JOLLY v MANAGER OF CHRISTCHURCH MEN'S PRISON [2014] NZHC 1398

JOLLY v MANAGER OF CHRISTCHURCH MEN'S PRISON [2014] NZHC 1398 [24 June 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2014-442-33[2014] NZHC 1398UNDER the Habeas Corpus Act 2001 s 14(5) andParole Act 2002 s 91(1)(b)BETWEEN DARREN ALBERT JOLLYApplicantAND MANAGER OF CHRISTCHURCHMEN'S PRISONRespondentHearing: 18 June 2014Counsel: A J Heward for ApplicantA M Powell for RespondentJudgment: 24 June 2014JUDGMENT OF RONALD YOUNG J[1] At the end of hearing Mr Jolly's application for a writ of habeas corpus on18 June 2014, I dismissed the application. I said I would give reasons which I now do.[2] Mr Jolly's application for a writ of habeas corpus is based on his claim that taking into account the time he has spent on remand he was due to be released from his prison sentence of 19 months' imprisonment on 11 June 2014. Corrections say his release date is 14 November 2014.[3] The issue in this case is concerned with the type and timing of the charges Mr Jolly was sentenced to and s 91 of the Parole Act 2002 (the Act). To understand the application it is necessary to understand the charges faced by Mr Jolly and the sentencing decision in the District Court.[4] Mr Jolly was subject to an Extended Supervision Order (ESO). He was charged with seven charges of breaching that supervision order. The seven charges were not laid on the same day. Some were laid on 23 August 2013, others in September 2013 and the final one as late as 29 January 2014.[5] The later charge (CRN 14042500183) was an allegation that Mr Jolly had on 11 July 2013, in his possession, an internet capable android device contrary to the conditions of the ESO.[6] Another charge (CRN 13042500520) laid on 27 August 2013 alleged that Mr Jolly had used an internet capable device to access the internet also in breach of his ESO.[7] It seems that while the prosecution were aware in August 2013 that Mr Jolly had used an internet android device to access the internet (self evident), they were not able to identify until some months later (October 2013) the particular android device he had used which had in fact been supplied by his father. There appears to be some delay from this discovery in October 2013 to laying the charge in January 2014.[8] On 11 June 2014 Mr Jolly sought a sentence indication from a District Court Judge. Although the Judge mentioned six charges there were in fact seven charges. They included both CRN 0520 and CRN 0183 previously mentioned. They were all charges of a breach of the ESO involving the use of a device to access on the internetchild "pornography" sites and Facebook sites. The Judge considered the offending together and gave an indication of 19 months' imprisonment for all of the offending.The indication was accepted and Mr Jolly sentenced immediately to that period of imprisonment.[9] There was a suggestion in the Judge's sentencing remarks and the submissions by both counsel, that both counsel and the Judge believed that in imposing the 19 month prison sentence, given the period Mr Jolly had spent on remand in custody, he would very shortly, if not on the day of sentencing, be released from custody. For example, a suitable address for Mr Jolly's residence wasdiscussed given the continued existence of the ESO. That example supports the claim that all parties expected Mr Jolly's early, if not immediate, release after the imposition of the 19 month prison sentence.[10] However, once in prison the Department of Corrections calculated Mr Jolly'srelease dates rather differently than he had expected. The sentencing date was 11 June 2014. Given there was no parole eligibility date, (he was entitled to release after serving half of his sentence),1 Mr Jolly expected that his period in custody from 27 August 2013 (the earliest date on which he was remanded in custody) to 11 June would count as pre sentence detention and be deducted from the 19 month imprisonment no matter which offence it was applied to.[11] However, the Department of Corrections calculated the dates in this way:Date charges laid Remand days Release date27 August 2013 286 11 June 201424 September 2013 260 10 July 201429 January 2014 133 14 November 2014(I take these three dates as the earliest and the latest date and a middle date when the charges were laid).[12] The respondent's position is, therefore, that Mr Jolly's release date is the laterof the above dates being 14 November 2014.[13] Mr Jolly submits that s 91(1) of the Act means that all his pre-sentence detention of 286 days counts towards his 19 month sentence irrespective of the date on which the individual charge is laid. The seven charges are related and so the total pre-trial detention applies to all charges. Mr Jolly's case, therefore, relies on theproposition that those charges laid after 27/28 August 2013 are related to the August charges. And if "related" in the sense intended by s 91(1), then the pre-sentence detention period applicable to the August charges would apply to all other charges irrespective when they were laid.1 See Parole Act 2002, s 86(1).[14] After discussion with counsel for Mr Jolly, counsel accepted that those charges which were laid on 24 September 2013 were not related to the original charges of 27 August 2013 in terms of s 91(1) of the Act. Counsel maintained, however, that the charge 0183 laid in January 2014 was related in terms of s 91(1) to charge 0520 the August 2013 charge.[15] However, this properly made concession by counsel meant the earliest Mr Jolly could claim that he was entitled to be released from prison was 10 July 2014. Given that date was in the future counsel accepted that Mr Jolly'sapplication for a writ of habeas corpus could not succeed. On that ground alone, therefore, I dismiss the application.[16] I do wish, however, out of deference to counsel's submissions, to make some comment on the application of ss 90 and 91(1) of the Act to the facts of this case.[17] Sections 90 and 91(1) of the Act provide as follows: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.(3) When an offender is subject to 2 or more cumulative sentences that make a notional single sentence, any pre-sentence detention that relates to the cumulative sentences may be deducted only once from the single notional sentence.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.[18] The 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.[19] 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.