SIMMONDS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 172

SIMMONDS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 172 [10 May 2017]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA422/2016[2017] NZCA 172BETWEEN JARED PAUL SIMMONDSAppellantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 9 March 2017Court: Miller, Cooper and Asher JJCounsel: D J Allan for AppellantC A Brook for RespondentJudgment: 10 May 2017 at 3pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is allowed.C The extended supervision order of 27 April 2016 is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)[1] On 27 April 2016 Judge Spear, sitting in the District Court at Hamilton, made an extended supervision order in respect of the appellant, Jared Simmonds.11 Department of Corrections v Simmonds [2016] NZDC 6987.Mr Simmonds now appeals, claiming the order should not have been made becausehe was not an "eligible offender", a term defined in s 107C of the Parole Act 2002(the Act).[2] The appeal was filed out of time. In the absence of opposition from the Chief Executive of the Department of Corrections, we grant Mr Simmonds'application for an extension of time in which to bring the appeal.Background[3] Mr Simmonds has a history of premeditated sexual offending involving young girls. Some of his offending was of an unusual kind, involving the collection of spittle for the purposes of sexual arousal. On 14 March 2006 he was convicted and fined on charges of offensive behaviour brought in respect of such conduct under s 4 of the Summary Offences Act 1981. He had approached at least 14 girls aged approximately 11 to 13 years old and paid them to spit into a container. To two of them he said he would pay five dollars for oral sex, a proposal each declined.[4] Of more relevance to the present appeal, he was sentenced on 30 July 2007 totwo years and eight months' imprisonment having been convicted on a charge ofindecent assault on a child (the District Court sentence).2 This is a relevant offence for the purposes of that part of the Act which deals with extended supervision orders.3 He served the whole sentence, being released on the statutory release date of 7 October 2009 on special conditions that were to endure for six months.[5] On 15 January 2010, a little over three months after his release, Mr Simmonds abducted a girl aged seven. He subsequently pleaded guilty to a charge of abduction of a young person under the age of 16 years, pursuant to s 210 of the Crimes Act 1961. This is not a relevant offence. At the sentence hearing on 11 November 2010, the Crown sought preventive detention, but Fogarty J imposed a determinate sentence of five years and six months' imprisonment (the High Courtsentence).4 Mr Simmonds was released on parole for that offending on 15 July 2015.2 R v Simmonds DC Christchurch CRI-2007-009-7266, 30 July 2007.3 Parole Act 2002, s 107B(2)(k).4 R v Simmonds HC Christchurch CRI-2010-009-716, 11 November 2010.[6] The application for an extended supervision order was made in November 2015. It referred to a pervasive pattern of serious sexual offending and a high risk that Mr Simmonds would in future commit a relevant sexual offence.5At the hearing in the District Court the sole issue raised against the making of the extended supervision order was a contention that Mr Simmonds was not an"eligible offender" within the meaning of s 107C(1)(a) of the Act. Section 107C(1)(a) of the Act provides as follows:107C Meaning of eligible offender(1) In this Part, eligible offender means an offender who—(a) is not subject to an indeterminate sentence but is a person who has been sentenced to imprisonment for a relevant offence (and that sentence has not been quashed or otherwise set aside) and has not ceased, since his or her latest conviction for a relevant offence (that has not been quashed or otherwise set aside), to be subject to any or all of the following:(i) a sentence of imprisonment (whether for a relevant offence or otherwise):(ii) release conditions (whether suspended or not):(iii) an extended supervision order; or[7] Judge Spear understood the argument presented to be that Mr Simmonds was not an eligible offender because he was not subject to a sentence of imprisonment when the release conditions of the District Court sentence expired. In order to understand the argument, it is helpful to refer to the chronology set out in the District Court judgment, with some additions:630 July 2007 Sentenced in the District Court at Christchurch totwo years, eight months' imprisonment forhaving sexual conduct with a girl under 12 (a relevant offence).7 October 2009 Released on conditions.18 January 2010 Arrested and remanded in custody on new charges — abduction and breach of release conditions.5 Parole Act, s 107I(2).6 Department of Corrections v Simmonds, above n 1, at [12]. We have