Date. The IOMS calculates the differencebetween the JPD and the sentence commencement date. In Mr Brandon's case thesentence commencement date was 12 August 2014 in relation to the seven charges for which he was sentenced.[32] The difference between the JPD and the sentence commencement date is then credited against the actual sentence imposed so as to determine when a prisoner is eligible for parole and the release date for his or her sentence, which is the last date upon which he or she must be released.[33] In Mr Brandon's case, four different release dates were shown on the IOMS:TABLE 3Count Date10 4 June 20154 18 August 20151, 2, 7 and 8 13 September 20153 18 November 2016[34] In May 2015, Ms Fyfe, a barrister in Wellington was asked by Mr Brandon toinquire into when he should be released from prison. Ms Fyfe's inquiries led to a review of Mr Brandon's case by the Department pursuant to s 92(2) of the Parole Act2002 (the Parole Act). I explain that section in paragraph [49] of this judgment. That review was undertaken by Mr Alexander, a senior adviser in the Department who sent Ms Fyfe an email on 22 May 2015, which set out the information I have summarised in Tables 2 and 3 of this judgment. Importantly, the information the Department sent to Ms Fyfe meant that, according to the Department, Mr Brandon was not to be released until, at the latest, 18 November 2016.[35] In late June 2015, Ms Fyfe spoke to Mr Ewen. Mr Ewen undertook his own inquiries and reached the view the Department's records and conclusions aboutMr Brandon's release dates were wrong. Mr Ewen believed all of Mr Brandon's sentences were part of proceedings commenced on 4 April 2012 when the "holding"charges were laid. On this basis Mr Ewen calculated all of Mr Brandon's sentenceswere completed on 4 June 2015 and that Mr Brandon was being unlawfully detained. Mr Ewen took instructions and on Thursday 2 July 2015, filed on Mr Brandon'sbehalf an application for a writ of habeas corpus. That application was supported byaffidavits from Mr Jefferies, who was Mr Brandon's lawyer at the time he wassentenced, and Ms Fyfe.[36] The Department opposed the application for a writ of habeas corpus. Mr Powell arranged for an affidavit to be filed from Mr Alexander, who explainedthe systems in place in the Department for determining when Mr Brandon'ssentences ended.[37] I received the application for habeas corpus in my capacity as duty Judge. I arranged for the District Court file to be brought to the High Court. It took many hours to analyse that file and trace the ebbs and flows of the charges against Mr Brandon. At the commencement of the hearing on 7 July 2015, I invited counsel to see the information I had examined. That was a useful exercise as Mr Powell quickly appreciated that some of the Department's records were plainly wrong. Mr Powell acknowledged Mr Brandon's release date was not 18 November 2016.However, Mr Powell thought Mr Brandon's release date was likely to be inDecember 2015. Thus it was necessary for Mr Brandon's application to be heard.That took half a day.[38] After the hearing I continued my analysis of the District Court records and issued my interim judgment on the morning of 8 July 2015.PART IITHE LAWNew Zealand Bill of Rights Act 1990[39] Section 22 of the New Zealand Bill of Rights Act 1990 (the NZBORA), guarantees freedom from arbitrary arrest or detention. Section 22 of the NZBORA provides:22 Liberty of the personEveryone has the right not to be arbitrarily arrested or detained.[40] The key to determining if s 22 of the NZBORA applies is to ascertain if the arrest or detention at issue is arbitrary. The White Paper, which contained a commentary to the Draft Bill of Rights, explained that what is now s 22 of the NZBORA covers not just a failure to comply with the terms of legislation authorising arrest or detention, but also enables the validity of any law allowing for arrest or detention to be assessed.3 Section 4 of the NZBORA may limit the scope of3 Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984]-[1985] 1 AJHR A6 at [10.91].the ability of the Courts to assess the validity of any law allowing for arrest or detention.4[41] For present purposes, s 22 of the NZBORA may be engaged if Mr Brandon'sdetention did not comply with ss 90 and 91 of the Parole Act. If I can interpret the relevant provisions of the Parole Act in a way that is consistent with s 22 of the NZBORA, then it is preferable I do so.5Parole Act 2002[42] Sections 90 to 92 of the Parole Act were part of a suite of changes made by Parliament in 2002 relating to the way pre-sentence detention is addressed when sentencing a prisoner. Those changes were made to the Parole Act and the Sentencing Act 2002 (the Sentencing Act) which were derived from the Sentencing and Parole Reform Bill 2001. The two statutes interrelate.