GENGE v SUPERINTENDENT OF CHRISTCHURCH MEN'S PRISON [2015] NZHC 1523

GENGE v SUPERINTENDENT OF CHRISTCHURCH MEN'S PRISON [2015] NZHC 1523 [2 July 2015]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2015-409-425[2015] NZHC 1523BETWEEN RICHARD LYALL GENGEApplicantAND SUPERINTENDENT OFCHRISTCHURCH MEN'S PRISONDefendantHearing: 1 July 2015Appearances: Applicant in personC Lange for the CrownJudgment: 2 July 2015JUDGMENT OF MANDER J[1] Mr Richard Genge has made application for a writ of habeas corpus. On 15 April 2015, I declined an earlier application which was based upon a submission that because s 143 of the Criminal Justice Act 1985 had been repealed there was no longer any valid warrant of commitment for imprisonment, and he should be released immediately.1 His appeal to the Court of Appeal was dismissed and his application for leave to appeal to the Supreme Court declined.2[2] As recounted in my earlier judgment, Mr Genge was convicted in October 1995 on one count of murder and one count of sexual violation by rape. He was sentenced to life imprisonment, with a minimum period of imprisonment of 15 years on the charge of murder, and a concurrent term of 12 years for the rape charge. On 25 October 1992, the same day as his sentencing, a warrant of commitment was issued.1 Genge v Superintendent of Christchurch Men's Prison [2015] NZHC 705 [Genge (HC)].2 Genge v Chief Executive of the Department of Corrections [2015] NZCA 157 [Genge (CA)];Genge v Chief Executive of the Department of Corrections 2015 NZSC 88 [Genge (SC)].[3] Mr Genge's current application is based on what he describes as the wrongfulapplication of s 28 of the Parole Act 2002, which he submits violates ss 7, 17 and 18 of the Interpretation Act 1999. It provides:28 Direction for release on parole(1AA) In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender's eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.(1) The Board may, after a hearing at which it has considered whether to release an offender on parole, direct that the offender be released on parole.(2) The Board may give a direction under subsection (1) only if it is satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community or any person or class of persons within the term of the sentence, having regard to—(a) the support and supervision available to the offender following release; and(b) the public interest in the reintegration of the offender into society as a law-abiding citizen.[4] Mr Genge submitted in reliance on s 7 of the Interpretation Act 1999, that as enactments do not have retrospective effect, and the Parole Act was enacted after the date of his sentence, it did not have application to his case. Further, in reliance upon s 6 of the Sentencing Act 2002 and s 25(g) of the New Zealand Bill of Rights Act 1990 that he could not be subject to a greater penalty as a result of changes resulting from the enactment of the Parole Act in 2002. He sought to rely on the judgment of Elias CJ in Morgan v Superintendent, Rimutaka Prison.3[5] Mr Genge argued that the threshold for parole under s 28 of the Parole Act is more onerous than under the Criminal Justice Act. Section 104 of the Criminal Justice Act provided:3 Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1.104 Matters to be considered when determining release on paroleIn determining, pursuant to section 97 and section 100 of this Act, whether to release an offender on parole, the Parole Board or District Prisons Board shall consider the need to protect the public or any person or class of persons who may be affected by the release of the offender, and shall also consider the following matters:(a) Generally, the likelihood of the offender committing further offences upon his or her release:(b) The welfare of the offender and any change in his or her attitude during the sentence:(c) The nature of the offence:(d) In the case of an offender who is subject to an order for recall or an offender in respect of whom a direction for return has been made under section 94(6) of this Act, the reasons for the order or direction, as the case may be:(e) The policy directions (if any) given by the Minister under section 98 of this Act.[6] Seeking to draw on the Chief Justice's approach in Morgan v Superintendent, Rimutaka Prison, Mr Genge submitted he could not retrospectively be subject to any additional penalty or punishment than he would otherwise have been subject under the Criminal Justice Act.4 However, Morgan v Superintendent, Rimutaka Prison is in fact authority against the proposition upon which he relies.[7] Mr Morgan, the appellant in that case, was serving a sentence of three years imprisonment imposed after his conviction for cultivating cannabis in November 2002. Between his arrest and trial, the Criminal Justice Act, which then governed both sentencing and release, was repealed and replaced with the Sentencing Act and the Parole Act. Under the Criminal Justice Act, Mr Morgan would have been entitled to release on conditions after serving two-thirds of his sentence. Under the Parole Act, those sentenced to imprisonment for determinate terms longer than 24 months are not entitled to release until the full term of their sentence has expired, although they are eligible for earlier release at the discretion of the Parole Board, as they were under the Criminal Justice Act.4 [1]-[27] per Elias CJ.