VAN SILFHOUT v PATHIRANNEHELAGE [2023] NZCA 5

VAN SILFHOUT v PATHIRANNEHELAGE [2023] NZCA 5 [8 February 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA584/2021[2023] NZCA 5BETWEEN JOSHUA PERA VAN SILFHOUTAppellantAND UDAYA LAKSHMAN AGASPATHIRANNEHELAGERespondentHearing: 13 October 2022Court: Miller, Brown and Katz JJCounsel: D A Ewen for AppellantV E Casey KC as counsel to assist the CourtJudgment: 8 February 2023 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The appellant, Mr van Silfhout, appeals from a judgment of the High Court1dismissing his appeal from a decision of the Victims' Special Claims Tribunal(the Tribunal),2 in which the Tribunal awarded the respondent compensation underthe Prisoners' and Victims' Claims Act 2005 (the PVCA).1 Van Silfhout v Pathirannehelage [2021] NZHC 2268 [High Court judgment].2 Pathirannehelage v Van Silfhout [2021] NZVSC 3.[2] Section 64 of the PVCA provides that the limitation period for a victim of anoffence making a claim3 (which commences on the date of the offending) ceases torun while an offender is serving a sentence of imprisonment. The sole issue onthis appeal is whether time spent in pre-sentence detention by an offender who issubsequently sentenced to imprisonment for their offending counts to extend thelimitation period for a victim's claim.Factual background[3] On 9 July 2010 Mr van Silfhout entered a Mobil service station armed witha weapon. He threatened the respondent, who was the sole worker there, and robbedthe premises of money and cigarettes. Eventually Mr van Silfhout was arrested andcharged. He was remanded in custody on 30 January 2013. On 13 May 2014 he wassentenced to four years and three months' imprisonment, by which time he had alreadyserved approximately one year and three and a half months in custody on remand.On 2 May 2017, his sentence expiry date, he was released.4[4] On 21 January 2020, the Department of Corrections agreed to pay the appellant$12,000 (GST included) compensation for an alleged breach of privacy.On 2 April 2020 the respondent lodged with the Tribunal a claim for $10,000compensation for emotional harm arising out of the robbery. Judge Blackie awardedthe respondent $5,000 compensation.[5] The material chronology is depicted in the chart below.3 Pursuant to s 4(1)(d) of the Limitation Act 1950, which applied to Mr Pathirannehelage's claim,the relevant limitation period is six years.4 He had been released on parole on 21 November 2016 but was recalled to prison on 1 March 2017.Limitation running Contested period Limitation suspended09.07.2010–29.01.2013Offender at large30.01.2013–12.05.20141 year and 3½ monthsRemand in custody13.05.2014–20.11.20162 years and 6 monthsImprisonment21.11.2016–01.03.2017On parole02.03.2017–02.05.2017Recall to prison02.05.2017–02.04.2020Time between release andfiling of claim5[6] The question is whether the limitation period continued to run onthe respondent's claim while Mr van Silfhout was remanded in custody (for the periodof one year and three and a half months depicted in the middle column). If it did, thenthe respondent's claim was time-barred.6 However if during that time the limitationperiod was suspended, the respondent's claim was filed within time.7Because the respondent did not participate in the appeal, as in the High CourtMs Casey KC was appointed as counsel assisting to present reasonable argument inopposition to the appeal.5 During this period there was a further suspension of at most two months pursuant to s 64B of thePrisoners' and Victims' Claims Act 2005 (PVCA). Section 64B suspends the limitation perioduntil the standard deadline under s 28(3) for filing a victim's claim, which in this case fell sixmonths after the date on which notice was sent to the respondent advising him of the compensationpayable to Mr van Silfhout. It is unclear when notice was sent. The earliest possible date wouldhave been 31 January 2020, when the compensation was paid into the victims' claims trustaccount. Hence the maximum suspension under s 64B would have been for the period between31 January 2020 and the filing of the respondent's claim on 2 April 2020.6 It would have been at least 10.5 months out of time.7 With at most five months to spare.Relevant statutory provisions[7] The PVCA was the legislative response to the judgment of the High Court inTaunoa v Attorney-General,8 awarding damages for breaches of the New Zealand Billof Rights Act 1990 in favour of certain prisoners who had been subjected tothe Behaviour Management Regime. As counsel for the appellant, Mr Ewen,explained, there was a perception that something had gone very far awry whenprisoners were being awarded large amounts of compensation on their claims withoutthe ability for victims to make claims against that sum. The PVCA provides that anaward of, or agreement to pay, compensation to a prisoner triggers a right for a victimaffected by that prisoner's offending to make a claim intercepting the award ofcompensation to the prisoner.