Marino v Chief Executive of the Department of Corrections [2016] NZSCTrans 13; [2016] NZSC Trans 13 (6 July 2016)

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BETWEEN	MICHAEL MARINO Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
	_Respondent

Hearing:	6 July 2016
Coram:	Elias CJ William Young J Glazebrook J Arnold J O’Regan J
Appearances:	D A Ewen and G K Edgeler for the Appellant B J Horsley, D J Perkins and T P Westaway for the _Respondent

If it pleases the Court, counsel’s name is Ewen, I appear for the appellant with

Thank you Your Honour. The appellant appeals the refusal of the appeal against an application for a writ of habeas corpus in relation to his detention following the imposition of a prison sentence.

In the leave judgment the Court requested submissions on the issue of mootness, given that Mr Marino was released in May. I have addressed that issue in my written submissions on the appeal, and can deal with the matter briefly, unless the Court wishes me to amplify on the matter. The short point is, in my submission the issue is not moot because the issue before the Court is the lawfulness of his detention. The inability of this Court to grant the writ simply goes to the availability of one particular remedy, and not the issue itself, and even if the appeal were truly moot, in my submission, by reason of the importance of this issue, and the issues raised yesterday, the Court ought to exercise its discretion to hear the appeal in any event, although following the authority of this Court in R v Gordon Smith [2008] NZSC 56; [2009] 1

NZLR 721 it would appear that the issue of mootness is properly addressed in the leave decision rather than the substantive judgment. Unless there are particular questions that the members of the Court may have on this issue I propose to move on to my substantive submissions.

Thank you, Your Honour. This appeal in involves the consideration of the purpose and intent of section 90 of the Parole Act 2002, and to an extent section 91 of the Parole Act. These were issues that were, of course, touched on in yesterday’s appeal, but weren’t the direct focus of the matter. But in my submission all the problems and issues and anomalies identified yesterday, have their root cause in the interpretation of section 90, and the interpretation of section 90 is the key issue for the determination because if this Court allows the appeal and upholds the interpretation contended for by the appellant, on section 90 and 91, there are no anomalies. There are no inconsistencies. A cumulative sentence or a concurrent sentence of the same term will lead to exactly the same period of incarceration. But again, whilst yesterday there was a great deal of focus on the inconsistencies as between cumulative and concurrent sentencing, in my submission that is to slightly misstate the issue and the true comparator, and the reason that is important is, in my submission, section 90 of the Parole Act has one function and one function alone. That is to put a remand prisoner in the shoes of someone who is on bail up until the point of sentencing. That person is supposed to have all periods that they’ve spent in remand on those charges, taken into account. That means the total period of detention for that person would be exactly the same as someone who was on bail up until the point of sentencing. If Mr Marino had been on bail up until the point of sentencing, and Judge Spear had imposed the sentence that he did, constructed the way he did, Mr Marino would have been incarcerated for 11 months. If he had received cumulative terms from the remand period, again, he would have served 11 months. It is only because of the interpretation of section 90(2) that we end up with a situation where Mr Marino actually served 15 and a half months, which is by my calculations some 40 per cent increase in the total period of incarceration, versus either of the situation that he had been on bail or received cumulative terms. So if I am correct in my interpretation that I advance on the Court, all anomalies and inconsistencies simply fall away.

Will you come, it’s probably more a question for the Crown, but does your interpretation create other anomalies, and I’m thinking what we were discussing yesterday about perhaps the two short-term sentences or whether there’s any, and that’s, I haven't looked at whether it creates that anomaly but it just might be something especially that the Crown needs to think about.

I have struggled, Ma’am, to look for an example where applying my calculation, my interpretation of section 90, leads to anything other than exactly the same outcome. In the Court of Appeal I put it to the Court that the Crown has not identified any counterfactual that leads to a different result, because in my submission it simply can't happen.

The totality approach to sentencing that I advocate has taken care of the entire issue that the Court identifies as the reason here, upstream of the Parole Act calculations that need to be done. The only, the one thing that came out of yesterday is the potential Goldberg v R [2006] NZSC 58 situation. I haven't addressed the Goldberg implications because that goes further than I either need to or ought to in the course of this appeal, but even then Goldberg is probably encapsulated in my formula that would lead to the same result. The short answer to Your Honour’s question is, no, I can’t find any example.

No. I’ve set out in my written submissions section 85 of the Sentencing Act which in my submission when taken together with the provisions of the

Parole Act is the complete answer to the problem posed by Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA) and it’s important because in my submission we really need to look at how Judge Spear got to that sentence of 22 months that was imposed on the charges of attempting to pervert the course of justice, because Judge Spear did not impose a term of

22 months’ imprisonment on the attempts to pervert the course of justice. He imposed 22 months on the attempts to pervert the course of justice, and all the other offending because Judge Spear’s sentence indication is, in my respectful submission, the acme of the sentence’s art, it sets out absolutely clearly every step in the section 85(4) process. He identifies the attempts to pervert as the lead offending and identifies a starting point in respect of those charges of 18 months. Judge Spear then separately identifies the penalty that would be imposed on the assaults and breaches charges of 12 months. That takes him to, mental arithmetic and I are not friends, it took him to 30 months. Now, Judge Spear then stood back and did the totality analysis of 30 months, adding one on top of the other, offence totality. He reduces by six months, this is the point that arose yesterday on the two rape charges for Mr Booth, eight plus eight equals 16. Now eight plus eight does not equal 16 when on applies totality. He got to 30 months, added on a period to take into account the prior convictions for violence and then did the Hessell v R [2010] NZSC

135 discount, which took it back to 22 months. So the 22 months was not the culpability on the attempts to pervert individually or collectively. It was everything. And in my submission this forces the Crown into making a deeply unattractive submission, that Parliament intended a Judge to follow section

85(4) and inflate a sentence, over and above the gravity for that particular offending, to take into account other offending. But then when it came to the application of the Parole Act to allocate remand credit, to zero off remand time that accrued on that additional offending that justified the uplift in the sentence. What Parliament mandates is the inflation at one stage, they take away the corresponding reduction that would otherwise accrue, and that is what is given rise, but only when one is dealing with concurrently imposed sentences from custody to the anomalies and inconsistencies that have dogged this issue from, well pretty much since Taylor was decided in 2003.

Now as I said, it was mentioned by members of the Court yesterday in the first of a number of ironies in this particular case. The Crown actually advocated for cumulative sentences in Mr Marino’s case but Judge Spear, and in my submission entirely correctly, observed that it didn’t matter whether the Court, from a sentencing point of view, imposed terms cumulatively or concurrently. Totality was the star by which he had to navigate and totality mandated the same result regardless, because totality –

On that, I mean it totality is the fundamental principle, as you describe, what is the role of concurrent and cumulative sentences. Why is that structure preserved if ultimately it’s all about totality, however you put it together.

Because it, the architecture of the Sentencing and Parole Reform Bill was all designed to achieve a degree of consistency and transparency in that the culpability for particular offending should be discretely identified and if there is totally separate offending that may justify cumulative sentences. If they are in the round related, that may justify concurrent sentences. But in my submission, section 84 and section 85 do exactly what they say on the side of the tin. It is guidance for the construction of a sentence but it is not the mandating of hard and fast immutable rules that you must follow this path in respect of this kind of – sentencing is just too fluid a process and criminal culpability can arise in such a wide variety of circumstances.

Well, again, and I think one of the reasons why remand calculation was taken out of the sentencing equation is to achieve transparency in the sentencing process, that one sentence could be for precedential value compared to another sentence in the terms of how future sentences ought to be imposed. You get to the guidelines and principles and purposes of sentencing, one of

which is consistency. So the different methods of structuring a sentence can allow for a transparent approach that you can find out what a starting point was for a particular offence and therefore on appellate review, for example, there will be that transparency so an appellate Court can make an ascertainment of was the starting point too high, was it within the range. But I would advocate that the Court of Appeal’s judgment in R v Xie [2007] 2 NZLR

240 which, again, was mentioned yesterday makes it clear and it’s anything but novel that all roads lead to Rome. How you get there is a matter of individual judicial assessment but it’s the end result that counts, and section

85(4), it operates as a catch-all for all sentencing circumstances, even if you’re dealing with different offending, and it is there to make sure that all offending is punished in the end result. It just gives a vehicle by which that result can be achieved.

The attempts to pervert charges in this case were, in my submission, nothing more than a vehicle. They were a vehicle for the end result. They weren’t, in and of themselves, justifying a 22 month prison sentence. For a start, if one looked at Judge Spear’s logic of 18 months on the attempts to pervert, there would, in my submission, be no reasoning principle to give the uplift for prior offending because that’s in respect of violence offending. If Judge Spear imposed a standalone sentence on the attempts to pervert charges, it would be 18 months less Hessell credit. You’re down to about 13 and a half months. So that’s why I say that there has to be this if all offending is taken account of, if a sentence is imposed in accordance with section 85(4) of the Sentencing Act, not the last time I agree with what Mr Horsley said yesterday, that sentencing is for all practical purposes untouchable unless it’s outside the range and on ordinary sentencing appellate principles it’s either inadequate or excessive. Looking to matters of architecture, the Court was only invited to look at the matters of architecture alone yesterday because of the downstream consequences. That, in my submission, as I say, in partial agreement with what Mr Horsley said yesterday, is not something that necessarily is going to attract the attention of an appellate Court, nor should it, because the problem is elsewhere and the remedy to the problem is elsewhere.

The Court of Appeal in this case looked at the case with a particular focus on section 91(1) of the Parole Act, which sets out the definition of pre-sentence detention itself. Pre-sentence detention is any period spent in custody on the paragraph (a), (b) or (c) criteria in the proceedings leading up to the conviction or pending sentence of a prisoner. In my submission, the Court of Appeal fell into error when they individualised proceedings to each discrete charge in the sentence. That they derived from their reading of Taylor. That said, there can be no case in terms of proceeding. There’s only a proceeding when a charge is filed in Court and remand credit begins with the remand in custody on that particular charge.

Now, I’m going to tackle that head-on because in my submission there is simply no warrant on the language of section 91 to merit the reading down of proceedings to each individualised charge. Proceedings, in my submission, ought to be given its ordinary meaning and ordinary sense in a Court proceeding and we can start when considering this case in simply looking at the Crown charge notice.

No, because my case is and always has been that Taylor was talking about something else entirely. Taylor was talking about cumulative sentences imposed in respect of different sentencings on different days and different charges and to the extent that the relatedness inquiry comes out of Taylor, in the context of Taylor it was necessary. The problem has been, in my

submission, that since Taylor, Taylor has been viewed as a case of general application and in my respectful submission it never was. It was talking about a particular set of circumstances but I intended to address Taylor a little later.

Effectively yes, Your Honour, because when I’m saying proceedings, proceedings encompasses all the charges for which you are at sentencing in that hearing.

Then, again, that’s where there will need to be a more subtle analysis of – in respect of the subsequent sentencing, there will need to be a subtle analysis of what remand time accrues but if those sentences are deferred in all likelihood, Your Honour, what the sentencing Court is going to do is first of all ask for the sentencing notes in respect of the other charges and make sure there’s a totality-adjusted sentence in respect of both. One frequently encounters the situation –

No, I understand that but I just looked at your submission at paragraph 80, the submissions you took on the single sentencing hearing. Say the second Judge does what you’ve postulated, which I assume would normally be the case, that is, obtain the sentencing remarks from the first sentencing exercise and treat it as a re-sentencing, in effect. Would your argument break down then?

I’m not sure that it would, Your Honour. I have encountered situations where Judges have split sentencing. The usual purpose for doing so is to try and avoid a prison sentence because if they sentenced on the lot in one hit they would go to jail but if they sentence on that, remand off for rehabilitative treatment et cetera and come back and get sentenced on the balance, that can sometimes mean the difference between a prison sentence and not a prison sentence. But not infrequently we find there’s a wash-up sentencing.

Yes, although the usual practice when some of the charges have been defended and they do constitute a package –

Is that the sentencing is deferred until the final outcome. Your Honour, I’m not trying to do what Einstein failed to do and come up with a grand unified theory here.

Well, we have to think about the anomalies that your argument might throw up and what’s the answer to the position that was put by the Crown yesterday with the prisoner sentenced later for subsequent offending in prison? What happens there?

time on the charges, or is the effect of the fact that they’re a serving prisoner

to take that out of the equation and, Your Honour, I have the distinct feeling that is the subject of a discrete statutory provision, but I don’t know. That is problematic, although in this case there is a very real possibility if Mr Marino had whacked a prison guard, been brought before the Court and got a month cumulative, it may have served to operate to bring in the remand credit that had been zeroed off by Judge Spear, the application of Judge Spear’s sentencing, because then there is one –

Well I just wonder whether that doesn’t indicate that an entire solution is not simply, even if you’re right, the interpretation of the Parole Act, but sentence structure is also something that needs to take account of the different effects of the Parole Act provisions.

