VAN SILFHOUT v PATHIRANNEHELAGE [2021] NZHC 2268

VAN SILFHOUT v PATHIRANNEHELAGE [2021] NZHC 2268 [31 August 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-195[2021] NZHC 2268UNDER the Prisoners' and Victims' Claims Act 2005BETWEEN JOSHUA PERA VAN SILFHOUTAppellantAND UDAYA LAKSHMAN AGASPATHIRANNEHELAGERespondentHearing: 19 July 2021Appearances: D A Ewen and A Hill for the AppellantV Casey QC as AmicusJudgment: 31 August 2021JUDGMENT OF COOKE JTable of ContentsBackground facts [4]The legislative scheme [11]Tribunal's approach to limitation [15]Does limitation need to be raised? [16]Approach of the Tribunal here [24]Is pre-sentence detention included? [28]What is the statutory purpose? [30]Ordinary meaning [41]Inappropriate adoption of defined meaning from another Act? [47]Conflict with defined term [55]No room for implied reference to Sentencing and Parole Acts [59]Is this a sensible interpretation? [70]Conclusion [74][1] Mr Van Silfhout appeals against the decision of the Victims' Special ClaimsTribunal (the Tribunal) which awarded the respondent $5,000 under the Prisoners' andVictims' Claims Act 2005 (the Act).[2] The respondent abides by the decision of the Court. He attended earliertelephone conferences, and participated in the proceedings before the Tribunal, but hedid not attend the substantive hearing of the appeal. At the earlier suggestion ofcounsel for the appellant amicus was appointed to act as a contradictor, and Ms CaseyQC appeared on the appeal exercising that role.[3] The key issue on appeal is whether the claim made by the respondent beforethe Tribunal was time barred under the Limitation Act 1950.1 As will be explained infuller detail below, the running of the limitation period is suspended under the Actduring the period when the offender is serving the sentence of imprisonment for theoffending that gives rise to the claim. In the present case the ultimate issue is whethera period of pre-sentence detention, which is treated as time served under the sentence,is included in the period of suspension. If it is, then Mr Pathirannehelage's claim wasnot time barred. If it is not, then Mr Pathirannehelage's claim would have been timebarred.Background facts[4] The background facts are set out by the Judge in the decision of the Tribunal.2[5] On 9 July 2010 Mr Van Silfhout entered a Mobil Service Station at whichMr Pathirannehelage was the sole worker. Mr Van Silfhout had a weapon and hethreatened Mr Pathirannehelage, and robbed the premises of money and cigarettes. Hewas subsequently arrested and charged.[6] On 30 January 2013 Mr Van Silfhout was remanded in custody. On 13 May2014 he was sentenced to four years three months' imprisonment. At that stage he hadserved approximately one year and three and a half months in custody on remand. Inaccordance with s 90 of the Parole Act 2002 this period is counted as part of the time1 Limitation Act 2010, s 59; the 1950 Act applies to this claim.2 Pathirannehelage v Van Silfhout [2021] NZVSC 3.served for the purposes of assessing his parole eligibility and release dates. He wasreleased on parole on 21 November 2016, but was recalled to prison on 1 March 2017.On 2 May 2017 he reached his sentence expiry date and he was released.[7] Mr Pathirannehelage's claim was received by the Tribunal on 2 April 2020.That was just short of three years after Mr Van Silfhout was finally released fromprison for this offending. There was also a period of three years and 10 monthsbetween the date of the offence and Mr Van Silfhout being sentenced. That totalperiod is well over six years limitation period. But there was only approximately twoyears six months between the offence and the appellant being remanded in custody.The period between his first release and his recall (approximately three months) isincluded in the period when the limitation period ran, but that does not make a decisivedifference. If the period of pre-sentence detention is also excluded from the runningof the limitation period the claim was lodged in time.[8] In addressing the claim the Judge turned his mind to the limitation period. Heheld:[8] Although the offending occurred in July 2010 and, therefore, thenormal limitation period, by which time a claim would need to have been filed,would have expired in July 2016 on account of the respondent having beensentenced to a period of imprisonment of four years and three months in 2014and, indeed further sentences of imprisonment thereafter, the claimant waswithin the limitation period when his claim was received on 2 April 2020.[9] The respondent sought $10,000 in damages before the Tribunal. The Judgeconsidered his claim, but in light of similar cases that had been before the Tribunal,considered an award of $5,000 was appropriate.[10] Under s 51 there is an appeal on questions of law to the High Court, and theappellant duly appeals from the Tribunal's decision.The legislative scheme[11] The Prisoners' and Victims' Claims Act was enacted following the awards ofdamages by the High Court for breaches of the New Zealand Bill of Rights Act 1990to certain prisoners subject to the "Behavioural Management Regime" which had beenoperated in prison.3[12] Part of the effect of the legislation involves intercepting the damages awardedto prisoners, and setting up a process under which the victims of their offending areable to make claims against the prisoner, and have access to the sum that wouldotherwise be payable to the prisoner to satisfy the victim's claim.