[8] Part 2 of the PVCA has three subparts. The purpose of subpt 1 is to restrictand guide the awarding of compensation to prisoners for breaches of or interferencewith specified rights.9 Subpart 2 then provides for the interception of compensationawarded to prisoners under subpt 1. It establishes the process under which victims ofa prisoner's offending are able to make claims against that prisoner and have access tothe sum awarded as compensation, that would otherwise be payable to the prisoner, tosatisfy their claims. Section 3(2) identifies the purpose of subpt 2 of pt 2 as being to:(a) establish, require payments into, and regulate the operation of,a victims' claims trust bank account; and(b) provide a procedure for the making and determination of victims'claims.[9] Subpt 3 has the purpose of suspending the running of limitation periods forcertain claims by victims.10 It includes s 64, which is the focus of this appeal: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.8 Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC).9 Section 3(1).10 Section 3(3).(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 serviceprison—(i) the sentence of imprisonment for the offence(as defined in section 5(1)(a)(ii)); and(ii) any earlier sentence of imprisonment on which thesentence of imprisonment for the offence is directedto be 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 insection 59 of the Parole Act 2002), but only if a final recallorder (as defined in section 4(1) of that Act) is madefollowing the recall application.[10] The cross-reference in s 64(2)(a)(i) is to the definition of "offender" ins 5(1)(a), which states:(1) In this Act, offender, in relation to a victim, means—(a) for the purposes only of subpart 3 of Part 2, a person—(i) convicted (alone or with others) by a court orthe Court Martial of the offence that affected thevictim; and(ii) on whom a court or the Court Martial has, because ofthe person's conviction for that offence, imposed asentence of imprisonment (the sentence ofimprisonment for the offence); [11] Central to the contest on the interpretation of s 64 is the question whetherregard may be had to certain provisions of the Parole Act 2002 and theSentencing Act 2002. In determining how much of a sentence an offender has served,the Parole Act provides that an offender is deemed to have been serving the sentenceduring any period spent in pre-sentence detention: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 that occurs at any stage duringthe proceedings leading to the conviction or pending sentence of theperson, 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 orher arrest and before conviction.[12] However, pre-sentence detention must be ignored in sentencing. Section 82 ofthe Sentencing Act states:In determining the length of any sentence of imprisonment to be imposed,the court must not take into account any part of the period during which theoffender was on pre-sentence detention as defined in section 91 of theParole Act 2002.The High Court judgment[13] Cooke J commenced by acknowledging two errors in the Tribunal's approach:first, in deducting from the limitation period the total sentence of four years and threemonths' imprisonment imposed on Mr van Silfhout; and secondly, in concluding thatfurther periods of imprisonment imposed thereafter also needed to be deducted.Mr Ewen, counsel for Mr van Silfhout in both the High Court and this Court, andMs Casey were in agreement that the period to be excluded from the running of thelimitation period was only the period when the offender was actually serving asentence of imprisonment in respect of the offending involving the claimant, unlessone of the exceptions in s 64 of the PVCA applied.11[14] The Judge proceeded to address what he described as the ultimate issue,namely whether a period of pre-sentence detention is a period "while the offender is serving in prison the sentence of imprisonment for the offence" unders 64(2)(a)(i).12 Applying the well-established text-in-light-of-purpose analysis,13the Judge:(a) identified dual statutory purposes for the