MITCHELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 475

MITCHELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 475 [20 October 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA197/2017[2017] NZCA 475BETWEEN KERRYN MITCHELLAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 10 July and 27 September 2017Court: Winkelmann, Brown and Clifford JJCounsel: Appellant in personC A Brook for RespondentJudgment: 20 October 2017 at 10.30 amJUDGMENT OF THE COURTA An extension of time in which to apply for leave to appeal is granted.B Leave to appeal under s 296 of the Criminal Procedure Act 2011 is granted.C The appeal is allowed.D The question of law raised on appeal is answered as follows:There is no jurisdiction to impose special release conditions under s 94 of the Sentencing Act 2002 beyond the time limits imposed by s 93 of that Act. Accordingly, Judge Rowe had no jurisdiction to impose special conditions on Ms Mitchell on 29 July 2016 when the relevant sentence expiry date was 2 December 2015.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] Ms Mitchell was found guilty following a jury trial in the District Court at Wellington on five counts of breaching a protection order, 55 counts of attempting to breach a protection order and one count of attempting to threaten to kill. She was initially sentenced on 2 December 2015, but special release conditions were imposed on 29 July 2016 by a different judge.1 It is the decision imposing special release conditions which is the subject of the present proceedings. Ms Mitchell wishes to argue on appeal there was no jurisdiction to impose the special release conditions, as her sentence had expired more than six months prior to their purported imposition.[2] The issue originally set down for determination before us was whether there is a right to appeal the imposition of release conditions where those conditions are imposed after sentence pursuant to s 94 of the Sentencing Act 2002.[3] In Patterson v R Williams J held that such an appeal can be brought as an appeal against sentence pursuant to s 244 of the Criminal Procedure Act 2011.2Williams J said the imposition of release conditions is a method of disposing of acase following conviction (what he said was the common definition of "sentence"),even if the conditions are imposed at a date later than the sentencing.3 Mrs Brook for the Department of Corrections argues there is no right to bring a sentence appeal in respect of the imposition of conditions under s 94 because the conditions are not imposed as part of the sentencing process. Instead, the appropriate way to challenge such conditions is either to reapply to the Parole Board or the District Court to vary or discharge the conditions, or to bring proceedings by way of judicial review in the High Court. In addition, in some cases, there will be an appeal right under s 296 of the Criminal Procedure Act 2011. Section 296 provides for appeals, with leave, on questions of law relating to or following the determination of the charge.1 Department of Corrections v Mitchell [2016] NZDC 14908 [SR conditions judgment].2 Patterson v R [2017] NZHC 49.3 At [25].[4] In this case, the Department says that because Ms Mitchell's proposed appealraises a question of law, she can seek leave to bring an appeal under s 296. The Department does not object to the current proceedings being treated as an appeal (and an associated application for leave to appeal) under that provision. However, the Department says that leave should be declined as the issue raised by Ms Mitchell is moot — the special release conditions in question having long since expired.[5] We have concluded that:(a) there is a right of appeal under s 296 of the Criminal Procedure Act in respect of the particular issue Ms Mitchell raises;(b) Ms Mitchell's appeal should be treated as an appeal under thatprovision and she should have leave to bring that appeal; and(c) her appeal should be allowed as there was no jurisdiction in the District Court to impose special release conditions on 29 July 2016.[6] We do not therefore address whether an appeal against the imposition of special conditions imposed after sentence under s 94 of the Sentencing Act can be brought as an appeal against sentence — the issue addressed in Patterson v R. We prefer to address issues of this Court's jurisdiction in cases where they arise fordetermination. In this case, the issue of jurisdiction is best addressed under s 296 of the Criminal Procedure Act.4Background[7] Ms Mitchell has a history of breaching a particular protection order. She was remanded in custody in December 2012 on various charges related to breaching that4 Mrs Brook also raised an issue as to whether, if these proceedings were properly characterised as an appeal against sentence, Ms Mitchell could bring such an appeal because she had already had a sentence appeal and the right to bring a second appeal against sentence is very limited. Since we do not