added precise dates to the chronology in three instances.28 January 2010 Convicted in the High Court at Christchurch ofabducting a young girl and breaching releaseconditions (neither of these are relevantoffences).Remanded in custody for sentence.7 April 2010 Expiry of the release conditions relating to thesentence imposed in the District Court atChristchurch on 30 July 2007. Remained incustody awaiting sentence in the High Court.11 November 2010 Sentenced in the High Court at Christchurch oncharges of abduction and breaching releaseconditions to a total sentence of five years,six months' imprisonment.5–30 November 20157 Application for extended supervision order made.15 January 2016 Expiry of the release conditions relating to thesentence imposed in the High Court.[8] As mentioned above, the District Court sentence was for the relevant offence of doing an indecent act on a child.8 It will be seen from the chronology that between 7 April 2010 (when the release conditions relating to the District Court sentence imposed on 30 July 2007 expired) and 11 November 2010 (when the High Court sentence was imposed for the new charges) Mr Simmonds was not subject to a sentence of imprisonment, nor to release conditions. His status during that period was rather that of a convicted offender, on remand in custody pending sentence. It was apparently contended for Mr Simmonds in the District Court that he was not an eligible offender for this reason.[9] In response to Mr Simmonds' argument, the Chief Executive relied on s 90(1) of the Act to plug the gap between the expiry of the release conditions for the District Court sentence and the commencement of the High Court sentence. Section 90(1) provides: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, an7 The Judge said the District Court file did not record the precise date on which the application was filed, but it was signed on 5 November 2015 and was first considered by the Court on 30 November, when an interim order was made under s 107FA of the Parole Act: Department of Corrections v Simmonds, above n 1, at [9].8 Parole Act, s 107B(2)(k).offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.[10] Judge Spear accepted that submission. He considered that s 90(1) meant that the sentence imposed by the High Court on 11 November 2010 had notionally commenced at the time Mr Simmonds was arrested in January 2010 and held on remand in custody pending resolution of the charges brought in the High Court. His reason was that s 90(1) is a section of general application that appears in subpt 3 of the Act, which is headed "Sentence calculation". There "is no reason why the deeming provisions by s 90 should not be applied when considering s 107C".9Furthermore, s 90(1) begins by saying that its deeming provisions apply for the purpose of calculating key dates; the key date here being the commencement date of the High Court sentence.10 On this basis, there had been no break in time betweenthe separate sentences, or loss of the status of "eligible offender" as contended for by counsel for Mr Simmonds. Judge Spear accordingly ruled that an extended supervision order could be made in respect of Mr Simmonds.11Submissions[11] Mr Allan, who argued the appeal for Mr Simmonds, and had filed written submissions in the District Court but did not appear before that Court, submitted that the Judge did not properly understand the argument before him. He maintained that the issue does not turn on s 90(1) at all and in the hearing before us he chose not to engage with that section.[12] The argument advanced by Mr Allan rests not only on s 107C(1)(a), but also on s 107F(1)(a). Section 107F(1)(a) provides:107F Chief executive may apply for extended supervision order(1) The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender,—(a) where the offender is subject to a sentence of imprisonment, at any time before the later of—9 Department of Corrections v Simmonds, above n 1, at [24].10 Parole Act, s 4, definition of "key date".11 Department of Corrections v Simmonds, above n 1, at [24].(i) the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date, regardless of whether that sentence is for a relevant offence; and(ii) the date on which the offender ceases to be subject to any release conditions; or[13] Mr Allan submitted that reading s 107C(1)(a) together with s 107F(1)(a)shows that Parliament's intention was to create an "eligibility window" that wouldallow the Chief Executive to apply for an extended supervision order either before the end of the prison term that the offender was serving, or before the end of the post-detention conditions relating to that same sentence. He submitted that the Act did not expressly refer to pre-sentence custodial remand commencing prior to the end of the post-detention conditions for any relevant offence. It would be inconsistent with ss 107C(1)(a) and 107F(1)(a) to create what he described as a"third type of eligibility". Prison is followed by post-detention conditions; s 107F(1) does not contemplate an application being made for an extended supervision order where imprisonment for a non-relevant offence has commenced during post-detention conditions for a relevant offence.