suspension of the limitationperiod: (i) the futility of seeking to sue prisoners while in prison; and(ii) a nexus between the relevant imprisonment and the offendingagainst the victim;14(b) acknowledged the immediate attraction in Mr Ewen's argument that theordinary meaning of the relevant words would suggest the suspensionof the limitation period only covered the period of time the prisoner wasin prison after being sentenced;15(c) recognised that an ordinary meaning needs to be applied in theparticular circumstances in which the words of the legislation are used,noting that the present context involves legislative provisions in atechnical area;16(d) accepted Ms Casey's submission that recourse to provisions in otherstatutes did not involve applying the definition of words from otherlegislation, but rather the provision of a starting point for understandingthe regime established by the PVCA;1711 High Court judgment, above n 1, at [25].12 At [28].13 Legislation Act 2019, s 10; see also Commerce Commission v Fonterra Co-operative Group Ltd[2007] NZSC 36, [2007] 3 NZLR 767.14 High Court judgment, above n 1, at [39].15 At [42]–[43].16 At [43].17 At [53].(e) rejected the argument that s 64 is self-contained and that recourse to thegeneral law of sentencing as set out in other legislation is notcontemplated;18 and(f) as a cross-check viewed the interpretation, that pre-sentence detentionshould be included in the period of suspension, as sensible and avoidingunusual outcomes.19[15] The Judge summarised his conclusions in this way:[74] My key conclusions are that: the ordinary or natural meaning of thelegislation suggests that pre-sentence detention is included in the period oftime while the limitation period is extended as it forms part of the period whenthe prisoner is serving a sentence of imprisonment for the offending; that thisis consistent with the apparent purpose of the provisions; that the provisionscontemplate that the normal principles of sentencing will apply for thepurposes of making the assessment; and that this appears to give the legislationan interpretation that makes sense. I accept that pre-sentence detention isincluded in that period contemplated by s 64.Grounds of appeal[16] The specific grounds of appeal were formulated as follows:1. The [Judge] erred in the interpretation and effect of sections 5(1)(a) and64 of the [PVCA], (which modify and extend the 6-year limitation onactions under the Limitation Act 1950), and in particular the terms"offender" and "serving a sentence of imprisonment".2. As a result the [Judge] erred by determining pre-sentence detention, asthat term is defined and used in the Parole Act 2002, was included in themeaning of "serving a sentence of imprisonment" to the extentthe respondent's claim was filed within time.[17] In the course of his submissions Mr Ewen refined those grounds by placingemphasis on the further phrase "in a penal institution, prison, or service prison".The significance of the amendment was said to lie in the fact that "service prison" canonly relate to a sentence of imprisonment imposed by the Court Martial underthe Armed Forces Discipline Act 1971, which expressly ousts the application of boththe Sentencing Act and the Parole Act.2018 At [60]–[61].19 At [70]–[73].20 Armed Forces Discipline Act 1971, ss 3(1A) and 168(2).Common ground[18] As our exchanges with counsel revealed, the construction of the PVCApresents some challenges. At least in part that is an inevitable consequence of thedifferent roles that the three subparts play, as evidenced by their discrete purposeprovisions.21 Indeed in the context of the single appeal issue raised by subpt 3,Ms Casey cautioned us against endeavours to obtain guidance from provisions in theother subparts,22 advice which Mr Ewen wholeheartedly endorsed.[19] It is convenient to note certain other matters on which we apprehend counselwere agreed. First, the limitation period for claims by victims in tort for exemplarydamages against the perpetrators of offences against them is six years.23 Secondly,a claim by a victim to the Tribunal under subpt 2, described in the course ofsubmissions as a "fast track", is an alternative route to pursuing a civil proceeding forexemplary damages in the District Court or the High Court, and thus requires anelection to be made.24 Thirdly, the limitation period applies to claims by either route,although subject to the provisions in subpt 3.