Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

Gardiner v Chief Executive Department of Corrections [2017] NZHC 1831 (3 August 2017)

Last Updated: 13 September 2017

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-000838 [2017] NZHC 1831

_{JUDGMENT OF DUNNINGHAM J}

[1] Calculating a prisoner’s release date is not always straight forward. It can be complicated when the prisoner is sentenced on multiple charges, laid at different times, and where the prisoner has been remanded in custody prior to conviction.

[2] From 2003, the Chief Executive of the Department of Corrections calculated release dates in accordance with the law as the Court of Appeal had declared it to be in Taylor v Superintendent of Auckland Prison.¹ However, recently, the Supreme Court overruled the decision in Taylor and held that the way this calculation was being done under the Parole Act 2002 was incorrect.² The consequences for some prisoners is that they have spent longer in jail than they should have because the time they have spent remanded in custody has not been

_{accounted for correctly.}

¹ _{Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA).}

2. Booth v R; Marino v Chief Executive of the Department of Corrections [2016] NZSC 127, [2017] I NZLR 223.

[3] As soon as the Supreme Court’s decision in Booth/Marino was released, the Department of Corrections arranged for the release of prisoners whose calculated date for eligibility for release had changed. Mr Gardiner was one of those prisoners. As a consequence of the Booth/Marino decision, it was identified that he was eligible for release on 24 August 2016, but he was not released until

23 September 2016, the day after the judgment issued. Accordingly, he spent

30 days longer in prison than he should have.

[4] Mr Gardiner and another prisoner, Mr Marino, filed civil proceedings claiming compensation for the periods they spent in prison beyond their calculated release date. They both applied for summary judgment on the issue of liability for their claim for false imprisonment. Simon France J held that the Supreme Court

decision meant the applicants were entitled to the order sought.³

[5] Mr Gardiner’s claim now comes before me on the issue of quantum alone. Mr Gardiner says that fair compensation for the month he was wrongfully imprisoned warrants an award of around $15,000 in damages. The Chief Executive resists that claim, relying on the provisions of the Prisoners and Victims Claims Act

2005 (“the Act”). The Chief Executive says:

(a) Mr Gardiner did not meet the requirements of s 13 of the Act which prohibits an award of compensation unless the plaintiff has made reasonable use of all the specified internal and external complaints mechanisms reasonably available to him about the act or omission in which the claim is based;

(b) compensation is not required to provide effective redress in the circumstances; and

(c) even if compensation is required, the quantum should be either nominal, or significantly less than sought by the plaintiff, taking account of the guiding considerations for awarding compensation set

_{out in s 14(2) of the Act.}

³ Marino v Chief Executive of Department of Corrections [2016] NZHC 3074, [2017] NZAR 9.

[6] In these circumstances, the issues for consideration are:

(a) Is Mr Gardiner precluded from being awarded compensation because he has not complied with s 13 of the Act?

(b) If not, is any compensation required in this case to provide effective redress having regard to the matters in s 14(2)?

(c) If it is, what award of compensation should be made taking into account the issues raised by the parties?

(d) Should interest on any monetary award run from a date earlier than the judgment?

The Prisoners’ and Victims’ Claims Act 2005

[7] There is no dispute that Mr Gardiner’s claim is a “specified” claim for the

purposes of the Act. That is because it is:⁴

(a) a claim for compensation;

(b) made by a person under control or supervision;

(c) based on an act or omission by or on behalf of the Crown; (d) affecting him as a person under control or supervision;

(e) for a breach of his rights under the Bill of Rights Act and the law relating to liabilities in tort.⁵

[8] The principle issue in this case is how the Act impacts on Mr Gardiner’s

_{entitlement to compensation for his period of wrongful imprisonment.}

⁴ _{Section 6(1).}

5. The claim for compensation is for the tort of unlawful imprisonment or, in the alternative, for arbitrary detention, in contravention of s 22 of the New Zealand Bill of Rights Act 1990.

[9] There has been limited judicial consideration of this Act, despite being enacted 12 years ago, and none of the decided cases address a claim for wrongful imprisonment of the duration which arises in the present case.

[10] The purpose of the Act is comprehensively set out at s 3. It provides:

The purpose of Subpart 1 of Part 2 is to restrict and guide the awarding of compensation sought by specified claims in order to help to ensure that the remedy of compensation is reserved for exceptional cases and used only if, and only to the extent that, it is necessary to provide effective redress.