[14] Mr Allan thus argued for a narrow interpretation of s 107C(1)(a). In essence he submitted that the eligibility window in s 107C(1)(a) can only be extended when the offender is sentenced to other periods of imprisonment when already subject to imprisonment for a relevant offence.[15] Counsel for the Chief Executive in this Court, Ms Brook, focused on s 90(1) in her written submissions. She essentially supported the approach of Judge Spear in the District Court. We will return to her submissions in more detail later in this judgment.The import of s 107C[16] Part 1A of the Act was inserted in 2004 and sets out the relevant provisions relating to extended supervision orders. Section 107A(a) of that part provides that offenders who have been convicted of a relevant offence may be made subject to anextended supervision order.12 This suggests the trigger for a supervision order is the conviction for the relevant offence. However, as set out above, there are further preconditions in ss 107C and 107F that must be satisfied before an offender is eligible for an extended supervision order; it is not enough that a relevant offence has been committed at some time. Sections 107C and 107F, along with s 107I, which sets out the behavioural traits that the offender must exhibit, are plainly intended to define the circumstances in which an offender can be made the subject of an extended supervision order.[17] Section 107C(1)(a), which we have quoted above at [6], sets out the following conditions for an offender to be an eligible subject of an extended supervision order:(a) the offender is not subject to an indeterminate sentence;(b) the offender has been sentenced to imprisonment for a relevant offence; and(c) the offender has not ceased since his or her conviction for a relevant offence to be subject to either a sentence of imprisonment for a relevant offence, release conditions, or an extended supervision order("relevant control").[18] In our view, the words "and has not ceased" in s 107C(1)(a) show a statutory intent that there should have been a continuous period during which the offender is subject to relevant control since his or her imprisonment for the relevant offence until the application for an extended supervision order is made. The fact the offender must have been subject to relevant control at the time of the application is made very clear in s 107F(1)(a), set out above at [12], which requires the Chief Executive to apply for an extended supervision order in relation to an offender who is subject toimprisonment "before the later of the sentence expiry date of the sentence to which the offender is subject that has the latest sentence expiry date" and the date when the offender ceases to be subject to release conditions.12 See Parole Act, s 107B for the relevant offences. Nothing turns on this section in this case.[19] Significantly for this case, there is no reference in ss 107C(1) or 107F(1) to an eligible offender or an application in respect of an offender who is serving pre-sentence custodial remand. Pre-sentence detention was not included as a type of relevant control in ss 107C(1)(a) or 107F(1). It would have been straightforward to have included such a criterion with the other detailed criteria in the sections, but this was not done.[20] We add that we cannot accept Mr Allan's narrower interpretation of ss 107C and 107F set out above at [13]–[14]. There is no support in the words of these sections or the structure of the Act for the conclusion that the continuity required by s 107C(1) is not satisfied where an offender is sentenced to imprisonment for a non-relevant offence before the release conditions or sentence of imprisonment for a relevant offence expires. In this regard we emphasise that s 107C(1)(a)(i) requiresthe offender to be subject to a sentence of imprisonment "whether for a relevant offence or otherwise". Similarly, s 107F(1)(a)(i) says the application for an extended supervision order must be made before the latest sentence expiry date, "regardless of whether that sentence is for a relevant offence". As long as the offender hascontinuously been under some form of relevant control recognised in s 107C(1)(a) since the time the relevant offence was committed, it matters not that the offender has alternated between the different types of control in that section.