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WILSON V THE ATTORNEY-GENERAL AND ORS HC AK CIV-2005-404-6010 [2006] NZHC 329 (31 March 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CIV-2005-404-6010



                BETWEEN                  AARON PAUL WILSON
                                         Applicant

              
 AND                      THE ATTORNEY-GENERAL
                                         First Respondent

                AND   
                  COMMUNITY PROBATION SERVICE
                                         Second Respondent

                AND   
                  NEW ZEALAND PAROLE BOARD
                                         Third Respondent


Hearing:        9 February
2006

Counsel:        Applicant in person together with J Crompton as McKenzie Friend
                V C Sim and T M A Luey for
Respondents

Judgment:       31 March 2006


                       JUDGMENT OF BARAGWANATH J




Solicitors:
Crown Law Office, Wellington

Copy to:
Mr A P Wilson


WILSON V THE ATTORNEY-GENERAL AND ORS HC AK CIV-2005-404-6010 31 March 2006

[1]    The issue of the construction
of the legislation is by no means simple.
Mr Wilson, who appeared in person with the assistance of Ms Crompton, advised
that he felt
out of his depth in representing himself. I accordingly proposed that
I should issue a draft judgment giving the parties a fortnight
to make their responses
to it in writing. They agreed that that course should be followed. I have considered
the Crown's response.
Mr Wilson has not replied to it.


Factual background


[2]    Mr Wilson seeks an order of habeas corpus in respect of his detention
in
Auckland Prison. The chronology is as follows:

       27 April 2001 Sentenced to five years imprisonment.

                 
    Sentence Expiry Date under s 2 Criminal Justice Act
                      1985 is 4 July 2005 (5 years less 296 remand days).

       6 March 2002 One-third of sentence served: Eligible for parole
                    (s 89(3) Criminal Justice Act 1985).

       30 June 2002 Parole Act 2002 comes into force.

       5 Nov 2003     Two-thirds of sentence served (s 90(1)(b) Criminal

                     Justice Act 1985).

                      Parole subject to conditions imposed by New Zealand
             
        Parole Board (ss 103, 104(1), 104(5) and 105(1) Parole
                      Act 2002).

       24 March 2004 Recalled under
s 66 Parole Act for breach of parole
                   conditions.

                      Post-recall sentence expiry date is 9
July 2005 (original
                      sentence expiry date plus 5 days-being the days
                      between recall application
and return to custody:
                      s 94(b) Parole Act 2002).

       18 June 2004 Sentenced one year cumulative on five
years. Deemed
                    to be serving "notional single sentence of 6 years (s 75
                    Parole Act 2002).

       9 July 2006    Sentence expiry date of notional single sentence (post-
                      recall sentence expiry date
plus one year cumulative: s
                      82 Parole Act 2002).

[3]    Mr Wilson had been sentenced on 27 April 2001 to
concurrent sentences of a
maximum of five years, in respect of which 296 days on remand is to be taken into
account.


[4]    Until
30 June 2002 Mr Wilson's sentence was regulated by the Criminal
Justice Act 1985 ("CJA"). But on that date the Parole Act 2002 ("PA")
came into
force. Each is of relevance to this case.


[5]    On 5 November 2003 after serving two-thirds of his original five year
sentence, Mr Wilson was released on parole subject to certain conditions.


[6]    Early in 2004 while he was on parole Mr Wilson
committed further offences.
On 24 March 2004 the New Zealand Parole Board made a final recall order on the
ground that he had failed
to comply with the conditions of his release.
On 18 June 2004 he was sentenced for further offending to concurrent sentences of
one
year which were to be served cumulatively upon the five year sentence.


[7]    On 25 October 2005 Mr Wilson made an application for a writ of habeas
corpus and applied in the alternative
for judicial review and interim relief in respect
of his detention.


[8]    The alternative claim advances administrative law challenges
to certain
actions of the Department of Corrections and the New Zealand Parole Board. It is
not appropriately the subject of a habeas
corpus application and in accordance with
Manuel v Superintendent of Hawkes Bay Regional Prison  [2005] 1 NZLR 161, it
will be dealt with, if pursued, following a telephone conference at a date and time to
be fixed by the Registrar.


[9]    The
principal argument in support of the application for a writ of
habeas corpus is that of s 90 of the CJA headed "Final Release". It
provided:

       (1)     Subject... to subsection... (4) of this section, an offender shall be
               released­

      
        ...

                (b)     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:...

       (4)...   where an offender has been recalled or a direction for the return of
                an offender has been made under section 94(6) of this Act, the
                offender shall be released not later
than 3 months before the sentence
                expiry date.

[10]   Mr Wilson submits that he was entitled to be released from
detention after
serving two-thirds of his sentence and any recall could only be to serve the balance
of two-thirds of his sentence
as opposed to the entire sentence.