[11] Section 11 of the Act introduces the concept of requiring a plaintiff to use specified internal and external complaints mechanisms before they can avail themselves of compensation. Section 11(a) relevantly provides:

To help to achieve its purpose, when compensation is sought from a court or tribunal by a specified claim, this subpart –

(a) ensures compensation is not awarded unless the plaintiff has first made reasonable use of the specified internal and external complaints mechanisms reasonably available to him or her; ...

[12] Section 13(1)(a) provides:

13 Restriction on awarding of compensation

(1) No court or tribunal may, in proceedings to which this subpart applies, award any compensation sought by a specified claim unless satisfied that—

(a) the plaintiff has made reasonable use of all of the specified internal and external complaints mechanisms reasonably available to him or her to complain about the act or omission on which the claim is based, but has not obtained in relation to that act or omission redress that the court or Tribunal considers effective; and

(b) another remedy, or a combination of other remedies, cannot provide, in relation to the act or omission on which the claim is based, redress that the court or Tribunal considers effective.

(2) In this section, reasonable use of a complaints mechanism means the use that the court or Tribunal considers it reasonable for the plaintiff to have made in the circumstances.

[13] The Act then goes on to identify a preference for a prisoner to be awarded redress other than compensation if that can provide effective redress. In particular, s 11(b) of the Act requires “other remedies to be used if, in the particular circumstances, they are capable, alone or in combination, of providing effective redress”. This is reinforced by s 13(1)(b) which also prevents the Court from awarding compensation if other remedies would provide effective redress.

[14] Section 14 of the Act then goes on to provide a list of matters in subsection

(2) which must be taken into account in determining both:

(a) whether compensation is required to provide effective redress; and

(b) (if it is) the quantum of an award of compensation required to provide effective redress.

Thus whether s 13(1)(b) has been satisfied cannot be looked at in isolation from the s 14(2) factors.⁶

Is Mr Gardiner barred from an award of compensation by s 13(1)(a)?

[15] The Chief Executive asserts that Mr Gardiner did not take all steps reasonably available to him to mitigate his loss arising from the unlawful extension of his sentence of imprisonment. In relation to Mr Gardiner, it says that the available internal and external complaints mechanisms were:

(a) the relevant prison’s internal complaint systems as set out in ss 151 - 155 of the Corrections Act 2004; and

(b) investigation of a complaint by a person appointed as an Inspector of Corrections under s 28 of the Corrections Act, as contemplated by ss 156 – 159 of that Act; and

(c) investigation by an Ombudsman or by an employee of the Office of the Ombudsman of a complaint under the Ombudsmen Act 1975.

[16] Furthermore, in addition to those complaints mechanisms, Mr Gardiner could have, but did not:

(a) appeal to the sentencing court against the Department of Corrections’

calculation of his pre-sentence detention;⁷ or

(b) apply for a writ of habeas corpus to test the legality of his detention

(as Mr Marino did).

[17] The Chief Executive acknowledges that Mr Gardiner says that he informed prison staff that he believed they had miscalculated his release date and that this may constitute making use of the relevant prison’s internal complaints system. However, the Chief Executive says there is no evidence Mr Gardiner made use of any of the other internal and external complaints mechanisms. The Act requires that reasonable use must be made of all internal and external complaints mechanisms before an award of compensation may be considered.

[18] While the Chief Executive accepts that:

(a) neither an Inspector of Corrections nor an Ombudsman had power to

change the calculation of Mr Gardiner’s statutory release date; and

(b) the most likely outcome of a complaint would have been that they would have agreed with the Chief Executive’s calculation of Mr Gardiner’s statutory release date, consistent with the Taylor approach,

he says there is no evidence that Mr Gardiner even turned his mind to availing himself of these mechanisms. His failure to make use of, or even consider using, these complaints mechanisms is a bar to any award of compensation.

[19] The plaintiff on the other hand says the requirement to make reasonable use of these mechanisms is based on whether it is objectively reasonable to use them. Neither the internal complaints procedures nor a reference to the Ombudsman would have been able to effect any change to the calculation of Mr Gardiner’s statutory release date. In addition, having regard to Mr Marino’s claim which had to be taken to the Supreme Court before the Taylor approach to calculating release dates was reversed, it was not reasonable to expect Mr Gardiner to have taken any other steps to challenge the calculation because the result would have been the same.

