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Tihema v Chief Executive of the Department of Corrections [2018] NZHC 2554 (28 September 2018)

Last Updated: 11 October 2018

ORAL JUDGMENT OF PALMER J

Party/Solicitors

The applicant

Crown Law, Wellington

TIHEMA v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 2554 [28

September 2018]

Ms Tihema

[1] Ms Cher Tihema is currently imprisoned in Auckland Women’s Prison. On 14 August 2017, she was sentenced to 11 months’ home detention for a number of charges of assaulting children in her care.¹ She failed to appear on 18 August 2017 in order to commence her sentence as required, breaching the conditions of the home detention sentence, and was arrested in November 2017 and remanded in custody.

[2] On 8 February 2018, Judge C J McGuire in the Papakura District Court sentenced Ms Tihema to 20 months’ imprisonment for the assault charges with concurrent one month sentences for charges of breaching her home detention conditions, shoplifting and receiving a stolen car, which had arisen since the previous sentencing.² He mentioned the time spent in custody, saying Ms Tihema had “in effect [now been] on remand for some three and a half months” but, from his remarks, it does not appear to me that affected the sentence.³

Habeas corpus

[3] The Habeas Corpus Act 2001 provides for restoring the liberty of those who are unlawfully detained. Section 14(1) provides that, if the defendant – that is, Corrections here – if Corrections fails to establish that a detention is lawful, the court “must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention”. Section 14(2) provides “a judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention”.

[4] The habeas corpus procedure is even more simple, speedy and untechnical than judicial review. It is not well suited to resolving complex arguments about the interpretation of law, particularly when the problem is “upstream” of apparently regular warrants.⁴ As the Court of Appeal has stated, the inquiry envisaged by Parliament in passing the Act must be one “that, although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would

¹ R v Tihema [2017] NZDC 18097.

² Department of Corrections v Tihema [2018] NZDC 2191.

³ At [4].

⁴ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].

warrant making an unappealable finding against the lawfulness of the detention”.⁵ But a court is entitled to examine the administrative decision which underpins the legality of the detention.⁶ And if the court considers a person is unlawfully detained, a writ of habeas corpus must issue.

Submissions

[5] Ms Tihema applies for a writ of habeas corpus on the basis the Department of Corrections calculated her release date as being in December 2018 when in fact it was 24 September 2018. She challenges the calculation underlying the requirement of s 86 of the Parole Act 2002 (the Act) that, as someone subject to a short-term sentence, she must be released after serving half the sentence. Ms Tihema spent three and a half months in custody after breaching her sentence of home detention and before being re-sentenced. She says Corrections did not count those remand days towards her release date and it should have done so.

[6] Ms Johnston, for Corrections, alerted me to a concern that Ms Tihema may be disadvantaged by representing herself on an application she did not make herself. She submits Ms Tihema is lawfully detained pursuant to a valid warrant of commitment which she does not challenge. Corrections’ position is that ss 90 and 92 of the Act preclude taking into account the time Ms Tiheme spent in custody after breaching her sentence of home detention and before being re-sentenced. Ms Johnston submits that time is not “pre-sentence detention” for the purposes of the Act. She submits Ms Tihema was, technically, still “subject to” the sentence of home detention until it was cancelled by Judge McGuire and even though time had ceased to run on it for the purposes of calculating the home detention sentence under s 80ZB of the Sentencing Act. So she submits Ms Tihema was not detained “pending sentence” under s 91(1). She submits the time on remand was a matter for the sentencing judge to take into account, according to s 80G(2) of the Sentencing Act 2002, and he may have done so. Accordingly, Ms Tihema’s statutory release date would be 6 December 2018, her detention would be valid and the writ of habeas corpus should not issue.

⁵ At [47].

⁶ At [46].

[7] Ms Johnston acknowledges there is conflicting High Court authority on the issue. So, alternatively, she invites me to consider interim orders under s 11 of the Habeas Corpus Act and issuing a declaration rather than a writ of habeas corpus. She also submits I could convert this into a judicial review pending appellate resolution of the conflict in High Court authority. She acknowledges that, if Ms Tihema’s argument was correct, she should be released.

Should habeas corpus be granted?

[8] In 2015, in Hawkins v Chief Executive of the Department of Corrections, Mander J accepted a period spent in custody between the date of an application to cancel home detention and its determination does not constitute pre-sentence detention for the purpose of calculating release dates under ss 90 and 91.⁷ Rather he considered that time may be taken into account by the Court in determining the length of any substitute sentence.

[9] Earlier this year, in Sutherland v Chief Executive of the Department of Corrections, Ellis J reconsidered the Hawkins approach in light of the Supreme Court’s subsequent decision in Booth v R.⁸ Ellis J considered the Court in Hawkins was not considering the implications of the existence of new charges, on which the offender would be still “pending sentence”.⁹ She considered the legislative intent of the Parole Act “involved a clearly signalled retreat from leaving the calculation of pre-sentence detention to the discretion of the judge” and she considered the policy considerations of leaving the calculation to Corrections to be powerful.¹⁰ This judgment is under appeal but no date has yet been set for that. The Crown submits here the principles in Booth which do value the simplicity of calculation by Corrections do not override the clear words of s 80ZB.

[10] I do not consider the words of s 80ZB are so clear. In her careful and comprehensive judgment, Ellis J characterises it as much less than moderately

⁷ Hawkins v Chief Executive of the Department of Corrections [2015] NZHC 1001 at [16].

⁸ Sutherland v Chief Executive of the Department of Corrections [2018] NZHC 1366; Booth v R

[2016] NZSC 127, [2017] 1 NZLR 223.

⁹ At [47] and [64]–[65].

¹⁰ At [69].

coherent.¹¹ The calculation in that section is “for the purpose of calculating how much time an offender who is subject to a sentence of home detention has served”. I do not accept the argument that Ms Tihema was still “subject to” a sentence of home detention when she had not ever started serving one. For all practical purposes, Ms Tihema did not serve her sentence of home detention. That is why she was re- sentenced for the offences for which she had previously received that sentence. In being in custody from November 2017 to February 2018, Ms Tihema was awaiting sentence for those, and other offences. Booth makes it clear pre-sentence detention is not to be assessed on a charge by charge basis. Sutherland may be under appeal, but this application cannot wait for that. I consider it is correct, in its implications for this case.

[11] It may be that, in re-sentencing her in February 2018, the District Court could have adjusted Ms Tihema’s sentence for her period in custody. That might have the same effect as what I consider to be the requirement on Corrections to take that period into account. But it is not at all clear Judge McGuire did that, nor that he was required to do so. Given that, and the requirement on me under s 6 of the New Zealand Bill of Rights Act 1990 to interpret the legislation so as to uphold the liberty of the person, the three and a half months Ms Tihema spent in custody awaiting re-sentencing is effectively a “bonus” period of additional custody, not reflected in her sentence. I consider Corrections has failed to establish Ms Tihema’s detention is lawful. This is not an interim determination so I do not make interim orders.

[12] Ms Tihema, in summary, I agree with you that your time on remand should count against your sentence. I grant, as a matter of right, a writ of habeas corpus ordering the release of Ms Tihema from detention. She must be released today.


Palmer J

¹¹ At [46].