[20] The focus of the appeal is the period of time during which the limitation periodceases to run on a victim's claim, namely the period defined by the composite phrase"while the offender is serving a sentence of imprisonment in a penal institution, prison,or service prison". That phrase must necessarily be read as a whole. However, solelyas an aid in identifying the scope of the opposing interpretations, it can be convenientlydissected into four components:(a) the offender(b) is serving [a sentence of imprisonment](c) a sentence of imprisonment21 Prisoners' and Victims' Claims Act, s 3(1), (2) and (3).22 Ms Casey's point was not that subpts 1 and 2 were irrelevant to gaining a sense of how the Actworks, but that subpt 3 stands alone from the other subparts and does something she described as"actually bigger".23 Limitation Act 1950, s 4(1)(a).24 Prisoners' and Victims' Claims Act, s 28(1)(c).(d) in a penal institution, prison or service prison[21] The third component is uncontroversial. Subject to the conjunction of anycumulative sentence,25 the relevant sentence of imprisonment is that imposed on theoffender for the offence that affected the victim making the claim. That is made clearby the definition provided in s 64(2)(a)(i) which refers to the sentence of imprisonmentfor the offence as defined in s 5(1)(a)(ii). Similarly there is no issue concerning themeaning of the fourth component. The limitation period is not suspended while anoffender is subject to some form of detention other than imprisonment, such ashome detention or confinement to an institution for the purposes of receivingmedical treatment. Hence, as reflected in the first specific ground of appeal, the focusof counsel's engagement concerned the implications of the words "offender" and"serving" (the latter in conjunction with the phrase "a sentence of imprisonment").SubmissionsAppellant's submissions[22] Mr Ewen contended that the Judge erred in importing "time-served" conceptsfrom the Parole Act when concluding that pre-sentence detention suspended thelimitation period. His argument that, in the absence of a specific statutory definition,"serving" should bear its ordinary meaning by reference to the wider statutory schemecomprised two primary planks.[23] First, Mr Ewen submitted that the ordinary meaning of "serving a prisonsentence" obviously requires that a prison sentence has been imposed by a Court.In the absence of very specific statutory language mandating such an effect, a prisonsentence cannot commence before it is imposed.26 Secondly, Mr Ewen submitted thatthe s 64(1) suspension only commences once there is an "offender" within the meaningof the specific limitation-related definition in s 5(1)(a). Thus a person only becomesan offender once two conditions precedent are met:25 Specified in s 64(2)(a)(ii) and (iii).26 Citing Prince v Chief Executive of the Department of Corrections [2019] NZHC 3381,[2020] 2 NZLR 260.(a) a conviction has been entered for the offence giving rise to the claim;and(b) a prison sentence has been imposed for that offence.[24] It logically followed, in Mr Ewen's submission, that during any periodantecedent to the imposition of the requisite prison sentence the person is not yet an"offender" under either ss 5 or 64. Hence the limitation period is not suspended.Emphasising that only very clear statutory language could displace that interpretativeconsequence, Mr Ewen submitted there can be no resort to the necessary implicationdoctrine as the PVCA can operate perfectly well without the importation ofthe Parole Act's operation in respect of pre-sentence detention.[25] Mr Ewen argued that the Judge erred in accepting the proposition that thewords in the phrase should be given a technical rather than their ordinary meaning.27He submitted that such an interpretation involved a departure from this Court'sapproach in Barrie v R:28Unless 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. The courts have warned against the dangers of reasoning byanalogy in statutory interpretation, especially between statutes dealing withdifferent subject-matter.