[13] Sub-part 2 of Part 2 of the Act provides that an award made to an offender isto be paid to the Secretary of Justice, who deducts money owed for reparation andother orders and then pays the surplus into an account. The Secretary then publishesa notice that money is available for claims, and serves this notice on people who arereasonably believed to be victims of the offending. The victims have six months tolodge a claim with the Tribunal. Those victims are exempted from the usual financialeligibility rules for legal aid, and incur no filing or hearing fee. They do not need togo to court to advance their claims given the Tribunal is empowered to so determinethem on the papers.[14] As part of the scheme Parliament also decided to extend the limitation periodotherwise applicable to the claims the victims could bring. Parliament decided thatthe running of the limitation period would be suspended while the prisoner was servingthe sentence of imprisonment for the offending involving the victim. The preciseterms of this suspension of the limitation period is the focus of this appeal. Section 64provides:64 Limitation periods suspended while offender serving sentence ofimprisonment(1) The limitation periods to which this section applies cease to run whilethe offender is serving a sentence of imprisonment in a penalinstitution, prison, or service prison.(2) In this section, serving a sentence of imprisonment in a penalinstitution, prison, or service prison—(a) means serving in a penal institution, prison, or service prison—(i) the sentence of imprisonment for the offence (as definedin section 5(1)(a)(ii)); and3 Taunoa v Attorney-General (2004) 8 HRNZ 53.(ii) any earlier sentence of imprisonment on which thesentence of imprisonment for the offence is directed tobe served cumulatively; and(iii) any later sentence that is directed to be servedcumulatively on the sentence of imprisonment for theoffence; and(b) includes spending time in a penal institution or a prisonfollowing a related recall application (as defined in section 59of the Parole Act 2002), but only if a final recall order (asdefined in section 4(1) of that Act) is made following the recallapplication.Tribunal's approach to limitation[15] There are two preliminary points to address in relation to the Tribunal'sconsideration of the limitation period.Does limitation need to be raised?[16] First, Ms Casey referred to the fact that limitation is usually regarded as anaffirmative defence, and that there was generally an onus on a defendant to plead thisdefence if they are seeking to rely upon it.4 She points out that the appellant's thencounsel did not refer to limitation in his written submissions to the Tribunal. Ms Caseyraised a question whether, on appeal, the appellant can rightly challenge the decisionof the Tribunal when the defence had not been raised.[17] The requirement to raise affirmative defences can arise in tribunals as well asin civil proceedings before the Court.5 But that will depend on the terms of thestatutory scheme being applied by the tribunal. In my view in the presentcircumstances it is necessary for the Tribunal to consider the potential application ofthe limitation period as part of its statutory functions in assessing the claim, andirrespective of whether the respondent has raised the matter as a defence in thesubmissions filed.[18] The Tribunal's decisions on claims are made under s 46(3) and (4). Section 47then provides:4 See High Court Rules 2016, r 5.48; see also G v G D Searle and Co [1995] 1 NZLR 341 (HC).5 See, for example, Williams v New Zealand Police [2021] NZHC 808 at [45]–[50].47 Further provisions on determination of claims received(2) In determining whether to order under section 46(3) or (4) that anamount be paid to a victim by way of damages or exemplary damages,and in quantifying that amount, the Tribunal must apply the generallaw relating to the awarding of damages.[19] The Tribunal is given certain statutory powers of an inquisitorial nature in orderto make these decisions. It may determine claims on the papers under s 34, it mayaccess relevant Court documents or records under s 35 and 36, it may hear submissionsin exceptional cases under s 38, and also has a power to obtain further informationunder s 39.[20] In terms of the rights of the respondent to a claim there is no procedure forfiling a statement of defence, but s 31 provides:31 Offender to be given copy of claim and reasonable opportunity tomake written submission on it(1) Before determining a victim's claim, the Tribunal must—(a) serve a copy of the claim on the offender; and(b) give him or her a reasonable opportunity to make writtensubmissions on the claim.(2) A copy of the claim must be served on the offender as soon aspracticable after it is filed under section 28.