REPIA v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 36

REPIA v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 36 [28January 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2021-404-000053[2021] NZHC 36IN THE MATTER of ss 90 & 91 of the Parole Act 2002 and 6of the Habeas Corpus Act 2001BETWEEN TORHAN CHEVY APIANGA REPIAApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 28 January 2021Counsel: H T Rogers for the ApplicantS M Earl for the RespondentJudgment: 28 January 2021JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 28 January 2021 at 4.30pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Liberty Law, KumeuMeredith Connell, AucklandIntroduction[1] On 13 January 2012, Judge C J Field sentenced Torhan Chevy Apianga Repiato concurrent sentences of imprisonment as follows:1(a) Two years' imprisonment for dangerous driving causing injury;(b) Nine months' imprisonment for ill-treatment of a child;(c) Three months' imprisonment for breach of a protection order,possession of a utensil for cannabis, and other charges.[2] Judge Field signed a warrant of commitment for Mr Repia's imprisonment thesame day, 13 January 2021.[3] On 25 January 2021, Mr Repia filed a writ of habeas corpus challenging thelawfulness of his detention.[4] Mr Repia's application was heard on Thursday, 28 January 2020, within threeworking days of the date of Mr Repia's application, as required by s 9(3) of the HabeasCorpus Act 2001.[5] Under s 14(1) of the Habeas Corpus Act, if the defendant, in this case the ChiefExecutive of the Department of Corrections,2 fails to establish that Mr Repia'sdetention is lawful, the Court must grant a writ of habeas corpus ordering Mr Repia'srelease.[6] At the conclusion of the hearing, I dismissed Mr Repia's application and saidmy reasons would follow.1 Police v Repia [2021] NZDC 400.2 The application initially named the Prison Manager, Mount Eden Corrections Facility as thedefendant. By agreement, the Chief Executive of the Department of Corrections was substitutedas defendant at the hearing.Mr Repia's position[7] Mr Repia's position, as advanced in the application prepared by his counsel,Ms Rogers, is that by the date of his sentence Mr Repia had spent 364 days in custody.Therefore, in accordance with s 86 of the Parole Act 2002, Mr Repia's release datefrom prison was 14 January 2021, at which point Mr Repia would have spent half ofhis short-term sentence and should have been released.[8] This position is based on the proposition that the 87 days Mr Repia spent intwo drug and alcohol residential rehabilitation centres, Wings Trust and HigherGround, under a treatment programme agreed to by the Alcohol and Drug TreatmentCourt, should be taken into account in the calculation of the time Mr Repia spent inpre-sentence detention when that time is calculated in accordance with ss 90 and 91of the Parole Act 2002.[9] Mr Repia's application acknowledges that time spent in a rehabilitation facilityis not included in the definition of pre-sentence detention in s 91 of the Parole Act. Italso acknowledges that, as confirmed in guidance published by Alcohol and DrugTreatment Court, time spent in a treatment programme agreed to by that Court isrelease on bail. However, the application contends that deprivation of liberty in aresidential rehabilitation centre as directed by the Alcohol and Drug Treatment Courtfits both the definitions of custody and detention. The application also refers toobservations by Woolford J in Courtney v NZ Police3 where Woolford J appeared toaccept that time spent in residential rehabilitation centres constituted time in custody.[10] The application notes that bail to a rehabilitation centre is very restrictive and,unlike electronically monitored (EM) bail, is not subject to a statutory direction thatbail of this kind is not custody.4 The application also notes, that unlike the situationwith EM bail, the Sentencing Act 2002 does not expressly provide that time spent onEM bail is to be considered a mitigating factor on sentencing.3 Courtney v Police [2020] NZHC 1722 at [9].4 Section 30Q of the Bail Act 2000 provides that a defendant on bail with an EM condition is not incustody.[11] The application submits that the consequence of these provisions is that aperson who is directed by the Alcohol and Drug Treatment Court to spend time in aresidential rehabilitation programme through a restrictive bail condition is in a state oflegal limbo and their situation is not recognised in the Sentencing Act or the ParoleAct.[12] The application concludes that Mr Repia should be considered as havingserved half of his sentence on a pre-sentence detention basis which should include the87 days spent in residential rehabilitation and that Mr Repia should therefore bereleased from custody immediately.Chief Executive's position[13] Ms Earl, counsel for the Chief Executive, submits that the time Mr Repia spentin residential rehabilitation was time spent on bail, was not pre-sentence detention and,in accordance with s 95 of the Parole Act, cannot be taken into account under s 90 ofthat Act as time already served. Ms Earl also submits that Mr Repia was not detainedin the rehabilitation centres by court order so time spent in those centres was not pre-sentence detention and cannot be credited as time served under for the purposes ofs 90 of the Parole Act. Consequently, it would not be lawful for the Department ofCorrections to treat time spent in a residential rehabilitation facility as pre-sentencedetention and, therefore, as time served.[14] Ms Earl also submits that an application for habeas corpus was not theappropriate route to challenge the decision by the Department of Corrections to declineto take into account Mr Repia's time in a residential rehabilitation centre in itscalculation of the time Mr Repia has spent in custody. Ms Earl notes that Judge Fielddid take account of the time Mr Repia had spent in residential rehabilitation. Ms Earlsubmits that if Mr Repia considers that insufficient account had been taken of thatfactor, the appropriate course would have been for Mr Repia to appeal his sentence.