Except, Your Honour, the place where that falls down. Here we have a situation where there would be a difference as between cumulative or concurrent but you can face the situation as Justice Collins was facing in Brandon v Chief Executive of Department of Corrections [2015] NZHC 1586; [2015] NZAR 1257, which is a habeas case of mine from last year, where there were seven charges on which Judge Barry imposed three years two months on each. In that case there wasn’t, in the strict 85(4) sense, a lead sentence, they were all the lead sentence, and you get three years two months on each, but by the application of 90(2) as it is at the moment, a three year two month sentence was, according to Corrections, a four year seven and a half month sentence, because the charges had been laid in staggered tranches and each one, as far as Corrections were concerned, gave rise to a new JPD date. Now in the end in Brandon Justice Collins

determined that all the charges were related and therefore they met the Taylor test but again, and when it comes to the issue of administrative ease, I’m going to refer to the matter in more detail, it took Justice Collins hours of work poring through an incredibly thick District Court file, because it was from a big drugs operation the file was massive, and it took the Judge ages to work out whether these met the test for relatedness. It just gives rise to so many more complications than it solves.

If one construes proceedings leading up to the conviction and sentence as all charges comprised in that sentence, all charges on which sentence is imposed, then the anomalies fall away. In this case in particular, in exactly the same situation as Judge Rea’s sentencing in Te Aho v R [2013] NZCA 47 which again the Court of Appeal dealt with as a sentence appeal issue, again Judge Rea’s sentence was, as with Judge Spear’s, lockstep with 85(4) of the Sentencing Act and that led to the inflation of Mr Te Aho’s by 112 days. It’s interesting that in that case counsel tried to get that issue back before the sentencing Judge, and Judge Rea, I think in all probability correctly, observed that he was functus officio at that stage. It did come up in passing yesterday, was there any way of getting this back in front of the sentencing Judge to correct the error as and when it arises. The answer to that is, only to the most limited possible degree because the only ability to rehear a sentence by the Judge at first instance comes from section 177 of the Criminal Procedure Act which is the re-enactment in modified form of 75 of the Summary Proceedings Act.

Re-hearing, but 177, unlike section 75, is limited to charges that have a maximum penalty of three years or less, so on a burglary charge, or an attempting to pervert charge, there can never be resort to 177, the Court is functus, there is no jurisdiction to re-hear. So Parliament has made no

mechanism for patching up the problem at sentencing level once the problem becomes apparent.

There would have to be an appeal, and for all the reasons that were canvassed yesterday, I say first and foremost the Court is going to look at the appeal through the lens of manifest, excessive manifestly inadequate, subject of course to particular, Your Honour’s comments about whether this is an area of principle because the Judge was –

No, no, and I say with moral certainty I know exactly what Judge Spear intended the sentence to be, and it was one of 22 months.

I think what we were discussing mostly yesterday was not re-opening but actually dealing with it at sentencing and the Crown, despite the high point

be taken into account it just didn’t have to be, so it was not an error not to.

Yes, and Your Honour the Chief Justice, you’re exactly correct, that this is an issue that has gone almost entirely below the judicial radar, certainly District Court level, because after Brandon, as it come up in discussion with a number of District Court Judges, and they were completely unaware of how the Parole Act was being applied to the sentences that they had imposed. Brandon achieved some prominence last year but the issue has been live since Justice Courtney determined the writ application in Maile v Manager, Mt Eden Correction Facility [2011] NZHC 1208; [2012] NZAR 39 (HC). Now again Justice Courtney in that case actually issued the writ. I think that’s the only example of a case where the writ has been issued. But again if my analysis were adopted to all the writ cases, since Maile, again in all cases the sentence would have been, as imposed by the Judge, and there would not bring the inflation of –

Can I ask you just to walk me through this a little bit. You say that you interpret section 91(1) in the way you suggest, problems go away, and given the language of section 91(1)(c) the idea of a person facing a charge in the period, it seems to me that’s quite a broad concept that you can bring into play. But you’ve still got the problem of section 90(2) and you said earlier, and it was said yesterday, that for example if you had an offence committed while incarcerated in prison –

– and one month cumulative, then you get the lot, I don’t think that’s right actually. If you look at section 90(3) the offender has to be subject to two or more cumulative sentences, so you don’t cure the problem simply by having one –

Well, no, in my submission two or more basically means any cumulative sentence because one sentence cumulative on one is two cumulative sentences.

Because otherwise subsection (3) would be robbed of a meaning for cumulative sentences.

Well I’m not sure that’s right, because you can see what they might be getting at. Anyway, let’s park there.

Well you can see the sense of where, no I suppose it’s right actually, you’d have to say, if you’ve got one sentence, and you impose another cumulatively on it, are they, are there two cumulative sentences.

In my submission it has to be because otherwise you end up adding a further inconsistency that one plus one is not a notional single sentence, and Your Honour can have the situation that Justice Young posed yesterday,

18 months then 18 months. Unless those are two cumulative sentences, you’d have two short duration sentences, serve nine, then serve nine, instead of 18 months being a three year –

The trouble is we’re talking about a sequence where you have a number of concurrent sentences, and then a cumulative one popped on the end, and that’s the sort of situation I’m thinking about, where you have a concurrent, is it really right to say that there are two cumulative sentences there.

Yes. The notional single sentence is sort of controlling, here, really, and makes it clear that they are talking about the sentence plus the additional sentence. Both are treated as cumulative sentences in this section, it seems to me.

That certainly is quite an odd result. But anyway, the more significant point for present purposes is section 90(2) and so say you’re right about the definition of pre-trial detention, how do you see subsection (2)(a) and (b) working?

Again, Your Honour, I’d intended to deal with that under the legislative history but I might as well deal with it now because it is key. The wording of 90(2) is, on its face, for me problematic. I would say that given the approach that is mandated to interpretation the Court is basically required to strive to an interpretive outcome that avoids the inconsistency anyway. But when one looks at the legislative history of the Sentencing and Parole Reform Bill, in my submission it all becomes clear what the wording in subsection (2) was supposed to achieve.

I deal with the issue at paragraph 68 onwards on page 15 of my submissions. Because when the Bill was introduced, section 90 was clause 247 of the Sentencing and Parole Reform Bill and I’ll read out how subsection (2) originally was drafted. When an offender is subject to two or more concurrent sentences, the pre-sentence detention, if any, that relates to each must be deducted from that sentence only.

Now, that would be great support for the Court of Appeal’s analysis of subsection (2) that you individualise the proceedings to each particular charge and that charge alone and that, in my submission, is how they’ve gone about doing it. But in the Select Committee phase of the consideration of the Bill, the officials were alert and alive to this issue and wrote to the Chair of the Select Committee and I think I’m just going to read out exactly what they said.

“Clause 247(2) currently provides that if an offender is subject to two or more concurrent sentences the pre-sentence detention, if any, that relates to each sentence must be deducted from that sentence only. Officials consider that this is misleading as the period of pre-sentence detention may relate to and need to be deducted from more than one concurrent sentence. The inclusion of the phrase from that sentence only might suggest that if a certain period of pre-sentence detention relates to and is deducted from one concurrent sentence it should not also be deducted from another current sentence that it relates to. Officials proposed to reword the clause to provide a clear, two-step process of calculating the pre-sentence detention time in respect of every individual concurrent sentence and then deducting the amount of time relating to each sentence from that sentence.”

Again, in my submission what they are saying is yes, it’s correct that you must, under subsection (2), look at each sentence on its own. We’ll take the – and then you work out the pre-sentence detention under 91(a), (b) and (c) because in the diagram that I’ve provided in the case of the attempts to pervert the course of justice charge you’ve got 91(1)(a), any charge on which the offender was convicted, and then under subsection (b), any charge on which the prisoner is originally arrested, which is all the assaults and breaches of protection order charges. So what is for the purposes of doing the subsection (92) analysis, the lead offence is paragraph A. The other charges, the totality breaches and assaults, are paragraph B. In this case, I think paragraph C would be the other attempting, the earlier of the two attempting to pervert.

So if one looks at it that way, then (a), (b) and (c) all encompass the pre-sentence detention that is to be applied to the lead offence.

I’ve had perhaps a totally wrong thought and that is – and this is perhaps going back to what Justice Arnold was talking about – are they actually using concurrent sentences and cumulative sentences as a composite expression so that 90(2) is concerned with the case where an offender is subject to two lots of concurrent sentences?

Yes. That’s an argument that I ran in the Court of Appeal in this case to try and get around the vicissitudes of trying to persuade the Court of Appeal to dump all its authority on the point for the last 13 years. It got no traction at all and that’s why in the Court of Appeal judgment there is Justice Miller’s remarks that it required – that interpretation would require proceedings under

Now, that, in my submission, is nowhere near as problematic an act of interpretation as interpreting, as it presently is, and leading to the significant inflation of prison sentences, and in terms of the Court of Appeal’s judgment in Attorney General v Manga (1998) 17 CRNZ 1 entirely permissible that it one place it might mean something slightly different.

Well, it’s just that they’re using the composite term here, concurrent sentences and cumulative sentences, and it does make some sense if that is – you can understand the policy behind this, that you can only take out the pre-sentence detention relating to that bunch, if you want to make it, of sentences and that also makes some sense with section 90(3), too.

To an extent, Ma’am, that addresses your question from earlier about what happens to a subsequent sentencing expressed to run concurrently. On that subsequent sentencing, yes, there must only be the pre-sentence allocation to that subsequent sentencing on the charges that probably accrue on that, although they may need at that stage to be a Taylor-related inquiry. That’s where Taylor may have to kick in because sometimes you can lose, in the process of time, for example, remand time on charges that have been withdrawn, say. This is all information that is almost never going to be in front of the sentencing Court which is an additional reason why trying to address it through sentencing may cause additional complications but yes, Your Honour, that is the argument I ran in the Court of Appeal that two or more concurrent sentences may actually mean two or more sets of sentencings on different days in respect of different charges which is actually exactly what the Court of Appeal was dealing with in Taylor in the first place.

That, again, in my submission solves all ills currently lying before the Court, that interpretation. I chose in this Court to simplify my argument simply because I got nowhere in the Court of Appeal with it.

Well, in my submission it’s entirely consistent with Taylor that if two or more concurrent sentences in subsection (2) refers to different sets of sentencings imposed on different days, that is consistent with what Taylor was saying because Taylor was concerned with – and again it’s instructive when dealing with Taylor to look at Justice Priestley’s High Court judgment because there is

a table, tab 13, a table at page 3 which sets out exactly what Mr Taylor was trying to do in respect of four different sentencings in front of four different Judges. And I say despite Mr Taylor’s many advancements in the law of New Zealand this was not his best day’s work when he was trying to triple-dip. The Court of Appeal accepted, as it was bound to, that he was entitled to double-dip through to, by reason of rather poorly worded transitional provisions, as between two iterations of the Criminal Justice Act. But what Mr Taylor was trying to do, he was trying to get the remand credit that accrued on the final attempting to pervert the course of justice charge, that had already been taken care of upstream, not once, but twice, and of course the situation in Taylor is now regulated by subsection (3) of section 90 that, yes, you get the combined credit on all the charges in your notional single sentence, but you only get it once.

Is another way of looking at section 92 that you get your pre-sentence detention attached to each particular charge, but the you add it up?

What you had there, I think, was quite a long period of pre-sentence detention in respect of the male assaults female. Well it may be because if that had been the only charge, the only credit you would have got would have been the six months of the 10 months, because you would only have been sentenced

to six months had that been – so maybe you get your six months on that, and then add up the pre-sentence detention in respect of the other charges if there was – and that’s what you get as your...

Well I think the Booth situation, as I apprehend it Ma’am, is the concurrent sentence imposed on the MAF was actually shorter than the remand credit that actually accrued. In that situation, on my analysis, the sentence in respect of the remand credit wouldn’t matter because in respect of the lead charges of sexual violation it becomes 91(1)(b), any charge on which the prisoner was originally arrested. So, yes, in respect of the sentence of male assaults female, that disappeared into the ether.

But it is difficult to reconcile – well, I think as you said, it’s slightly difficult to

The word of subsection (2) of section 90 is not helpful but in my submission, notwithstanding the Chief Justice’s observation, that the official’s advice is clear as mud, it’s clear what the officials were trying to get out by reason of the change in the language of the sections. They were trying to avoid exactly the situation we face here today. That there is the individualisation to that charge, or its successor or predecessor in title, in the section 90 calculation, that’s exactly what they were trying to avoid, but -

Well, no, in my section, subsection (2) mandates the wide application of remand credit. That’s what the officials were trying to achieve, but what they had in prescience they lacked in adroitness of legislative drafting, and that,

unfortunately is just something that New Zealand lawyers and Judges have to deal with. But when, irrespective of the language in the report, when you do the compare and contrast between the Bill’s provision as they were, and the Bill’s provision as they became, it is quite clear that the officials were trying to avoid exactly the interpretation that the Court of Appeal has adopted in Maile, and as adopted previously in Te Aho, Booth v R [2015] NZCA 603, Kahui v R [2013] NZCA 124, that’s what they were trying to avoid. Subsection (2) can be read expansively on the basis that if you do the analysis that I suggest, that you take each charge and work out what the other charges of the sentence are in respect of (a), (b) and (c) of 91(1).