[21] This does not contemplate the respondent being required to file a statement ofdefence in the way that would be contemplated for civil claims in the District or HighCourts. The process is more inquisitorial. In applying that process in accordance withthe instruction under s 47(2), the Tribunal is required to assess claims in accordancewith the general law, as modified by the Act. In terms of modification of the law, s 63provides that s 64 will apply to every limitation period applicable to the relevantclaims. Section 64 then provides for an extension to the limitation period. Thewording of s 63 means that this extension operates generally, and not just for thepurpose of claims made to the Tribunal under the Act. But it clearly applies to claimsmade to the Tribunal. The Tribunal is required to apply the general principles of lawwhen it assesses such claims. Considering limitation is clearly part of that exercise asthe Act has squarely addressed limitation principles, and has altered their normalapplication. The short point is that the Tribunal must assess and apply limitationprinciples (and the alterations to them by the Act) as part of its statutory functions.[22] It follows in my view that the Tribunal is obliged to consider and applylimitation periods when it is assessing the claim, and the Tribunal must seekinformation that allows it to make an assessment of whether the limitation periodapplies if that is necessary to make that assessment.[23] I note that it is not an onerous task for the Tribunal to conduct enquiries intothe amount of time a respondent has served under a sentence imposed for the offendingin question. The Department of Corrections is required to keep records on thosematters for the purpose of administering sentences. These can be made available onrequest.Approach of the Tribunal here[24] The second point is that the approach adopted by the Tribunal here, asdemonstrated by paragraph [8] of its decision quoted above, did not address theapplication of the limitation period correctly.[25] The Tribunal's approach appears to involve a conclusion that the total sentenceimposed of four years and three months needed to be deducted from the limitationperiod. Further the Tribunal appears to have concluded that further periods ofimprisonment imposed thereafter also needed to be so deducted. Ms Casey andMr Ewen agreed that the Tribunal erred in adopting this approach. The period that isexcluded from the running of the limitation period is only the period when therespondent to the claim is actually serving a sentence of imprisonment. The totallength of the sentence imposed is not excluded. Moreover, it is only the period whenthe respondent is serving a sentence for the offending involving the claimant unlessone of the exceptions set out in s 64 applies.[26] Mr Ewen referred to other decisions of the Tribunal which suggest, from thewording of the decisions, that the Tribunal appears to recognise that the extension ofthe limitation period applies for a period that is less than the sentence imposed by theCourt.6 But no such assessment was made in the present case. Here there is a criticalissue — whether the period of pre-sentence detention is included in the period wherethe limitation period does not run — that was not addressed by the Tribunal.[27] The upshot of this is that the Tribunal's decision is wrong in law. The questionthen is whether this has resulted in the Tribunal upholding a claim that was time barred.Is pre-sentence detention included?[28] Whether or not Mr Pathirannehelage's claim was time barred depends onwhether the period of pre-sentence detention is included within the period of timewhen the running of the limitation period is suspended. The ultimate issue isaccordingly whether that is a period "while the offender is serving in prison the sentence of imprisonment for the offence " under s 64(2)(a)(i).[29] It is axiomatic that the text of an enactment is interpreted in light of itspurpose.7 When the provision in issue forms part of an overall statutory scheme, therole of the Court is to make the statute work as Parliament must have intended.8 Inthe present case a number of features are relevant to the ultimate interpretationexercise.What is the statutory purpose?[30] It is appropriate to identify the relevant statutory purpose. Here there is apurpose provision in the Act but the purposes so described do not provide muchassistance.6 Sampson v Palmer [2020] NZVSC 19 at [4]; Thompson v Palmer [2020] NZVSC 20 at [4].7 Interpretation Act 1999, s 5(1); see also Commerce Commission v Fonterra Cooperative Ltd[2007] NZSC 36, [2007] 3 NZLR 767 at [22].8 Northland Milk Vendors Association v Northland Milk Ltd [1988] 1 NZLR 530 (CA) at 537–538.