Discussion

[20] The requirement in the Act is to make “reasonable use” of all of the complaint mechanisms “reasonably available” to the claimant. I accept, as the plaintiff says, that this requires an objective assessment by the Court as to whether, in the particular circumstances of the plaintiff’s case, it was reasonable to expect him or her to use the identified complaints mechanisms.

[21] In this case, the complaint was not about acts or omissions which were factually specific to Mr Gardiner and where, if the error was pointed out, it could readily be corrected. Rather, it was that he considered the application of the law, as understood at that time, affected an injustice in his circumstances. Ms Leota, the Acting National Commissioner of Department of Corrections, acknowledged that, had Mr Gardiner filed a complaint about the sentence duration, she expected that the Inspector could recommend that the prison undertake a further calculation, but he could not determine how long the prison sentence was. Equally, if the matter had been referred to the Office of the Ombudsman, staff there would not recalculate the prison sentence, but would likely request that the Department undertake a further calculation. However, in both cases, the Department would have felt constrained to apply the calculation dictated by the Taylor decision, and would have upheld the sentence calculation.

[22] Her evidence was supported by the experience of Mr Manga, as recounted in

Manga v Attorney-General, where Mr Manga was dissatisfied with the calculation of

his release date.⁸ Despite his complaining to a prison social worker and to the Ombudsman, and lodging a grievance with a prison inspector, the Department did not modify its view on the calculation of his sentence date. His detention was only held to be unlawful following an application for judicial review.

[23] Given the Department’s calculation of Mr Gardiner’s release date was undertaken in accordance with the Court of Appeal decision in Taylor, and with established Corrections Department procedure over a 14 year period, I do not consider it was objectively reasonable to expect him to make use of the internal and external complaints procedures identified, which would have inevitably been fruitless.

[24] For this reason, I do not consider that Mr Gardiner’s claim is barred by

s 13(1)(a) of the Act, and I go on to consider the appropriate redress, if any.

Is compensation required to give “effective redress”?

[25] In deciding what remedy (or combination of remedies) is required to provide Mr Gardiner with effective redress for the 30 days additional detention he was subjected to, the Act requires the Court to take into account the matters specified at s 14(2). These are:

(a) the extent (if any) to which the plaintiff, the defendant, or both took, within a reasonable time, all reasonably practicable steps to mitigate loss or damage arising from the act or omission on which the claim is based; and

(b) whether the defendant’s breach of, or interference with, the right

concerned was deliberate or in bad faith; and

(c) the relevant conduct of the plaintiff; and

(d) the consequences to the plaintiff of the breach of, or interference with, the right concerned; and

(e) the freedoms, interests, liberties, principles, or values recognised and protected by the right concerned; and

(f) any need to emphasise the importance of, or deter other breaches of, or other interferences with, the right concerned; and

⁸ Manga v Attorney-General (1999) 17 CRNZ 18 at [17] – [22].

(g) the extent (if any) to which effective redress in relation to that act or omission has been, or could be, provided otherwise and by compensation; and

(h) any other matters the court or Tribunal considers relevant.

The plaintiff ’s submissions

[26] The plaintiff only seeks compensation to reflect the additional time he spent in prison. He does not seek to recover any other form of loss by way of hurt feelings or special damages for, say, lost income. He also does not seek any form of punitive or aggravated damages. He says the compensation sought is warranted, having regard to the matters in s 14(2), and is the minimum necessary to provide effective redress for the additional time spent in prison.

[27] In respect of the s 14(2)(a) matters, the plaintiff accepts the Department took appropriate steps to mitigate the loss as soon as the Supreme Court’s judgment was released. However, Mr Ewen attempted to explore in cross-examination of Ms Leota a suggestion that the Department should have realised that the Taylor approach to calculating eligibility for release was problematic, and that it had created injustices in some cases. He suggested that the Department therefore had both the obligation and the ability to have sought legislative change to address this at an earlier stage. Because it failed to do so, it had not taken all reasonably practical steps to mitigate loss or damage arising.