Well, you argue that the concurrent lead sentence is to be treated as a sentence imposed for all the offending that informed the totality of the sentence imposed.

Which seems very sensible but, as you say, it’s not easily congruent with section 90(2) which rather presupposes that where concurrent sentences are imposed there are separate sentences. That’s the problem.

Yes, and as I said, the problem lies, in my submission, in the obliqueness of the language. It does not lie in the underlying intent of the provision because the underlying intent – what is section 90, therefore? I get back to practically the first thing I said. It is there to put a remand prisoner in the shoes of someone who’s on bail up until the point of sentencing. No disadvantage is accrued by reason of a remand in custody prior to sentencing because section 90 is supposed to put you in exactly the same position. Now, that – if one takes that as the purpose and intent of section 90 as a starting point, then

Well, I suppose your other argument that is equally strong, if not stronger, is there is no conceivable policy reason for having a difference.

Which was Your Honour’s observation yesterday which I respectfully endorse. It’s neither hyperbole nor rhetoric to ask what is the justification for a different answer. The Court of Appeal give their suggested justification for that and that’s to make sure no one gets two for the price of one, in the vernacular, because they adopt a passage of Justice Courtney’s judgment in Maile saying that, well, how can you possibly get remand credit for an offence that hasn’t even been committed yet? That is an argument whose force lies solely in the manner of its description rather than any underlying legal problem because, as I say, my submission is that issue has been taken care of by section 85 anyway. It doesn’t matter when the offending was committed so long as it has been incorporated into a totality-based sentence.

But that doesn’t explain why you get a credit if it’s a cumulative sentence and not a concurrent one because you are getting credit for an offence that hasn’t been committed if it’s cumulative in many cases. In fact, you’re quite likely to have because the whole idea of a cumulative sentence is they aren’t related.

Exactly, Ma’am, and as I say if one takes as a starting point my hypothesis that it’s there to put the person in the shoes of someone who’s got no remand time to accrue at all, Mr Marino should have done 11 months in total, no longer, but more importantly no less, and again, I haven’t identified a single situation where this calculation leads to less time in custody than the face value of the sentence imposed by the Judge.

Can I go back to sections 90 and 91 because under section 90(1) a sentence of imprisonment including a notional single sentence, well, it’s a notional single sentence under the statute if it is a cumulative sentence, isn’t it?

Yes. So a sentence of imprisonment for the purposes of section 90(1) clearly is a sentence in respect of – includes a sentence in respect of more than one offence.

On its face. So why – with that background, I don’t see why we’re bothering for the purposes of the Parole Act to be going back into the interstices of sentencing which is already been achieved and surely subsections (2) and (3) are properly directed at where you have a concurrent sentence and a cumulative sentence irrespective of whether there are a number of charges on which people are being sentenced in that concurrent sentence and cumulative sentence so it only bites, 2 and 3 only bite where you have two lots.

Well, no, well you have two lots of sentences. I mean I don’t think it’s about charges. If you look at section 91(1) that seems to be quite clear because pre-sentence detention, it doesn’t matter, it’s any charge on which you were eventually convicted, any other charge on which you were originally arrested,

all of that’s been taken care of in a sentencing process and is sorted out in the wash. What this does is simply stop you double-dipping.

Well would it be double-dipping. Say these sentences have been imposed on different days, so that there were, say, two sets of concurrent sentences, one in relation to the complainant B, and one in relation to complainant F, and I’m assuming that there’d been more than one conviction in relation to F. Say the charges said, well –

That’s why you need to calculate the amount of pre-sentence detention applicable to each sentence.

Say there’d been two trials, or two, I mean that’s one of, why I raised the issue before, I can’t really see that it can come down to whether there’s a single sentencing exercise or not.

But that’s not the end of it because you still have to calculate what’s applicable to each sentence. But the sentence it the conglomerate sentence in each particular case. it just seems to me it seems to make sense.

Your Honour, if I can just make sure that I’ve got Your Honour’s point. If what Your Honour is saying that all the constituent charges, and all the constituent sentences form a single set of proceedings leading to the pending, the conviction and pending sentence for the purposes of section 91(1) –

No it’s 91(1) defines what is pre-sentence detention and it has to be (a), (b)

– leading to the conviction and pending sentence. So first of all it has to be within the definition of “proceedings” and that’s where I fell over in the Court of Appeal because the Court of Appeal said there were, in Mr Marino’s case, I think about 12 different sets of proceedings instead of one unified whole. That is quite hard to square with a Crown charge notice, which has a single CRI number, and had it gone to trial it would have gone to trial as one trial. So in my submission the Court of Appeal’s analysis that each charge is its own individual set of proceedings, just does not square –

I would be inclined to read “proceedings” as encompassing everything that’s

Yes. And when one encompasses everything that’s in (a), (b) and (c) that possibly takes care of the Goldberg problem also. The remand in custody in say a joint trial where you get acquitted on the charge that has the most remand time accruing on it, is actually still encompassed within section 91(1), because it’s part of the proceedings. It didn’t, itself, end up in a conviction but under 91(1) it doesn’t have to, it just has to be part of the proceedings leading to the conviction and pending sentence.

Well except, Your Honour, 91(1) defines what pre-sentence detention is. Section 90 applies it. So in the –

But it seems to be applicable to each sentence, whatever that means, so it can hardly be treated as being applicable to a charge on which a defendant has been acquitted.

Well, in that case the acquitted charge is never going to be 91(1)(a), but it may well be 91(b) or 91(c) in respect of another charge in which there has to be a pre-sentence detention allocation.

I agree that it’s pre-sentence detention. Where I struggle with is whether it’s referable to the sentence that’s imposed.

Well, as I say, when one is doing the section 92 calculation, in my submission, the proper approach is to take that particular sentence that you’re looking at as a 91(1)(a), any charge on which the prisoner was convicted.

It can hardly be a sentence on the charges on which the defendant has been acquitted.

Yes, but again, 91(1) doesn’t require a sentence. 91(1) just requires a remand in custody, so in respect of a charge on which one was acquitted, for the purposes of doing the 90(2) calculation the charge on which that person was acquitted, if they’re all on the same trial, is likely to be 91(1)(b) or (c). It can never be (a) because there is no conviction but it’s comprised in the same set of proceedings they all went to trial together.

I’m just postulating that the set of pre-sentence detentions isn’t the same as the set of pre-sentence detentions which have to be set off against a sentence.

Well, not – no, because any other charge on which the person was originally arrested, that could just be dealing, I suppose, with grievous bodily harm was in the end became male assaults female, so effectively you were convicted but it wasn’t of – or else it became murder when it had been GBH.

And that is to look at 91(1)(b) through the narrow Taylor lens that it’s that and

And in my submission that’s one of the reasons one ends up with these anomalies, that you have to jump through the Taylor hoops in order to work out if they’re related or not in order to apply that section. It’s not warranted on the language on the section, in my submission.

It means as soon as you’re convicted that’s the end of it, anyway, because it’s no longer pre-sentence detention as soon as you’re convicted, so you’re arrested.

No, Your Honour, it’s pre-sentence detention up until the point of sentence because under the Act the sentence only commences on the date of its imposition.

No, because it says leading to the conviction or pending sentence, the beginning of section 91(1).

Well, sometimes, of course, you’re remanded in custody as soon as you’re convicted and not before, so it’s presumably dealing with that type of detention.

Also I suppose the other way of viewing the word “pending” is that the sentence commences on the point that the Judge pronounces sentence and anything else up until that point, the sentence is pending. But you’re in custody in that time so hence the word “pending” but I didn't really think it added much.

But that’s not what it actually says, though, because the pending sentence is often, you are often remanded in custody pending sentence having been on bail up until the time of conviction, or alternatively you’ve been in custody and then you remain in custody. You’re not normally given bail having been in custody on remand but it’s probably not a big point, anyway.

Well, it could read, couldn't it, “At any stage during the proceedings prior to sentence.”

Yes and I think nothing is lost by taking out “conviction or” but again I’m not sure that the – the focus certainly in the Court of Appeal and in the Court of Appeal’s judgments is, what were the proceedings? The Court does not need too much work on my part to persuade it that proceedings is broader than that. Proceedings is everything that led up to – if it’s a trial everything that you go to trial on in one trial sitting is undeniably one set of proceedings and it just becomes odd and perplexing and deeply problematic if you adopt a different interpretation when you’re looking, not to do anything with the assessment of criminal culpability, but simply working out how long the sentence is.

But the important thing, surely, in section 91(1) is that you don’t have to parcel out what proportion of the pre-trial detention arose out of a charge on which you were originally arrested but not convicted and all of those other things, making it clear that the sentence is the sentence that’s imposed, whether it’s cumulative or concurrent, and that you don’t go back into what’s the lead sentence and how you sort of parcel it up. That’s it. And then the only adjustments you have to make are in the case of somebody who is unfortunate enough to be sentenced to another concurrent sentence or cumulative sentence.

90(2) means two or more sets of sentencings imposed in different days, in respect of different charges, à la Taylor, then I’ve got very little more to say because that’s the argument I advanced to the Court of Appeal and it would work too.

It’s in the case on appeal, tab 7, paragraph 24, “The appellant’s argument that “proceedings” mandates a single pre-sentence detention calculation for all offences sentenced at the same time confronts insurmountable difficulties.” This is page 22 on the case on appeal, “(a) It requires that the term

‘concurrent sentences’ have a different meaning in s 90 than it does in the Sentencing Act.” It requires, “(b) it requires concurrent sentences to be treated as a single notional sentence.” And this is, Your Honour the Chief Justice’s situation at paragraph (c) –

Just pause there. The Judge there is really addressing the composite argument, not just what section 91(1) means.

Well this is the, the Court analysing that my argument in the Court of Appeal that two or more concurrent sentences means two or more sentences imposed on different days in respect of different charges.

Well I don’t know, I mean in a way you don’t need to talk about the temporal thing, it’s just that they are different sentences, different concurrent sentences, different cumulative sentences.

As I apprehend where Your Honour is coming from that would appear to be the argument that I made in the Court of Appeal which they torpedoed below

the waterline. And the last point, paragraph (d), was the two for the price of one argument, that in my submission is just obviated by section 85.

That does happen because if it’s cumulative you do get the credit so why would you get the credit presumably I’m not, I don’t think I’ve got that wrong, because if that’s one notable single sentence, and it was later, well you do get the credit, so why don’t you with a concurrent.

Yes, and as I say it’s been taken care of upstream by a sentencing that conforms to section 85. If it conforms to section 85 then the problem they identify in (d) just simply doesn’t exist. I say it’s –

Your Honour, no, it doesn’t, it’s just this argument that has moved Judges in the High Court and the Court of Appeal. The notion that someone might get two for the price of one. Someone might get, have earned remand credit, and I have difficulty with the concept of earning remand credit, in respect of an offence that hasn’t been committed because it is, on the face of it, a counterintuitive proposition, that you should get an allowance or remand time for something you haven't done yet, and that’s the entire force of the Crown’s argument. But, because it’s been completely taken care of by the sentencing Judge in a sentence that packaged all culpability, no matter when committed –

Okay, but just say the Judge had said, “In reality the assault is so dwarfed by the significance of the other offending that I propose to convict and discharge you on that charge.”

Yes. In Kahui Mr Bailey tried to add in a five month prison sentence on what had been a conviction and discharge because it would have added in remand credit that ended up being zeroed off.

Right, okay. Well, say the Judge had said that in this case. How would that have worked? On that basis it would have been as though your client had been acquitted.

I cannot say that a conviction and discharge is a sentence because that submission would be beggared by, I think, section 108 of the Sentencing Act which says the Court may, instead of imposing sentence, convict and discharge. I cannot say that that is a sentence so under 91(1) it is a charge on which the prisoner was convicted.

I don’t have any problem with it being under section 91(1). But what I would have a problem with or might have a problem with is whether there is a sentence referable to it from which it can be deducted.

Your Honour, in my submission this is where one has to exercise care. It doesn’t require – section 90 doesn’t require another sentence to have remand credit. It just requires that in respect of this sentence, say the major charge, that it forms part of the – the charge that led to the conviction and discharge is part of the proceedings that led to the conviction or pending

sentence in respect of the sentence that you’re looking at because if it falls within (a), (b) or (c) of those proceedings it is pre-sentence detention in respect of all the charges you’re dealing with section 92 analysis of.

Well, if you look at the Booth case yesterday, the facts were that there was the assault. He was in detention then for about 10 months and then the other things all come to the fore and so on. It was the rapes that were the lead charge, one of them in particular. So when the Judge constructed the sentence on the totality principle it’s eight years plus three years something for the second rate plus three months for the assault. That’s the sentence on rape number 1, 11 years nine months. Then the concurrent sentences are eight years on the count 2 rape and six months on the assault.