[31] More assistance can be found from considering the overall scheme of thelegislation, and wider legislative materials. At the first reading of the bill the Ministerof Justice, the Hon Phil Goff said:9Most people, including myself, have a deep sense that it is wrong that seriousoffenders can be awarded compensation for wrongful treatment without thoseoffenders themselves being required to pay compensation to their victims forthe serious wrongs inflicted on them. [32] On that basis the overall purpose of the legislation is to restrict the ability ofprisoners to have access to damages awarded in their favour to allow victims of theiroffending to have access to these amounts to satisfy their own claims. This generalpurpose is confirmed by the report of the Justice and Electoral Committee on theproposed legislation. The Committee said:10The bill responds to public concern at the awarding of monetary compensationin damages to prison inmates, many of whom had been subject to theDepartment of Corrections' Behaviour Management Regime. TheGovernment's policy objectives in introducing the bill were to strengthen therights of victims to make civil claims against offenders, and to recognise thatvictims should have first claim against any compensation awards. Theintention was to restrict access to compensation for persons under control orsupervision, while not breaching international and domestic obligations toensure an effective remedy and the right to equal protection under the law. [33] And later:11Some submissions called for the removal of all monetary compensation forprisoners. However we were advised that this would likely be inconsistentwith New Zealand's international obligations. It could also be inconsistentwith section 5 of the Crimes and Torture Act 1989, under which the Attorney-General has discretion to pay compensation to victims of torture. We alsodiscussed separately whether the provision of non-monetary compensationwould be sufficient to meet our international obligations, and we were advisedthat this would not meet the "effective remedy" test.[34] The report went on to explain that other techniques that were considered —such as the diversion of awards in prisoners' favour to a trust in support of victims'organisations, introducing monetary limits, and deducting the cost of criminal legalaid — but which were also not included in the legislation because they were notconsistent with human rights principles. This is consistent with an overall9 (14 December 2004) 622 NZPD 17986.10 Prisoners' and Victims' Claims Bill (241-2) (commentary) at 1.11 At 4.Parliamentary purpose of restricting recovery by prisoners, and to give victims priorityof access to amounts that would otherwise be recovered, but provided that thisrestriction was consistent with human rights principles.[35] With respect to the limitation provisions the purpose provision in s 3 simplysays:(3) The purpose of subpart 3 of Part 2 is to suspend the running oflimitation periods for certain claims by victims.[36] Ms Casey referred to the part of the speech of the Minister on the first readingdirected to limitation. He said:The third main feature of the bill is that it makes changes to the limitationrules that apply to victims' claims. Although victims have always had the rightto take civil claims against offenders for the loss or harm they have suffered,they generally do not do so. One of the main reasons for this is that such claimsare usually futile if the offender has no assets and is in prison. By the time theoffender is released, the normal limitation period of 6 years may have expiredand the victim may be disadvantaged. Clearly, this puts victims at a particulardisadvantage in enforcing their rights. The bill will address this by providingthat, for victims' claims against offenders, the 6-year limitation period will besuspended during all periods that the offender is in prison. Changes to thelimitation rules will extend the period in which victims can pursue claimsagainst prisoners, either before a victims' special claims tribunal, if relevant,or in the ordinary courts. The new limitation provisions in the bill will benefitall victims of offences, whether the offence occurred before or after the billtakes effect, and irrespective of whether the offender has soughtcompensation, and even if the victim's action would previously have beenstatute barred under the Limitation Act.[37] This suggests that the relevant reason for suspending the running of thelimitation period while the offender is in prison was that it is generally futile for avictim to sue as the prisoner is unlikely to have assets to meet the claim. But asMs Casey pointed out the legislation that Parliament enacted makes the position morecomplicated. Section 64(2) goes on to define what "serving a sentence ofimprisonment in a penal institution prison or prison service" means, and it confinesthe suspension to the period of time when the prisoner is serving the sentence for theparticular offence in question (subject to the detailed circumstances then addressed).This was the form of the legislation largely as introduced. There do not appear to havebeen material changes during the Select Committee or other legislative processes.