[26] Mr Ewen was critical of the Judge's reasoning that reference to the priorlegislation (revealing how sentence administration occurred in practice) was necessaryin order to understand the effect of s 64 and his conclusion that the technical meaningdid not involve adopting defined terms from the Parole Act.29 Mr Ewen submitted thatthe approach of the High Court was a novel one in the field of statutory interpretationand perilously close to "the vibe".27 High Court judgment, above n 1, at [43].28 Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55 at [36] (footnotes omitted).29 High Court judgment, above n 1, at [51]–[53].Submissions of counsel assisting[27] Ms Casey supported the Judge's interpretation, essentially on the basis that thelegislation had used technical words rather than everyday language. Her submissionswere primarily structured around the following propositions:(a) serving a sentence of imprisonment is a statutory construct which hasno meaning separate from the statutory regime for lawfulimprisonment;(b) the Judge's interpretation did not involve improperly implying adefinition from one statute to another; and(c) the terms of s 64 of the PVCA support an inference that it wasParliament's intention that it should operate together with theprovisions in the Parole Act.[28] Ms Casey framed the issue as a choice between two available interpretations,being either:(a) the principles in the Sentencing and Parole Acts (and the Armed ForcesDiscipline Act) that are used to calculate how many days of a person'sdetention count towards serving the relevant sentence should apply tothe equivalent calculation under the PVCA, except to the extent theyare expressly excluded or modified by the PVCA; or(b) (as the appellant argues) the principles in those Acts have no applicationto the operation of the PVCA, except to the extent that they areexpressly incorporated by the PVCA.[29] In view of the focus in argument on ordinary and technical meanings and thedebate whether recourse may be had via "context" to the sentencing and parolestatutory regimes, we will first comment briefly on the principles governing theinterpretation of legislation before analysing the competing contentions.The interpretation of legislation[30] Many cases concerning the interpretation of statutory language refer to themeaning of words as "ordinary", "natural" or "plain". As Lord Simon remarked,the parliamentary drafter, who knows what objective the legislative promoter wishesto attain, will normally and desirably try to achieve that objective by using languageof the appropriate register in its natural, ordinary and primary sense.30 But the Judgealso noted that words and phrases of the English language have an extraordinary rangeof meaning.31 Indeed, as the author of Burrows and Carter Statute Law inNew Zealand observes, there are not many words in the English language that haveonly one ordinary meaning: most words have several shades of meaning, all of themperfectly "ordinary".32[31] The task of discerning the relevant shade of meaning will often be facilitatedby an appreciation of the purpose and context of the legislation. The role of purposehas long been recognised. In Commerce Commission v Fonterra Co-operativeGroup Ltd the Supreme Court emphasised that, even if the meaning of the text mayappear plain in isolation of purpose, that meaning should always be cross-checkedagainst purpose in order to observe the dual requirements of then s 5 ofthe Interpretation Act 1999.33[32] The significance of context in the interpretative task has also beenacknowledged by the courts. Thus in Port Nelson Ltd v Commerce CommissionCooke P observed that the principle that plain words should be given their plainmeaning has to be applied with due regard to the context in which they appear,the other provisions of the particular statute and the history of the relevant statutoryprovisions.34 In Fonterra the Supreme Court described the requirement to have regardto both the immediate and the general legislative context as part of the determination30 Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 (HL) at 237.31 At 236.32 Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis,Wellington, 2021) at 399.33 Commerce Commission v Fonterra Co-operative Group Ltd, above n 13, at [22].34 Port Nelson Ltd v Commerce Commission [1994] 3 NZLR 435 (CA) at 437.of purpose.35 The significance of context was colourfully expressed byLord Wilberforce in the course of construing United Kingdom gaming legislation:36My Lords, before one attempts to apply the so-called definition, it is necessaryto establish the climate, or atmosphere in which it has been given birth.