DREVER v AUCKLAND SOUTH CORRECTIONS FACILITY [2019] NZCA 346

DREVER v AUCKLAND SOUTH CORRECTIONS FACILITY [2019] NZCA 346 [31 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA216/2019[2019] NZCA 346BETWEEN DEAN JOHN DREVERAppellantAND AUCKLAND SOUTH CORRECTIONSFACILITYRespondentHearing: 4 July 2019Court: Stevens, Venning and Dunningham JJCounsel: Appellant in personM J Mortimer for the Chief Executive of the Department ofCorrectionsJudgment: 31 July 2019 at 3.30 pmJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] On 30 April 2019 the High Court dismissed Mr Drever's application for a writof habeas corpus.1 The High Court on 13 May declined to revisit that decision, saying1 Drever v Auckland South Corrections Facility HC Auckland CIV-2019-404-726, 30 April 2019.that he was not detained within the meaning of the Habeas Corpus Act 2001 (the Act),as he was on parole.2[2] Mr Drever appeals on the grounds that the High Court Judge misunderstoodthe basis of his application. He says his application raised "the right to impose anybreaches of liberty against [a] person on the grounds the sentences expiry dates wereincorrect". He considers (despite a judgment to the contrary),3 that the prison haswrongly calculated his entitlement to credit for pre-sentence detention, and thereforeerred in determining his sentence expiry date. What he wishes to argue is whetherthere is a right to impose "any breach of liberty after the sentence expiry dates" as hecalculates them to be.[3] The issue for this Court is whether the High Court was wrong to dismiss hisapplication for a writ of habeas corpus in the circumstances that have arisen.Background[4] To understand Mr Drever's concerns it is necessary to recount briefly hissentencing history. Mr Drever was remanded in custody on 9 May 2014 on a chargeof arson. Several days later he was also charged with possession of utensils andequipment related to the consumption and manufacture of methamphetamine(the drugs charges). In June 2014 he was charged with offences underthe Tax Administration Act 1994 and was remanded in custody in respect of thosecharges. However, they were subsequently withdrawn.[5] Mr Drever was sentenced on the arson charge on 25 July 2014 and receivedfive years' imprisonment. He was then sentenced to one year's imprisonment inrelation to the drugs charges to be served cumulatively on the sentence for arson,making a total of six years to be served.[6] When calculating pre-sentence detention, the Department of Corrections(the Department) took into account the 77 days Mr Drever had spent in custody from2 Drever v Auckland South Corrections Facility HC Auckland CIV-2019-404-726, 13 May 2019.3 Drever v Department of Corrections [2017] NZDC 8258.9 May 2014 to 25 July 2014, when he was sentenced in respect of the arson charge.The Department calculated his sentence expiry date to be 8 May 2020.[7] Mr Drever does not accept that calculation, arguing he is entitled to credits for"pre-sentence detention" on the other charges, notwithstanding this was largelyaccrued while he was serving the sentence on the arson charge. He applied for areview of his entitlement to credit for pre-sentence detention under s 92 ofthe Parole Act 2002. He was dissatisfied with the outcome of that review and appealedto the District Court under s 92(4). However, Judge D Sharp dismissed Mr Drever'sappeal concluding there were no grounds raised to depart from the methodologyapplied by the Department and, on reconsideration, 77 days was the correct allowancefor pre-sentence detention on the charges he was imprisoned for.4[8] Mr Drever has not appealed that decision.[9] On 15 April 2019, the Parole Board granted parole to Mr Drever and imposeda range of special conditions which included, relevantly, a requirement that Mr Dreveris "for three months from release, to be at [his] approved address between the hoursof 10.00 pm and 6.00 am daily unless [he has] the prior written approval of aProbation Officer".5[10] On 26 April 2019, Mr Drever made an application for a writ of habeas corpus.It was dismissed by Peters J on the papers, on the grounds that "Mr Drever is not incustody".6[11] Mr Drever renewed his application by filing an "Addendum to Application"dated 9 May 2019. The addendum cited the definition of detention in the Act whichsays it "includes every form of restraint of liberty of the person". The addendum wenton to explain that Mr Drever was detained within the meaning of the Act because hisliberty was restricted by his parole conditions.4 At [32]–[33].5 Imposed pursuant to the Parole Act 2002, s 29AA.6 Drever v Auckland South Corrections Facility, above n 1.