[28] In terms of the plaintiff’s efforts to mitigate loss, that is already addressed through the s 13(1)(a) enquiry. Short of taking the matter to the Supreme Court as Mr Booth and Mr Marino did, Mr Gardiner says there was no practical step which could be taken to mitigate his loss.

[29] The plaintiff does not suggest that his extended detention was deliberate or the result of actions taken in bad faith, so s 14(2)(b) is not relevant.

[30] In terms of relevant conduct, which is a consideration under s 14(2)(c), Mr Ewen rejected the submission that Mr Gardiner’s nine previous sentences of imprisonment constituted relevant conduct. Relevant conduct, in his view, must be conduct that relates to the act or omission in question. It does not invite an enquiry

into how “deserving” Mr Gardiner is to receive compensation in any more general sense. There is nothing that Mr Gardiner did which could be construed as contributing to the act or omission in question, and therefore this factor is neutral in the assessment of whether he should receive redress in the form of damages.

[31] In terms of the freedoms, interests, liberties, principles or values recognised and protected by the right concerned, Mr Ewen emphasised that the right not to be arbitrarily or unlawfully imprisoned is a fundamental right and compensation is the appropriate form of redress for that. Indeed, the right to compensation for unlawful detention is enshrined in Article 9, clause 5 of the International Covenant on Civil and Political Rights (ICCPR). It provides:

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

[32] On the question of deterrence, Mr Ewen accepted that the Department did not need to be “deterred” from interfering with the rights of other prisoners in similar situations to that Mr Gardiner was in. However, that is already reflected in the fact Mr Gardiner is not claiming for any damages beyond an award which is purely compensatory for the time he was unlawfully detained.

[33] In respect of the final factor, which is the extent to which effective redress could be provided otherwise than by compensation, Mr Ewen rejected the suggestion that Mr Gardiner’s immediate release, coupled with declaratory relief, would be adequate redress. Prompt release from prison only mitigated the loss, it did not provide redress for the 30 additional days that Mr Gardiner was unlawfully detained. Instead, given the fundamental nature of the right that has been breached, compensation that is analogous to that available under the Cabinet Guidelines for wrongful conviction and imprisonment was warranted.

The defendant’s submissions

[34] The Chief Executive’s position is that the Act has altered the common law position. The express purpose of the Act is to “restrict and guide” the awarding of compensation in such cases, to ensure that compensation is only awarded in “exceptional cases”. Bearing this purpose in mind, it is clear that Parliament

intended to modify the law on entitlement to compensation. First, access to compensation is restricted by the provision in s 13(1)(a). In addition, the Court is required to limit the cases where compensation might be awarded, having regard to the matters in s 14(2).

[35] In this case, having regard to the matters in s 14(2), the Chief Executive submits that the combination of declaratory relief with, perhaps, a nominal award of damages, would provide sufficient redress to Mr Gardiner.

[36] Mr Perkins relied on Ms Leota’s evidence to demonstrate that the Department had taken great care to ensure that, as soon as the Supreme Court’s judgment was received, it released prisoners such as Mr Gardiner who were eligible for immediate release. He rejected the suggestion that the Department should have proactively addressed this potential problem by seeking to overturn the effect of the Court of Appeal decision in Taylor by judicial challenge or legislative change, saying that was not a realistic or reasonable expectation.

[37] In terms of the relevant conduct of the plaintiff, Mr Perkins observed that the term “relevant conduct” is not defined in the Act. However, he submitted that a prisoner’s criminal history, where this has led to previous sentences of imprisonment, can be relevant conduct for the purposes of ascertaining:

(a) whether compensation is required to provide effective redress; and

(b) if it is, the quantum of award required to provide effective redress.

[38] In making this submission, he referred to Manga v Attorney-General, where Hammond J expressed the view that the impact of loss of liberty on a recidivist offender would not be as great as it would be on a person who has no criminal record.⁹ In that case, due to a misinterpretation of the law by the Department of

_{Corrections, Mr Manga’s detention was extended by 252 days. Hammond J was}

⁹ Manga v Attorney-General, above n 8.

required to fix the quantum of damages for the false imprisonment and the breach of the Bill of Rights Act. In doing so, he concluded:¹⁰

... I think account has to be taken, in a realistic way, of Mr Manga’s past transgressions. It is often said that society plays its last card when a man is sent to prison. The awfulness of the experience either has him turn a corner and he redeems himself, or the lesson is not learnt, and he may go back to prison again. Though doubtless that is still a thoroughly unpleasant and debilitating thing, the later experiences may well not “bite” in quite the same way as on the first occasion. For myself, I would not put it so high as to say that one should ever “devalue” liberty – the value is too precious for that, even at the hands of a Mr Manga. But rather, the overall impact on him (which is what the compensation is for) of a subsequent imprisonment is not so great. He is, after all, a recidivist.

