WILSON V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS CA CA22/2009

WILSON V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS CA CA22/2009 5 February 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA22/2009 [2009] NZCA 2BETWEEN STEWART MURRAY WILSON Appellant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent Hearing: 29 January 2009 Court: Chambers, Robertson and Arnold JJ Counsel: Appellant in Person B Keith and V A Cochrane for Respondent Judgment: 5 February 2009 at 9.15 amJUDGMENT OF THE COURT The appeal is dismissed. REASONS OF THE COURT(Given by Chambers J)Is Murray Wilson lawfully detained?[1] Murray Wilson is a serving prisoner. He says he should not be; he should now be free. He asserts the Department of Corrections is continuing to hold him unlawfully. To test that, he brought an application for a writ of habeas corpus. Chisholm J declined it: HC CHCH CIV2009-409-2984 16 December 2008. Mr Wilson has appealed from that decision under s 16 of the Habeas Corpus Act 2001.[2] The principal issue on the appeal is whether Mr Wilson is lawfully detained. The answer to that question turns exclusively on the correct interpretation of certain statutory provisions.The legal position at the date of sentencing[3] On 15 March 1996, Heron J sentenced Mr Wilson on a raft of counts on which a jury had found him guilty. For reasons which are not currently relevant, His Honour divided the sentences into three categories: (a) The first category involved what the judge called "pre-1986 offending". At least some of the offending in this category involved "serious violent offences", as defined for the purposes of the Criminal Justice Act 1985. (b) The second category involved post-1986 offending, with the exception of wilful ill-treatment of a particular girl. Again, at least some of the offending in this category involved serious violent offences. (c) The third category involved wilful ill-treatment of the girl. That was not a serious violent offence, as defined. [4] His Honour decided that the sentences within the first and second categories should be concurrent within each of those categories. But the sentences for the three categories should be cumulative. The lead (concurrent) sentence in the first category was a sentence of eight years' imprisonment for a rape (a serious violent offence). The lead (concurrent) sentence in the second category was ten years' imprisonment, imposed with respect to a rape count and a stupefaction count. The penalty for the third category was three years' imprisonment. Adding those together led to a sentence of 21 years' imprisonment. [5] Every person imprisoned obviously wants to know when he or she will be eligible for parole and when he or she will be entitled to final release. There was and still is a crucial difference between parole eligibility and final release; indeed, it isthat difference which has contributed to Mr Wilson's misunderstanding of his current position. We are not concerned with when (or if) Mr Wilson became eligible for parole. What matters is the calculation of his final release date. "Final release date" was defined in s 2 of the 1985 Act as "the date specified in section 90 of this Act beyond which (subject to any liability for recall under Part VI of this Act) an offender cannot be detained in a penal institution in respect of [the] sentence". [6] Section 91 places the onus of determining an offender's final release date on the Chief Executive of the Department of Corrections. He or she is required to determine that date "in accordance with sections 90 and 92". Section 92(2) provides that, "for the purposes of this Part of this Act, terms of imprisonment under cumulative sentences shall be treated as one term as provided in this section". Section 92(4) then specifies how the chief executive is to determine the final release date for "an offender who was subject to cumulative sentences of imprisonment". Essentially what the chief executive must do is take "the longest period within each link" of the cumulative sentences and add "that period to the longest periods from the other links in the cumulative chain". How one calculates "the longest period within each link" is determined by the final release dates specified under s 90. [7] So to s 90 we go. "The longest period" in the first category link was five years, four months (64 months). That was the final release date for the rape within that category. That figure is calculated by application of s 90(1)(d), which reads as follows:Where the sentence is in respect of a serious violent offence, - (i) If no minimum period of imprisonment has been imposed under section 80(4) of this Act, after the expiry of two-thirds of the sentence: (ii) If a minimum period of imprisonment has been imposed under section 80(4) of this Act, after the expiry of the minimum period specified in the order.[8] In this case, Heron J did not impose a minimum period of imprisonment under s 80(4). Accordingly, the final release date for that offence, had it stood alone, would have been two-thirds of eight years.[9] To that 64 months must be added "the longest period" from the second category punishments. That period is six years, eight months (80 months), again for the rape offence. The figure of six years, eight months is two-thirds of the ten year sentence for that rape, again calculated pursuant to s 90(1)(d). [10] Finally, one adds to those two periods (64 months and 80 months) what would have been the final release date for the third category offending. The wilful ill-treatment charge, the sole charge within this category, was not a serious violent offence. Calculation of its final release date, had it stood alone, is determined by s 90(1)(b), which reads as follows:Where the offender is subject to a sentence of imprisonment for a term of more than 12 months, not being a sentence for a serious violent offence, after the expiry of two-thirds of the sentence:[11] Therefore, had the three year third category sentence stood alone, the final release date would have been after the expiry of two-thirds of that sentence, namely two years (24 months). [12] We now return to the calculation under s 92(4). We add together those three periods: 64 + 80 + 24 = 168 months or 14 years. Mr Wilson was accordingly required to serve (subject to earlier parole) 14 years of the total sentence imposed. After making allowance for time he served in prison on remand, that meant that, had the calculation been done on the date of his sentencing, the chief executive would have been bound to inform Mr Wilson that his final release