[12] On 13 May 2019, again on the papers, Walker J dismissed that application,saying she was "satisfied that parole conditions do not represent a detention within themeaning of the Act and that an application for a writ of habeas corpus is not aprocedure available to Mr Drever".7Should a writ of habeas corpus issue?The legal framework[13] A challenge to the legality of a person's detention may be made by applicationfor a writ of habeas corpus.8[14] A writ of habeas corpus is a constitutionally important remedy. For that reason,such an application "must be given precedence over all other matters beforethe High Court".9 That urgency is reinforced by the requirement to allocate an interpartes hearing within three working days of the application being filed.10 As Heath Jsaid in McNab v Matthews, "[t]he need for a prompt inquiry into an alleged loss ofliberty is self evident".11[15] For a writ to issue there must be an unlawful detention, that is, a detentionwithout legal justification.12 If the defendant fails to establish that the detention islawful, the High Court must grant a writ of habeas corpus, unless the Court is satisfiedthat the application "is not the appropriate procedure for considering the allegationsmade by the applicant".13The appellant's submissions[16] Mr Drever argued that he was detained because his conditions of paroleconstituted a "detention" as defined under the Act. In particular, he is not free to leavehis address during the hours of 10.00 pm to 6.00 am. He considered this is to be a7 Drever v Auckland South Corrections Facility, above n 2, at [5].8 Habeas Corpus Act 2001, s 6.9 Section 9(1).10 Section 9(3).11 McNab v Matthews [2014] NZHC 580 at [6].12 Bennett v Superintendent, Rimutaka Prison [2001] 3 NZLR 803 (HC) at [28].13 Habeas Corpus Act 2001, ss 14(1) and 14(1A)(b).form of "house arrest" which is recognised as a form of detention bythe United Nations Working Group on Arbitrary Detention.14[17] In submitting that the special conditions constituted a detention he relied oncases which demonstrated that even short periods of unlawful constraint on a person'sliberty could amount to a detention. For example, in Pogson v Police, Fogarty J foundthere had been an unlawful detention when Mr Pogson had been "kept under thecontrol of police officers" for a 49 minute period.15 In Mr Drever's submission, hisstatutory release date having passed, the requirement to remain on his propertybetween 10.00 pm and 6.00 am was clearly a form of detention within the definitionof the Act, which could not be demonstrated to be lawful if his sentence had expired.[18] For completeness, Mr Drever did not take issue with the Parole Board's abilityto impose such conditions if they had correctly calculated his sentence expiry date.16Furthermore, he was not arguing that the conditions were inappropriate or undulyonerous. His case was simply that there was no jurisdiction to impose them when hissentence had expired. The special conditions therefore comprised an unlawfuldetention.Mr Mortimer's submissions[19] Mr Mortimer appeared on instructions from the Chief Executive ofthe Department of Corrections. He noted that the named respondent had no separatelegal personality so should not have been named as the respondent. Furthermore, asMr Drever was not detained in a Corrections prison it was not clear thatthe Chief Executive would have been the correct respondent in any event.