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Kopara v The Manager, Mt Eden Corrections Facility [2012] NZHC 2423 (27 August 2012)

Last Updated: 24 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4966 [2012] NZHC 2423

BETWEEN DENNIS KOPARA Applicant

AND THE MANAGER, MT EDEN CORRECTIONS FACILITY Respondent

Hearing: 27 August 2012

Counsel: M Kan for the Applicant

M Harborow for the Respondent

Judgment: 27 August 2012

Reasons: 29 August 2012

_{REASONS FOR JUDGMENT OF ELLIS J}

This judgment was delivered by me on 29 August 2012 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140

Michael Kan Law, PO Box 105228, Auckland 1143

KOPARA V THE MANAGER, MT EDEN CORRECTIONS FACILITY HC AK CIV-2012-404-4966 [27 August

2012]

[1] On 21 August 2012 Mr Kopara was sentenced in the Auckland District Court by Judge Wilson QC to 12 months’ imprisonment on six charges involving the unlawful getting into and/or taking various motor vehicles between December 2011 and January 2012. Mr Kopara is presently incarcerated at Mt Eden Corrections Facility. On Thursday 23 August he applied for relief pursuant to the Habeas Corpus Act 2001, and his application was heard by me at 2.15 pm on Monday 27 August

2012. At the end of the hearing I declined the application and said that my reasons would follow. These are my reasons.

Background

[2] On 11 January 2011 Mr Kopara was charged with:

(a) One charge of unlawfully taking a motor vehicle under s 226 of the

Crimes Act 1961;

(b) One charge of attempting to unlawfully take a motor vehicle under s 226 of the Crimes Act 1961;

(c) One charge of possession of instruments for conversion under s 227 of the Crimes Act 1961;

(d) One charge of driving while disqualified under s 32(1)(a) and s 32(4)

of the Land Transport Act 1998.

[3] These charges related to events that had occurred immediately prior to the charges being laid, ie in early January 2012. Mr Kopara was remanded in custody and has remained there since.

[4] In April 2012 another charge of unlawfully getting into a motor vehicle under s 226 was laid. A further charge, in relation to the taking of another car in December

2011, was laid in July 2012. Both these charges related to events in late December

2011. The two vehicles involved in the December offending were different from the vehicle involved in the January offending although, for reasons that will become

apparent, Mr Kan for Mr Kopara characterised what occurred in late December and

early January as one continuous offending “spree”.

[5] By the time Mr Kopara pled guilty to the first four earlier charges, the two further charges had also been laid. The sentencing hearing in relation to these first four charges was then combined with a status hearing for the two later charges. At the hearing, counsel for Mr Kopara asked the Court to give a sentencing indication on the assumption that Mr Kopara was also to plead to the two outstanding charges. Judge Wilson QC indicated that the starting point for a sentence on all charges would be between 12 and 15 months’ imprisonment. Mr Kopara subsequently accepted that indication and entered guilty pleas to the two “December” charges. Judge Wilson QC then sentenced Mr Kopara to six concurrent sentences of

12 months’ imprisonment. His sentencing notes say nothing about time Mr Kopara has already served in prison.

[6] Mr Kopara deposed, and I am inclined to accept, that his understanding when pleading guilty on the sentencing indication was that he would be released immediately, or very shortly afterwards, on account of the almost eight months that he had already spent in custody. That is because:

(a) section 86 of the Parole Act 2002 states that the release date, in relation to a short-term sentence (being a determinant sentence of 24 months or less) is the date on which the offender who is subject to the sentence has served half of it; and

(b) under s 91 of the Parole Act 2002, time spent in pre-sentence detention counts as time served towards a sentence of imprisonment that is later imposed.

[7] As I have said, Mr Kopara had spent nearly eight months in custody by the time he was sentenced (to 12 months imprisonment).