[43] Prior to the Sentencing Act coming into force, pre-sentence detention wastaken into account by the sentencing Judge who would factor into the prisoner'ssentence the amount of time he or she had already spent in prison. The Sentencing Act changed this process and directed Judges not to have regard to a prisoner's pre- sentence detention when imposing sentence.6 Pre-sentence detention is now governed by the provisions of the Parole Act.[44] Section 88 of the Parole Act requires the Chief Executive of the Department to ensure that key dates of every prisoner's sentence are determined in accordancewith the Parole Act.[45] Under s 90 of the Parole Act, the time spent by a prisoner in pre-sentencedetention is deemed to be time served by the prisoner when calculating the prisoner'srelease date and the date he or she becomes eligible for parole. Where a prisoner has received concurrent sentences, the Department must determine the amount of pre- sentence detention that is applicable to each sentence and deduct from each sentence4 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary(LexisNexis, Wellington, 2008) at [19.3.2].5 New Zealand Bill of Rights Act 1990, s 6.6 Sentencing Act 2002, s 82.the amount of pre-sentence detention time which has been served in relation to that sentence.[46] Section 90(1) and (2) of the Parole Act provide: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 of a sentence of imprisonment (including a notional single sentence) and an offender's statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period 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 each sentence must be determined; and(b) the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence....[47] Section 91(1) of the Parole Act applies when the offence for which the prisoner is sentenced is not the same charge for which the prisoner was originally arrested or where he or she has faced a different charge between arrest and conviction. Section 91(1) of the Parole Act provides:91 Meaning of pre-sentence detention(1) Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (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 or her arrest and before conviction....[48] For present purposes, the relevant requirement of s 91(1) is that any earliercharges must be part of "the proceedings leading to the conviction" of the prisonerbefore the charges form part of the prisoner's pre-sentence detention.[49] Section 92 of the Parole Act sets out the procedure for recording anddetermining the accuracy of a prisoner's pre-sentence detention. A prisoner is to be supplied with a copy of the record of his or her pre-sentence detention. If a prisoner disputes the accuracy of that record he or she may apply to the Department to review the record. Under s 92(4) of the Parole Act, if the prisoner is dissatisfied with the outcome of the review, he or she can appeal the review to the Court that imposed his or her sentence.[50] The question in the present case is whether all of the charges Mr Brandon was sentenced for were part of the proceedings commenced on 4 April 2012, when he was remanded in custody in relation to the "holding" charges. Assistance isgained in answering that question by referring to five cases.[51] In Taylor v Superintendent of Auckland Prison (Taylor), the Court of Appeal examined s 81 of the Criminal Justice Act 1985 and in particular, the words:7 [T]he total period during which [the prisoner] is detained on remand at any stage of the proceedings leading to the [prisoner's] conviction orpending sentence, whether that period or any part of it relates to any charge [1] on which the person was originally arrested or [2] that the person faced at any time subsequent to his or her arrest and prior to conviction.[52] Mr Taylor had been remanded in custody on one charge (charge A). He was then charged with a second unrelated offence (charge B). When he was sentenced on charge B he tried to have the Court take into account all of his remand time since he was detained in relation to charge A as part of the sentence in relation to charge B.