Now, the 10 months that was spent in custody only in relation to the assault, your argument is that the full amount of that is taken into account.

Because the male assaults female charge was comprised in the proceedings leading to the conviction and pending sentence of Mr Booth after trial on the lot. Therefore in respect of when one looks at the pre-sentence detention allocation that must be done in respect of the lead charge under section 90(2). One looks at the lead charge as subsection (1)(a) of 91, a charge on which he was eventually convicted, and the male assaults female charge, the relationship between that and the rape is that’s paragraph B, any charge on which he was originally arrested and in that way the elevation by Judge MacAskill to take into account the male assaults female is taken into account in the remand credit allocation, the pre-sentence detention credit, when the prison officer comes to do the PSD allocation in respect of the lead charge.

It is slightly unattractive, though, that in respect of an offence for which he got an effective sentence, an additional component of three months, he ends up getting 10 months’ credit, pre-detention credit.

It may be there is something that may have attracted a moral question mark but again, Your Honour, I invite you to consider what will Mr Booth’s total period of incarceration be if that 10 months is allowed in? Assuming he doesn’t get parole, and he doesn’t look like the best of candidates, it will be

11 years, nine months. Now it is not, in my submission, a matter of fortuity or happy coincidence that this calculation, the way I’m putting it to the Court, leads to the time incarceration being exactly the same as the sentence. It is the manifestation of the legislative intent.

On that, why should the Court be concerned with it, because the Sentencing Act specifically says that eligibility for parole is not the business of the Courts, so why isn’t it simply, why are we trying to talk about just desserts here. Isn’t the legislative scheme that the legislature has determined what credit is to be given and it’s not for us to try to work out whether it’s warranted.

Well dealing with the parole point, Your Honour, and in a sentence or two dealing with the Crown’s suggestion that this can be dealt with by early reference, either by the chair of a Parole Board, or by the Minister. Parole for the purposes of this appeal is a complete irrelevance, because parole has got nothing to do with sentence duration. What the Court has to –

Sorry, I should have talked about release, rather than parole, the discretionary.

Well, and again the function of the Parole Act, section 90, is to allocate the remand time to put the person in the same shoes as a bailed prisoner. It’s got nothing to do with punishment. Nothing to do with subjective evaluation of when a –

Well, yes, that’s my point exactly. The Sentencing Act takes care of the punishment. The Parole Act just makes sure that all is equal as between people who should be notionally in the same position. It is, in my submission, a matter of utmost concern for this Court, to work out how long a prison sentence should be, because that is what this case is about when cut down to its basics because you have two different potentials for how long a prison, exactly the same prison sentence should be, depending on the construction of this provision and I say without any discernible purpose for there to be a different outcome as between bailed, cumulative or concurrent, and that, I think probably neatly brings me to, given that we’re dealing with issues of interpretation, the lens through which this Court should view a not especially helpfully worded piece of legislation, because this is not the first time the New Zealand Courts have been troubled with badly worded parole legislation, because that’s what the Court of Appeal was faced with in spades in Attorney General v Manga where the Crown’s argument was the literal interpretation of the statute would lead in cases of recall to remand time being zeroed off, and that got absolutely no reaction with the Court of Appeal whatsoever. All members of the Court, Justices Henry, Thomas and Tipping,

gave separate judgments but were all frankly damning of the literal interpretation of a statute, when the literal interpretation operated to inflate the prison sentence in excess of the time that the sentencing Judge imposed. In Justice Tipping’s judgment in particular, Justice Tipping was animated by the fact that there was nothing in the legislative materials that indicated when the amendments, and the consideration came through that there was any intention that they were to have this effect. And here, in my submission, I haven't really gone through the R v Coward and Hall CA182/87, 18 December

1987 decision in the Court of Appeal about their interpretation of the policy underlying remand credit, but in short it was, yes, remand credit has to be applied generously to avoid the very mischief we have here, that you end up losing the entitlement to parole eligibility or omission of sentence, if one concurrent sentence is masked by another, and it ought also to be remembered that the Taylor decision is not, as the Court of Appeal would have had it in Te Aho, or rather section 90 is not the legislative endorsement of the Taylor decision that the Court of Appeal appeared to say it was in Te Aho because section 90 was on the statute book before Taylor was even argued. None of the Courts have had the benefit of the officials’ advice about what they were trying to achieve with section 90 and it was new because, of course, the difference between – the cardinal difference between the Criminal Justice Acts and the Parole Act is the transfer of responsibility from the judiciary under the Criminal Justice Act either to deduct remand time from the sentence as is the first case in Taylor or then take it into account by endorsing it on the back of the warrant of commitment as is the second application the credit in Taylor, that’s why he was entitled to double-dip. That responsibility went from the judiciary to the Chief Executive and, in effect, the receiving officers in the prisons the length and breadth of the country. They’re the ones who are actually tasked with the job of calculating because it’s done on receipt in the prison when the prisoner returns on sentence.

There is simply nothing in the legislative materials that indicates this kind of massive shift in policy but only in respect of concurrent sentences that Justice Tipping indicated the absence of which militated strongly against the Crown’s argument that the literal interpretation of a statute, when it had this

effect, ought to be adopted. In my submission, even if the Court were to come to the conclusion that the literal interpretation of section 90(2) is to do the slice and dice of remand time as the Crown advocate, the Court must strive to come to an interpretation that resists that because of the consequences that it leads to. It does lead to the significant anomalies and inconsistencies as between two different kinds of sentence.

Your Honour, this is where I think I can use the Brandon example as the best typifier of this because what happened in Brandon – and it’s clear from Justice Collins’ decision – is in that case the prison officer was so confused about whether these seven charges were related or not he was on the phone to the officer in charge of the case to get his steer on whether these charges were related or not.

Yes and if they had intended that perverse outcome it would have required significantly more detailed legislation than we’ve got. It is to place at a relatively low level in the criminal justice hierarchy a task that Justice Collins said in his judgment it took him hours to pore though the District Court file to work out whether these charges were related or not. The massive administrative complexity of the relatedness inquiry in charges such as – this is a really simple one but Brandon is a great example of this can be an incredibly taxing exercise for the brain of a judge, let alone a prison officer and that is pretty good evidence that Parliament didn't intend that outcome, whereas done my way in terms of how to administer this, the only thing the receiving officer ever needs is the warrant of commitment on sentence. From

taking the warrant of commitment on sentence which says which charges have received which sentences, all the prison officer needs to do was apply that to their own custody records from IOMS, which is the Corrections database, because on IOMS they have the record of time spent in custody. They then relate that to the warrant of commitment and it becomes a matter of simple arithmetic to apply one to the other, taking the (a), (b), (c) in subsection (1) of 91.

Well, proceedings means what it means in any sense. You just get a job lot of pre-sentence detention, in fact, whether you were acquitted, whether the charges changed, whatever it matters because why have (a), (b) and (c) if you only get it related to a particular charge? You then go to 91 and it says when you’re sentenced the pre-sentence detention is taken off the detention. Why are you going to interpret 92 and 93 to mean something different from that in circumstances where it’s quite clear what you get?

The interpretation currently given to 92 fundamentally conflicts with the title of the section and its manifest intent because if a section whose sole purpose is designed to give an allocation towards pre-sentence detention that puts the person in the same shoes as a bailed prisoner when it has precisely the opposite effect, and in this case inflates Mr Marino’s sentence by 40%, that must, in my respectful submission, be the best evidence that that is simply not how the section is supposed to be interpreted.

I mean, the prison officer would have to say, “Oh, well, actually they were originally charged with GBH. That’s what they were arrested on, but then the victim died so the murder charge was then brought in and then they actually got convicted on manslaughter,” and they have to go and work out whether – and that just can’t be the intention.

Your Honour, I simply don’t think that the Court of Appeal appreciated the complexity of the exercise they were mandating in the Taylor relatedness inquiry. It just doesn’t seem to have been before them to realise just exactly what this was going to involve. Certainly it’s my understanding, and I can say I’ve had discussions with the Crown on this point, I can put it no higher than following discussions with senior Corrections officers who do escort duty over the road who have been tasked with this calculation. Prior to Taylor they were basically doing it my way. That’s how Coward and Hall suggested it be done. You work out what the remand credit is, apply it across the board to the greatest extent because that leads to the sentence served being exactly the same as the period in custody.

I’m going to review matters, Ma’am, but I think probably the only additional

issue that I need to cover is the issue of arbitrariness because that potentially

creates in section 22 considerations and Bill of Rights interpretations of the section. But I think I hadn’t stuck to the roadmap that I handed up but I think I’ve pretty much covered most of the points that I needed to make.

Now Your Honour in relation to a point you raised earlier about the effect of when – a matter you raised relatively early in the piece, Ma’am, the situation where one is sentenced to imprisonment and then there’s another sentencing in a future, and I indicated that I thought there was a legislative provision that meant the time that you were serving as a prisoner is not pre-sentence detention. I’m grateful for Mr Edgeler, he’s fossicked out subsection (5) of section 91 of the Parole Act, “Detention that would, under subsection (2) or subsection (3), be pre-sentence detention, is not pre-sentence detention for the purposes of subsection (1) if the offender was, during that detention – (a) under legal custody in accordance with Corrections Act 2004 and serving a sentence of imprisonment; or (b),” and extradition offender, and that doesn’t apply, so that means that once your sentence, it’s no longer pre-sentence detention for potentially for future sentencings.

I want to touch briefly on some outstanding Booth issues about what it would actually require for this to be dealt with as part of sentencing, and the complication in the sentencing exercise, because everything that I said before the adjournment about the complicated nature of the Taylor enquiry, the relatedness enquiry, would actually have to be done as part of sentencing. There would, in effect, have to be a Booth annexed to any sentencing memorandum working out what was and what was pre-sentence detention. If it was pre-sentence detention it couldn’t be taken account of there, but would have to be taken account of over there. That, in my submission, is –

well I did a sentencing in the District Court in Porirua before Judge Hastings. I gave him a copy of the Court of Appeal’s judgment in Marino because there was a case where there was a laying of charges in tranches for offending that pre-dated the remand in custody, but wasn’t laid until after he’d been remanded in custody, and Judge Hastings response to this was to hold up his notes and say, “This took me all night Mr Ewen.” And I rather wondered if I could subpoena his notes for the purposes of this appeal. It adds a massive level of judicial complexity and time and resources for all parties, Crown, defence and the judiciary, to try and deal with this as part of sentencing because they’re incredibly complex, interconnected enquiry would have to be made as part of the sentencing exercise itself, and it would be almost impossible to do that, in my submission, without treading on the toes of section 82 because if one were, for example, to impose cumulative sentences because pre-sentence detention in respect of one charge would not be taken into account on another, one has just taken into account pre-sentence detention in fixing the length of a component part of that cumulative sentence which in my submission is exactly what section 82 says the courts must not do.

I don’t propose to address my friend’s submissions from yesterday and today in relation to early parole because, as I say, in my submission, parole is really not a consideration here. It is sentence length and sentence length is never affected by parole eligibility. If you’re on parole the sentence is still running in the background pretty much by definition and what we are concerned with her is what is the length of the sentence, and not whether at what stage one is released from it.

I think I can now turn finally to, in my submission, the Bill of Rights implications to this construction of section 90 in particular because in my submission, given the nature of the judicial proceedings date, and that it is only running from the date a charge is laid, means that in cases such as here arbitrary determinants have been factored into what is the effective commencement date of a sentence. I say effective because a sentence under the Act only commences once it’s imposed, but in effect we are dealing with

when does it start. Because in this case it is reasonably clear on the agreed chronology that the police were seized of the evidence giving rise to the last attempting to pervert the course of justice charge, at a relatively early stage. Pretty much at, not too far in time away from the date of the commission of the offence itself. But it only raises its head when there is the second iteration of the Crown charge notice filed for the District Court at Hamilton. The police have known about, and constructively the Crown have known about the existence of the facts giving rise to this charge for some time, but it is the Crown solicitor for Hamilton who chose, at a later date, to add this charge in. There is no rhyme nor particular reason for the date of the Crown charge notice and if you cannot ascertain a rationale basis for it being done on that date, by reference to the offending itself, then an arbitrary commencement date has been added into the process. This was, caused even greater consternation in Brandon where the charges were laid on successive dates over a period of about, almost a year, in fact I think it was actually longer than that, because in that case it was a big drugs operation and as everybody knows, big drugs operations terminate on a specific date, way before any analysis of the evidence has been done, because they have weeks and sometimes months worth of intercepts to trawl through to work out the specific charges that end up being laid, and it means the date of laying the charges is determinant on what resources, and over what period of time, the police and the Crown choose to investigate their case. Now sometimes that can be a quick exercise, because it doesn’t require much time. Sometimes that can be a lengthy exercise because it requires a great deal of time. Sometimes it’s a lengthy exercise because police resources are being devoted to other investigations. It may be that it is quite straightforward but it’s just something that they haven't got around to yet, and on the analysis, the JPD analysis that it only starts from the date the charge is laid, leads to, in my submission, an entirely arbitrary element being factored into a crucial determinant, from Corrections’ point of view, of when they will begin remand time. If arbitrary determinants are used to determine the effective commencement date in my submission that gives rise to significant questions of arbitrary detention and a Bill of Rights infringement.