[8] Of critical importance in this case is the definition of “pre-sentence detention” contained in s 91(1):

Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a) any charge on which the person was eventually convicted; or

(b) any other charge on which the person was originally arrested; or

(c) any charge that the person faced at any time between his or her arrest and before conviction.

Counsel’s arguments

[9] In advancing Mr Kopara’s position, Mr Kan relied in particular on the recent decision of Courtney J in Maile v The Manager, Mt Eden Correction Facility, which involved similar, although not identical, circumstances to the present.[1] In that case, M was convicted and sentenced to 20 months’ imprisonment on money laundering charges; and his release date was calculated as 9 June 2012. He asserted that, based on pre-sentence detention time served, he was entitled to be released immediately

after the sentence was handed down because time spent in custody on related charges should be counted under s 91. In the course of her judgment, Courtney J noted that counsel for the Crown:[2]

... relied on the Court of Appeal’s decision in Taylor v Superintendent of Auckland Prison in which the Court, discussing s 81(1) of the Criminal Justice Act 2005, now replaced by s 91, said:

[14] The meaning of the legislation is to be ascertained from its text and in light of its purpose. As the Crown submits, the key concept is that of “the proceedings” to which the section is directed. Those “proceedings” are the ones leading to the “conviction” and subsequent “sentence” to which the calculation of what the section heading calls “period on remand ...”. It is germane. “The total period” embraces that between “charge” and the “conviction” or “sentence” under consideration; so too does “that period or any part of it”. There is no proceeding until charge; a proceeding commences with an information. Remand commences with the order of remand on the information. Any remand time served during the whole period from charge until ultimate sentence counts towards that proceeding.

[15] The options following the clause “at any stage of the proceedings leading to the person’s conviction or pending sentence”

are designed to cover the eventualities that arise in relation to an initial charge:

(1) Any charge on which the person was eventually convicted (the case of a conviction upon the original charge); and

(2) Any other charge that the person faced at any time subsequent to arrest and prior to conviction. That embraces any other remand time served whether on intermediate charges not originally brought and not subject of sentence resulting from the same series of events; and also, as held in R v Coward, remand on unrelated charges.

[16] The essential point that the remand credit is for time served between the time of the original charge and the time of sentence on the same or a related charge. The alternative would be that a prisoner earned remand credit in relation to an offence not only unrelated to the reason for the prisoner being in jail, but one of which the prisoner has not been charged; of which the commission might not be known to the authorities; or indeed the commission of which might not even have occurred.

(footnotes omitted)

[10] Then, Courtney J said:

[8] However, the present case differs, both factually and procedurally, from Taylor. First, the convictions in that case related to genuinely different offences; there was no relationship of any kind between them. Secondly, although the Court of Appeal observed that “there is no proceeding until charge; a proceeding commences with an information”,3 the procedure that was followed in this case shows that a proceeding may not necessarily commence with an information. In this case the factual basis for the money laundering charges apparently emerged during depositions and it was only following committal that the draft indictment containing the money laundering charges (not previously the subject of any charge) was prepared.

[9] The purpose of limiting credit for pre-sentence detention time to time relating to the charge on which the accused is ultimately convicted is to ensure that offences do not go unpunished through the ability of prisoners to use completely unrelated pre-sentence detention as a means of avoiding imprisonment on other charges (including, even, offences not yet committed at the time of the pre-sentence detention). This case, however, could not give rise to any objection on that score. It is clear (as Mr Whittington acknowledged) that the money laundering charges fell directly within the scope of the series of incidents on which Mr Maile was originally charged. Charges could have been laid at that earlier stage and had that been done there could have been no question that Mr Maile would have been entitled to credit for the pre-sentence detention prior to the money laundering charges actually being laid.

[10] For these reasons I do not consider that s 91(1) is to be construed as narrowly as Mr Whittington contends. The time that Mr Maile spent on

remand between 9 June and 12 October 2010 is to be treated as pre-sentence detention time.

[emphasis added] (footnotes omitted)

[11] Courtney J granted the application for habeas corpus accordingly.