address this as an appeal against sentence, we are not required to resolve this issue. Ms Mitchell had also initially raised another ground of appeal — that the Department has been miscalculating sentences and selecting incorrect sentence expiry dates. However, during the course of the oral hearing on 27 September 2017 Ms Mitchell confirmed that she accepts the Department's interpretation of the sentencing expiry date and does not seek to pursue this ground further.order. However, it was while she was serving a sentence of imprisonment for breaches that she committed the various acts that led to the convictions and sentence in respect of which the relevant release conditions were imposed. She was charged with those offences as they arose and convicted of all of them in November 2015 after a jury trial.[8] On 2 December 2015 Ms Mitchell was sentenced to two years and threemonths' imprisonment by Judge Kelly in the District Court at Wellington.5 That was a long-term sentence under which the Parole Board had the responsibility to set release conditions if and when parole was granted.6[9] On 1 July 2016, on appeal, this Court reduced that sentence to 19 months'imprisonment.7 That was a short-term sentence under which the sentencing court had the responsibility to set release conditions.8 None were imposed. The Crown applied for a recall of that decision, arguing the Court should have imposed release conditions. The Court declined to recall its judgment, stating the matter would be best dealt with in the District Court because a hearing was required and appeal rights would be better preserved.9[10] The Department accordingly applied for the imposition of special conditions under s 94 of the Sentencing Act. Section 94 provides:94 Variation of release conditions(1) An offender who is subject to conditions imposed under section 93, or a probation officer, may apply for an order under subsection (3) of this section.(2) Section 72 applies with any necessary modifications to an application under this section.(3) On an application under subsection (1), the court may, if it thinks fit,—(a) suspend any condition or vary the duration of any condition, or impose additional conditions; or5 R v Mitchell [2015] NZDC 23977.6 See Parole Act 2002, ss 29(2) and 29AA.7 Mitchell v R [2016] NZCA 299, [2016] NZFLR 487.8 See Sentencing Act 2002, ss 93 and 94.9 Mitchell v R [2016] NZCA 331.(b) discharge a condition and substitute any other condition described in section 93 that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.(4) The court must not vary any existing condition, or impose any new condition, of a kind referred to in section 93(4) (which involves prescription medication) unless the offender—(a) has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of any variation or new condition in relation to the medication and any known risks; and(b) consents to taking the prescription medication.(5) If an application is made under this section for the suspension, variation, or discharge of any condition, a probation officer may suspend the condition until the application has been heard and disposed of.[11] On 29 July 2016 Judge Rowe granted that application, with full reasons provided on 10 August 2016.10[12] On 2 August 2016 Ms Mitchell filed an appeal against Judge Rowe's decisionin this Court, but it was not accepted for filing. Ms Mitchell was told the appeal had been rejected because she had already exercised her right of appeal against sentence.[13] On 8 August 2016 Ms Mitchell filed an appeal against Judge Rowe's decisionin the High Court. The Department filed a memorandum in response, submitting there was no right of appeal against the imposition of conditions. The High Court indicated that a decision would shortly be issued in Patterson, which would resolve that jurisdictional point. On that basis the appeal was not progressed until after release of the Patterson decision on 31 January 2017.[14] In the meantime, the Department identified Ms Mitchell as a person affected by the decision of the Supreme Court in Booth v R which concerned the interpretation of the statutory scheme for sentence calculation.11 Booth required the Department to take a different approach to the calculation of sentences in some cases where offenders had spent time in custody pre-trial. For Ms Mitchell it meant10 SR conditions judgment, above n 1.11 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.that the Department should have counted against the sentence imposed by Judge Kelly in December 2015 a further 281 days she had spent in custody on remand on another prosecution. This is because at the time that the prosecution the subject of these proceedings was commenced, the earlier prosecution remained on foot. All pre-sentence detention accumulated in respect of the earlier prosecution therefore automatically accumulated in respect of the prosecution the subject of these proceedings.