Now Justice Simon France in his High Court judgment in this case says that, yes, it must be able to be done by easily determined dates, and with which proposition I wholeheartedly agree, because it has to be a simple exercise, but it cannot be an arbitrary exercise. If the Court determines that the commencement date, the JPD, navigating from commencement date alone, is arbitrary, then of course that freights in a R v Hansen [2007] NZSC 7 analysis to the interpretation of section 90, and in my submission, and I don’t need to trouble the Court with Hansen, but in my submission there is simply no way that the interpretation contended by for the Crown would survive a Hansen analysis particularly when, as several members of the Court have pointed out, there is a great struggle for working out what the policy imperative is behind concurrent, cumulative sentences leading to different results. So I don’t put forward the Bill of Rights argument as a makeweight but I think I’ve made most of the points that I need to make anyway. It is an additional hurdle, in my submission, that the Crown must jump to show that the date of laying of a charge is not arbitrary. They cannot do that because, particularly in this case and in others, there is no basis upon which one can differentiate between the date of a commission of offence, and the date that a prosecutor at one degree removed, namely the Crown once the Crown has resumed responsibility, chooses to lay a charge. Not even the first Crown charge notice they filed I think it was, at least the first if not second amendment to the Crown charge notice. That being arbitrary again, in my submission, the interpretation contended for by the Crown fails.

Thank you Your Honours. The easiest way I think again to commence the Crown’s submissions is to largely again follow my learned friend’s submissions and I suppose the critical thing to commence with here is that this is a habeas corpus appeal, in essence. My learned friend started with a

discussion around whether that appeal was moot. In my submission, it clearly is. The corpus has been habeased. The proceedings in that sense are at an end, albeit that the Crown accepts that this matter does raise an issue of more general importance that does warrant this Court continuing with this particular appeal and not the least because it arises in a tangential sense in the Booth case but also in a number of Court of Appeal decisions which talk about the need for some clarity in this area. So that is a concession by the Crown that we are not arguing the mootness in that sense of the –

Well, you’re really only talking about process anyway, with habeas corpus. The Court, being seized of it, can transform the proceeding, give directions and deal with it as if it were an application for declaratory judgment. So I don’t

– I mean, I appreciate what the Crown’s position on this but it isn’t really a

It could have been, Your Honour, but in this case in terms of the declaration we would still argue that a declaration of unlawful detention is not one that this Court should be making, particularly seeing as that declaration was not part of the original.

Well, how do you want us to clarify the Act? Make a declaration as to the meaning of the Act?

No, I think it’s just simply – well, yes. When I say no, I mean yes, I think that is exactly what is needed here.

Not an order that Mr Marino was unlawfully detained. I think that’s potentially a subject for separate proceedings if, in fact, civil remedies are sought for an unlawful detention. Clearly this decision may have an impact on that, but there is a lot more argument around whether in fact that detention was lawful at the time.

Well, sorry, but unless we make our decision prospective and there’re major issues on that then Corrections hasn’t been applying the law if our decision says that they were doing so wrongly.

Well, unless you’re arguing that we should make it prospective rather than retrospective.

But you accept that the proceedings – that it would be open to us to make a declaration as to the meaning of the legislation which, after all, is open to us under the Declaratory Judgments Act.

Yes, Your Honour, and in accordance with normal principle if you state the law to be that it is deemed to have been that forever.

So the declaration would just be the legislation means whatever we say it means.

And then whatever the consequences of that would be for another day and another proceeding.

Correct. Thank you, Your Honour. The Crown’s position is that the interpretation issue is one that is, in fact, relatively straightforward. It is consistent with the numerous Court of Appeal decisions that have gone in the past, including Taylor and Te Aho and Marino and we say that Taylor in particular does have broader application, that it’s not simply confined to its facts of a remand prisoner facing other charges, looking to triple-dip, because the critical thing about the Taylor interpretation of section 82, which was the

precursor to sections 90/91, is that the Court there was very clear about the fact that pre-sentence detention for the purposes of concurrent sentences applied to the sentence on the charge. Singular. So irrespective of, and how that’s been interpreted, or at least followed up on, is that irrespective of broad definitions of “proceedings” ie does a person face multiple charges, the interpretation of section 91 is that, in combination with section 90, is that when you are calculating pre-sentence detention on any of those individual charges for which the person was sentenced, it is an individual calculation, and it is based upon pre-sentence detention that relates directly to that charge.

Because I must say I haven't focused specifically on the difference. I just assumed they were the same but now I’m wondering whether that’s the case when you’re actually not just looking at the section itself but what’s around it.

Yes, there’s no material difference in terms of the wording. The section 82 section had the same provisions that we see, and this is in particular in relation to –

It is stated in Taylor, and I thought – Taylor yourself, Your Honours, is in the applicant’s bundle at tab 12, and from memory they did – it might have actually been paraphrased, sorry, by Justice –

Yes, yes, so that is, yes so section 81 repeated at section, at paragraph 6, is effectively what we have now in 91(1) and again Justice Baragwanath paraphrases that at paragraph 15 of the Taylor judgment and talks about the eventualities that arise in relation to an initial charge, and that is the paragraph that has been picked up on. It directly reflects the three stages that are defined in section 81, the original arrest, periods that the person faced at any time subsequent to an arrest, and prior to conviction, and in 91(1)(a) those are categories (a), (b) and (c) of the meaning of pre-sentence detention for the purposes of proceedings, are the same, any charge on which the person was eventually convicted, any other charge on which the person was originally arrested, or any charge that the person faced at any time between his or her arrest, and before conviction, and that latter category is the category that the Court said related to related offending effectively. So all of, or in fact all of that offending is the, I was going to say myriad, but it’s not, it’s effectively the three ways that you have related offending on a particular charge and perhaps to pick up on Your Honour Justice Glazebrook’s point about how charges can change during the course of a proceeding, and you talked about arrest on an original assault charge, that would be the charge under (b) which a person was originally arrested on. Then charged with that charge being upgraded to

murder when the person died, that would be, depending on the outcome, either a charge on which the person was eventually convicted, or potentially a charge that the person faced at a time between the arrest and before conviction because, in fact, what may well have happened to that original assault charge, is it goes assault, murder, and finally a conviction for manslaughter. So those are the three categories of changes that can happen to a single charge, and the Crown’s position there is that consistent with Taylor, Te Aho et cetera, that this definition of pre-sentence detention, and the use of the word “proceedings” there, is only talking about the proceedings in relation to a single charge as it follows its course from arrest to conviction.

How’s the prison officer who’s calculating, totting this up, to know that, how are they to know it’s not a totally separate murder charge from the original assault charge?

Yes, and that is a difficult issue. Of course under section 92 of the Act there is a procedure for recording the length of pre-sentence detention, and that requires the receiving officers to prepare a schedule and a copy of the record showing their calculation as to pre-sentence detention applicable to the charges on which the person has been, is now a prisoner. There is the ability for the prisoner to review that and under section 92(4) if the offender is dissatisfied with the outcome of the review, the –

Won’t they, I mean they just get a warrant saying, here’s the sentence and its’

Well, yes, but you’re not really expecting them to trawl through them, are you, and go well, oh, actually this was exactly the same offender and – how are they to know?

Regrettably they do that anyway because they have to do that for the purposes of calculating the remand periods and so they will have records of the person coming into their custody on remand on the assault charge, and they will follow the, either the CRNs through, or in some cases they may have to revert back to the actual sentencing notes or –

Yes they do. Yes they do. Or in extreme cases, where it’s very difficult, and Brandon is a very good example of that, in that case there had been a concern expressed about the relatedness of those charges. In fact, under section 92(4) the proper process is that if the calculation is challenged, it

actually goes back to the Court that imposed the sentence for that Court to review the calculation, and that is where the sentencing Judge will, in essence, have to make the same findings that Justice Collins did –

I’m not sure that actually goes back to the sentencing Judge. That’s an appeal. But it just goes to the level of Court that – it seems to me – that impose the sentence.

It is a different exercise because you are reviewing calculations that are made under the particular Act.

Well, it is the exact exercise so they – in terms of the question you asked me about following a charge through –

Well, I just would have thought that this should be really simple for the prisons because there are real difficulties if you make it incredibly complicated, and it’s dangerous for arbitrary detention, for letting people out too early, and one would have thought that Parliament would want this to be pretty easily calculated and not with this sort of complexity that we’re talking about which is

why they say, “Well, in the same proceedings you don’t have to worry whether it was this particular charge you were acquitted on or this one or this one. You just do a job lot of the detention and then take it off and that’s all you have to do. It’s an arithmetical issue and it just puts everybody in the same position. You don’t have to fiddle around worrying about anything to do with any of this.” Perhaps the only complexity is whether it’s the same proceedings or not.

Yes. To break that down, Your Honour, I am sure that both Corrections and Parliament would support the idea of simplicity around this. Parole eligibility, calculations of remand periods, have been notoriously difficult and that’s not just under this Act. I am quite sure and, in fact, I’ve had that from Corrections officers to say, “Yes, anything that makes our life easier in terms of calculating these periods would be great.” But the question that remains is, does taking it in, as Your Honour’s described it, as a job lot actually fit with the Act and does it lead to other consequences? So –

Well, we need that. Certainly the issue that I would like some more help on from the Crown in terms of it leading to other issues.

Yes. Well, I will talk to that as well. I suppose the primary submission from the Crown has to remain that in fact the statutory interpretation exercise that’s been undergone by the Courts in the past is a correct one. That is, as I’ve just submitted, that section 91(1) in terms of pre-sentence detention does directly address the pre-sentence detention scenarios that apply to the development of a single charge running through the Courts and that that is consistent with –

Well, it can but they say proceedings. Nobody would ever say proceedings, that if you’re facing – well, say, for instance, in relation to a single charge of rape you were facing proceedings in relation to – which sometimes happens – indecent assault, sexual violation and rape, so you’re facing three charges in relation to what’s essentially the same incident. Therefore you’re facing a proceeding in relation to the sexual violation and you treat them all as three separate proceedings. It would actually be quite an odd ...

It’s also odd because you say, well, proceedings means proceeding because of the Interpretation Act.

91(1)(a) says any charge rather than the charge, because on your view of it there can only be one – the conviction will be on the charge, won’t it? So if that is right it would say “the charge” on which the person was eventually convicted but, in fact, it says “any” and that contemplates that there might be more than one in the proceedings, doesn’t it, just as a matter of...

Well there might be. So in the instance of a – and Brandon I think is a very good example of that, Your Honour. My learned friend talked about the conclusion of a drug operation. There may only be a single holding charge which is intended to just hold that person whilst multiple charges are laid.

No, I understand that. I just wanted to know where it was in the statute because I can't see it there personally but –

Because it’s talking about the charge on which you were arrested and effectively these are the three categories of related charges that come through, and so that is what they’re talking about by “the proceedings”. The proceedings means those charges that are related directly to the purpose for which you were arrested.

I don't understand why in Booth the assault charge doesn’t fit within the plain wording of 92(1)(c) but it’s not related, is it, to the rape charges, though you argued it was for other purposes but not in this sense?

Well, that comes back to whether the proceedings, Your Honour, is everything that you’re dealing with at trial or whether, in fact, the proceedings is talking about –

But then why do you have related charges out of that? It’s either each charge or it’s any charge. It’s not any related charge.

Because the relatedness is to the actual – well, if I go back to my example of the murder.

No, no. Go back to my example of one incident of a serious sexual assault which leads to three different charges, or four different charges being laid. So over an hour’s period there are four different sexual assaults and the Crown chooses, as it is entitled to do, to lay four separate charges in respect of that.

In relation to the same victim within an hour of each other. Well, sequentially in an hour.

Yes, and so that would be covered by the relatedness discussion which is that –

Well, four separate is, if laid at the same time, all have pre-sentence detention running.

That is, right on the eve of trial. The unfortunate defendant is acquitted on the

18 months, gets sentenced to eight years’ imprisonment and Corrections says, “Sorry, your pre-sentence detention doesn’t count because it was referable to a charge on which you were acquitted. So your sentence starts on the day of your convictions.”

And the answer to that is that if those other charges are directly referable to the charge with which the person first faced, then they are –

What’s the language in section 90? So would you say it’s pre-sentence detention for the purpose of section 91(1) or would you say it’s not or would you say if it is it’s not referable to a sentence and, therefore, doesn’t fall to be deducted by section 90(2)?

If in those circumstances – and I think it’s, to use Justice Glazebrook’s example, of a particular sexual assault that takes place and it is effectively one incident, then to use your combination of that example if initially the person is charged with an indecent assault –

No, there you’ve been charged with rape. Three charges later are added indecent assault, sexual violation. Two.

