PURVIS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2689

PURVIS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2689 [9November 2016]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2015-412-43[2016] NZHC 2689BETWEEN GRAEME MURRAY PURVISAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 9 November 2016(On the papers)Appearances: S Vidal for AppellantM J Grills for RespondentJudgment: 9 November 2016JUDGMENT OF MANDER J[1] On 17 June 2014 Graeme Purvis was sentenced on 19 charges under the Films,Videos, and Publications Classification Act 1993 (FVPC Act) and one charge ofbreaching release conditions under the Parole Act 2002 (the Parole Act). On the FVPCAct charges he was sentenced to two years 11 months' imprisonment. On the ParoleAct charge he was sentenced to eight months' imprisonment. The sentences were tobe served concurrently. The current appeal relates to the appellant's correct releasedate and the manner in which pre-sentence detention was calculated.[2] The prison manager of the Otago Correction Facility carried out a review ofMr Purvis's release date and determined it to be 18 November 2015. Mr Purvisdisagreed, believing the date ought to have been 13 August 2015. The variation wasdue to how time spent on pre-sentence detention was calculated and applied under theParole Act. Mr Purvis appealed against the review to the District Court.11 Purvis v R [2015] NZDC 22616.[3] Judge Crosbie was required to address the correct method of calculating andapplying time spent in pre-sentence detention under the Parole Act. Section 90 of theParole Act provides that time spent in pre-sentence detention is deemed to be timeserved. Section 91 defines pre-sentence detention as follows: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 theconviction or pending sentence of the person, whether that period (orany 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 orher arrest and before conviction.[4] Over time the courts developed a notion of "related" offending, that remandcredit is for time served between the time of the original charge and the time ofsentence on that same charge or on a related charge.2 The issue arose in the presentcase because the FVPC Act charges were brought some five months after Mr Purvishad already been remanded in custody on the Parole Act charge. Applying the "relatedoffending" interpretation to s 91, Judge Crosbie had to determine whether the FVPCAct charges were sufficiently related to the original breach of release conditionscharge. Judge Crosbie held that although the charges may have arisen out of the samefactual event, they could not be said to be related in the sense that the charge was areplacement, substitution, or amendment of the initial charge.3 Judge Crosbietherefore dismissed the appeal. Mr Purvis appealed that decision.[5] Since Judge Crosbie's decision the Supreme Court has determined the correctapplication of the remand credit.4 The majority held that the "notion developed in thecases of 'related' offending is an unwarranted gloss on statutory language" and that2 See Taylor v Superintendant of Auckland Prison [2003] 3 NZLR 752 (CA) at [15] – [16].3 Purvis v R, above n 1, at [24] and [25], applying Jolly v Manager of Christchurch Men's Prison[2014] NZHC 1398; Gray v Manager, Waikeria Prison [2014] NZHC 1745.4 Booth v R [2016] NZSC 127.pre-sentence detention is to be calculated in the aggregate, not on a charge by chargebasis.5 It follows that the period of remand prior to the FVPC Act charges beingbrought should have been applied to the two years 11 months' sentence.[6] Consequently both Mr Purvis and the Department of Corrections are inagreement that the release date ought to have been 13 August 2015. The appeal istherefore allowed. Because Mr Purvis was released from prison on 20 January 2016no further orders are required.Solicitors:Southern Law, ArrowtownCrown Solicitor, Dunedin5 At [17] and [18].