[38] The rationale is accordingly not based solely on the point that a prisoner cannotbe effectively sued when in prison. Confining the suspension to the period arisingfrom the offence itself suggests that the suspension is also directed to concepts offairness, or justice. It is apparent that the Act introduced a scheme to allow victims ofoffending to have access to any damages that have been awarded to prisoners. Thatwas perceived as fair to those victims. But this was balanced against advice receivedon the fundamental rights of the prisoners. So there was an element of compromise inthe provisions as enacted. The provisions dealing with the limitation can beunderstood in that context. As Ms Casey suggested, s 64 involves another element ofcompromise much like other aspects of the Act. It is not all periods of imprisonmentthat are excluded from the running of the limitation period — it is only those that werea result of the offending itself.[39] That seems to me to be the relevant purpose of the provisions concerning thelimitation period — the limitation period is extended, and the running of limitationperiod suspended, whilst the prisoner is serving the sentence of imprisonment for theoffending involving that victim. That is because it is usually futile to seek to sueprisoners whilst in prison, and there is also a nexus between the relevant imprisonmentand offending against that victim.[40] I observe that these two purposes would apply equally to pre-sentence andpost-sentence detention. The prisoner would have been difficult to sue while in prison,and there is a nexus between that imprisonment and the particular offending becausethe offender has been detained in custody for that offending.Ordinary meaning[41] The text of the enactment then needs to be considered in light of this purpose.The statutory interpretation exercise involves considering the ordinary meaning of thewords used by Parliament. But that ordinary meaning should be identified in light ofthe statutory purpose, and in the context in which the words are being used.[42] Mr Ewen argued that applying the ordinary meaning to the words a prisonercould not be said to have been serving a sentence of imprisonment before it wasimposed by the Court. The natural meaning of the words would suggest it onlycovered the period of time the prisoner was in prison after they were sentenced.[43] There is immediate attraction in this argument. But, as indicated, an ordinarymeaning needs to be applied in the particular circumstances that the words of thelegislation are used. The present context involves legislative provisions in a technicalarea. The relevant inquiry may focus more on what the words "while the offender is serving in prison the sentence of imprisonment for the offence" mean to thosefamiliar with the sentencing regime. Indeed there is authority for the proposition thatwords used in a technical context should be given their technical, rather than theirordinary meaning.12 The word "serving" has a meaning for those that deal withsentencing on a regular basis (such as Judges, prosecutors and defence lawyers, prisonofficers, and the prisoners themselves) that it may not have to the ordinary member ofthe public. The legislation did not use more everyday language — for example, byreferring to the time spent by the offender in prison after being sentenced by a Court.13It has used more technical words. The relevant inquiry may therefore involveassessing what these words would naturally mean when used it their more specialisedcontext.[44] Those who actually operate in this context are more likely to include pre-sentence detention within the period covered by the words "while the offender is serving in prison the sentence of imprisonment for the offence". That is becausethose familiar with the way the sentencing system works know that pre-sentencedetention is counted as part of the time served against the sentence. In my view, andsubject to the further points addressed below, the ordinary meaning of the words tothose more familiar with the context should prevail. Those familiar with the contextunderstand that "time served" includes pre-sentence detention.[45] This approach also coincides with the two aspects of apparent purpose that Ihave identified above. First, pre-sentence detention, just like post-sentence detention,involves a period where it may be futile for the victim to have tried to sue the prisoner.Secondly, this detention will normally be for the particular offending against the12 See Daniel Greenberg (ed) Craies on Legislation (12th ed, Thompson Reuters, London 2020) at20.1.33–20.1.35.13 Such words are used, perhaps by contrast, in s 64(2)(b).victim, which involves the nexus to the offending that makes it fair or just for thesuspension to the limitation period to be engaged.[46] This does not mean that this interpretation prevails. There are other elementsto consider in the interpretation exercise. But it seems to me that the ordinary meaningof the words, in the sense I have described, interpreted in light of the purpose favourspre-sentence detention being included.Inappropriate adoption of defined meaning from another Act?[47] Mr Ewen argued that the approach I have described above would be wrong inprinciple. That is because it would involve adopting the definitions set out by otherlegislation, here ss 90 and 91 of the Parole Act to identify the meaning of the statutorylanguage used in s 64.