The original charge of rape remains but there are other charges referable to other aspects of what happened. Acquitted on the original charge, convicted on the other three.

Just taking it through section 91(1), is it pre-sentence detention on the charges in respect of which he was found guilty.

Sir, that will be – that’s right. It will be any charge on which the person was eventually convicted.

It’s not a charge on which he was convicted because the pre-sentence detention, we’re assuming the additional charges are laid right on the eve of trial.

But that detention related directly to the charge on which he was eventually convicted.

Exactly, Your Honour, and this is the exact application that Taylor, Te Aho, there’s the exercise that Justice Collins went through in Brandon to try to work out which other directly-related offending, and it is in my submission the whole purpose of section 91(1) which is that people should be given credit for being arrested for a particular incident and then no matter what that manifests in, in terms of the eventual conviction or even the charges that happened along the way, whenever you are remanded in custody for a particular incident then you’re entitled for any charges that arose out of that incident.

But the relates in section 91 – sorry, I hadn’t understood you turning it back to that and maybe you’re not, maybe I’ve mistaken you, that “relates” relates to a period, the period at any stage during the proceedings leading to the conviction or pending sentence. It’s nothing to do with relating to the charges or any of them.

Yes, well, it relates to any charge that the person faced at any time between his or her arrest and before conviction, so you have to add in which relates to any related charge that the person faced at any time between his or her arrest and before conviction.

Well, “relates” isn’t because relates is just relating to any charge but you’d

So you’re really sort of saying you look at the charge on which you’re convicted and then the other two have to be charges that are related to the one on which you were convicted but “relates” relates to all three, A, B and C, not just to A.

No, I don’t care what we’re talking about. I want to know where you get, how

In the language of the section it talks about a period of detention, so you are talking there in the section about proceedings that have detention attached to them. Those proceedings aren’t just the charge for which you were originally arrested on. It’s the manifestation of the various ways that a charge proceeds through the system.

(a), (b), (c). They are the three ways that you can have a single proceeding change or the proceedings themselves can change as they go through the system.

So pre-sentence detention is detention – well, let’s call it just detention that occurs at any stage during the proceedings which leads to the conviction or sentence. Then it is whether that period relates to and then the three categories of how that detention in the proceedings can change determining what parts of the charges eventually end up resulting in the conviction. So you might be engaged in a proceeding which has an initial charge, ie the rape. That charge might end up in you eventually being convicted of an indecent assault or you might actually have the rape charge dropped and a

different charge that relates to the very same proceedings or Act in place for some time before you are eventually convicted of something else. All of those scenarios relate directly to the proceeding for which you were first charged, the charge itself, the initial period in remand. Otherwise section 91 has no point.

Well, why doesn’t it have a point in terms of it saying any detention on any of those things before what it says? Pre-sentence detention is detention on any of these things, whether you were arrested, charged, or anything that happens before a conviction.

Because there’s no need for that. You just simply say that pre-sentence detention is any time that you were remanded in custody.

Well, no because it’s limited to the proceedings. It’s not limited to a charge,

Exactly, Your Honour. So once you limit it to the proceedings you’re limiting it to a charge and you’re referencing the pre-sentence detention back to the particular charge, not just any remand in custody but a remand in custody that relates to the particular proceedings for which you are undergoing trial on that charge.

That then fits with the section 90(2) which of course requires the Court to establish – well, not the Court in this case. It will be Corrections but requires that there be a calculation that the amount of pre-sentence detention applicable to each sentence, and we have separate sentences imposed, of course, on every concurrent charge.

Unless sentence refers to concurrent sentences in the initial words of subsection (2).

Well, if sentencing A, in (2) to each sentence is a reference back to concurrent sentences in the initial words of subsection (2) it may not be in respect of each charge.

I wonder if you could go back to Booth again and take the sentence on the first rape, 11 years nine months.

That was eight years plus an addition of three plus the three months to reflect totality.

Now that’s a sentence for the purpose of 2A, 11 years nine months. That’s –

Right, and you would say you’d calculate the pre-trial detention in relation to that simply by reference to the rape, the one r – the fact that the two doesn’t matter because the pre-detention is the same for both of them. But you would just take account of the pre-sentence, the detention in relation to the particular count?

Now why shouldn’t you take it into account for the components of the sentence because if the totality principle is going to be applied to increase the sentence by three and a half years for count number 2 in the rape and the three months for the assaulting, why isn’t that taken into account in the calculation in respect of that sentence?

Because the totality exercise is a different one from the calculations for pre-sentence detention purposes.

But, I mean, isn’t that the point, that if you treat it as a different exercise, completely independent, it does skewer the application of credit for pre-trial detention?

Yes. So that’s a different point again, and I have to accept that there are, on very rare occasions, anomalies which are caused by the imposition of concurrent sentences as opposed to cumulative sentences, and that is because of how pre-sentence detention is calculated. Those anomalies only can arise if a person spends time in custody for an offence which does not become the lead offence and in circumstances where, whilst that person is in custody on that first offence, or has spent time in custody, a second offence is charged or that person commits a second offence which becomes the more serious one. It’s rare but it does –

That is Booth. That’s exactly Booth. It’s also Marino because in that case Marino’s initial offending was violent offending which wasn’t seen as serious, in fact, as the attempts to pervert the course of justice, offending for which he did not commit until he was already on a remand in custody.

Of course, the trouble is that can be quite a – it’s not necessarily obvious which is going to be taken as the lead offence. Different Judges might decide that violence was actually worse than perverting the course of justice for instance, and one couldn’t really quibble with a view that a hurt to a person might actually be, although, of course, so intertwined because you’re actually trying to get off the violence side of it and intimidation but –

– so it really could be quite arbitrary which one is picked and then you might be inflating.

I would disagree with the first part of that statement in the sense that it’s not often arbitrary as to which offence you pick as the lead offence. Usually that’s done –

But there may be differences of opinion in terms of between different judges as to which is picked and for what reason.

Yes, although if one has done a sentencing exercise which is well considered, they are required to, in fact, pick the most serious offence and then raise that for purposes of totality. So we would hope that you would see a consistent approach in that. So to the extent that arbitrariness comes into it, it’s not, in my submission, in that aspect of it, but I do submit, or accept, rather, that what can happen is that in those limited circumstances where somebody has offended after being on remand and/or charged with other serious offending whilst on remand there is an anomaly that can be created if concurrent sentences are imposed when that subsequent charge becomes the lead offence.

So in those cases if the anomaly is not to rule, Judges will be in error if they

I know, but you can’t have it both ways. You can’t both have no error in sentencing and no error in interpretation of section 20, it seems to me. Maybe you lose both ways.

If I was going to pick one – in terms of a belt and braces approach, I think the bigger risk is, quite frankly, is in interpreting section 91(1) in the broad fashion.

Explain why, please. That is really the issue. Are there going to be anomalies? Are there anomalies that are going to be introduced?

Well, the biggest and most significant one appears to be – even on my learned friend’s acknowledgement – that this is only going to help you if you’ve got sentencing that all happens on one day. So it’s only in that sentence –

Wouldn't it apply if there’s sentencing in relation to a set of proceedings within

It could encompass unrelated offending and charges that become separate at an early stage and follow different courses.

This is where we’ve suddenly made the Corrections officers’ jobs even harder because what you’re saying then is that proceedings are anything –

Well, there’ll be a problem for the Corrections officer to determine whether concurrent sentences imposed are in respect of a single set of proceedings or different sets of proceedings which is probably reasonably similar to the problems they now face with relatedness.

Well, relatedness, at least, Your Honour, has the ability for that review to take place and for it to go back to the sentencing Court.

Couldn't this review, the same thing happen if proceedings – I mean, there’s actually a number of ideas here but let’s say 90(2) is construed in a way that doesn’t help you. That’s not an answer to the argument. Then the application of the calculation in any particular case would always be subject to an appeal back to the sentencing Court.

So let’s perhaps to extrapolate on that, what about the situation of a man who is remanded in custody on charges that are before both the District Court and other charges that are before the High Court? Are they related proceedings? What is the sentencing Court?

conviction or pending sentence in section 91(1) encompass all charges that are laid from whoa to go and are within the three subsections.

So you start with the first charge and you finish with the sentence that’s imposed. Anything that comes up in the middle is within the concept of proceedings. Then secondly in relation to section 90(2) either a sentence – any sentence in relation to proceedings so defined is a sentence for the purposes of section 90(2) so in this – so in these cases Booth, the overall lead cumulative sentence that’s the sentence or, alternatively, and this could also apply here, that it applies in this case because the sentence imposed is broadly referable to charges which inform the totality of the sentence that’s imposed.

Sir, just on that latter point, I’m a little bit more confused because if we use the Booth example, section 90(2) is requiring you to take hold of each of those individual concurrent sentences.

Well, the argument – that section 90(2) is what you would rely on. What I think the Chief Justice has suggested is that it really only would apply, it’s only two or more concurrent sentences if there are two or more separate sets of proceedings which result in concurrent sentences. So in the case of Booth she’d say there’s only one sentence, one set of concurrent sentences.

And by analysis would that mean that you do not have to calculate as required under subsection 2 the amount of pre-sentence detention that applies?

Yes, okay. So to come back to a point I think Your Honour made yesterday, if you don’t make that calculation on the remaining rape charge or the remaining assault charge and there is a successful appeal against that lead sentence, what has happened then?

11 years nine months, and then you have an eight years. The 11 years nine months one goes and you calculate it on the eight years because that’s –

So the real purpose of having the requirement calculated separately on each concurrent sentence that is imposed is so that Corrections and the prisoners, themselves, knows when they have hit the sentence end date and parole eligibility date for the purposes of each of those sections. Sometimes – or each of those charges.

Well it needs to be because don’t forget concurrent sentences can be imposed on a sentence that you’re already serving.

I think that is really what section 90(2) is directed at, those sort of proceedings.

Can you tell me what other references there are in the statutes to single notional sentence?

In the interpretation section under section 4 I think there’s a reference. There’s –

Is it only really significant for calculation of time served and thus parole eligibility and sentence release date?

75, whether it’s a long term sentence or a short term sentence the non-parole and the release date it says.

So in terms of the notional single sentence, that only does apply to cumulative sentences of course. So that is the way that they administratively can deal with cumulative sentences.

Yes, so it equates the total effect of the cumulative sentence to a single concurrent sentence.

Which would in itself suggest that they were meant to be dealt with in exactly the same manner because why would you effectively turn three cumulative sentences into the same effect as a concurrent sentence if, in fact, by section 90(2), you’re making a concurrent sentence have a totally different affect from your notional cumulative – notional single sentence.

And that’s a tidy argument when you’re thinking about sentencing on a single day but it’s not one that works for all situations and so –

often because that’s the very reason they’re made cumulative because there’s

a totally separate and unrelated offending, especially say if you get into a fight in jail, for instance.

Sorry, I might have misunderstood you, Your Honour, but if you saying why do we have this –

No, you were saying it doesn’t deal with the cumulative sentence that – but maybe you meant, sorry, a concurrent sentence you impose later but maybe you meant cumulative.

Well, no, but why would you have for cumulative sentences turn them into one concurrent sentence and then for concurrent sentences have a totally different regime from what you are notionally turning three cumulative sentences into? What’s the policy rationale, any possible policy rationale for that?

Because if you automatically convert concurrent sentences into a single notional sentence you will have ramifications for the end date of your sentencing. So if, for instance -

Take Nahu v New Zealand Police [2015] NZHC 54. Nahu was a very good example of that where the Judge did impose a cumulative sentence and in fact it linked itself to a result which the Judge never intended.

Yes but what would be wrong with treating a cumulative sentence as a single notional sentence?

So you’re treating – so what the exercise is, is treating cumulative sentences in their totality as if they were a single, concurrent sentence.

So why would there be a different outcome in terms of parole eligibility and a sentence release date depending on how the sentence was structured? I mean, that’s the policy question that’s been put to you. There’s no obvious answer, I think, is there?

All right. Would there be an anomaly created if, as it were, that anomaly was squashed by treating the sentences imposed in these cases as a single sentence from which the total pre-sentence detention as served should be deducted? Now, leave aside whether it conflicts with section 90(2) because maybe it does, maybe it doesn’t. But leave that aside. Would there be any problems in terms of administration? You may want to think about it.

Mr Horsley, I was wondering – I haven’t discussed this with my colleagues but this is a very important case and what the Court is putting to you is not really the way the case has been developed. I really wonder whether the Crown needs to consider its position a bit further on this because there is an anomaly. As you’ve heard, certainly I think that there is unfairness in result in the cases that we’re considering and it just has to be fixed if it can be. If it’s impossible then we just have to say to the legislature, “You really need to look at this.” But what has been put to you seems to be something that makes sense. What is against it is, in fact, court decisions which may have put the Department of Corrections wrong. I just really wonder whether the Crown would like to consider the interpretation point and if you need more time we’ll give it to you.