[39] Thus, in Mr Gardiner’s case, where he had already served a number of terms of imprisonment, and where the arbitrary detention complained of was an extension of an existing term of imprisonment rather than a fresh sentence of imprisonment, he did not require the same level of compensation as someone who had not served any prison time at all.

[40] In terms of s 14(2)(e) matters, the Chief Executive accepted that the interest a prisoner has in obtaining personal liberty at the completion of a sentence of imprisonment is of the highest value.

[41] In response to s 14(2)(f), the Chief Executive submitted this was not a case where there was any requirement for deterrence. It is clear that at all times, the Department complied with the law as interpreted by the Courts and it has demonstrated that it is committed to calculating prisoners’ key dates accurately in accordance with the Booth/Marino judgment.

[42] In terms of whether Mr Gardiner could have effective redress by other means,¹¹ the Chief Executive submitted that the combination of the immediate restoration of Mr Gardiner’s liberty, plus a declaration marking that Mr Gardiner was falsely imprisoned and arbitrarily detained for 30 days, would provide sufficient

_{redress in these circumstances. In support of this, the Chief Executive emphasised}

¹⁰ _{At [89].}

¹¹ Section 14(2)(g).

the acknowledged potency of declaratory relief as a remedy,¹² saying that it vindicates the right breached and marks its importance.¹³

[43] Finally, the Chief Executive noted that in virtually all cases decided in favour of prisoners since the Act commenced, declarations have been made to vindicate breaches of rights rather than an award of compensation. Indeed, the only case under the Act where compensation has been awarded is where a plaintiff obtained $600 in respect of two unlawful strip searches undertaken on the same day.¹⁴ The fact that the plaintiff in that case underwent two unlawful strip searches on the same day was what made it an “exceptional case” requiring an award of compensation in addition to the declaration that the second strip search was illegal.¹⁵

Discussion

[44] There can be no doubt that, leaving aside the Act, the law would entitle Mr Gardiner to some compensatory relief for his period of unlawful imprisonment for much the same reasons as compensation was awarded in Manga. The real issue is whether, and to what extent, the Act alters the law to limit or foreclose the entitlement to compensation in cases such as this.

[45] The purpose of the Act is to “restrict and guide” the awarding of compensation “in order to help to ensure that the remedy of compensation is reserved for exceptional cases”.¹⁶ It is clear, however, that compensation is still available, if it is not precluded by the restrictions in the Act, and if it is necessary “to provide effective redress”.

[46] In my view, the primary restriction introduced by the Act is that in s 13(1)(a), which requires the plaintiff to make reasonable use of all the specified internal and external complaint mechanisms reasonably available to him or her before compensation can be sought. This puts an onus on the plaintiff to mitigate any loss

_{before resorting to the Courts for compensation and would preclude compensation in}

¹² _{Reekie v Attorney-General [2015] NZCA 198 at [22].}

¹³ _{Smith v Attorney-General [2017] NZHC 463, [2017] 2 NZLR 704 at [104].}

¹⁴ _{Forest v Attorney-General, above n 6.}

¹⁵ _{At [40].}

¹⁶ Section 3(1).

some cases where it might otherwise be available. However, I have held that in this case that s 13(1)(a) is not a barrier to compensation.

[47] Section 14(2) then sets out the matters the Court should have regard to in deciding whether compensation, or some other remedy, or combination of remedies, could provide redress that the Court considers effective.

[48] While the intention is that compensation should be reserved for “exceptional cases”, I consider this refers to “exceptional” in terms of the gravity of the breach, and not necessarily just to the rarity of the circumstances. If it were otherwise, a breach which was significant, but which was repeated, perhaps through lax practices, would not be eligible for compensation.