[48] The relevant provisions of the Parole Act are:89 Determining time served(1) When determining how much of a sentence imposed on or after thecommencement date an offender has served, the provisions of thissubpart apply.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 ofa sentence of imprisonment (including a notional single sentence) andan offender's statutory release date and parole eligibility date, anoffender is deemed to have been serving the sentence during anyperiod 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 eachsentence must be determined; and(b) the amount of pre-sentence detention that is deducted fromeach sentence must be the amount determined in relation tothat sentence.(3) When an offender is subject to 2 or more cumulative sentences thatmake a notional single sentence, any pre-sentence detention thatrelates to the cumulative sentences may be deducted only once fromthe 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 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.[49] As Mr Ewen pointed out these provisions are effectively determining thedefinition of the concept "served" and give it a particular meaning. Under s 90(1) theprisoner is "deemed" to have been serving the sentence of imprisonment for theoffence for these periods. That deeming is specifically to only occur for the purposesof calculating the dates referred to. Under s 82 of the Sentencing Act 2002 thesentencing Court must then ignore this pre-sentence detention when determining asentence. So the two Acts work in harmony.[50] Mr Ewen referred to the proposition that defined terms in one piece oflegislation should not be adopted in another. For example, in Barrie v R the Court ofAppeal held:14[36]... Unless expressly adopted, the meaning given to a word in one piece oflegislation is not affected by the meaning given to that same word in a differentenactment.15 The courts have warned against the dangers of reasoning byanalogy in statutory interpretation, especially between statutes dealing withdifferent subject-matter.16 [51] Ms Casey responded by arguing that the approach being applied did notinvolve adopting defined terms from the Parole Act. Rather it was a situation whereit was necessary to know how sentence administration occurred in practice tounderstand the effect of s 64. She argued that this involved mixed questions of lawand fact.14 Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55 (CA).15 J F Burrows and R I Carter Statute Law in New Zealand (LexisNexis, Wellington, 2009) at 423.16 Credit Services Investments Ltd v Carroll [1973] 1 NZLR 246 (CA) at 259 per McCarthy J and at262 per Turner P.[52] Principles of statutory interpretation, such as the principle recognised inBarrie, are not intended to have absolute operation. They exist to provide guidance tothe ultimate task of identifying Parliament's intent. So in applying these principles, orpresumptions, the ultimate objective must still be kept squarely in mind. This isdemonstrated by the decisions applying the principle referred to in Barrie which areinfluenced by the particular circumstances.17[53] I agree with Ms Casey's submission that the present situation does not involveapplying the definition of words from other legislation. The situation here involves adifferent form of interaction between separate legislation. Section 64, and the Actgenerally, is intended to operate against the background of the principles of sentencingadministered under the Sentencing Act, and the Parole Act. It is recognising that thereis an overall sentencing regime under that legislation, and the present Act overlays itsown regime to apply against that background. How the sentencing regime operates asa matter of fact and law can be said to be the starting point for understanding theregime established by the present Act.[54] Subject to the matters I next address, I accordingly do not accept that theappellant's argument, and the reliance on the principle referred to in Barrie, preventspre-sentence detention being seen as part of the period while the offender is servingthe sentence of imprisonment for the offence.Conflict with defined term[55] Mr Ewen also argued that the interpretation referred to above conflicted withthe plain terms of the Act.[56] Section 64 refers to the person serving the sentence of imprisonment for theoffence "as defined in s 5(1)(a)(ii)". The relevant definition in s 5 is of "offender",but that definition also defines the words "the sentence of imprisonment for theoffence" in the following way:5 Offender(1) In this Act, offender, in relation to a victim, means—17 See Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington2015) at 441–442.(a) for the purposes only of subpart 3 of Part 2, a person—(ii) on whom a court or the Court Martial has, because of theperson's conviction for that offence, imposed a sentenceof imprisonment (the sentence of imprisonment for theoffence); and[57] Mr Ewen argued that this made it clear that it was only a period ofimprisonment served after the Court had imposed a sentence of imprisonment thatcounted as a matter of definition. This reiterated the point that he had made about theordinary meaning of these words I refer to at [42] above.