But also I would like to know whether we would be creating difficulties if we decide on the interpretation that we’re putting to you now because there’s no point in fixing up one problem to create other problems. If there is a possible policy rationale for the difference then it might be related to the anomaly that we would create by fixing it up and if there aren’t any ...

Well, I might be able to free up some time this afternoon, Your Honour. We have had a discussion, both among counsel, as in Crown counsel, sorry, and Corrections about the issues that have arisen today. It is the Crown’s position that the interpretation of section 91(1) as it presently stands is correct, but that’s not a complete answer to this, obviously, and certainly if the interpretation is to be broadened out, then it is very important that this Court has before it full information about the ramifications of a broadening of that

current interpretation. We would like some time to be able to explore those issues, to be able to get back to the Court with, at least, a memorandum from us as to the likely issues that would come out of the broadening of the interpretation but also some possible solutions around fixing the anomaly, whether that be legislative or otherwise, and obviously those things will take some time.

Well, depending, of course, on what is said, that may not be something that the appellant wishes us to take, kicking it away because there are present issues for the appellant.

It may be for other people who are in a situation and the trouble is probably the worst people are the short-term sentences as it is not for the current appellant because it’s become moot in so far as the release but there may be other people in his position.

It’s not so bad for Mr Booth because I suspect it’s quite a while before that is

Correct, correct, so there’s – yes, Mr Booth’s situation, irrespective of the

thought about the issue of both sentences that have recently been passed and also appeals and/or sentences that are coming up.

A proposition that I would like to raise with you is that through the Solicitor-General’s general oversight of prosecutions under the Criminal Procedure Act, that we, Crown Law that is, issue a memorandum to all Crown solicitors and prosecutors drawing their attention to this issue and advising them of the consequences of cumulative versus concurrent sentences in these sorts of situations and that they should have an obligation to draw that to the sentencing Judge’s attention. Corrections can assist with that as well in identifying those cases and that, to some extent, I think, at least, it’s probably the wrong expression but, buys us some time to get back to this Court with a more substantive answer to any anomalies that might arise and/or to address some of the issues that you have raised with me this morning.

I'm not sure about that because what’s happened is that a present issue has been identified which, as you say, is affecting cases in the system. I just wonder whether – and you’re maintaining an interpretation that the present interpretation this Court is seized of the question whether that interpretation is correct. I’m really wondering whether we don’t have to proceed to determine that matter because it must be of substantial public importance.

I wouldn’t have thought it would take long to work out the ramifications because what I’m suggesting by ramifications is looking at the statute and seeing if there’s anything that arises out of the statute that would create a difficulty. I must say I have difficulty in seeing why it would because –

No, I wasn’t addressing that. I was addressing the suggestion that the whole thing could have been parked while consideration is given to a legislative solution. That’s the issue.

Certainly in terms of identifying any further argument you want to put to us to be sure that you have adequately addressed it and have flushed out any consequences, which is what Justice Glazebrook is rightly concerned about, I would have thought can be done relatively promptly.

I thought you said a week, Your Honour. Perhaps a little longer than that would be appreciated. If it’s exclusively directed to that issue then I think that an adjournment of, say, three weeks would be appropriate.

I just can’t see why you’d need three weeks. It’s a statute matter, isn’t it?

which is one of the difficulties. That’s why I say a week is a problem for that.

Well, perhaps what we should do is hear the appeal out, give you an opportunity to put in a further memorandum addressing some of these issues so that in, say, a couple of weeks’ time if you need more time you can indicate that.

Yes Your Honour, although I think we would probably – if we are going to provide examples of anomalies given the complexity of this argument in the legislation.

But it’s really logical anomalies, isn’t it, through reading the statute and working out what the implications are. It’s really the argument that you would have been prepared to meet had the argument that seems to have been glanced at in the Court of Appeal actually been dealt with.

Of course, to be fair to the Court of Appeal the nature of the habeas application was that it was coming before them fairly quickly so this is probably the first opportunity to actually develop that part of the argument substantively, anyway. I think it would be best, Your Honours, with respect, if we came back for a further oral hearing on that.

Yes, I think it probably would be useful, too, although that wouldn't preclude your putting in a memorandum identifying the sort of issues that you – if you discover any.

and it’s one thing to say to the Crown solicitors, draw it to their attention, but –

Perhaps what’s more significant is people are not being released on this basis.

Especially the short sentences because I think it probably isn’t going to matter

Mr Horsley, what we’d like to do – although I’m conscious of foisting this a bit

I’m available. I’m away the week before but my position is more a case of can the Crown identify anomalies resulting from, which I think I shouldn’t need a great deal of time to respond to.

If you need it, you can put something in later if it’s required. We’d be assisted by a further oral hearing on the matter. Mr Horsley, on that basis you should file a memorandum or submissions, probably, indicating any changed position and also addressing the question of anomalies in the interpretation that the Court has been discussing with you. If that memorandum could be by

Excellent. All right, well, thank you, counsel. It is a difficult case and we do need to be sure in this matter, so I think that is the right course for us to be taking. We’ll adjourn the hearing until the 26th of July.

Yes, well this is a resumed hearing. You appear Mr Ewen and Mr Horsley. Thank you. Mr Horsley, I think really we should hear from you first.

Yes, I thought that would be the case. Thank you Your Honour. Your Honours have had hopefully the opportunity to read the supplementary submissions that were filed only on Friday.

Those submissions deal with the last of the issues that we were confronting, which is effectively the interpretation of proceedings being all proceedings ie all charges, whether related or otherwise, that are on foot from the time of an initial arrest right through until final disposition and those submissions, I hope, set out where this Court’s thinking may have been at the conclusion of –

Can I just suggest. I’m not sure whether you’ve entirely captured that, but before we come to the current Act, could you look at these, section 81 of the

The respondent’s bundle of authorities, section 81 of the Criminal Justice Act.

So this was a provision that required physical notations to be made on warrants of the time that was spent in custody.

And then subsection (3), “On receiving the warrant of commitment for any sentenced offender, the superintendent shall cause any period during which the offender was detained... on remand... to be determined and entered on the warrant of commitment.”

Now warrants of commitment tend to be issued in relation to single sentencing occasions, in other words, 20 charges, one warrant.

Well if you look at page 125 of the case on appeal, that’s Mr Marino’s warrant.

So if this warrant, if this had happened under the 1985 Act, the Commissioner would have seen this total of 22 months, and then he would have deducted from that time spent on remand.

So all the charges that were listed, the Commissioner would have, the superintendent would have looked at the charges, worked out the amount of time spent on remand, and deducted that from the 22 months.

For the perverting the course of justice charge you would have looked at the, you would have had the calculations, Goldberg v R [2006] NZSC 58 is a good example of this actually where, and that was looking at section 81 of the Criminal Justice Act in Goldberg and from memory – R v Coward and Hall CA182/87, 18 December 1987, sorry, those two were both remanded in custody initially for 10 days on manufacturing of heroin charges. They were released on bail and there were other offences committed, for which they were actually subsequently imprisoned. Those offences did not calculate the

10 days worth of remand that was on the heroin charges, and they got a credit for the remand that they had in custody on those subsequent charges, and the error that arose was that when the Judge was calculating, for the purposes of noting on the warrant of commitment for Messrs Coward and Hall, the calculation for the heroin charges, he did not count the subsequent period

where they had gone back into custody. he only gave them the initial 10 days. So that engaged two warrants of commitment, or would have done, and it was said that the calculation was incorrect because, in fact, all of the pre-sentence detention, that was applicable to the heroin charges, was not properly calculated.

But just looking at Mr Marino’s warrant for a moment. Why wouldn’t all the, under the 1985, why wouldn’t all the pre-sentence detention just be totalled up and set-off against the 22 months, because that seems to me to be what section, subsection (3) means.

But at that stage the superintendent doesn’t know what’s going to happen the

Yes, on subsection (3) you’ve got to record on the final warrant of commitment the time spent on remand.

And in particular that is the period you will see beneath (b) where at any stage

Sorry, but what I’m suggesting is on a warrant of commitment like this there’s no need to break up the sentences between the different offending. There’s one warrant of commitment, one sentence, and one period of remand, providing the remand is referable to one of the charges on which the offender was sentenced. It’s just globalised.

It is, but it’s not, albeit that for the purposes of Mr Marino there is a single warrant of commitment, that warrant of commitment has with it separate calculations for the separate offences. For instance you don’t globalise it if Mr Marino had been subsequently –

I’m not interested in separate sentencing occasions, I’m just interested at the

Sorry Sir, I meant subsequently on appeal had been acquitted on one of those charges.

There would be another warrant of commitment but you’d have to calculate the pre-sentence detention and the remand periods and your end date, for the purposes of each of those sentences.

In section 81 it comes in, and this is the Taylor v Superintendent of Auckland

Why, well, where I get separate interpretation, or separate calculations for each sentence, in determining the length of any sentence, you must go back to whether the, again whether any part of the period is in relation to the charge on which you were eventually convicted –

Well here it all was. Here, all the periods were in relation to charges on which he was eventually convicted. So he’s, on the face of it, squarely within subsection (1).

But Taylor is not concurrent. Taylor is a sort of separate sentencing occasions, it’s a very different case, and it’s confusing I think in the context of what is, to my way of thinking anyway, a reasonably simple, if slightly oddly worded, provision.

Well Taylor is concurrent because it was concurrent sentences that were imposed I think in Taylor but –

I thought the issue in Taylor was that they were imposed whilst he was already serving a term of imprisonment, but it was concurrent sentences imposed on those.

I’m really just trying to say, it’s quite a, the section, the current provision is quite difficult because I think there might be a drafting error, or an infelicity in it, but if you go back here, I think that does give you a pretty good steer of what the scheme was intended to achieve, and it does seem to me the most natural way of reading section 81 is that there’s a global sentence, which is the one noted on the sentence of commitment, on the warrant of commitment, that period of remand, referable to any of the charges on which that offender was sentenced, is counted up and noted on the warrant of commitment under subsection (3), and there’s therefore a global deduction. See this is a system that was, that’s really the, affected by the thinking of the schemes that precedes it, where the Judge had to count the days.

Yes, yes, and we’ve had variations on that theme. But in all cases, and I suppose one of the difficulties is, is that that’s all well and good because you’ve looked at the Marino warrant of commitment which has all of those in one warrant.

But what does the reference to, “relates to any charge”, what does that mean

How on earth does the superintendent know that? When you’re looking at somebody who has to, without an intimate knowledge of everything, and certainly without the time, I would have thought, to trawl through sentencing notes and previous history of commitments.

Well just generally, how, why would, well I mean we come back to why on earth would Parliament make a distinction of this kind that’s totally arbitrary between cumulative and concurrent sentences, but apart from that, why would Parliament assume that, in calculating something that should be easy, the superintendent has to trawl through things and come to legal decisions in respect of relationship between charges?

Well that is definitely a difficult calculation, but it is one that is necessary, and under the Act Parliament was trying –

But why would we interpret something that can have two interpretations, to have an interpretation that creates arbitrary results, and an awful lot of work for a superintendent and assume that that’s what Parliament meant to do when Parliament, in the history, doesn’t say anything of the sort.

I just wonder whether I, I think that there are two points that are being put to you. One is the policy one, which so far I haven't really heard an answer to, but the other one is the textual one on the interpretation of section 81, which Justice Young is putting to you, and I think we still need to get an answer on that because you may, then, have an explanation as to why the current provision should have changed so radically. But for myself, on the text of section 81, I would have thought that that was entirely against the argument that you are advancing, that all the periods on remand are referable to specific charges, because of the way it brings in any stage of proceeding, any charge, whether you were originally arrested on it, and so on, whether you were convicted or not. Just on its text what is the argument that section 81 means, that you must calculate the period according to each charge.

I’ll just sort of reverse that slightly Your Honour because I think it makes it easier, and that is that the whole premise, whether it be under the Criminal Justice Act, Sentencing Act, or Parole Act, is that prosecutions commence with the laying of a single charge, albeit that at the indictment stage those charges can be amalgamated, we always commence with one single charge. The structure of the Sentencing Act is that a sentence must be passed properly on each offence. Not on each sentencing occasion, but on each offence. And likewise for the purposes of calculating, in particular, concurrent charges, it is important that the period on remand with which you have had in relation to a particular charge, is captured and attributed on each concurrent sentence, because with concurrent offences they will have differing starting dates, they will have differing parole eligibility dates, and they will have differing sentence end dates. That changes when you impose a cumulative sentence. When you impose a cumulative sentence –

I think we really all understand that. What we’re asking is about the meaning of section 81(1) which in the text below (b) seems to be looking at the proceedings as encompassing a number of charges.

Well that’s where I think we differ because in our submission the proceedings is in fact the single charge and the course that it takes throughout the period of its life.

Well what’s the point of referring to any other charge on which the person was originally arrested, for example. Because on your interpretation that’s not reached, because that’s already the not referable to the sentence that is imposed.