[20] In this case, charge CRN 0520 alleged that Mr Jolly had made entries on his Facebook page in late July and August 2013. The charge was filed on 27 August 2013. To make entries on his Facebook page, Mr Jolly would have had to have used an internet device. Charge CRN 0183 alleged possession of an internet capable android cellphone from 11 July 2013 onwards. This was apparently the phone used to make those Facebook entries. This charge was filed on 29 January 2014. Counsel advised that at least one of the reasons for some of the delay in charging Mr Jolly with possession of the android phone, was that while the police understood an android phone had been used to access the internet, they could not identify what phone or how Mr Jolly had obtained the phone. They did not do sountil some months after the August 2013 charges. It was only then that charges were laid.[21] In Taylor v Superintendent of Auckland Prison, the Court of Appeal considered the predecessor to s 91, s 81(1) of the Criminal Justice Act 1985.2 While the two sections are not identical they are effectively the same for the purpose of this interpretation.[22] The Court considered the phrase "at any stage of the proceedings leading to the persons conviction or pending sentence". These words are repeated in s 91(1). The Court considered the options in s 91(1) and said:3The options following the clause "at any stage of the proceedingsleading to the person's conviction or pending sentence" are designed tocover the eventualities that arise in relation to an initial charge:[1] any charge on which the person was eventually convicted (the case of a conviction upon the original charge);[2] any other charge that the person faced at any time subsequent to arrest and prior to conviction. That embraces any other remand time served whether on intermediate charges not originally brought and not subject of sentence resulting from the same series of events; and also, as held in R v Coward & Hall, remand on unrelated charges.The essential point is that the remand credit is for time served between the time of original charge and the time of sentence on the same or a related charge. The alternative would be that a prisoner earned remand credit in relation to an offence not only unrelated to the reason for the prisoner being in jail, but one of which the prisoner has not been charged; of which the commission might not be known to the authorities; or indeed the commission of which might not even have occurred.[23] The key point to consider, therefore, is whether the subsequent charge is"related" to the original charge. Mr Jolly was not charged with the CRN 0183 offence until January 2014. Pursuant to s 90(2) therefore the pre-sentence detention for CRN 0183 began on 14 January 2014. However, if s 91(1) applied and the 0183 charge was related in the sense intended by s 91(1) then the pre-sentence detention period for CRN 0183 began with the related charge CRN 0520 on 27 August 2013.2 Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752.3 At [15]–[16].[24] In Taylor an example of "related" was given. An original charge of assault was later amended to manslaughter after the death of the person assaulted. Here, the two charges are related in a direct sense. They relate to the very same event.[25] In this case in a broad sense the charges do relate to the same event. This can be described broadly as the unlawful access of the internet but they are not in the sense of the example given in Taylor "related". They are not effectively the same charge subsequently amended by circumstances. They are quite separate events. One is obtaining an internet device when that was prohibited. The other was accessing the internet when that was prohibited. They involve quite separate physical acts committed at different times. They are related only in the sense that possession of one enabled the commission of the second offence.[26] If the wider definition advocated by the applicant is adopted, that will create real uncertainty for the Department of Corrections in calculating end dates for sentences. While by itself that is not a reason to change an otherwise clearly correct interpretation, it is a factor to take into account in assessing whether Parliament could have intended the particular wide meaning of "related" advocated on behalf of Mr Jolly.[27] I am satisfied the narrower definition that I have identified is correct. 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.[28] For example, I cannot see that s 91(1) was intended to apply where adefendant's vehicle is stopped and searched and stolen property and drugs are found as is other material which supports an application for a search warrant of the driver'shouse where drugs are found. There may be multiple charges relating to the car and multiple charges relating to the house. All may have arisen on the same day. They may give rise to charges laid over many months, for example, arising from the need for forensic analysis or investigation as to whether goods seized are stolen. If s 91(1) applied then a defendant could benefit by many months of pre-sentence detention for charges that were not laid nor even contemplated at the time of the original charges.[29] It 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.4[30] I am, therefore, satisfied that this application could not have succeeded in any event because Mr Jolly's remand date calculated on the basis of ss 90 and 91 of the Act was no more than 133 days with regard to the 29 January 2014 offending and his release date, therefore, is 14 November 2014 with respect to the CRN 0183 charge.[31] It could be seen that the effect of this judgment is unfair to Mr Jolly. As I have noted it seems probable that the District Court Judge always considered that a finite sentence of 19 months' imprisonment should be imposed for all of theoffending and that Mr Jolly should, therefore, be released at sentencing having served one half of that sentence by virtue of his pre-sentence detention. The effect of my ruling is that Mr Jolly would stay in custody for a further five months beyond the release date for the earlier offending, the equivalent of a further 10 month sentence. The effect, therefore, of this ruling, may be that Mr Jolly could serve a sentence of 29 months' imprisonment. That is not what the Judge intended.4 With reference to Maile v Manager, Mt Eden Correction Facility [2012] NZAR 39 (HC), it will be evident that I disagree with the reasoning of Courtney J in that judgment.[32] I record that I advised counsel for the applicant that there are potential remedies for such an unintended result. I indicated that counsel should pursue those remedies urgently. If any of those remedies involved hearing of a matter in the High Court, I advised counsel I would facilitate the hearing to ensure that the matter was heard before 10 July 2014, the earliest date on which counsel for Mr Jolly accepts Mr Jolly is liable to be released.[33] For the reasons given, the application for habeas corpus is dismissed. I make no order as to costs.___________________________Ronald Young JSolicitors:City Legal, NelsonCrown Law, Wellington