[58] I do not accept this argument. The definition that s 64(2)(a)(i) is referring to isthe definition of the words "the sentence of imprisonment for the offence". So it mustbe a term of imprisonment imposed for this offending. It is not defining what is to becounted for the "serving" of that sentence. For that reason the cross-reference doesnot define the meaning of the words that are in issue.No room for implied reference to Sentencing and Parole Acts[59] This brings me to what I apprehend to be the key question involved in thestatutory interpretation exercise.[60] Section 64 goes on to make specific provision in relation to particular mattersrelating to cumulative sentences (s 64(2)(a)(ii) and (iii)), and time served followingrecall to prison (s 64(2)(b)). Mr Ewen argued that this made it clear when Parliamentwished to apply the more complex provisions concerning sentencing under theSentencing and Parole Acts. There would be no need for Parliament to do this if theprinciples under those Acts applied in any event. Another way of describing thisargument is that s 64 is self-contained, or as Ms Casey put it, it sets out a codificationfor the application of provisions from the other legislation, and how the limitationperiod is suspended. Recourse to the general law of sentencing as set out in otherlegislation is not contemplated.[61] But it seems to me that the complications that are addressed in s 64(2)(a)(ii),(iii) and s 64(2)(b) amount to exceptions to how the starting point set out in s 64(1) asinterpreted by s 64(2)(a)(i) is to apply in light of the principles of sentencing set out inthe other legislation. They do not involve Parliament choosing which principles fromthe other legislation are to apply. Indeed, if anything, the fact that they are exceptionsto what the other legislation would otherwise contemplate confirms that the normalsentencing principles are expected to apply.[62] That is most clearly demonstrated by s 64(2)(a)(ii) and (iii). Unders 64(2)(a)(ii) when the sentence is imposed cumulatively on an earlier term ofimprisonment — which will be imprisonment for unrelated offending — this isincluded within the suspension period. This contemplates the Court imposing acumulative sentence under ss 83 and 84 of the Sentencing Act. That is clearly anexception to the starting point that the suspension only operates when the prisoner isserving the sentence of imprisonment for the relevant offence. It extends the periodthat would otherwise apply.[63] That is also so for s 64(2)(a)(iii). If a Court later imposes a sentence forunrelated offending, and directs that it be served cumulatively on the sentence for theoffending in question, that also forms part of the suspended limitation period.18 Onceagain this would be an exception to the starting point that the limitation period is onlysuspended for the period of time when the prisoner is serving a sentence for theoffending involved. It suspends the running of the limitation period for a longer time.[64] I accept that this is not so clearly so in relation to s 64(2)(b). This provides thatthe time spent in prison following a recall falls within the period of suspension of thelimitation period. Parliament may not have needed to have said this if the normalprinciples of sentencing applied — it is well understood that the prisoner resumes theearlier sentence of imprisonment if they are recalled as s 66(1) of the Parole Actprovides that a final recall order is made for "an offender to continue serving his orher sentence in prison". But the section does still modify what may arguably bethought to be the natural starting point by saying that this is so only when a final recall18 This may contemplate further offending by the prisoner whilst in prison, or a circumstance wherethe prisoner is already serving a prison sentence when the new sentence for the offence is imposed.order is made. The period of time the prisoner serves in prison under an interim recallorder under s 62 of the Parole Act is not counted if no final order is made. So thesection does alter, or at least clarify, what period in time is included within thesuspension of the limitation period in the case of recalled prisoners.[65] Perhaps more importantly it seems to me that the complications that s 64 areso addressing presume that the normal principles of sentencing apply. It is dealingwith complications against that very background. That is clearly so in s 64(2)(a)(ii)and (iii) which presume the applicability of ss 83 and 84 of the Sentencing Act. So Ido not accept that it shows a legislative intent to only apply some of the provisions ofthe Sentencing and Parole Acts. All principles which identify when a prisoner isserving a sentence of imprisonment for the offence would seem to apply unlessotherwise modified by s 64.