[53] The Court of Appeal held that a charge a defendant faced at any time subsequent to arrest in s 81 of the Criminal Justice Act 1985 only applied to the proceedings in respect of the charge for which the defendant was being sentenced7 Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752 (CA) at [6].and did not relate back earlier than the date that the charge was laid. The Court said:8The meaning of the legislation is to be ascertained from its text and in thelight of its purpose. As the Crown submits, the key concept is that of "the proceedings" to which the section is directed. Those "proceedings" are theones leading to the "conviction" and subsequent "sentence" to which the calculation of what the section heading calls "Period on remand" is germane. "The total period" embraces that between "charge" and the "conviction" or "sentence" under consideration; so too does "that period or any part of it". There is no proceeding until charge; a proceedingcommences with an information. Remand commences with the order of remand on that information. Any remand time served during the whole period from charge until ultimate sentence counts towards that proceeding.[54] In Maile v Manager, Mt Eden Correction Facility (Maile), the High Court had to consider ss 90 and 91 of the Parole Act in the context of a habeas corpus application.9 On 9 June 2010, Mr Maile was remanded in custody on a variety of offences. On 12 October 2010, following a depositions hearing, the Crown filed an indictment which charged Mr Maile with the offences with which he had been originally charged and charges of money laundering. He was sentenced on 14September 2011 to 20 months' imprisonment on the money laundering charges.Courtney J considered Taylor and distinguished it on the basis that the money laundering charges arose from the depositions hearing in relation to the original charges and that there was in effect only one set of proceedings.[55] The third case I refer to is Kopara v The Manager, Mt Eden Corrections Facility (Kopara).10 Mr Kopara was charged with four offences on 11 January 2012. The offending occurred in early January 2012 and related to taking motor vehicles and driving while disqualified. Mr Kopara was remanded in custody. In April 2012 he was charged with two additional offences of unlawfully getting into a motor vehicle and taking a motor vehicle in late December 2011. On 21 August 2012, Mr Kopara was sentenced to 12 months' imprisonment in relation to all charges. Thesentences were concurrent.8 Taylor v Superintendent of Auckland Prison, above n 7, at [14].9 Maile v Manager, Mount Eden Correction Facility [2012] NZAR 39 (HC).10 Kopara v The Manager, Mt Eden Corrections Facility [2012] NZAR 982 (HC).[56] Mr Kopara applied for a writ of habeas corpus when he realised the Department calculated his period of pre-sentence detention in relation to the April 2012 charges by reference to the date those charges were laid, and not by reference to 11 January 2012, when the first set of charges were laid.[57] Ellis J said that if she had been persuaded the Department's calculation ofMr Kopara's pre-sentence detention period was unequivocally wrong, she would have been inclined to grant the application for habeas corpus. Ellis J held, however, that although the charges had similarities which justified concurrent sentences, they related to separate periods of time and to discrete offending. Mr Kopara'sapplication for a habeas corpus was therefore dismissed.[58] Ronald Young J also considered ss 90 and 91 of the Parole Act in Jolly vManager of Christchurch Men's Prison (Jolly).11 Mr Jolly faced seven charges of breaching an extended supervision order. Those charges were laid on various dates between 27 August 2013 and 29 January 2014. The last charge related to eventswhich came to light in October 2013. Mr Jolly was sentenced to 19 months'imprisonment for all charges. The sentences were concurrent. The Departmentcalculated Mr Jolly's release dates by reference to the dates each charge was laid.Ronald Young J examined ss 90 and 91 of the Parole Act and agreed with the approach taken by the Department. He said:12The intention of those sections is to ensure that where there are unrelated charges, the pre-sentence detention calculation relates to the actual detention with respect to each individual charge. This avoids the obvious problem of a credit for pre-sentence detention when a particular charge has not been laid and a defendant is not yet in jeopardy of conviction and sentence. This is the basic proposition expressed in s 90.However, where the charges are related (see s 91(1)) then the longest pre- sentence detention period should apply to all charges for the purpose of calculating the deduction for pre-sentence detention from the ultimate