[15] Accordingly, the Department filed a memorandum in the High Court on 27 October 2016 in respect of the status of Ms Mitchell's sentence. The Department accepted that the special conditions imposed by Judge Rowe were no longer of any practical effect as, on application of the reasoning in Booth, they had in fact expired before they were even imposed.[16] On 12 April 2017 Williams J ruled in respect of Ms Mitchell's appeal filed inthe High Court that, if there was jurisdiction to appeal the imposition of special release conditions under s 94 of the Sentencing Act, the Court of Appeal was the first appeal court.12 Ms Mitchell therefore filed the present appeal.[17] Although initially non-committal in correspondence with Ms Mitchell, in this Court the Department agreed that the sentence expiry date was 2 December 2015.Does s 296 of the Criminal Procedure Act apply?[18] The ability to appeal under s 296 depends on a number of factors:(a) the applicant must have been charged with an offence;(b) the applicant must identify a question of law;(c) the question of law must arise in a ruling by the trial court;12 Mitchell v Department of Corrections [2017] NZHC 737.(d) the ruling must have been given in a proceeding that relates to or follows the determination of the charge, or in the determination of the charge;(e) the question of law must not arise from a jury verdict; and(f) the question of law must not already have been the subject of a pre-trial appeal.[19] We are satisfied that those requirements are met in this case:(a) Ms Mitchell had been charged with an offence;(b) the proposed question of law is whether there was jurisdiction for Judge Rowe to impose the release conditions on 29 July 2016;(c) the trial court was the District Court, in which Judge Rowe's decisionwas made;(d) Judge Rowe's decision followed the determination of the charge;(e) the question of law does not arise from the jury verdict; and(f) the question of law was not the subject of a pre-trial appeal.[20] Ms Mitchell is out of time for the bringing of such an appeal. The Department does not oppose an extension of time, given that it is procedural complexity that has led to the delay and the delay is not attributable to Ms Mitchell. An extension of time to apply for leave to bring this appeal is therefore granted.[21] Although the Department does not oppose an extension of time, it nevertheless opposes the grant of leave. It says the issue is moot because, on any view, the release conditions imposed by Judge Rowe have long since expired.[22] In general, appellate courts are cautious before exercising their discretion to hear an appeal where the decision will have no practical effect on the rights of the parties before the court because there is no live issue between them. However, circumstances may warrant an exception to that general approach, provided the court has jurisdiction.13 In R v Gordon-Smith the Supreme Court explained the reasons for the reluctance to hear appeals where there is no live issue between the parties:[18] The main reasons for the general policy of restraint by appellate courts in addressing moot questions are helpfully identified by the Supreme Court of Canada in Borowski v Canada (Attorney-General).14 They are, first, the importance of the adversarial nature of the appellate process in the determination of appeals, secondly, the need for economy in the use of limited resources of the appellate courts and, thirdly, the responsibility of the courts to show proper sensitivity to their role in our system of government. In general advisory opinions are not appropriate.[23] None of those considerations is engaged in this case. First, the issue that Ms Mitchell wishes to be addressed is one of considerable importance to her and is also of wider public significance. Generally the effect of post-release conditions is restrictive in some way. The conditions imposed by Judge Rowe included a requirement that she reside at a particular address. Ms Mitchell was arrested and remanded in custody in respect of a breach of those conditions. Mrs Brook makes the point that Ms Mitchell was also arrested, charged and detained in respect of breach of bail conditions which mirrored those special conditions. That may be so, but the fact remains that Ms Mitchell was arrested, detained and initially charged with breach of the special conditions. She should be entitled to pursue her allegation that the conditions were not lawfully imposed.[24] It is now common ground that Ms Mitchell was not subject to the conditions as they had, on any view, expired. But there is an additional issue — whether there was even jurisdiction to impose them. In this case, the ruling will have practical significance between the parties. In other courts, Ms Mitchell has brought proceedings against the Department and at least one of those proceedings involves the allegation that she was subject to unlawful detention through the imposition of these special conditions. The proper interpretation of s 94 also has significancebeyond the facts of Ms Mitchell's case.13 See R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [16].14 Borowski v Canada (Attorney-General) [1989] 1 SCR 342 at 358–363.