[12] As I have said, Mr Kan submitted that all of the offending for which Mr Kopara was sentenced was part of a single “spree”, and thus the individual offences comprising that spree (which were of a very similar nature) could be said to be “related” in the Taylor sense. He submitted that this “relatedness” was reflected in the fact that concurrent sentences had been imposed by Judge Wilson on the basis that all the offences were (self-evidently) connected in terms of both their nature and

timing.[3]

[13] Mr Harborow’s opposition to the application was based on two central propositions.

[14] First, he said that Mr Kopara’s application involved, at its heart, a challenge to the calculation of his pre-sentence detention period under s 91 of the Parole Act, not to the legality of his detention per se. He said (and Mr Kan did not dispute) that there was, for example, no allegation that there was a defect in the warrant under which Mr Kopara had been detained. Moreover, section 92 of the Parole Act provides a separate and discrete procedure whereby an offender who is dissatisfied with the calculation of the length of any relevant pre-sentence detention to apply for a review of that calculation to the person who made the calculation. Section 92

_{further provides that if the offender is dissatisfied with the outcome of the review, he}

or she may appeal to the Court that imposed the sentence.[4] Mr Harborow said that it appeared from the judgment in Maile that s 92 had not been drawn to Courtney J’s attention.

[15] Secondly, Mr Harborow relied on the Court of Appeal’s judgment in Taylor, referred to by Courtney J in the quotation from Maile at [9] above. He referred in particular to the “key concept” of “proceedings” to which s 91 is directed and the Court’s dicta that “[t]here is no proceeding until charge; a proceeding commences with an information. Remand commences with the order of remand on that information.” He said that, applying that dicta in Mr Kopara’s case, the pre- sentence detention periods for the charges relating to the December offending only commenced when Mr Kopara was remanded in custody on the specific informations relating to those charges, ie on 26 April 2012 and 19 July 2012 respectively. He said that this analysis is further supported by s 90(2), which provides:

(2) When an offender is subject to 2 or more concurrent sentences, -

(a) the amount of pre-sentence detention applicable to each sentence must be determined; and

(b) the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.

Discussion

[16] As regards Mr Harborow’s first point, the appropriate approach was discussed and set out definitively in the Court of Appeal’s decision in Manuel v Superintendent of Hawkes Bay Regional Prison.[5] There, the Court said:

[46] Given s14(2) [of the Habeas Corpus Act 2001], Courts are not confined to jurisdictional enquiry and some consideration of the underlying questions of fact and law relevant to an applicant’s detention is clearly envisaged. Further, it is perfectly clear that the Law Commission intended, by what is now s14(2), to adopt the criticisms made by Sir William Wade of the English cases referred to in para [36] above. Against that background it would be wrong to conclude that a Court on a habeas corpus application is not entitled to examine an administrative decision which underpins the legality of the applicant’s detention. So, for these reasons, we are not able to accept the reasons given by Robertson J for his decision in Hunia although, it will be apparent, we are well satisfied that the result he reached was right.

[47] On the other hand, Parliament must have contemplated a consideration of underlying questions of fact and law only to the extent to which such enquiry is possible within the procedures provided for in the Act. The enquiry envisaged must have been one that although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would warrant making an unappealable finding against the lawfulness of the detention.

[48] The English legal debate to which we have referred has taken place in a legal context well removed from the context in which we must decide this case. There are considerable differences between the relevant procedural rules that apply in New Zealand on the one hand and in England and Wales on the other. The primary reason why there has been disquiet about the recent English decisions to which we have referred relates to the discretionary nature of judicial review proceedings, particularly the need to obtain leave to commence such proceedings and as to remedies which might be available. Our concerns are as to the capacity of the summary process invoked by the appellant to determine fairly and appropriately the important questions which are raised. In our system of administrative law, the leave of the Court to the commencement of proceedings is not required. Interim relief is available. Prompt hearings in judicial review cases are common. It is inconceivable that a Judge would refuse relief on discretionary grounds to someone who is illegally detained. In this context there seems to be no risk of injustice in requiring judicial review proceedings to be commenced in those cases in which administrative law challenges are not susceptible to fair summary determination.