sentence of imprisonment. For example, if a defendant faces charge A which is later withdrawn and substituted with charge B, then the charges will be related and so the pre-sentence remand period starting at charge A should apply to the sentence imposed for charge B.11 Jolly v Manager of Christchurch Men's Prison [2014] NZHC 1398.12 At [18]-[19] and [27]. While an assessment of how the pre-sentence detention works in such a case by the Department of Corrections is still required, the assessment is relatively straight forward. Is the charge now faced essentially a replacement or substitution or amendment of the original charge? If it is, then it is related to the original charge in the sense meant by s 91(1) and the longer period of pre-sentence detention can be taken into account. But if the charges arise from a series of events even on the same day and a multitude of charges result, then I consider they are not related for the purpose of s 91(1) on that basis alone. There the relationship between the charges is no more than the coincidence they have been discovered on the same day.[59] Ronald Young J examined the approach taken by Courtney J in Maile to ss 90 and 91 of the Parole Act. He said he preferred a "narrower" approach to thosesections because he could not see how staff of the Department could be expected to trace back through earlier charges to determine when a proceeding commenced. Ronald Young J said:13It will be an overwhelming burden for the Department of Corrections in such a situation to identify which charges are related and therefore how s 91(1) might apply. Parliament could not have intended such complexity with respect to such an important function of calculating the time a prisoner is to spend in prison.(footnotes omitted)[60] In Gray v Manager, Waikeria Prison, Brewer J aligned himself with the reasoning of Ronald Young J in Jolly.14Sentencing Act 2002[61] Mr Ewen referred to s 84 of the Sentencing Act, which provides guidance on the imposition of cumulative and concurrent sentences. For present purposes it is sufficient to set out s 84(2) and (3) of the Sentencing Act:13 Jolly v Manager of Christchurch Men's Prison, above n 11, at [29].14 Gray v Manager, Waikeria Prison [2014] NZHC 1745, [2014] NZAR 864.84 Guidance on use of cumulative and concurrent sentences of imprisonment(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the courtconsiders relevant.[62] Mr Ewen also referred to s 85 of the Sentencing Act, which sets out the principle that sentencing Judges are required to consider the totality of offending when a defendant is sentenced to two or more offences.Habeas Corpus Act 2001[63] The legislative origins of the Habeas Corpus Act 2001 (the Habeas Corpus Act) can be traced through the Habeas Corpus Act 1816 (UK), the Habeas Corpus Act 1679 and the Habeas Corpus Act 1640.[64] Applications for writs of habeas corpus have constitutional and legal significance in New Zealand. This is recognised by the provisions of the Habeas Corpus Act concerning the urgency with which applications for habeas corpus must be heard,15 the streamlined procedures for determining applications for writs of habeas corpus16 and the fact no fees are payable in relation to applications for habeas corpus.17[65] Significantly, s 14(1A) of the Habeas Corpus Act now enables a High Court Judge to refuse an application for a writ of habeas corpus if he or she is satisfied that15 Habeas Corpus Act 2001, ss 9 and 10.16 Section 7(3) and (5).17 Section 7(6).the application is not the appropriate procedure for considering the allegations made by the applicant.PART IIIANALYSISThe 4 April 2012 charges[66] A key reason for the decision I delivered on 8 July 2015 was that I was satisfied the two charges laid against Mr Brandon on 4 April 2012 were "holding"charges.[67] My reasons for reaching this conclusion can be distilled to the following three points.[68] First, Mr Brandon was arrested after the police had investigated him for approximately five months and at a time when the police had obtained a massive amount of data which needed to be carefully analysed. It would be entirely logicalfor the police to arrest Mr Brandon on "holding" charges at that time. This was acase in which the police anticipated on 4 April 2012 that further charges would be laid against Mr Brandon. The police knew, however, it would take time to identify those charges.