[25] We are therefore satisfied that leave should be granted as the issues that Ms Mitchell wishes to pursue on appeal are of significance between the parties and are of broader significance.The merits of the appeal: was there jurisdiction for Judge Rowe's decision?[26] The jurisdictional issue arises because, following the decision of the Supreme Court in Booth, once this Court re-sentenced Ms Mitchell following her successful appeal, a proper calculation applying Booth meant that sentence had expired on the date it was initially imposed — 2 December 2015. Of course, the decision in Booth was released some time later than that date.[27] Section 93(2) of the Sentencing Act provides that if a court sentences an offender to a term of imprisonment of more than 12 months but not more than 24 months, the standard release conditions apply to the offender until the sentence expiry date unless the court specifies a different date. Under s 93(2)(b) the court may also impose any special conditions on the offender. Section 93(2A) provides in effect that the last date upon which a court may specify that standard conditions expire is six months after the sentence expiry date. Section 93(2AB) provides: "Ifthe Court imposes special conditions on an offender, the special conditions may apply for as long as, but no longer than, the standard conditions apply to theoffender".[28] Ms Mitchell's case is simple. Because her sentence had expired inDecember 2015 and the six-month period during which special conditions could apply under s 93 had expired in June 2016, Judge Rowe had no jurisdiction to impose special conditions in July 2016.[29] Mrs Brook, however, submits that the wording of s 94 suggests that there is no time limit on an application by the Department. The Department says that while it is clear from s 94(1) that an offender can only apply under s 94 if subject to conditions imposed under s 93, a close reading of s 94(1) also makes clear that there is no such temporal limit in respect of an application brought by a probation officer. Unlike s 93, s 94 imposes no time limit on the court's jurisdiction to imposeconditions.[30] The Department may be right that there is a distinction to be drawn between an application by an offender and an application by a probation officer — the offender must be subject to conditions before an application can be made but a probation officer may make an application in respect of an offender who is not subject to conditions. But this is no more than to state the obvious. There would be no need for an offender to make an application under s 94 unless subject to conditions. But a probation officer may wish to make an application in respect of an offender who is subject to a short term of imprisonment of 12 months or less where no conditions, standard or special, have been imposed upon that offender. That distinction does not therefore support a reading of s 94 to the effect it confers jurisdiction on a court to impose conditions more than six months after the sentence expiry date — the outer limit stipulated in s 93.[31] We consider that the proper reading of s 94 is that it is subject to s 93. Section 93 creates a general scheme for the imposition of conditions and s 94 allows for variation of those conditions. On that reading, s 94 is subject to the time limits imposed by s 93(2A) and (2AB). We think that is the only available reading, as any other reading would enable a court to impose restrictive conditions upon people for an unlimited period of time following the expiry of their sentence. That interpretation is simply implausible.[32] We therefore reject the Department's submission that the effect of the sentence calculation error was simply that the conditions imposed by Judge Rowe had no effect, but that he had jurisdiction to impose them. The conditions were imposed without jurisdiction. We should make clear, however, that Judge Rowe imposed those conditions before the release of the Supreme Court decision inBooth v R and therefore was operating under the mistaken belief that the sentence expiry date was much later than it actually was. It had previously been thought to be 30 July 2016.Result[33] An extension of time in which to apply for leave to appeal is granted. Leave to appeal under s 296 of the Criminal Procedure Act is granted.[34] The question of law raised on appeal is answered as follows: "There is nojurisdiction to impose special release conditions under s 94 of the Sentencing Act 2002 beyond the time limits imposed by s 93 of that Act. Accordingly, Judge Rowe had no jurisdiction to impose special conditions on Ms Mitchell on 29 July 2016when the relevant sentence expiry date was 2 December 2015."[35] Therefore Ms Mitchell's appeal must be allowed.Solicitors:Crown Law Office, Wellington for Respondent