[33] Explicit statutory recognition of the role of context is now found inthe Legislation Act 2019,37 s 10(1) of which states:10 How to ascertain meaning of legislation(1) The meaning of legislation must be ascertained from its text and inlight of its purpose and its context.Statutory purpose[34] Like the Judge, we begin by identifying the statutory purpose. The purposesof subpts 1 and 2 broadly align with the two main objectives recited in the explanatorynote to the Prisoners' and Victims' Claims Bill.38 By comparison the statement ofpurpose for subpt 3 is perfunctory39 and, as the Judge fairly observed,40 does notprovide much assistance. Following a review of the legislative history,41 the Judgediscerned dual statutory purposes for subpt 3, stating:[39] That seems to me to be the relevant purpose of the provisionsconcerning the limitation period — the limitation period is extended, and therunning of limitation period suspended, whilst the prisoner is serving thesentence of imprisonment for the offending involving that victim. That isbecause it is usually futile to seek to sue prisoners whilst in prison, and thereis also a nexus between the relevant imprisonment and offending against thatvictim.35 Commerce Commission v Fonterra Co-operative Group Ltd, above n 13, at [22].36 Seay v Eastwood [1976] 1 WLR 1117 (HL) at 1121.37 Belatedly implementing a recommendation in the Law Commission's 1990 Report:Law Commission A New Interpretation Act: To Avoid "Prolixity and Tautology"(NZLC R17, 1990) at [66]–[72].38 Prisoners' and Victims' Claims Bill 2004 (241-1) (explanatory note) at 1. The two main objectiveswere (a) to ensure that compensation is treated as a remedy of last resort for prisoners, availableonly where other possible remedies have been explored and have failed to, or could not, provideeffective redress; and (b) to strengthen the rights of victims to make civil claims against offendersand, in particular, recognise that victims should have first claim against any such compensationawards to prisoners.39 Simply echoing the heading of subpt 3.40 High Court judgment, above n 1, at [30].41 Including the comments directed to limitation in the speech of the Minister of Justice,the Hon Phil Goff, at the first reading of the Bill: (14 December 2004) 622 NZPD 17986.See High Court judgment, above n 1, at [30]–[38].[40] I observe that these two purposes would apply equally to pre-sentenceand post-sentence detention. The prisoner would have been difficult to suewhile in prison, and there is a nexus between that imprisonment and theparticular offending because the offender has been detained in custody for thatoffending.[35] We agree with the Judge's analysis in [39]. Indeed Mr Ewen acknowledgedthat, as a general proposition, that paragraph described what subpt 3 was designed toachieve. However Mr Ewen emphasised that those purposes cast no light on the issueat the heart of the appeal, namely whether a period of pre-sentence detention is to beincluded in the calculation of the period of suspension of the limitation period. To thatissue we now turn.Analysis[36] In developing the submission that a prison sentence cannot commence, andhence cannot begin to be served, before it is imposed, Mr Ewen emphasised the use inthe PVCA of the present participle "serving" which he described as current and/orcontinuous but in either case "future directed". He contrasted the use in the Parole Actof the past tense "served".[37] Mr Ewen developed the submission by referring to the expressions "offender"and "sentence of imprisonment for the offence" defined in s 5(1)(a), noting that thoselimited-purpose definitions were used exclusively in s 64:(1) In this Act, offender, in relation to a victim, means—(a) For the purposes only of subpart 3 of Part 2, a person—(i) convicted (alone or with others) by a court orthe Court Martial of the offence that affected thevictim; and(ii) on whom a court or the Court Martial has, because ofthe person's conviction for that offence, imposed asentence of imprisonment (the sentence ofimprisonment for the offence); [38] Mr Ewen submitted that both terms have two conditions precedent that takeeffect as "temporal qualifiers". They are both dependent on two consecutive events:conviction of the offence giving rise to the claim and the imposition of a prisonsentence in respect of that conviction. Mr Ewen submitted:Until both events have occurred, s 64 has no application and there is nosuspension on the limitation period. Until both conviction and prison sentenceexist there is no "offender" for limitation purposes, and by extension, nosuspending [of the] "sentence of imprisonment" [39] We agree that the trigger (or, to use Mr Ewen's phrase, condition precedent)for a suspension of the limitation period comprises the dual events of conviction andsentence in respect of the offence which affected the victim making a claim.However we do not accept the second step of Mr Ewen's argument, reflected in the"by extension" proposition, that the period of any suspension must post-date theoccurrence of those dual events.