[69] Second, the police summaries of facts show the police believed Mr Brandon was an important participant in the criminal activities that were being investigated. He was not thought to be the leader of the suspected offenders, but he appeared to occupy an important position within the group of suspected offenders. In this case the police wished to have Mr Brandon arrested and detained for charges for which they already had obtained evidence while the police conducted further inquiries for the purpose of laying further charges.[70] Third, it is significant that the charges laid on 4 April 2012 were withdrawn on 16 August 2012. By that stage, four other charges had been laid on 13 July 2012, which ensured Mr Brandon would remain in custody. It would appear that one of thecharges laid on 13 July 2012 was ultimately treated as a replacement of one of the 4 April 2012 charges and became Count 10 in the indictment, to which Mr Brandon pleaded guilty.[71] In concluding the 4 April 2012 charges were "holding" charges, I am notsuggesting the charges were fictitious or that the police had no intention of prosecuting Mr Brandon on those charges. The police were faced with undertaking an inquiry into a massive amount of evidence involving multiple defendants. It is understandable that charges were added and dropped as the police investigations continued. What is significant is that Mr Brandon remained in custody throughout the time the police conducted their inquiries, initially as a result of the 4 April 2012 charges and then because of the charges laid on 13 July 2012.The correct approach to s 91 of the Parole Act[72] I commence my analysis of the approach to be taken to s 91 of the Parole Act by adopting with, modifications to reflect legislative changes, the reasoning of the Court of Appeal in Taylor, which I have quoted in paragraph [53] of this judgment.[73] The meaning of s 91 of the Parole Act is to be ascertained from its text and purpose. It is also necessary to recognise that it is preferable to give s 91 a meaning that is consistent with s 22 of the NZBORA.[74] The key concept in s 91 of the Parole Act is the "proceedings" to which thatsection is directed. "Proceedings" are those which lead to a conviction and sentenceto which the period spent in pre-sentence detention relates.[75] The period spent in pre-sentence detention relates to every charge for which the prisoner is eventually sentenced, or any other charge on which they were originally arrested, or any other charge that the prisoner faced between his or her initial arrest and his or her conviction. There can be no proceeding until a charge. Since the commencement of the Criminal Procedure Act 2011, all charges commence with the laying of a charging document.18 Pre-sentence detention18 Criminal Procedure Act 2011, s 14.commences with the order to be remanded in custody on that charging document. Any period served in pre-sentence detention is deemed to be time served from the time of first detention until sentence in relation to any charge that is part of the proceedings for which the prisoner is ultimately sentenced.[76] The purpose of s 91 of the Parole Act is to ensure the scenario advocated by Mr Taylor does not eventuate. That is to say, a prisoner does not get credit for time spent in detention in relation to sentences imposed on charges that are not part of the proceedings for which the prisoner was detained before sentence.[77] I appreciate s 91 of the Parole Act can impose a significant burden on staff in the Department who in turn are reliant on the accuracy of the information which court staff enter into CMS. However, those challenges cannot be allowed to outweigh the liberty of individuals such as Mr Brandon.[78] The consolation for the Department is that s 92(4) of the Parole Act providesan effective mechanism to resolve issues about the period of a prisoner's pre-sentence detention. The sentencing Court can determine when a prisoner's pre- sentence detention commences. Had that course been followed in this case I am sure Judge Barry would have quickly appreciated Mr Brandon was being detained unlawfully from 4 June 2015.[79] In my assessment, all charges Mr Brandon faced between 4 April 2012 and 12 August 2014 were part of the same proceedings. Those proceedings commencedwith Mr Brandon being detained in prison in relation to the "holding" charges andprogressed through a series of phases during which related charges were added and withdrawn. All charges were connected, in the sense they related to offending that occurred within the same general time span. The charges related to the same type of offending. The charges all emerged as part of a police investigation that culminated in evidence being gathered as part of Operation Marian. It is also significant that the Crown delayed charging Mr Brandon with offences relating to the 8 November 2011to 8 March 2012 period because of "an oversight" and assured the District CourtMr Brandon would not be prejudiced by the delay in laying those charges.