[49] A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular

warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to enquire, into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.

[17] Accordingly, while there is some force in Mr Harborow’s first argument, I do not regard the validity of the warrant, the existence of the s 92 procedure and the availability of judicial review as absolute bars to the order sought. If I were persuaded that the “upstream” calculation of Mr Kopara’s pre-sentence detention period was unequivocally wrong, and that he was unassailably entitled to be released, I would have been inclined to grant the application as Courtney J did in Maile.

[18] Here, however, I think such a conclusion is far from clear. Although the two sets of charges had similarities which justified concurrent sentences, they nonetheless related to separate (albeit contiguous) periods of time and to discrete events. In Maile the same factual allegations underpinned both charges; here they do not. While each charge had underlying facts that were similar, the factual underpinning of each was not the same. Here, there were separate informations laid for each charge constituted a separate proceeding. In my view, the words of s 91 would be strained beyond recognition if I were to accept Mr Kan’s submissions in that respect.

[19] While there are other cases in which time spent in custody on remand for one charge or proceeding is taken into account when determining the length of pre- sentence detention following sentencing on another, those cases are also not similar to Mr Kopara’s. As Priestley J said in the first instance decision in Taylor:[6]

[27] R v Harris; R v Coward & Hall and R v Smith are all Court of Appeal authorities for the proposition that s 81 is not restricted to remand time spent in connection with the actual proceeding. Rather it embraces all time spent on remand between arrest on the charge under consideration and conviction and sentencing on that charge, regardless of whether the remand time related to the charge or not.

[28] There is no authority, however, for the proposition that s 781(1) extends to time spent on remand before a prisoner is charge for the particular crime in respect of which remand day credit is sought.

(citations omitted, emphasis in original)

[20] Another, subsequent, Court of Appeal decision of this kind is R v Filo.[7]

[21] Obviously, to the extent that Mr Kopara’s guilty pleas were based on a misapprehension on his part or to the extent that Judge Wilson’s sentence might, on some other basis, be regarded as manifestly excessive, there remain other avenues that may be open to him. But the basis for an application for habeas corpus was not

_{made out. For the reasons I have given it was declined.}

Rebecca Ellis J

[1] _{Maile v The Manager, Mt Eden Correction Facility [2011] NZHC 1208; [2012] NZAR 39 (HC).}

[2] At [7].

[3] Section 84 of the Sentencing Act 2002 relevantly provides that:

(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

...

(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a) the time at which they occurred; or

(b) the overall nature of the offending; or

(c) any other relationship between the offences that the court considers relevant.

[4] Section 92 relevantly provides:

(1) The person who is in charge of a prison ... (in this section referred to as a detention place)

must keep a record of -

(a) the date on which a person is admitted to the detention place on detention as referred to in section 91(2); and

(b) the total period during which the person is subsequently detained before sentence in that detention place, whether on the original charge or any other charge.

(2) After sentencing, the person in charge of the detention place (other than a police jail) must supply the offender with a copy of the record kept under subsection (1) and, if the offender disputes the accuracy of the record, he or she may apply to the person who made it to review it.

(3) A person in charge of a detention place (other than a police jail) who receives an application under subsection (2) must immediately review the record and, having reviewed it, must notify

the offender in writing of -

(a) whether the record is confirmed; or

(b) the manner in which the record is amended.

(4) If the offender is dissatisfied with the outcome of the review, he or she may appeal the review to the court that imposed the sentence ...

[5] Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161(CA).
[6] Taylor v Superintendant of Auckland Prison HC Auckland A185/02, 11 March 2003.

[7] R v Filo [2007] NZCA 20.