[40] In our view the response to Mr Ewen's contention, and the resolution ofthis appeal, lies in the bespoke definition which is provided solely for the purposes ofs 64:64 Limitation periods suspended while offender serving sentence ofimprisonment(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 serviceprison—(i) the sentence of imprisonment for the offence(as defined in section 5(1)(a)(ii)); and(ii) any earlier sentence of imprisonment on which thesentence of imprisonment for the offence is directedto be 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(as defined in section 4(1) of that Act) is made followingthe recall application.[41] The role of this definition is to provide a formula for calculating the durationof the suspension of a limitation period. Four points may be noted. First, the formulais not confined to the "sentence of imprisonment for the offence" as defined ins 5(1)(a)(ii). It extends to related cumulative sentences and to particular instances ofprison detention consequent upon recall from parole.[42] Secondly, the relevant period of time is not confined to "future directed"service of the sentence but, by dint of s 64(2)(a)(ii), will include the serving of anyearlier sentences of imprisonment on which the victim-affected sentence ofimprisonment is directed to be served cumulatively.[43] Thirdly, it is inherent in the extended definition that the calculation of theperiod of any suspension will inevitably involve a hindsight or retrospective analysis.That is evident from both the scenario of a subsequent cumulative sentence envisagedin s 64(2)(a)(iii) and from the inclusion in the calculation of time spent in detention onrecall from parole but only in circumstances where a final recall order is made.[44] Finally, the reference in that bespoke definition to such concepts which are thesubject of the sentencing and parole legislative regimes necessarily imports thoseconcepts into subpt 3. It follows in our view that the sentencing and parole regimesare thereby a part of the subpart's context, in the light of which the meaning of s 64(1)is to be ascertained.[45] In the High Court Mr Ewen contended that the only provisions from thesentencing and parole legislation which were relevant to the interpretation of s 64 werethose specifically identified. The Judge rejected the argument that s 64 is aself-contained code, reasoning:[65] Perhaps more importantly it seems to me that the complications thats 64 are so addressing presume that the normal principles of sentencing apply.It is dealing with complications against that very background. That is clearlyso in s 64(2)(a)(ii) and (iii) which presume the applicability of ss 83 and 84 ofthe Sentencing Act. So I do not accept that it shows a legislative intent to onlyapply some of the provisions of the Sentencing and Parole Acts. All principleswhich identify when a prisoner is serving a sentence of imprisonment for theoffence would seem to apply unless otherwise modified by s 64.We agree with that analysis. It follows that the meaning of s 64(1) is to be ascertainedin the light of the sentencing and parole regimes, including the principle that anoffender is deemed to have been serving a sentence during any period for whichthe offender was in pre-sentence detention.[46] While, as Mr Ewen submitted, the particular definition of "offender" specificto subpt 3 comprises both the elements of conviction and imposition of a sentence,we do not consider that the use of the term in s 64(1) supports the proposition that onlypost-sentence detention is intended to suspend the limitation period. The section in itsentirety presumes the scenario whereby suspension of the limitation periodhas occurred. Consequently the term "offender" was the obvious term for theparliamentary drafter to employ.