[49] In my view, and as was acknowledged by both parties, the importance of the right to be protected from unlawful or arbitrary detention is undisputed. It is a core right acknowledged in the ICCPR, which New Zealand is a party to. It is also a right which is expressly protected by s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA). In this case, the period of unlawful imprisonment lasted for one month. That is not a trivial or fleeting breach, but rather is a period of unlawful detention which warrants compensation simply to reflect the loss of liberty.

[50] I am satisfied that the Department took all reasonably practical steps to prevent further loss or damage once it was aware the calculation was wrong, but I consider that does not mitigate the effects of the unlawful imprisonment up to that point.

[51] It was, of course, uncontested that the Department did not act deliberately or in bad faith, and that compensation was not required to deter other breaches or other interferences with such rights. Having heard from Ms Leota, I am satisfied that the Department conscientiously administers its task of calculating prisoner release dates and did so in Mr Gardiner’s case, relying on the decision in Taylor as to the correct way to do that. Thus, no aspect of any compensation award made would need to reflect any wrongdoing on the part of the Department, or any requirement for deterrence.

[52] In my view, the key factors pointing towards an award of compensation are the consequences to the plaintiff of the breach, and the need to recognise the importance of the right concerned. These are factors which continue to be recognised under the Act and can justify an award of compensation in appropriate circumstances. Furthermore, as Mr Ewen submitted, the Act must be construed in a manner which is consonant with New Zealand’s international obligations, where the

text of the statute permits.¹⁷ These include those in Article 9 of the ICCPR. Here,

the language of s 14(2)(e) and (f) expressly requires the Court to take into account the nature and importance of the right involved, and I consider this engages the principle that the victim of an unlawful detention should have an enforceable right to compensation.

[53] The fact that only one award of financial compensation has been made under the Act to date, does not prevent an award in the present circumstances. While unintentional, the month of unlawful imprisonment served by Mr Gardiner is a significantly more serious consequence of a breach than suffered in any of the other cases referred to me involving consideration of the Act.

[54] Furthermore, once the restriction in s 13 is passed through, s 14 does no more than restate the relevant legal principles applying to compensation for NZBORA breaches, as articulated in Taunoa v Attorney-General where Blanchard J said:¹⁸

[258] When, therefore, a Court concludes that the plaintiff’s right as guaranteed by the Bill of Rights Act has been infringed and turns to the question of remedy, it must begin by considering the non-monetary relief which should be given, and having done so, it should ask whether that is enough to redress the breach and the consequent injury to the rights of the plaintiff in the particular circumstances, taking into account any non-Bill of Rights Act damages which are concurrently being awarded to the plaintiff. It is only if the Court concludes that just satisfaction is not thereby being achieved that it should consider an award of Bill of Rights Act damages...

...

[261] In determining whether a measure of damages should form part of the remedy in a particular case the court should begin with the nature of the right and the nature of the breach. Some rights are of a kind where a breach is unlikely to warrant recognition in monetary terms. Breaches of natural justice, for example, are likely to be better addressed by a traditional public

¹⁷ _{B v G [2002] NZCA 169; [2002] 3 NZLR 233 at [43].}

¹⁸ Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429.

law means, such as ordering the preceding end question to be reheard. But breaches of some rights of a very different character will inevitably demand a response which must include an award of damages whether in tort or under the Bill of Rights Act...

[55] In my view, the claim in the present case falls in the latter category where declaratory relief alone would not provide appropriate redress for such a significant period of additional imprisonment. That then leads to the next issue of whether consideration of the s 14(2) matters should limit the award of compensation in the present case, and if so, to what extent.

What amount of compensation should Mr Gardiner receive?

[56] The starting point for the plaintiff’s submissions on quantum of loss was to ask what had the plaintiff actually lost. The plaintiff answered this by saying that Mr Gardiner had, by the State’s unlawful action, lost over a month of his time. He therefore seeks compensation for the value of lost time.

[57] However, valuing that lost time is more difficult. The plaintiff notes that there is “no guideline judgment or tariff set by previous cases, which are thankfully few”. For that reason, the plaintiff refers to the Cabinet Guidelines for compensating prisoners for wrongful conviction under its ex gratia scheme. He says the Guidelines treat loss of liberty as a discrete head of compensation and distinct from emotional harm arising from detention or other pecuniary losses, and, in the year

2000, valued a year’s loss of liberty at around $100,000. By analogy that sum should be used as a starting point for calculating compensation in this case.