[21] On 7 April 2010 Mr Simmonds ceased to be subject to either a sentence of imprisonment, release conditions or an extended supervision order. The sentence imposed on him for the relevant offence had expired, so too had the release conditions, and there was no other sentence of imprisonment imposed nor a supervision order. From that point he was for all intents and purposes being held in custody on remand awaiting sentence for different offending. The continuity of relevant control between the sentence of imprisonment for the relevant offence and the date of the application for an extended supervision order as required by s 107C(1)(a) was therefore lacking. It follows that he was not at that time an eligible offender under s 107C(1)(a). Similarly, the Chief Executive's ability to apply unders 107F(1) had ended, following the expiry of the sentence and the release conditions.The application of s 90(1)[22] Our conclusion regarding s 107C(1)(a) makes it necessary for us to consider Ms Brook's submission that s 90(1) of the Act fills the gap between the expiry of the release conditions of the District Court sentence and the imposition of the High Court sentence, with the consequence that Mr Simmonds was continuously subject to relevant control and is therefore an eligible offender in terms of s 107C(1)(a). This was the basis for Judge Spear's decision. As set out above at [9], s 90(1) of the Act provides that "[for] the purpose of calculating the key dates of a sentence of imprisonment an offender is deemed to have been serving thesentence during any period that the offender has spent in pre-sentence detention".[23] In Ms Brook's submission, to assess whether there is the continuity ofrelevant control that s 107C(1)(a) requires, it is necessary to determine the start date of Mr Simmonds' sentence of imprisonment that was imposed on 11 November 2010 in the High Court. This engages s 90(1) because the start date is a key date.13Applying s 90(1) in this case creates a start date of 18 January 2010 because that is when Mr Simmonds was first remanded in custody on the new charges.14 That was well before 7 April 2010 when the release conditions for the relevant offence expired. Therefore, Mr Simmonds was continuously subject to relevant control from the time he was sentenced for the relevant offence until the application for an extended supervision order was made.[24] Despite this careful submission, we have reached the view that s 90(1) is not of assistance to the Chief Executive and we must accordingly respectfully disagree with the reasoning of Judge Spear. Our conclusion is based on four principal reasons.[25] First, considering its plain meaning, s 90(1) is not concerned with extending, by fiction or otherwise, a sentence of imprisonment. Rather, the section includes the period spent in pre-sentence detention as part of the time served for a sentence, by way of a deeming provision. The phrase in s 90(1) relating to the date when the13 "Key date" is defined as meaning, among other things, the start date of imprisonment: s 4.14 It does not appear to be in dispute that pre-sentence detention includes remand in custody in Mr Simmonds' circumstances: see s 91.offender was remanded in custody is that the offender is "deemed to have been serving the sentence" rather than "deemed to have been imprisoned". Being deemed to have served a sentence is different to being subject to a sentence, which is what s 107C(1)(a) requires. To put it another way, s 90(1) deems the pre-sentence detention to be time served towards the sentence, but does not deem that time to be imprisonment. Mr Simmonds is deemed to have been serving the sentence of 11 November 2010 from the earlier date when he was remanded in custody, but this does not extend to him being subject to a sentence of imprisonment between 7 April 2010 and November 2010.15[26] Second, it is necessary to consider s 90(1) within the context of the Act as a whole. It appears under the heading "Determining how much time has been served". The first section under that heading, s 89, says that the provisions of that subpart apply when determining "how much of a sentence an offender has served". Sections 89 and 90 are within subpt 3 of the Act, which is entitled"Sentence calculation". These provisions make it clear that this part of the Act has the very specific purpose of including time served when calculating sentence. They can be contrasted with another specific part of subpt 3 that covers "Start date ofsentence of imprisonment", which contains no deeming provision. Section 76 provides that the start date of a sentence of imprisonment is the date on which the sentence is imposed.16 Section 90(1) is irrelevant to this enquiry.