[47] We turn now to consider Mr Ewen's supplementary argument to the effect thatthe inclusion of the phrase "service prison" in the s 64(2) definition is a completeanswer to the question whether the regimes created by either the Sentencing orParole Acts can apply. Observing that the defined phrase is an indivisible term,Mr Ewen argued that the civil sentencing and parole regimes cannot be applied to thes 64(2) definition "as a whole" for the reason that the military justice regime inthe Armed Forces Discipline Act ousts both those statutes. Consequently he submittedthat, contrary to the Judge's finding, the civil sentencing and parole regimes cannot"work together" with the s 64(2) definition.42[48] It is plain in our view (and we consider that it is implicit in Mr Ewen'ssubmission) that the several references in the PVCA to the Armed ForcesDiscipline Act, particularly in the interpretation section (s 4), indicate that that Act ispart of the context of the PVCA for the purposes of s 10(1) of the Legislation Act.43In response, Ms Casey drew attention to the fact that s 178 of the Armed ForcesDiscipline Act empowers the making of an order that a later sentence be servedconsecutively upon an earlier sentence. She also observed that s 177A of that Actprovides, in terms similar to s 90 of the Parole Act, as follows:42 That reference was to the concluding statement at [68] of the High Court judgment, above n 1,that the legislation was expected to work together.43 The phrase "service prison" in the s 64(2) definition is defined in s 4 of the PVCA as having thesame meaning as in s 2(1) of the Armed Forces Discipline Act.177A Effect of period spent in custody before being sentenced(1) For the purpose of determining the date on which an offender willbecome eligible for remission of sentence, the offender shall bedeemed to have been serving the sentence during the whole of anyperiod that the offender was held in custody, as is required to bespecified on the committal order by the Court Martial undersection 81A or by a disciplinary officer under section 117Y.[49] In our view, a construction of s 64 of the PVCA which permits pre-sentencedetention to be factored into the period of suspension of the limitation period resultsin parity with the consequences of s 177A of the Armed Forces Discipline Act inrelation to sentences imposed under the military justice regime. On the face of it,the argument advanced by Mr Ewen would give rise to an anomalous situation wherepre-sentence detention would be taken into account in the context of the militaryjustice regime but not the civilian justice regime.[50] The High Court judgment concluded by considering as a cross-check whetherthe interpretation reached was a reasonable one:44[71] If an interpretation makes sense — particularly when interpreted in itscontext, and in light of its purpose — it is more likely to be the correct one.An interpretation that leads to an unusual outcome is not. Based onthe appellant's suggested approach two prisoners who committed exactly thesame offence, sentenced to exactly the same period of imprisonment, andreleased having served exactly the same period of time under that sentencewould nevertheless be treated differently. If prior to sentencing one of themhad been released on bail but the other remanded in custody, the period ofsuspension of the limitation period would be different. For the personremanded in custody the suspension of the limitation period would operate fora shorter period because the pre-sentence detention would be excluded. In myview this peculiarity counts against this interpretation being the correct one.[51] Mr Ewen acknowledged this inconsistency but submitted that it was no greateran inconsistency than one caused by including pre-sentence detention in otherscenarios. He drew attention to the observation of the majority of the Supreme Courtin Booth v R that the application of s 90 of the Parole Act can create anomalies.45He submitted that anomalous results do not justify a departure from the ordinarymeaning of the language in the PVCA.44 High Court judgment, above n 1.45 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 at [28].[52] However, as we have explained we do not accept that the bespoke definition ins 64(2) has the "ordinary meaning" advanced for the appellant. Nor do we considerthat on proper analysis it gives rise to an anomalous result.[53] Finally we note that the reasons for our conclusion are similar but not identicalto those of the Judge. Heeding the caution of counsel with reference to obtainingguidance from provisions in other subparts,46 our conclusion has focused on subpt 3,its purpose and context. Consequently we have not engaged with, and prefer toexpress no opinion on, the Judge's reasoning in respect of the technical meaning andhis analysis of the provisions in s 64(2)(a)(ii) and (iii) and s 64(2)(b) as amounting to"exceptions" to a starting point.47Result[54] The appeal is dismissed.46 Discussed at [18] above.47 Ms Casey submitted that the Judge's approach might be better seen as clarification of how thesentencing and parole regime principles are intended to apply in the PVCA context rather than theidentification of true exceptions.