[58] The plaintiff takes particular comfort from the fact that the Guidelines themselves recognise the connection between such compensatory payments and payments for false imprisonment, saying:

The calculation of compensation payments under the Cabinet criteria should be firmly in line with the approach taken by New Zealand courts in false imprisonment cases.

[59] The plaintiff’s submissions assert that there are other ancillary benefits that accrue from using the Guidelines to assist in setting compensation saying:

(a) it is a standardised reference point for the value of loss of liberty and thus promotes certainty of outcome in future cases;

(b) for the same reason it would promote early resolution of such cases; (c) it is simple to apply;

(d) it places liberty at the heart of the enquiry. The loss of liberty is valued equally irrespective of the personal characteristics of any given plaintiff;

(e) it gives recognition to New Zealand’s ICCPR obligations under

Article 9; and

(f) as the Guidelines were formulated by Government, the state can hardly complain that their use gives rise to any unfairness or arbitrariness of outcome.

[60] The plaintiff does, however, identify some points of departure with the ex gratia scheme set out in the Guidelines. First, he submits that it applies to those who are lawfully convicted and imprisoned and says this claim for compensation is stronger because, while Mr Gardiner’s initial detention was lawful, the period he is claiming for was not lawful.

[61] The other significant point of departure is to observe that the annual figure of

$100,000 proposed for loss of liberty was promulgated in 2000 and has not been updated since, so this Court should apply an appropriate inflation factor. If the figure of $100,000 per annum in the year 2000 is increased by the same factor as wages have increased since 2000 (being a ratio of 1.72), then the annual figure for compensation for loss of liberty becomes $172,000. The plaintiff explains he has chosen wage increases over the consumer price index as “the Court’s task is to monetise time, not the cost of purchasing groceries”.

[62] Applying this calculation to the facts, the plaintiff says the inflation adjusted compensation figure for a month’s wrongful imprisonment produces a figure of

$14,333. Accordingly, the plaintiff contends that damages should be in the range of

$14,000 to $15,000, with interest running from the date of entry of summary

judgment until the plaintiff’s actual receipt of damages.

[63] The Chief Executive’s response is to reiterate that this is not one of the “exceptional cases” envisaged by the Act, and any award of compensation ought to be modest because Mr Gardiner can receive effective redress through his prompt release and by the making of a declaration that he was falsely imprisoned and arbitrarily detained for 30 days.

Discussion

[64] Despite the attractiveness of applying the Cabinet Guidelines for compensation for wrongful conviction and imprisonment to Mr Gardiner’s situation, I am reluctant to see those as directly analogous. There is a difference between being imprisoned for a crime one did not commit and serving an unlawful extension of time for a crime a person did commit. For a start, the recommended figure of

$100,000 for each year in custody is stated to reflect a range of non pecuniary losses, which include not just loss of liberty, but matters such as loss of reputation, loss or interruption of family or other personal relationships and mental or emotional harm. These are not claims raised in this case, nor could matters such as loss of reputation be relevant. Thus the non-pecuniary losses for which compensation is being paid in a case of wrongful conviction are far wider than in a case such as the present where the conviction and initial period of imprisonment were not impugned. For this reason, the Cabinet Guidelines on compensation for wrongful conviction and imprisonment (leaving aside the question of an inflation adjustment), at best, represent a figure for reference only and which should exceed the appropriate level of compensation for loss of liberty alone.

[65] The other comparator which was drawn to my attention was the quantum of compensation in Manga. In that case, Mr Manga was unlawfully imprisoned for

252 days. The Court held that an award of exemplary damages was not appropriate. However, after taking into account various factors, it decided the “appropriate starting point for imprisonment was $90,000” which was reduced in that case by

one-third because the plaintiff’s past periods of imprisonment meant there was a

“reduced impact of prison on the plaintiff”.

[66] The factors taken into account in setting compensation of $60,000 were:¹⁹

(a) the substantial period of eight months of wrongful imprisonment;

(b) the proportion of the period of wrongful imprisonment to the actual sentence of two years 10 months;

(c) the conditions under which the sentence was served in a high security unit;

(d) the combination of events under which the plaintiff had been given a final release date which was altered, with consequential trauma;

(e) the vigorous steps the plaintiff had taken to protest the unlawfulness and the steps he took to secure his release;

(f) the explicit admission that the plaintiff suffered shock, distress, humiliation, fear and anger;

(g) the plaintiff’s deprivation of family life for the period of eight months’

wrongful imprisonment;

(h) lost opportunity to obtain employment (although in this case, it was likely the plaintiff would not have been employed); and

(i) the fact that the overall impact on the plaintiff was not so great and this was not a case in which the detention had been unlawful from the beginning.