[66] A further illustration of this point demonstrated by other matters that s 64 doesnot directly address. Sentences imposed concurrently under ss 83–85 of theSentencing Act frequently involve a particular offence being taken as the lead offence,with any other offending then resulting in uplifts on the period of imprisonmentimposed. So an offender convicted and sentenced for aggravated robbery may havethe sentence for that offending uplifted for other offending committed during thecourse of the aggravated robbery — say an assault on a person shortly after the robberytook place.19 If the victim of the aggravated robbery brings a claim before theTribunal, then the fact that the sentence was uplifted for the assault would beimmaterial. The amount of time served by the offender under the sentence imposedwould be all that was relevant. In the same way, however, a victim of the assault wouldnot benefit from any suspension of the limitation period, as it seems to me that theperiod of imprisonment served could not be said to have been imposed for that offence.[67] It is only possible to apply s 64 to such situations with a proper understandingof how the principles of sentencing operate under the provisions in the Sentencing Act.The section contemplates the application of the provisions relating to sentencing setout by other legislation as applied by the Courts. This further demonstrates that the19 A period of imprisonment will be imposed for the assault, but to be served concurrently with thesentence for the lead aggravated robbery offence (as uplifted).regime introduced by the Act overlays the sentencing regime established by the otherlegislation, and that it is contemplated it will be interpreted and applied consistentlywith that regime.[68] I accept that pre-sentence detention can arise, in some circumstances, foroffending unrelated to the offending giving rise to the claim. Under s 91 of the ParoleAct it can arise because of other matters, such as separate offending for which theoffender was originally arrested. But this period is still treated as part of the timeserved on the sentence subsequently imposed, and accordingly is within the period forwhich the limitation period is suspended under s 64. The legislation is still expectedto work together.[69] For these reasons I reject the appellant's argument.Is this a sensible interpretation?[70] There is a final point that can be considered as a cross-check on the proposedinterpretation.[71] If an interpretation makes sense — particularly when interpreted in its context,and in light of its purpose — it is more likely to be the correct one. An interpretationthat leads to an unusual outcome is not. Based on the appellant's suggested approachtwo prisoners who committed exactly the same offence, sentenced to exactly the sameperiod of imprisonment, and released having served exactly the same period of timeunder that sentence would nevertheless be treated differently. If prior to sentencingone of them had been released on bail but the other remanded in custody, the periodof suspension of the limitation period would be different. For the person remanded incustody the suspension of the limitation period would operate for a shorter periodbecause the pre-sentence detention would be excluded. In my view this peculiaritycounts against this interpretation being the correct one.[72] There are other considerations of a similar kind that suggest that the appellant'sinterpretation is not the correct one. For example, it is not unusual for there to be aperiod of time between the entry of a conviction and the imposition of a sentence. Theactual sentencing date may be influenced by practical factors — for example, theperiod of time required to obtain reports needed for sentencing, or counsel's othercommitments. The prisoner may well have been remanded in custody in the meantimegiven s 13 of the Bail Act 2000. On the appellant's approach that period would not beincluded in the period when the limitation period is suspended even though theprisoner has been convicted for the relevant offence and has been remanded in custodyfor that offence as a consequence. Again that makes little sense given the scheme andpurpose of the provisions.[73] These considerations do not, by themselves, demonstrate that the appellant'sarguments should not be accepted. But they are further points that illustrate why theinterpretation contended for is not the correct one.Conclusion[74] My key conclusions are that: the ordinary or natural meaning of the legislationsuggests that pre-sentence detention is included in the period of time while thelimitation period is extended as it forms part of the period when the prisoner is servinga sentence of imprisonment for the offending; that this is consistent with the apparentpurpose of the provisions; that the provisions contemplate that the normal principlesof sentencing will apply for the purposes of making the assessment; and that thisappears to give the legislation an interpretation that makes sense. I accept that pre-sentence detention is included in the period contemplated by s 64.[75] For the above reasons I accept that the Tribunal erred in law in failing toproperly address the limitation period, but having done so in accordance with thecorrect interpretation of the Act I accept that the respondent's claim was lodged intime. For those reasons the appeal will be dismissed.[76] As requested the question of costs is reserved. Memoranda may be filed.Cooke J