[80] I am sure that when Judge Barry sentenced Mr Brandon on 12 August 2012 he did not intend Mr Brandon would be at risk of serving four years and sevenmonths in prison when he sentenced Mr Brandon to three years and two months'impisonment.[81] My conclusion on the correct approach to s 91 of the Parole Act renders itunnecessary to examine in any detail Mr Ewen's submissions about the effect of ss84 and 85 of the Sentencing Act or s 22 of the NZBORA.[82] Suffice to note that the provisions of s 84 of the Sentencing Act concerning concurrent sentences provide a useful point of reference. However, there is a lacunain the submission that because all Mr Brandon's sentences were concurrent, theymust form part of the same proceedings for the purposes of s 91 of the Parole Act.[83] The challenge facing those required to make decisions under s 91 of the Parole Act is to determine if earlier charges were part of the proceedings for which the prisoner is sentenced. The fact sentences are concurrent does not determine if earlier charges are part of the proceedings that results in the concurrent sentences.[84] It is also sufficient for me to note for present purposes that there is no inconsistency with s 22 of the NZBORA if s 91 of the Parole Act is applied correctly.Relief[85] When I heard Mr Brandon's application for a writ of habeas corpus, I wasconcerned that the procedure set out in s 92(4) of the Parole Act had not been followed in this case as no appeal had been pursued against the review undertaken by Mr Alexander.[86] There are two reasons I decided not to dismiss the application for a writ of habeas corpus and direct Mr Brandon follow the procedure in s 92(4) of the Parole Act.[87] First, I was satisfied Mr Brandon had been detained unlawfully since 4 June 2015. It was imperative he not be detained any further, particularly as it was not known when the District Court could hear an appeal under s 92(4) of the Parole Act.[88] Second, by the time I heard Mr Brandon's application I was seized of allinformation that would have had to have been considered by a District Court Judge hearing an appeal under s 92(4) of the Parole Act.[89] During the course of the hearing on 7 July 2015, I raised the possibility of me issuing a declaration of the kind I subsequently issued on 8 July 2015. Both counsel recognised the utility of me issuing a declaration to enable the Department to correct its records and release Mr Brandon without the need for a writ of habeas corpus.[90] I was also concerned that the habeas corpus procedure was not well suited tothe task I faced of having to analyse Mr Brandon's extensive District Court file.Both counsel appreciated that it was unfortunate that the complex factual and legal issues raised in this case were presented through a habeas corpus application. Mr Ewen also acknowledged the course of action I was contemplating would not prejudice Mr Brandon.[91] I therefore chose to issue a declaratory judgment. My jurisdiction to follow that course of action is derived either from the Declaratory Judgments Act 1908 or the High Court's inherent jurisdiction.[92] By way of explanation, the power of the High Court to issue a declaration was in all likelihood devolved from the jurisdiction of the Court of Chancery to issue declarations in England.19 The powers of the English superior courts have been inherited by the High Court of New Zealand.20[93] Issuing a declaration produced the desired result. Mr Brandon was released from prison on the afternoon of 8 July 2015.19 Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Thomson Reuters, London, 2011) at [2-01]; citing Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536.20 Judicature Act 1908, s 16, preceded by the Supreme Court Acts of 1860 and 1882 and the Supreme Court Ordinances of 1841 and 1844.Costs[94] I am inclined to set costs in favour of Mr Brandon on a scale 2B basis. Before doing so, I need to be assured that Mr Brandon has not been granted civil legal aid for this proceeding. I will also provide counsel with the opportunity to make submissions on the costs I propose ordering. They should file memoranda on this issue by 17 July 2015.____________________D B Collins JSolicitors:Ord Legal, Wellington for ApplicantCrown Law Office, Wellington for Respondent