[27] These provisions make it clear that you cannot apply a start date to a sentence of imprisonment that is not the actual start date as determined under s 76. It cannot be correct to say that an offender was subject to a sentence prior to it being imposed. An offender cannot be subject to a sentence when subject to pre-sentence detention for the same offence. In this case it could not be argued that the Chief Executive could have applied for an extended supervision order in October 2010. There is no reason why subsequent events should retrospectively change that ability.15 Section 90(1) was recently discussed by the Supreme Court, albeit in a different context, in terms that emphasise the effect of the section is to deduct pre-sentence detention from any sentence of imprisonment imposed: see generally Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 at [24], [40] and [48].16 This is subject to ss 77–81, but these are not relevant to Mr Simmonds' circumstances. Alsorelevant is s 4, which defines "start date" in relation to a sentence of imprisonment as the datefrom which an offender begins to be subject to a sentence and refers to ss 76–81.[28] Third, pt 1A of the Act, which deals with extended supervision orders, appears to be partly premised on a temporal link between the sentence for the relevant offence and the extended supervision order. The general scheme of that part is that following the commission of a relevant offence, an offender is first sentenced to imprisonment for that offence, and any others with which he or she is charged, and is then made subject to an extended supervision order. This order of events shows a temporal link between the relevant offence and the extended supervision order. After all, it is the original commission of the relevant offence that enables the Chief Executive to apply for an extended supervision order. And an extended supervision order can only be made if there is a pattern of serious offending and a high risk that a relevant offence will be committed again in the future, both of which relate back to the commission of the relevant offence.17[29] This temporal concern is carried over into s 107C(1)(a) by reason of the requirement that the offender be subject to continuous relevant control since the offender was imprisoned for the relevant offence. Invoking s 90(1) as proposed by Ms Brook would extend the temporal connection on which the jurisdiction to grant an extended supervision order is premised. We do not think that Parliament would have intended s 90(1) to have this effect. As we have said, if that was its intention, it could have easily and clearly stated this, either by extending the effect of s 90(1) or including pre-sentence detention in s 107C(1)(a) as a type of relevant control.[30] Fourth, while the threshold test for an extended supervision order is very high, and involves the offender being a very serious danger to the community, the concern that such dangerous people be supervised cannot be used to warp the natural meaning of the words in s 107C. Parliament has set out precise limits. It plainly did not intend to make all persons who might be a high risk to the community liable to supervision. We should not extend the clear limitations of the section by imposing an unnatural meaning on plain words. This is particularly so when s 22 of the New Zealand Bill of Rights Act 1990 is considered. Section 22 provides that"[e]veryone has the right not to be arbitrarily arrested or detained". TheChief Executive's interpretation would extend the application of s 107C(1)(a), whichin turn would extend the interference to offenders' liberties after they have served a17 Parole Act, s 107I(2).sentence, contrary to s 22 of the New Zealand Bill of Rights Act. Such an interpretation should not be favoured by the courts when the natural interpretationhas a lesser impact on offenders' liberties.18Summary[31] Mr Simmonds was not continuously subject to a term of imprisonment, release conditions, or an extended supervision order from the time he was sentenced to imprisonment for the relevant offence to the time when the extended supervision order was applied for. There was a seven month gap, which was fatal to Mr Simmonds' eligibility under s 107C(1)(a), and the s 107F(1)(a) jurisdiction to apply for an extended supervision order. Indeed it would have been fatal if the gap was one day. Despite Mr Simmonds being a person with the traits and characteristics defined in the Act,19 no application for an extended supervision order could have been made. For that reason, we must allow the appeal and quash the extended supervision order made in the District Court on 27 April 2016.Result[32] The application for an extension of time to appeal is granted.[33] The appeal is allowed.[34] The extended supervision order of 27 April 2016 is quashed.Solicitors:Crown Law Office, Wellington for Respondent18 Our view on the natural interpretation of the sections makes it unnecessary to engage with a full analysis of the New Zealand Bill of Rights Act 1990: see generally R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.19 Parole Act, s 107I(2).