date would be 2 December 2008. [13] The chief executive would have been bound to inform Mr Wilson, however, that that did not necessarily mean he would be released by 2 December 2008. That is because, as we shall explain further below, Mr Wilson was potentially subject to a further regime under the Act which permitted, in specified circumstances, continued imprisonment beyond the final release date: s 105. Section 90 is subject to s 105: see s 90(1) and (2). If the s 105 regime were triggered, Mr Wilson might not actually be released until three months before his sentence expiry date (2 December 2015), ie 2 September 2015.The change to the law[14] In 2002, Parliament passed the Sentencing Act and the Parole Act. Section 166 of the Sentencing Act repealed Part VI of the Criminal Justice Act. The sections we have been discussing all fell within that part. But s 105(1) of the Parole Act reintroduced ss 90-92 of the Criminal Justice Act with respect to those offenders who had been sentenced to imprisonment before the Sentencing Act and the Parole Act came into force. Accordingly, the change in the law did not affect Mr Wilson's final release date. It remained 2 December 2008, as it had always been. He was neither advantaged nor disadvantaged by the change in the law. [15] Section 107 of the Parole Act effectively re-enacted s 105 of the 1985 Act. [16] Mr Wilson's final release date of 2 December 2008 has now passed. How then is it possible that Mr Wilson is still in jail? To that we now turn.Why Mr Wilson is still lawfully in prison[17] Section 107(1) of the Parole Act applies to any offender "who is subject to a determinate pre-cd sentence for a specified offence (as defined in subsection (9))". A "pre-cd sentence" is a sentence imposed prior to the coming into force of the Parole Act: Mr Wilson's sentence is, of course, such a sentence. Many, but not all, of the offences for which Mr Wilson was sentenced were "specified offences" within subs (9). This court, when considering the equivalent section to s 107 under the Criminal Justice Act, namely s 105, held that an offender was in this category if one of the offences was a specified offence; it did not matter if some were not: seeSuperintendent of "A" Prison v S [2001] 3 NZLR 768. We need cite only one paragraph from the judgment to make that point:[20] It is necessary to begin with s 105 [now s 107]. Subsection (1) provides that the section is to apply to every offender who is subject to a sentence of imprisonment for a specified offence (other than murder). The wording must include offenders who, in addition to sentences relating to a specific offence, are also subject to cumulative or concurrent sentences which are not specified sentences. [Emphasis added.][18] This makes perfect sense, of course. It would be quite illogical if an offender sentenced in respect of ten specified offences and one non-specified offence was immune from the s 107 regime while an offender sentenced in respect of one specified offence was subject to it. In any event, Parliament passed s 107 of the Parole Act with knowledge of this court's interpretation of s 105 of the 1985 Act. Parliament made no substantive change to the s 105 regime. It is to be taken therefore as approving the interpretation this court gave to the old s 105. [19] So s 107 applies to Mr Wilson. The section goes on to provide that the chief executive may apply to the Parole Board at any time before the offender's final release date for an order that the offender not be released before the applicable release date (as defined in subs (9)): see s 107(2). Mr Wilson's "applicable release date" for these purposes is 2 September 2015. In this case, the chief executive made application for an order under s 107 on 21 October 2008. The Parole Board subsequently did make a s 107 order. [20] Mr Wilson argues that the Parole Board should not have made that order because the chief executive applied too late. That is because, he argues, his final release date so far as specified offences are concerned was 2 December 2006. That is, two-thirds of the 18 years imposed in respect of the first and second category offending. [21] That is not correct, however, for the reasons earlier given. Each sentence, whether made up of cumulative or concurrent sentences, has to be treated as one term of imprisonment: see the 1985 Act, s 92(2). There is only one final release date, and that is 2 December 2008, as calculated above. Mr Wilson has erroneously calculated his final release date under s 107. Section 107 does not tell us how to calculate final release dates; that is done under ss 90 and 92. It is irrelevant under ss 90 and 92 whether any of the offending is a specified offence (as defined under s 107(9), a definition which applies only with respect to that section). [22] Section 107 of the Parole Act did apply to Mr Wilson, it being irrelevant whether all of the offences were specified offences. The chief executive's application was in time. The Parole Board did have jurisdiction to make a s 107order. Mr Wilson's continued imprisonment is justified by s 104(3)(b) of the Parole Act.Others matters[23] Mr Wilson had other complaints concerning the Parole Board hearing and Corrections' alleged failure to place before Chisholm J an affidavit of Henry Hawthorn, which had been sworn with respect to the s 107 application. These other matters have no relevance to the sole issue we are determining. Whether it was in time turns exclusively on the structure of Heron J's sentence and the applicable statute law. We are not concerned with Mr Hawthorn's affidavit, which has no relevance to what we have had to determine. Nor are we concerned in any way with whether the Parole Board's decision to make a s 107 order was justified. All we are concerned with is whether that board had jurisdiction to make such an order: it did.Result[24] Chisholm J was correct to dismiss the application for a writ of habeas corpus. We dismiss the appeal. We have expressed our reasoning in some detail as it is important that Mr Wilson, who has represented himself, should understand why his continued imprisonment is lawful. [25] Mr Wilson's continued incarceration is subject to Parole Board supervision. The s 107 decision is subject to review in June this year. It may be revoked then: see s 107(7). Section 107 orders must be reviewed by the Parole Board at least once in every six months following the making of the order: see s 107(6). Section 107 decisions are eligible for review and appeal: see ss 67 and 68.Solicitors: Crown Law Office, Wellington, for Respondent