[20] Mr Mortimer's primary argument was that Mr Drever was not detained as hewas on parole and parole is not detention for the purposes of the Act. Mr Mortimernoted that detention typically connotes imprisonment or actual detention in someanalogous form.17 While Mr Drever's parole conditions impose certain requirements,14 Fact Sheet No. 26, The Working Group on Arbitrary Detention (May 2000).15 Pogson v Police [2012] NZHC 112 at [16].16 Which he calculates was no later than 5 December 2016.17 Schuchardt v Commissioner of Police [2017] NZAR 1689 (HC) at [10].including a night time curfew at a residential address, the respondent submits thatthese conditions do not unduly restrict Mr Drever's physical liberty in the sense ofbeing physically prevented from leaving a place, nor from seeking legal advice orrecourse to the courts.18[21] Mr Mortimer considered analogies can be drawn between this case andthe High Court's findings in McNab as to whether bankruptcy orders which placedlimits on travel constituted a form of detention.19 In McNab, Heath J said:20The most compelling evidence of a lack of "detention" is the ability ofMs Mathiesen and Mr Spurr to attend the hearing before me, withoutpermission from anyone. They also have the ability to seek permission to gooverseas. If good reasons can be advanced, there seems to be no reason whypermission should not be granted (at least on conditions) bythe Official Assignee.[22] In any event, Mr Mortimer argued that there is lawful authority for Mr Drever's"detention" until 8 May 2020 pursuant to the warrants of commitment. Mr Drever'schallenges to his sentence expiry date have misunderstood the Supreme Court'sdecision in Booth v R.21 While that case held that pre-sentence detention was to betreated cumulatively where successive charges were laid, that does not assistMr Drever because, from 25 July 2014, he began serving a sentence of imprisonment.The operation of s 91(5)(a) of the Parole Act means that time from then on cannotcount as pre-sentence detention. The Supreme Court in Booth expressly stated:22 the definition of pre-sentence detention relates to detention during thewhole of the court process or processes from the original remand in custodyon any charge up to the imposition of a sentence (or sentences) ofimprisonment.(Footnote omitted.)[23] In Mr Drever's case, as he commenced his sentence of imprisonment on25 July 2014, he was entitled to only 77 days of credit for pre-sentence detention.Mr Drever has already challenged the Department's calculation of his sentence length18 Slavich v Official Assignee HC Hamilton CIV-2010-419-246, 19 March 2010 at [22].19 McNab v Matthews, above n 11.20 At [31].21 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.22 At [24].through the review provisions in s 92 of the Parole Act and was unsuccessful.23In addition, if he wishes to seek a review of his parole conditions, he may do so unders 67 of the Parole Act. The existence of those other avenues of challenge speak againstthe issue of a writ of habeas corpus.24Our decisionIs Mr Drever detained?[24] Mr Drever brought his initial application for a writ of habeas corpus on thebasis that the special conditions of parole restricted his liberty, in particularthe condition which required him to be at his approved residential address betweenthe hours of 10.00 pm and 6.00 am unless he had "the prior written approval ofa Probation Officer".[25] The question is whether this is sufficient "custody" to be described as a formof detention. As the authors of Habeas Corpus: Australia, New Zealand, and theSouth Pacific observe, the concept of custody for the purpose of invoking the writ hasbeen confined historically to "close custody", which normally refers to incarcerationin a prison or police lock-up.25 However, they acknowledge that the custodyrequirement "includes other forms of restriction short of imprisonment wherethe applicant is subject to restrictions not shared by the public generally".26The authors note the arguable possibility of the custody requirement being extendedto a person on parole or on probation without identifying any authority on point.27[26] The authors of The Law of Habeas Corpus also suggest that restraints short ofconfinement to a jail or some other such close perimeter, such as requiring a person toremain within a given geographical boundary, "may be seen as something of the orderof a significant restraint on the liberty of the subject, and on that account, habeascorpus may be an appropriate remedy".2823 Drever v Department of Corrections, above n 3.24 Habeas Corpus Act, s 14(1A)(b).25 David Clark and Gerard McCoy Habeas Corpus: Australia, New Zealand and the South Pacific(2nd ed, The Federation Press, Sydney, 2018) at 66–67.26 At 68.27 At 68.28 Judith Farbey, RJ Sharpe and Simon Atrill The Law of Habeas Corpus (3rd ed, Oxford University[27] However, New Zealand authorities on the point do not suggest that habeascorpus is an appropriate remedy for a person who is not held in close custody.29For example, in Slavich v Official Assignee, Andrews J held the conditions ofthe applicant's bankruptcy did not give rise to a detention.30 On appeal, this Courtupheld that decision, saying:31The point of an application for a writ of habeas corpus is "to challenge thelegality of a person's detention". But Mr Slavich is not detained. He is freeto go wherever he likes within New Zealand. So he does not get past firstbase.