[8] Elias CJ held that adverse changes in release entitlements before sentence expiry did amount to an increase in penalty, and Mr Morgan was now subject to a heavier penalty under the Parole Act. As a result, the Chief Justice considered that under s 6 of the Sentencing Act, Mr Morgan was entitled to the benefit of the lesser penalty in place at the time of the offence, and that s 6 preserved his right to bereleased on his "final release date" calculated in accordance with the Criminal Justice Act.[9] Leaving to one side the distinguishing fact Mr Morgan was subject to a finite sentence, whereas Mr Genge is subject to an indeterminate sentence, the majority of the Court did not agree with the Chief Justice's analysis.5 Section 6 of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act are directed to variations in the penalty for an offence, not to a particular penalty imposed on an individual offender. The sentence to which Mr Genge is subject, namely life imprisonment, has remained unchanged. The Parole Act is directed at the consequences of the imposition of sentences of imprisonment on offenders and the processes to be applied when determining parole. No retrospectivity arises.[10] Mr Genge's submission has echoes of those he made before the Court ofAppeal in respect of his earlier application for a writ of habeas corpus. As noted bythe Court of Appeal in delivering judgment on Mr Genge's appeal, the conclusionreached in Morgan v Superintendent, Rimutaka Prison was that the provisions prohibiting retrospectivity to the disadvantage of an offender were directed to the variations in the maximum applicable penalty and not to the particular penalty applying to the individual offender.6[11] I understand Mr Genge is eligible for parole and has been considered for parole on a number of occasions. His argument is focussed on the application of the appropriate provisions to be applied to the assessment of his parole. Whatever argument or complaint Mr Genge may have regarding the way in which his parole5 At [28]-[35] per Gault J, at [36]-[80] per Blanchard J, at [81]-[107] per Tipping J, at [108]-[121] per Henry J.6 Genge (CA), above n 2, at [18], citing Morgan v Superintendent, Rimutaka Prison, above n 3, at [29], [57], [77] and [86]; Wilson v Parole Board [2010] NZCA 569, [2010] 3 NZLR 399 at [42]- [45].has been considered, they cannot presently affect his status as a sentenced prisoner; nor can they affect the validity of the warrant of commitment issued as a result of being sentenced to life imprisonment.[12] The Supreme Court, when dismissing Mr Genge's leave application referredto concerns he raised regarding his parole. The Supreme Court observed that his present proceeding did not provide an appropriate context for consideration of parole issues.7 I interpret the Supreme Court's comment as a reference to the disconnectbetween issues of parole, the remedy sought, and the unsuitability of the summarynature of the habeas corpus procedure. Even if there was some merit in Mr Genge'ssubmission (which I do not consider there is), he would not be entitled to a writ of habeas corpus ordering his release from detention.[13] The observations of the Court of Appeal in Ericson v Department of Corrections are apposite:8[4] The short answer to Mr Ericson's appeal is that no proper basis for habeas corpus has been advanced. There is no suggestion that, having beenconvicted of murder and sentenced to life imprisonment, Mr Ericson'sdetention in prison is unlawful. It is clear from s 14(1) of the Habeas Corpus Act 2001 and the decision of this Court in Bennett v Superintendent, Rimutaka Prison that the writ of habeas corpus is to be used only where it is sought to release someone entirely from unlawful custody. The writ is not appropriate for challenging the lawfulness of a conviction or the conditions under which an inmate sentenced to imprisonment is detained.[5] Unless and until Mr Ericson's conviction is set aside, it remainsvalid at law and, where, as here, a sentence of imprisonment has been imposed, the warrant authorising that imprisonment remains in force. The Prison Manager is not only authorised to detain Mr Ericson for the duration of that sentence he or she is also legally obliged to do so under the Corrections Act 2004.[14] Under s 14(1A) of the Habeas Corpus Act, this Court may refuse an application for the issue of the writ without requiring the defendant to establish that the detention is lawful if satisfied that an application for the issue of the writ is not the appropriate procedure for considering the allegations made by the applicant. I do not consider the present application is the appropriate procedure.7 Genge (SC), above n 2, at [3]-[4].8 Ericson v Department of Corrections [2014] NZCA 118, [2014] NZAR 540 (citations omitted), referring to Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA); Corrections Act 2004, ss 37 and 38.[15] Mr Genge is subject to life imprisonment and he has no entitlement under either the Criminal Justice Act or the Parole Act to release on parole. He can only be released from detention as a result of a decision by the Parole Board. A prisoner subject to an indeterminate sentence may become eligible for parole after the expiry of any minimum period but he or she has no release date. That was the position under the Criminal Justice Act and remains the position under the Parole Act.9[16] In any case, I have sighted a copy of the warrant of commitment whichplainly establishes that Mr Genge's detention is lawful. Accordingly, Mr Genge'sapplication must fail.Solicitors:Crown Law, WellingtonRaymond Donnelly & Co, ChristchurchCopy to Applicant9 Parole Act 2002, s 86(3).