History of the application


[11]   Having been filed on 27 October 2005 the application was
set down for a
hearing before Goddard J the following day. Such prompt attention to the matter is
consistent with the direction of
s 9 of the Habeas Corpus Act 2001 that an
application for a writ of habeas corpus must be given precedence over all other
matters
before the High Court and that Judges and employees of what is now the
Ministry of Justice must ensure that every application is
disposed of as a matter of
priority and urgency.


[12]   Nonetheless the proceeding was successively adjourned to 2 November 2005,
to a telephone conference on 23 November 2005 and to a fixture on
1 December 2005, when Mr Wilson applied successfully for an adjournment
because
of Mr Wilson's hope that he would be released by the Parole Board to enable his
acceptance by Odyssey House and their programme.
That did not occur and the
application was called before me on 9 February 2006. Mr Wilson made a further
application for adjournment
on similar grounds.


[13]   In view of the stringent requirements of the Habeas Corpus Act, I indicated
reluctance to adopt that
course. Ms Sim indicated her preference to proceed. Since
the onus is on the Crown to justify its detention and to enable Mr Wilson
to
understand the nature of the Crown case, I invited Ms Sim to begin her argument.
It lasted most of the morning during which period
Mr Wilson, with the help of

Ms Crompton, offered several helpful observations which indicated a fair
understanding of the issues.


[14]   But at the conclusion of the Crown case he advised that as a layman he felt
unable to present his response to the Crown
case effectively. Given the difficulty
experienced by the Court of Appeal in analysing the 1985 Act in Attorney-General v
Manga 
[1999] 1 NZLR 129 where further argument was required I expressed
sympathy for Mr Wilson's position and proposed that I should follow the English
practice
of providing the parties with a draft judgment and a reasonable opportunity
to make written submissions in response. Mr Wilson and
Ms Sim agreed to that
course. Accordingly on 23 February a draft judgment was issued and on 3 March
I received the Crown submissions.
There has been no response from Mr Wilson.


Discussion


[15]   The commencement date of the initial sentence was not defined by
the CJA.
However s 78(1) CJA provides subject to certain provisions that "the term of every
full- time custodial sentence shall commence
on the day on which the sentence was
imposed". In this case it is 27 April 2001. The sentence expiry date of this original
sentence
is defined in s 2 as the date on which the term of the sentence imposed by
the Court ends. The sentence expiry date of Mr Wilson's
original sentence was
4 July 2005 after deducting the 296 remand days.


[16]   By s 89(3) CJA Mr Wilson was eligible to be released
on parole after the
expiration of one-third of that sentence, namely on 6 March 2002 (in the subsection
the expression "is eligible
to be released on parole" is plainly to be construed as
"eligible to apply to the Parole Board to be so released").


[17]   The
concept "final release date" was defined by s 2 CJA as meaning:

       ...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 that sentence.

[18]    The relevant parts of s 90 have been produced ([9] above).              It may be
observed
that the expression "final release" can be, and in the present case is, a
misnomer. Given the power of recall it is in truth only
provisional. Sensibly the PA
no longer uses the expression "final release" except in reference to sentences
imposed before the PA
came into effect.


[19]    Mr Wilson's release on 5 November 2003 was on his "final release date".
But, as the definition of that
term contemplates, the finality was subject to the recall
provisions. As was observed by Henry J in Morgan v Superintendent Rimutaka
Prison  [2005] 3 NZLR 1, 44 [115]:

        (4)     The right to release given by s 90(1)(b) was far from unfettered. It
        was conditional and subject
to recall. Importantly, although described in
        argument as mandatory, s 90(1) was subject to a number of statutory
      
 provisions, which had the potential to override the right to release.

[20]    The allusion is to the series of sections including
ss 101(2), 107A and B,
107F and 107I of the CJA. These respectively provide that the District Prison Board
or the Parole Board shall
determine the nature and duration of conditions to which
the offender shall be subject on release; a requirement that a person released
on
parole should be subject to conditions; recital of the standard conditions; provision
that every offender released on parole shall
be issued with a licence setting out the
conditions of release including his liability for recall; and the authority of the
Chief
Executive of the Department of Corrections to make an application to the
Parole Board for an order that the offender be recalled
to continue serving his
sentence. The Parole Board's power to order recall is contained in s 107L of the
CJ A.


[21]    By s 90(4)
of the CJA a recalled prisoner was to be released not later than
three months before the sentence expiry date (4 July 2005), namely
4 April 2005.


[22]    Section 103 to 105 PA preserves an offender's final release date under the
CJA, for the purpose of release,
parole and recall provisions in the PA. It is noted
that Mr Wilson was released on his final release date of 5 November 2003 as
provided
under s 104 (1) PA.

