[1] This is an appeal against a decision of Andrews J delivered on 20 November 2007 declining an application by Mr Greer for habeas corpus under the Habeas Corpus Act 2001: HC AK CIV 2007-404-6901.
[2] The primary ground of appeal is that Mr Greer’s ongoing detention in prison subsequent to his having served two thirds of his sentence is unlawful. In addition, there are other grounds that essentially relate to the Parole Board’s approach to Mr Greer’s release.

Background

[3] On 14 July 2004 Mr Greer was sentenced in the District Court at Wellington to an effective term of imprisonment of seven years for sexual offending.
[4] At the time of the relevant offending, s 90(1)(b) of the Criminal Justice Act 1985 provided that a person who was subject to a sentence of more than 12 months imprisonment (not being a sentence for a serious violent offence) must be released after the expiry of two thirds of the sentence. Release was subject to conditions and the possibility of recall. However, by the time Mr Greer was sentenced, s 86(2) of the Parole Act 2002 was in force and replaced the relevant part (Part 6) of the Criminal Justice Act. Section 86(2) provided that the release date for an offender serving a sentence of more than two years was the “sentence expiry date”, that is, the date on which the offender had served the full term and ceased to be subject to the sentence. The right to apply for parole after serving one third of the sentence remained. A special form of release was provided for offenders subject to “long term pre-cd sentences” (ss 103 and 104 of the Parole Act). A “pre-cd sentence” is one imposed before the commencement date of the Parole Act, namely, 30 June 2002.
[5] On the basis that s 86(2) applies, Mr Greer became eligible for release on parole having served one third of his sentence on 9 May 2005 taking into account 553 days of pre-sentence detention. (The calculation of the relevant period of pre-sentence detention was the subject of a decision of Laurenson J delivered on 10 February 2005: HC AK CIV 2004-404-5374.) Mr Greer has appeared before Parole Board on a number of occasions since becoming eligible for parole but no direction for his release has been made by the Parole Board to date.
[6] Mr Greer’s statutory release date and sentence expiry date are both 6 January 2010.

High Court decision

[7] Andrews J dealt with two arguments raised by Mr Greer on the basis of which he said it was not lawful to keep him incarcerated beyond the period of two thirds of his term of imprisonment.
[8] First, Andrews J dealt with the submission that ongoing detention was unlawful because his was a “pre-cd sentence” and so Mr Greer was entitled to be released at two thirds. Second, the Judge dealt with the argument that the Parole Act should not be applied retrospectively so as to ensure consistency with common law duties and with the New Zealand Bill of Rights Act 1990, particularly s 25(g). That section protects the right of a person convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing to the benefit of the lesser penalty.
[9] On the facts before Andrews J, the Judge concluded this was not a “pre-cd sentence” because Mr Greer was sentenced after 30 June 2002. The effect of this was that Mr Greer was not subject to a “mandatory release date” after serving two thirds of his sentence (at [15]). On the second aspect, Andrews J concluded that the effect of the Supreme Court decision in Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 1 was that there was no duty or requirement for the Parole Board to consider a mandatory release date in exercising their discretion to release Mr Greer (at [22]).
[10] Accordingly, the Judge concluded that Mr Greer’s continued detention was lawful.

Grounds of appeal

[11] Mr Greer’s notice of appeal sets out the following specific grounds of appeal:

(a) Failure by the Court to consider interim relief between 15 November 2007 and 20 November 2007 (the days after the hearing of his habeas corpus application in the High Court and delivery of the judgment);

(b) Failure by the Court to consider the length and conditions of detainment from May 2000 to November 2007;
(c) Failure by the Court to consider sentencing precedents and the concealment of appeals lodged;
(d) The impact of other subsequently dismissed charges on his right to be at liberty to defend the more serious charges;
(e) The fact of the appellant’s incarceration from May 2000 to August 2004 and the nature of the injuries suffered in relation to an alleged injury with intent/reckless disregard;
(f) Failure by the Court to consider detainment outside of Mr Greer’s regional area; and
(g) The convictions in respect of which the appellant is detained are the subject of appeal.
[12] In the hearing before us, Mr Greer made the following additional points.
[13] First, he argued that Morgan was distinguishable from his case because in his case sentencing was delayed and, but for those delays, his sentence would have been a pre-cd sentence.
[14] Second, Mr Greer submitted that the Parole Board erred in considering his release because the Board had not taken into account the effect of the change in the parole requirements on Mr Greer. Mr Greer was also critical of the Corrections Department in not instructing the Parole Board on such matters.
[15] Third, Mr Greer said there were problems in the approach of the Probation Services in ascertaining the validity of a release address for him.
[16] Finally, Mr Greer maintained there were difficulties for him in pursuing an application for judicial review in relation to these matters whilst in prison and that was relevant to any suggestion he should have proceeded by way of judicial review.

Discussion

[17] We agree with Andrews J that Morgan is determinative of the matter. On that basis Mr Greer’s continued detention beyond the two thirds date is lawful. Mr Greer’s assertion that he should have been sentenced earlier does not alter the legal position, namely, that the former two thirds “rule” does not apply. Mr Greer sought to rely on the fact he was treated as a special patient following an order under s 115 of the Criminal Justice Act which was discharged in September 2003. The only information we have as to the reasons for any delays in sentencing is in earlier decisions such as the decision of Laurenson J referred to above. That material does not support the suggestion of some systemic delay or fault.
[18] Apart from the submissions relating to the two thirds rule, none of the matters now argued by Mr Greer were raised in the original application for a writ of habeas corpus. That application was made on the basis of the arguments relating to the expiration of the two thirds date. In addition, as counsel for the Attorney-General points out, there is no evidence before the High Court or this Court on matters such as the conditions of detainment or as to the matters considered or otherwise by the Parole Board. It is not appropriate therefore for this Court to deal with them on appeal.
[19] As to the suggestion interim relief should have been granted, s 11 of the Habeas Corpus Act permits the High Court to make an interim order for the release from detention of a detained person pending final determination of an application for a writ of habeas corpus. No good reason is advanced or is apparent as to why the High Court should have granted interim relief.
[20] Finally, we note that the issues Mr Greer wishes to raise about the approach to be taken by the Parole Board and as to conditions of detention are more properly dealt with by way of judicial review and Mr Greer is well aware of that: Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [49] (CA) and Greer v The Parole Board at Auckland Prison (CA271/06 21 December 2006) at [7].

Result

[21] For these reasons, the appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2008/7.html