[67] It can readily be seen from this list, that there were factors relating to

_{Mr Manga’s period of wrongful imprisonment that were not identified in}

¹⁹ At [81]-[89].

Mr Gardiner’s case. However, Mr Ewen also argued that it would be wrong to assume that the effect of additional prison time on Mr Gardiner, as a recidivist, was less than on any other prisoner. He contended that the reasons for recidivism were many and varied, and this was acknowledged by Ms Leota. The onus should be on the defendant to adduce evidence to demonstrate this if it thought it warranted a reduction in compensation in any particular case.

[68] In my view, Manga has a number of analogies with the present case. However, unlike Mr Gardiner’s case, it also had aggravating factors, such as the additional period of incarceration being altered from that originally advised causing trauma to the plaintiff, and there being a much more significant extension on the lawful period of imprisonment than in Mr Gardiner’s case. I accept Mr Ewen’s point that the reasons for recidivism are many and varied and do not necessarily reflect that prison is a less distressing experience for a recidivist offender. However, I consider an unlawful extension of a legitimate period of imprisonment falls within a less serious category in terms of effects, than a period of imprisonment which should not have been imposed from the outset.

[69] While Mr Ewen urged me to focus on the starting point in Manga ($90,000 for 252 days wrongful imprisonment) rather than the reduced starting point of

$60,000, and then to adjust it for inflationary factors, I do not consider that Mr Gardiner’s case, overall, is very different from Mr Manga’s case once I balance out the variations between them. Mr Gardiner’s case did not have all the aggravating features of Mr Manga’s case, but I accept the discount for the fact he was a recidivist offender was not sufficiently justified.

[70] If the compensation awarded to Mr Manga was pro-rated to reflect the period of unlawful imprisonment served by Mr Gardiner, he would be entitled to a little over $7,000 for the month of unlawful imprisonment.

[71] The next issue is whether, given Mr Manga’s case was decided in 1999, there should be an adjustment to reflect inflation. In my view, that is appropriate. When looking to achieve parity between awards of damages, the Court will take account of

the passage of time and the need to make some allowance for inflation.²⁰ In this case, the only statistical data I have been provided with is the change in value of wages provided through the quarterly employment survey. I take it from the plaintiff’s submissions that if the combined consumers price index was utilised it would be a materially lower increase.²¹ Taking these matters into account, I consider that a figure of $10,000 compensation would be sufficient to provide redress to the plaintiff in all the circumstances of the case and I award that amount.

When should interest run from?

[72] The plaintiff says that interest should run from the date of entry of summary judgment (being 15 December 2016) to the date of payment of the judgment sum. No contrary view was submitted by the Chief Executive. However, I have decided on an appropriate award of damages as at the date of this judgment. Interest after this date is dictated by High Court r 11.27 and no order is required to ensure interest accrues until the date of payment.

Costs

[73] The issue of costs was not addressed in submissions. In my view, this is an appropriate case for an award of 2B costs in favour of the plaintiff. If the parties cannot settle costs by agreement, I reserve leave to have the issue of costs determined by this Court. However, in the event a Court order is sought in relation to costs, the following directions apply:

(a) counsel for the plaintiff is to file and serve a memorandum seeking costs within 20 working days from the date of this judgment;

(b) counsel for the defendant is to file and serve its memorandum within a further 10 working days thereafter;

(c) the Court will then determine the issue on the papers unless it requires to hear from counsel;

²⁰ _{Wright v Bhosale [2015] NZHC 3367 at [124].}

²¹ And noting that the CPI includes more than simply a “basket of groceries”, as was suggested by

the plaintiff.

(d) if no memorandum as to costs is received by the Court within

20 working days from the date of this judgment, then the order of the

Court is that there be no order as to costs and the file is to be closed.

Solicitors:

D Ewen, Barrister, Wellington

Ord Legal, Wellington

Crown Law, Wellington