[23]   In summary, notwithstanding the infelicity of the expression "final release
date" the legislative scheme
is plain that 5 November 2003 in this case was in truth a
provisional final release date and that the final release date (as it was
called in
argument) was in fact 4 April 2005. Insofar as Mr Wilson's argument contends that
he could be recalled only for a period
expiring on 5 November 2003, the argument is
untenable for the reason just given.


[24]   There remains for consideration the effect
of the enactment of the PA on
30 June 2002 and Mr Wilson's cumulative one year sentence imposed on
18 June 2004.


[25]   The PA
provides in Part I for "parole and other release from detention".
Subpart I contains sections dealing with the purpose and interpretation
of the PA.
Subpart II deals with release and includes recall. Subpart III deals with sentence
calculation.


[26]   Section 4 contains
the definition of "pre-CD sentence" as meaning a sentence
of imprisonment that is imposed before the commencement date of the PA.
It maintains a definition of "final release date" as meaning the final release date of a
pre-CD sentence or the final release date
of an offender who is subject to a pre-CD
sentence as determined under the CJA and varied, as in the present case, under s 106
of
the PA. Parliamentary counsel has found it necessary to maintain the use in such
cases of the unhappy concept of a "final release
date" that is not final but
provisional.


[27]   The "release date" (as distinct from "final release date") is defined by s 2 PA
as the date on which the offender who is subject to the sentence ceases to be liable to
be recalled to continue serving that sentence
in a penal institution. The "statutory
release date" is defined by s 2 as the date on which an offender who is subject to one
or
more sentences of imprisonment ­


       a)       must be released from detention; and

       b)      ceases to be liable to be
recalled to continue serving any sentence in a
               penal institution.


[28]   "Sentence expiry date" means the date on
which the offender has served the
full term of the sentence and therefore ceases to be subject to it.


[29]   Section 60(2) PA empowers
the Chief Executive to make a recall application
to the Parole Board in respect of any offender who has not yet reached his statutory
release date (viz. 9 July 2006) and is still on parole. A final recall order recalls an
offender to continue serving his sentence (s 66(1)).


[30]   By s 75,
if as here, after 30 June 2002 an offender is sentenced to a further
sentence of imprisonment that is directed to be served cumulatively
upon an earlier
sentence, the later sentence and the earlier sentence form a notional single sentence.
This date determines whether
the offender is subject to a long-term or short term
sentence; what non-parole period to apply when determining the offender's parole
eligibility date; and what release date to apply when determining the offender's
statutory release date.


[31]   Importantly, s
75(4) provides that a notional single sentence is deemed to be
imposed on or after the commencement date of the PA even if it contains
a pre-cd
sentence. Section 86(2) provides that the "release date" of a "long-term notional
single sentence" such as the present is
its "sentence expiry date". That means the
date on which the sentence imposed by the Court ends. This is calculated by first
adding
five days for the period between the date of the application for Mr Wilson's
recall and the date on which he was taken into custody
to the sentence expiry date of
the first sentence namely, 4 July 2005.         This takes the date to 9 July 2005.
By s 75(3) the
one year sentence is added on to that date, making the sentence expiry
date for Mr Wilson's notional single sentence 9 July 2006
(s 82(2) PA).
(The position is different for a long-term determinate pre-cd sentence which retains
as a release date, the date that
is three months before its sentence expiry date: s 87(2)
PA.)

[32]   Section 106 provides for the variation of an offender's so-called
"final release" date. If, after 30 June 2002, an offender is sentenced (as he was) to a
(second) sentence that is directed to be
served cumulatively on a pre-cd sentence, the
offender's "final release date" (in the sense of that term used in the CJA) (s 75)
is
fixed by taking the period between the final release date of the earlier sentence and
the expiry date of the that sentence (s
106(2)(b)(i) PA) and deducting that period
from the sentence expiry date of the notional single sentence (s 106(2)(b)(ii) PA).
In
Mr Wilson's case, it is calculated as follows:


       Final release date of earlier sentence (post recall): 9 April 2005 (ss 91
and
       90(4) CJA and ss 105(1) and 87(2) PA):


       Sentence expiry date of earlier sentence: 9 July 2005


       Sentence
expiry date of notional single sentence: 9 July 2006 ([29] above)


       Difference between final release date of earlier sentence
and sentence expiry
       date of earlier sentence: 3 months


       Mr Wilson's notional single sentence final release date: (9
July 2006 less
       3 months) 9 April 2006


[33]   For this long-term notional sentence "release date" and "statutory release
date" are synonymous (paras [26]-[28]).


[34]   Putting aside the administrative law issues which have not been argued, the
conditions
of s 60(2) were fulfilled in Mr Wilson's case. It follows that his current
detention is lawful and the application must be dismissed.




                                                    ___________________________
                                            
                     W D Baragwanath J