[15] Ms Earl also provides a copy of the warrant for Mr Repia's commitment for asentence of imprisonment signed by Judge Field to demonstrate that Mr Repia hasbeen lawfully detained.Discussion[16] There is no dispute that Mr Repia was sentenced in the District Court on13 January 2021 to a term of imprisonment of 24 months. Ms Rogers does notchallenge the validity of the warrant for Mr Repia's imprisonment.[17] In Bennett v Superintendent of Rimutaka Prison, the Court of Appeal said:5In practice, once a prison superintendent or other official named as respondentproduces a committal warrant or other authorisation it would then benecessary for an applicant for habeas corpus to demonstrate that thedocumentation did not in fact provide a lawful justification in the particularcircumstances.[18] Mr Repia's position, as advanced by Ms Rogers in the application, is not reallythat Mr Repia has been unlawfully detained. Rather, it is that Mr Repia should havebeen released because time spent in the drug and alcohol rehabilitation programmesought to have been taken into account by the Department of Corrections as pre-sentence detention, even though time spent in such facilities is time spent on bail andthe Parole Act defines "pre-sentence detention" in terms that do not include time spentin a rehabilitation centre.[19] At the hearing, Ms Rogers acknowledged that if time spent in a rehabilitationcentre is not pre-sentence detention, Mr Repia's application cannot succeed. It becameapparent that the underlying purpose of the application was to draw attention to theobservation made by Woolford J in Courtney v Police that time in a rehabilitationcentre was time in custody. It appears Ms Rogers is concerned that, as a consequenceof that observation, District Court judges may exclude time spent in a rehabilitationcentre from consideration when sentencing because s 82 of the Sentencing Actprovides that pre-sentence detention as defined in s 91 of the Parole Act must not betaken into account determining the length of a sentence.[20] The writ of habeas corpus is directed at ensuring that persons are notunlawfully detained. It is not a lever to be used as a means of appealing the sentenceof the person in custody or to obtain judicial comment on another judge's decision in5 Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 (CA) at [70].a quite separate appeal. To that extent, Mr Repia's application was not the appropriateprocedure for considering Mr Repia's allegations and, in accordance with s 14(1A)(b)of the Habeas Corpus Act, could have been refused without requiring the ChiefExecutive to establish that Mr Repia's detention was lawful.[21] However, because both counsel provided careful and comprehensivesubmissions, it is appropriate to record the legal position as it applies to Mr Repia.[22] That position is well-stated in the submissions of Ms Earl. In brief, it is asfollows:(a) Mr Repia has been detained in custody pursuant to a warrant, thevalidity of which is not in dispute;(b) Under s 86(1) of the Parole Act, Mr Repia's release date from prison ishalf of the short-term sentence imposed by Judge Field;(c) Under s 90(1) of the Parole Act, time spent in pre-sentence detention isto be included in the calculation of time served when determiningMr Repia's release date;(d) Section 91(2) of the Parole Act defines pre-sentence detention asfollows:The types of detention that are pre-sentence detention are detentionunder an order made under section 24(2) of the Criminal Procedure(Mentally Impaired Persons) Act 2003 and detention on remandpursuant to a court order—(a) in a prison (or in a Police station in accordance with section35 of the Corrections Act 2004):(b) in a residence established under section 364 of the OrangaTamariki Act 1989, or detention in Police custody undersection 238(1)(e) of that Act:(c) in a hospital or secure facility under any of sections 23, 35,38(2), and 44(1) of the Criminal Procedure (MentallyImpaired Persons) Act 2003:(d) in a hospital or secure facility pursuant to an order under—(i) section 171(2) or 184T(3) or (4) of the SummaryProceedings Act 1957; or(ii) section 169 of the Criminal Procedure Act 2011:(e) in a hospital following an application under section 45(2) ofthe Mental Health (Compulsory Assessment and Treatment)Act 1992:(ea) in a secure facility following an application under section29(1) of the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003:(f) in a hospital under section 46 of the Mental Health(Compulsory Assessment and Treatment) Act 1992.The definition is exhaustive and does not include time spent in arehabilitation centre.(e) As is made clear in the guidance of the Alcohol and Drug TreatmentCourt, persons who agree to participate in the Court and to take part inan alcohol and drug treatment programme are on bail while they are inthe programme;(f) Section 95(2) of the Parole Act provides that, for the avoidance ofdoubt, time spent on bail is not re-sentence detention.[23] It is apparent, therefore, that the 87 days that Mr Repia spent in tworehabilitation centres may not be taken into account by the Department of Correctionswhen calculating Mr Repia's release date. As a consequence, Mr Repia has some timeto serve before he will have reached his release date.[24] Mr Repia, therefore, is not being unlawfully detained and his application isdismissed.[25] The question of whether time spent in a rehabilitation centre may be taken intoaccount when sentencing was not before me. I note, however, that because time spentin a rehabilitation centre is not pre-sentence detention, it follows that, when sentencingor otherwise dealing with an offender, a court is not prevented from taking such timeinto account as a mitigating factor in accordance with s 9(4) of the Sentencing Act.[26] As Ms Earl observed, Judge Field appears to have done so when sentencingMr Repia.6______________________G J van Bohemen J6 Above n 1, at [6].