(Footnote omitted.)[28] As already noted, Heath J in McNab also considered that the conditions of abankruptcy order were not sufficient to warrant invoking the constitutionallyimportant remedy of the writ.[29] However, the most pertinent New Zealand authority is that of Schuchardt vCommissioner of Police, where Mr Schuchardt sought release from bail conditionswhich he said restrained his liberty unlawfully.32 Keane J noted that the concept ofdetention:33 typically connotes imprisonment or actual detention in some analogousform, arising say in an immigration or deportation context, or on accountof a person's mental health. It does not naturally connote a grant of bail onterms limiting what a person may do.[30] In the present case, Mr Drever has been released from prison, but on termslimiting what he may do. However, even the condition with which he takes particularissue is ameliorated by the fact that he may seek permission from a probation officerto be away from the residential address during the specified hours. In our view,nothing in the special conditions of parole imposed on Mr Drever reach the thresholdrequired to invoke the important constitutional protection of the writ of habeas corpus.Press, Oxford, 2011) at 183.29 Leaving aside the generally accepted category of child custody cases.30 Slavich v Official Assignee, above n 18, at [30].31 Slavich v Official Assignee [2010] NZCA 117 at [2].32 Schuchardt v Commissioner of Police, above n 17.33 At [10].If he is detained, is his detention unlawful?[31] Even if Mr Drever were found to be detained under the broad definition ofdetention under the Act, he has not satisfied us that his detention is unlawful.His sentence does not end until 8 May 2020. The relevant calculation has been upheldin the District Court where the calculation of his sentence expiry date was reviewed inlight of the Supreme Court's judgment in Booth v R.34 No issue was raised before uswhich would bring the District Court's determination of the sentence expiry date intoquestion. That being the case, the Parole Board was able to impose special conditionson Mr Drever under s 29AA of the Parole Act when it granted parole.The consequential restrictions on Mr Drever's liberty caused by those conditions aretherefore lawful and no argument has been raised to displace that assessment.35[32] We also note that had Mr Drever had concerns about the specific conditions hecould have applied for them to be varied or discharged under s 56 of the Parole Act2002. He also had express rights to review the Parole Board's decision under s 67 ofthat Act. This includes where the Board has acted without jurisdiction.36These alternative avenues of challenge also tell against the availability of the writ.As has been noted by the High Court, an application for a writ of habeas corpus is notan appropriate alternative to an application for review under s 67 where, on its face,the applicant's detention is lawful.37[33] Mr Drever has failed to demonstrate that his parole conditions constitute a"detention", let alone that the detention is unlawful. Accordingly, his appeal isdismissed.34 Booth v R, above n 21.35 Thus this case differs from Booth v R, where an interpretation argument was raised which wasultimately accepted by the Supreme Court and which affected the calculation of Mr Marino'ssentence length. Here the sentence expiry date has been calculated in accordance withthe Supreme Court's judgment in Booth and no new issue is raised.36 Parole Act, s 67(3)(e).37 Huata v Chief Executive, Department of Corrections [2013] NZHC 3569 at [12].Result[34] The appeal is dismissed.[35] This is not a case where costs are appropriate and we make no order as to costs.Solicitors:Meredith Connell, Auckland for the Chief Executive of the Department of Corrections