TIHEMA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 2554

TIHEMA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 2554 [28September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2042[2018] NZHC 2554UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of Habeas CorpusBETWEEN CHER ALMA KAHU TIHEMAApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 28 September 2018Appearances: Applicant in person (via AVL)Z R Johnston for the RespondentJudgment: 28 September 2018ORAL JUDGMENT OF PALMER JParty/SolicitorsThe applicantCrown Law, WellingtonMs Tihema[1] Ms Cher Tihema is currently imprisoned in Auckland Women's Prison. On 14August 2017, she was sentenced to 11 months' home detention for a number of chargesof assaulting children in her care.1 She failed to appear on 18 August 2017 in order tocommence her sentence as required, breaching the conditions of the home detentionsentence, and was arrested in November 2017 and remanded in custody.[2] On 8 February 2018, Judge C J McGuire in the Papakura District Courtsentenced Ms Tihema to 20 months' imprisonment for the assault charges withconcurrent one month sentences for charges of breaching her home detentionconditions, shoplifting and receiving a stolen car, which had arisen since the previoussentencing.2 He mentioned the time spent in custody, saying Ms Tihema had "in effect[now been] on remand for some three and a half months" but, from his remarks, it doesnot appear to me that affected the sentence.3Habeas corpus[3] The Habeas Corpus Act 2001 provides for restoring the liberty of those whoare unlawfully detained. Section 14(1) provides that, if the defendant – that is,Corrections here – if Corrections fails to establish that a detention is lawful, the court"must grant as a matter of right a writ of habeas corpus ordering the release of thedetained person from detention". Section 14(2) provides "a judge dealing with anapplication must enquire into the matters of fact and law claimed to justify thedetention".[4] The habeas corpus procedure is even more simple, speedy and untechnicalthan judicial review. It is not well suited to resolving complex arguments about theinterpretation of law, particularly when the problem is "upstream" of apparentlyregular warrants.4 As the Court of Appeal has stated, the inquiry envisaged byParliament in passing the Act must be one "that, although conducted in circumstancesof urgency would allow an appropriately considered judicial examination that would1 R v Tihema [2017] NZDC 18097.2 Department of Corrections v Tihema [2018] NZDC 2191.3 At [4].4 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].warrant making an unappealable finding against the lawfulness of the detention".5 Buta court is entitled to examine the administrative decision which underpins the legalityof the detention.6 And if the court considers a person is unlawfully detained, a writ ofhabeas corpus must issue.Submissions[5] Ms Tihema applies for a writ of habeas corpus on the basis the Department ofCorrections calculated her release date as being in December 2018 when in fact it was24 September 2018. She challenges the calculation underlying the requirement of s 86of the Parole Act 2002 (the Act) that, as someone subject to a short-term sentence, shemust be released after serving half the sentence. Ms Tihema spent three and a halfmonths in custody after breaching her sentence of home detention and before beingre-sentenced. She says Corrections did not count those remand days towards herrelease date and it should have done so.[6] Ms Johnston, for Corrections, alerted me to a concern that Ms Tihema may bedisadvantaged by representing herself on an application she did not make herself. Shesubmits Ms Tihema is lawfully detained pursuant to a valid warrant of commitmentwhich she does not challenge. Corrections' position is that ss 90 and 92 of the Actpreclude taking into account the time Ms Tiheme spent in custody after breaching hersentence of home detention and before being re-sentenced. Ms Johnston submits thattime is not "pre-sentence detention" for the purposes of the Act. She submits MsTihema was, technically, still "subject to" the sentence of home detention until it wascancelled by Judge McGuire and even though time had ceased to run on it for thepurposes of calculating the home detention sentence under s 80ZB of the SentencingAct. So she submits Ms Tihema was not detained "pending sentence" under s 91(1).She submits the time on remand was a matter for the sentencing judge to take intoaccount, according to s 80G(2) of the Sentencing Act 2002, and he may have done so.Accordingly, Ms Tihema's statutory release date would be 6 December 2018, herdetention would be valid and the writ of habeas corpus should not issue.5 At [47].6 At [46].[7] Ms Johnston acknowledges there is conflicting High Court authority on theissue. So, alternatively, she invites me to consider interim orders under s 11 of theHabeas Corpus Act and issuing a declaration rather than a writ of habeas corpus. Shealso submits I could convert this into a judicial review pending appellate resolution ofthe conflict in High Court authority. She acknowledges that, if Ms Tihema's argumentwas correct, she should be released.Should habeas corpus be granted?[8] In 2015, in Hawkins v Chief Executive of the Department of Corrections,Mander J accepted a period spent in custody between the date of an application tocancel home detention and its determination does not constitute pre-sentence detentionfor the purpose of calculating release dates under ss 90 and 91.7 Rather he consideredthat time may be taken into account by the Court in determining the length of anysubstitute sentence.[9] Earlier this year, in Sutherland v Chief Executive of the Department ofCorrections, Ellis J reconsidered the Hawkins approach in light of the Supreme Court'ssubsequent decision in Booth v R.8 Ellis J considered the Court in Hawkins was notconsidering the implications of the existence of new charges, on which the offenderwould be still "pending sentence".9 She considered the legislative intent of the ParoleAct "involved a clearly signalled retreat from leaving the calculation of pre-sentencedetention to the discretion of the judge" and she considered the policy considerationsof leaving the calculation to Corrections to be powerful.10 This judgment is underappeal but no date has yet been set for that. The Crown submits here the principles inBooth which do value the simplicity of calculation by Corrections do not override theclear words of s 80ZB.[10] I do not consider the words of s 80ZB are so clear. In her careful andcomprehensive judgment, Ellis J characterises it as much less than moderately7 Hawkins v Chief Executive of the Department of Corrections [2015] NZHC 1001 at [16].8 Sutherland v Chief Executive of the Department of Corrections [2018] NZHC 1366; Booth v R[2016] NZSC 127, [2017] 1 NZLR 223.9 At [47] and [64]–[65].10 At [69].coherent.11 The calculation in that section is "for the purpose of calculating how muchtime an offender who is subject to a sentence of home detention has served". I do notaccept the argument that Ms Tihema was still "subject to" a sentence of homedetention when she had not ever started serving one. For all practical purposes,Ms Tihema did not serve her sentence of home detention. That is why she was re-sentenced for the offences for which she had previously received that sentence. Inbeing in custody from November 2017 to February 2018, Ms Tihema was awaitingsentence for those, and other offences. Booth makes it clear pre-sentence detention isnot to be assessed on a charge by charge basis. Sutherland may be under appeal, butthis application cannot wait for that. I consider it is correct, in its implications for thiscase.[11] It may be that, in re-sentencing her in February 2018, the District Court couldhave adjusted Ms Tihema's sentence for her period in custody. That might have thesame effect as what I consider to be the requirement on Corrections to take that periodinto account. But it is not at all clear Judge McGuire did that, nor that he was requiredto do so. Given that, and the requirement on me under s 6 of the New Zealand Bill ofRights Act 1990 to interpret the legislation so as to uphold the liberty of the person,the three and a half months Ms Tihema spent in custody awaiting re-sentencing iseffectively a "bonus" period of additional custody, not reflected in her sentence. Iconsider Corrections has failed to establish Ms Tihema's detention is lawful. This isnot an interim determination so I do not make interim orders.[12] Ms Tihema, in summary, I agree with you that your time on remand shouldcount against your sentence. I grant, as a matter of right, a writ of habeas corpusordering the release of Ms Tihema from detention. She must be released today.Palmer J11 At [46].