REREKURA v PRISON DIRECTOR AT AUCKLAND SOUTH CORRECTIONS FACILITY [2021] NZHC 651

REREKURA v PRISON DIRECTOR AT AUCKLAND SOUTH CORRECTIONS FACILITY [2021] NZHC 651[29 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-002254[2021] NZHC 651UNDER THE Judicial Review Procedure Act 2016New Zealand Bill of Rights 1990IN THE MATTER OF an application for judicial reviewBETWEEN PETER REREKURAApplicantAND PRISON DIRECTOR AT AUCKLANDSOUTH CORRECTIONS FACILITYFirst RespondentWAITAKERE DISTRICT COURTSecond RespondentTHE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONS –ARA POUTAMA AOTEAROAThird RespondentHearing: 29 March 2021Appearances: Applicant in PersonE Boshier for First RespondentD Jones for Third Respondent (by AVL)Judgment: 29 March 2021ORAL JUDGMENT OF VENNING JSolicitors: Crown Law, WellingtonDuncan Cotterill, WellingtonCopy to: Applicant[1] This is an application for judicial review. At the time the application was filedMr Rerekura was a serving prisoner. In the proceedings he claimed that his sentencehad been miscalculated and that on more than one occasion he had been givenincorrect information about his release date.[2] Mr Rerekura raised a number of causes of action under the New Zealand Billof Rights Act 1990 (BORA) and also challenged the respondents' actions asunreasonable. He sought declaratory relief and immediate discharge from legalcustody.[3] Mr Rerekura has appeared to support his application this morning. He initiallysought an adjournment for three months to enable him to reflect on his position and toconsider whether he wished to pursue the proceedings further. I note that Mr Rerekurawas released from prison on 25 February 2021 following a successful appeal againstsentence. In the circumstances, and given the nature of the issues raised in theseproceedings, I declined his application for adjournment. There are a number ofjudicial review proceedings before the Court involving allegations as to the treatmentof prisoners. The Court's resources are limited. The fixture has been allocated forsome time. The Court has time to hear this application this morning. Given the changein Mr Rerekura's custodial status it is important that there be some finality in theseparticular proceedings. The hearing proceeded.[4] The background to the proceedings arises from a somewhat complicated seriesof offending and subsequent sentences imposed on Mr Rerekura. For present purposesthe starting point and the source of the confusion for a number of the parties, includingMr Rerekura, was his last sentencing hearing before Judge Glubb in the District Courtat Waitakere on 21 July 2020.1 Following a sentence indication Mr Rerekura hadpleaded guilty to three charges: one of reckless driving, one of failing to stop, and oneof aggravated assault (using a car). Judge Glubb sentenced him to seven months'imprisonment cumulative on his current sentence. He was also disqualified.[5] On 8 March 2012 Mr Rerekura had been sentenced in this Court on three setsof offending:1 New Zealand Police v Rerekura [2020] NZDC 14212.(a) first, offending against his daughter;(b) next, unlawful taking of motor vehicle; and(c) finally, what the Judge described as a spree of offending involvingmotor vehicles, aggravated robbery and other offending.[6] He was sentenced to imprisonment for nine years and six months. Theapplicant's release date for that sentence was 23 September 2020.[7] Mr Rerekura was released on parole on 17 February 2020. However, he wasrecalled because of the further offending which Judge Glubb ultimately dealt with. MrRerekura was then transferred to the Auckland South Corrections Facility on 26 April2020. Mr Rerekura says that when he was processed following his sentence hearingbefore Judge Glubb on 21 July he was told that his sentence release date was 23September 2020. The first warrant provided by the District Court was incorrect. Thatis accepted by the respondent. As explained by Mr van der Veen, a Senior AdvisorSentence Calculation officer in the Department for Corrections, the original warrantissued by the District Court tagged the sentence to run cumulatively with an offence,which was not part of the sentence imposed by this Court in 2012 of nine years, sixmonths.[8] When Mr Rerekura's sentence release date was reviewed, the error was noted,and it was recalculated to be 23 April 2020 to reflect Judge Glubb's imposition of acumulative sentence of seven months on the then current sentence of this Court. Anamended warrant was prepared by the District Court that reflected the correct date.On 20 October 2020 Mr Matelau, a Reintegration Officer, saw Mr Rerekura andexplained the correct release date to him.[9] Following the issue of these proceedings on 23 November 2020 the file wascomprehensively reviewed by Walker J at a telephone conference hearing on 21December. In the minute issued following that hearing the Judge noted Mr Rerekura'sunderstanding that in pleading guilty to the offences before Judge Glubb, heunderstood he would be released before the end of 2020. However, the Judge alsonoted at that time, with respect quite correctly, that Judge Glubb intended the sentenceto be cumulative on the existing sentences, which had an end date of 23 September2020. In those circumstances, as Walker J noted, Mr Rerekura's remedy was to seekleave to appeal the sentence out of time rather than pursue his release through judicialreview proceedings. The applicant took that suggestion up and successfully appealedthe sentence. As a result, as noted, he was released on 25 February 2021.[10] To that extent Mr Rerekura's application for relief directed at obtaining hisrelease from prison is no longer necessary. It was no longer necessary from and after25 February 2021. But in any event, at the time he filed these proceedings, MrRerekura was lawfully detained under the correct warrant. His claims under BORAbased on his detention cannot succeed.[11] Mr Rerekura's claim under s 21 of BORA was always misconceived. Thatsection has no application to his circumstances. His claim under s 22 is met by thevalid warrant for commitment and the fact his detention was in accordance with thesentence of the District Court Judge.[12] Mr Rerekura's claim under s 23(5) is also misconceived. On the evidencebefore the Court, even given the initial error, Mr Rerekura was treated appropriatelyby the authorities.[13] Finally, apart from confirming his right to pursue judicial review proceedings,which as Walker J observed, were misdirected, s 27 of the BORA has no relevance.[14] The remaining cause of action is based on an error of law and allegesunreasonableness. There was no error of law in that Mr Rerekura was at all timesdetained in accordance with the sentence of the District Court Judge.[15] In summary, while there was an apparent mistake in the first warrant ofcommitment issued by the District Court, and on Mr Rerekura's unsworn evidence, hewas advised of the incorrect release date, neither of those factors supports the reliefsought. I further note Mr Matelau's evidence of his discussions with Mr Rerekuraregarding the issue.Result[16] The application for judicial review is dismissed.Costs[17] As discussed with counsel, this may be a case where costs should lie wherethey fall.[18] However, at the request of counsel for the respondents, I reserve the issue ofcosts. If the respondents wish to pursue that issue they are to file a memorandumwithin 14 days, and Mr Rerekura can file a response seven days thereafter.__________________________Venning J