No it’s very much referable. If this, forget about multiple charges. If you look at section 81, and the wording of section 81 largely carry through into the Parole Act as well and those types of stages of the proceedings, sorry, the stages of the proceedings referenced in section 81(1), are directly referable to section 92 of the Parole Act and we still cover now those three stages of the proceedings.

Yes, so section 81(1) means that on a single count you are entitled to credit, or a single offence, you’re entitled to credit for the period that you spent on remand in the circumstances that that charge takes as it goes through its life. So if you are arrested on an assault charge, that subsequently becomes a murder charge, and then you are finally convicted of manslaughter, that charge has changed, fundamentally changed in terms of how it looks on the face of it, but you’re entitled for your remand credit for the very stages of the proceedings as it went through its life.

But it’s clearly not simply referring to charges that morph into different charges because it includes any charge on which the person, whether or not the person was actually convicted. So he’s not being sentenced on that charge.

Well yes he is because if you take my example you are charged with an assault –

Another way of looking at proceedings is that the proceedings that are relevant are the proceedings which are referable to all the charges on which the offender appears for sentence, and which were recorded in the warrant of commitment. Now that’s not your interpretation but tell me, but apart from it not according with your interpretation, tell me what’s wrong with it?

Look at Mr Marino’s warrant of commitment. Why can’t we just construe proceedings as, for the purposes of we’re dealing with section 81 now, but obviously we later have to deal with the current legislation. Why can’t we just say that that refers to all the charges on which he was sentenced?

But that’s just a reassertion of your argument. What’s wrong with the – I’m not asking you to put your argument again, put your interpretation again. What I’m asking you is to say what’s wrong with the view that proceedings doesn’t mean look at the charging document, whatever. What I’m saying is it looks at all the charges, in respect of which there is a sentencing and a single warrant of commitment. Why doesn’t that work?

If you do that what you are saying is that for every charge that appears as a concurrent charge in the warrant of commitment you will get the credit for all

remand periods spent from the time of your charge, your first charge, right through to this final disposition, this warrant of commitment.

What he would have got, Sir, is a single notional sentence because of the operation of –

I’m assuming they’re all sentenced cumulatively, so it’s two months on each,

Can we just cut to the chase. If it is a single notional sentence, he gets a full credit.

The no is that he can only get a credit for – perhaps it’s easier to take you to –

So when an offender is subject to two or more cumulative sentences that make a notional single sentence, any pre-sentence detention that relates to the cumulative sentences may be deducted only once from the single notional

sentence. So any overlapping pre-sentence detention when you impose cumulative sentences, can only be applied once.

When you impose concurrent sentences there is no such prohibition on counting it once, you actually run concurrent sentences, pre-sentence detention runs for the entire period. So when it relates to a particular charge. The reason why they’ve done that –

Just pause there. I don’t think that’s right. A series of concurrent sentences

12 counts. Let’s for symmetry’s sake pretend it’s 11 and he gets two months

No, that’s right, because the difference is that you will get, then, of course a longer, or potentially longer, end sentence and you’re right, all of that period that is spent on remand will be calculated for the purposes of pre-sentence detention. But that is because of the operation of section 90, which –

Well it’s both Sir, because the first thing is that it becomes a notional single sentence, that’s right, and the second aspect of it is that you’re only allowed to count pre-sentence detention on each charge once, or the pre-sentence detention once. That doesn’t apply when you impose concurrent sentences. So if I’ve already started a sentence, then the pre-sentence detention that is calculated on that doesn’t give me a credit for the next sentence that I start.

Which again, Sir, probably brings to the fore the anomaly that’s created by calling proceedings just something that happens in one sentencing exercise. Now for Marino, for instance, he has got pre-sentence detention that relates directly to the family violence charges. I think he has in theory, at least –

He was remanded in custody from February right through until October. Now that remand, the full, we’ll call it eight months, the full eight months of that remand he is in custody on those family violence charges. That’s eight months of pre-sentence detention on the family violence charges. He then has an attempting to pervert the course of justice charge. He gets roughly six months remanded in custody on that, and he has a subsequent one laid, for similar purposes, say four months of remand on that. He’s entitled, on the analysis of this, to pre-sentence detention credit for all of his periods of remand. Eight, plus six, plus four.

But where is it that it says that he’s not entitled to count each one. Now under the cumulative sentences it says you may only count a period of remand once. No such calculation applies for concurrent sentences and that’s because they’re not added together. They run simultaneously.

No, but don’t you look at just the definition of pre-sentence detention for that. If you’ve only spent eight months then you haven't spent 15 months. It can't be pre-sentence detention – I suppose the difficulty is that if you were in your alternate universe where you have proceedings for each charge.

To be fair Your Honour it’s the current universe, and this is the interpretation –

– that the Court of Appeal have put on it for the last 12 years. And the reasons for that are because pre-sentence detention has to be calculated separately on each charge when you are running concurrent sentences, otherwise it does not work.

Well why, I mean I’m still having difficulty seeing why it doesn’t work, and why there should be this policy issue between – I think at one stage you started to say what changed when you had cumulative sentences, and why there was this distinction. So is your assertion that if you didn’t do this you would get double-ups in concurrent sentences, when you don’t get double-ups in cumulative sentences, is that the only distinction you’re making?

All right, so why don’t – because if we understood the policy reasons why you would have this it would not seem arbitrary, which at the moment it does, the distinction I mean. And Taylor is in a totally different context where, in fact there was an attempt to get a triple dip.

Mmm. The policy reason for it, calculating concurrent sentences separately and applying the pre-sentence remand that applies to those, is because they are separate running sentences. Now take, for instance –

Although I would have thought cumulative are even more separate running sentences, which is why they are cumulative and I mean the other arbitrariness about this is that because of the totality principle, you can have an upload on the main charge, and an actual downgrading of the other charges, which probably happened here. So if it had been a separate sentencing exercise for Mr Marino on the domestic violence charges, he wouldn’t have been landing up with whatever he landed up with if you look at that in terms of a concurrent sentence, would he? He would have had something more than that. So the loading has been on the more serious charge so it’s totally, even more arbitrary in terms of calculation isn’t it? Because of the totality principle. Same with cumulative sentences of course.

Certainly, section 85, when you’re applying totality, does provide for separate considerations to come into effect when you have multiple short-term cumulative sentences, and they wouldn’t properly reflect the sentencing, and the proposition that each sentence must receive a proper sentence would be impinged upon if you didn’t have some sort of totality adjustment. It would result in unfairness, that’s true. So there are adjustments that need to be made throughout the course of it. Perhaps something slightly outside of Marino is – to give example to this. If somebody is arrested on a charge of assault and they spent two months in custody on that charge, they then abscond – once they are on bail, sorry. They are bailed and they abscond. They spend some two months, two years perhaps even, at large and then commit and are rearrested on an aggravated robbery. The person pleads guilty to both of those charges immediately. On the analysis that the proceedings commenced on that first arrest and that all pre-sentence detention will be credited to those concurrent sentences to both of them, the

person gets two months deducted from his aggravated robbery charge despite the fact that he had not even committed that offence at that stage.

But why does that matter if the sentence on the aggravated robbery charge reflects the totality of the offending, which it will do?

But if they are concurrent, the aggravated robbery charge will presumably be the lead charge.

And the sentence on that will reflect the totality of offending and thus the criminality in relation to the earlier offending. So what’s unjust about the pre-sentence detention counting?

So say he gets six years for the aggravated robbery and the assault itself was worth a month. There’s an uplift of two weeks on the aggravated robbery to take into account totality, yet that person gets two months credit for completely distinct offending against his robbery.

But he would – I mean, this may just be rub of the green because that would happen if cumulative sentences were imposed.

If a cumulative sentence of one day was imposed for the early result, the offender still gets a two-month deduction.

So, I mean, in the end, I mean, there are going to be – I mean, I suspect whatever interpretation is adopted there are going to be some rough edges but the Marino v The Chief Executive of the Department of Corrections [2016] NZHC 459 and Booth v R [2015] NZCA 603 cases are very rough edges indeed.

Well, in the intervening period that we’ve had since the resumption of this hearing we have looked at some of the consequences of a different interpretation and –

The instructions apply only to concurrent sentences imposed on a single sentencing occasion. This would be the only change, wouldn’t it?

No, no, well, that’s the proposition you were – that’s the case you’re already

Well, because we don’t even have the totality principle if you’ve finished your sentence, so you don’t get it...

No, but it’s – you will still have to have had the single sentencing that arose out of that pre-sentence detention, is the point I was making. Obviously the time spent as a prisoner doesn’t count as pre-sentence detention.

Well I think we are Your Honour because what the definition is on a broad interpretation is every, and this is the very point that you’ve been making to me, is that this needs to cover every charge that occurs from the start of –

But you have to have had pre-sentence detention in relation to it though, don’t

So if you commit something afterwards, when you are no longer in pre-sentence detention either because you’ve been released from prison or you’re in prison, then that’s a totally sentencing exercise, isn’t it, and couldn’t be linked back to the proceedings. Where you did have pre-sentence detention.

So the arbitrary nature of that is that if Mr Marino had defended the attempting to pervert the course of justice charge, and was sentenced on a slightly

different day, say a day after, then he would not be entitled to any of this credit.

No, no, I think we were saying he would be entitled to the credit because the charges related to the pre-sentence detention. Whereas if he had tried to do it once he was a serving prisoner, tried to pervert the course of justice, perhaps for an appeal, then that wouldn’t come within the same proceedings.

Yes, but if there are, for any reason whatsoever, any of his charges happen to be split off and sentenced on a different day, as I understand Justice Young –

I’m not, I mean that may be one of the rough edges that I actually had in mind. I mean he would have had a difficulty under section 81 of the Criminal Justice Act.

That’s true Your Honour but one of the things I think that we were talking about when we decided to adjourn this, was to look at whether there were anomalies that were going to be created by a broader interpretation. That’s certainly one of them.

Well it may be unless you do the job lot in terms of proceedings, that anything related to pre-sentence detention, that you look at the final outcome, and even if that happens after you’ve been a serving prisoner for five months because in your example he pleaded guilty to assault straightaway and defended the agg rob.

That makes it very difficult to work out what the proceedings are, and it certainly makes it very difficult for the receiving officers to make that calculation, which is one of the consequences –

Well not terribly difficult because you know they’ve been in pre-sentence detention, you know what pre-sentence detention is. It’s before, it’s only before the –

It would also apply, in my submission, to acquittals because if a charge is laid at some time after the initial assault, but before, or if the initial charge and then a subsequent more serious charges are laid, but you’re acquitted of this first ones, they also form part of the proceedings. That was your initial arrest, that was your remand in custody, and that should also be given a credit.

– and you wouldn’t really have the remanded in custody for the more trivial charges, for that, or you wouldn’t have been sentenced to the length of time spent in custody for the, and you’re not for the less serious charges.

So, Your Honour, this anomaly only arises in situations where the subsequent charge becomes the lead offence and is more serious than the first period that you were remanded in custody for. So that’s the exact situation. So if I am charged with an assault, and I am then bailed, and that charge is still outstanding, but whilst I’m on bail I commit a rape, then if I am subsequently convicted of both of those on your analysis those are part of the same proceedings, even if I’m sentenced to concurrent sentences, my rape charge should get a credit for the initial remand on the assault charge. Likewise they are still part of the same proceedings. I was initially arrested on the assault, but if I’m acquitted of that, I should also be entitled to a period of, that period that I’ve spent, because that forms part of the entire proceedings.

Now I think my learned friend Mr Ewen has, in fact, provided a table in which he expressly acknowledges that that is one of the consequences, as he sees

it as well, as proceedings being defined as anything, any charge that occurs form the date of initial arrest through to final disposition. Of all other charges, whether related or otherwise.

But that naturally happens with cumulative charges which by their very definition are unrelated.

Well I’m not sure, because pre-sentence detention in terms of definition is defined as any charge on which the person, any other charge on which they are originally arrested, any charge a person faced at any time, so why wouldn’t it apply to the acquittal?

Well they’re facing five charges, they are convicted on three, acquitted on two, and they’re eventually convicted on three of the charges, why isn’t it pre-sentence detention?

Well the case that might arise is Booth’s case, if he had been completely acquitted in relation to the charges against B, because he’s in custody in relation to her for 10 months.

He’s only convicted on, in fact one count in relation to her, but had he been acquitted outright then at least on the basis of Goldberg he’s out of luck.

Well it’s only a deduction, it’s not compensation. So if there’s nothing to

That’s right, but it won’t be the rub of the green, of course, if we take this broader interpretation of proceedings as meaning everything from the commencement of your initial arrest. You will get a credit for acquittals.

I must say I tend to think that it is everything, all the charges in respect of the sentence that is imposed.

Which is quite a different interpretation now of what the meaning is of sections, or subsections (a), (b) and (c), under section 91, because that was the very point which is how do we interpret section 91(1) and what do those things relate to.

No, I’m sorry, I’m talking about sentencing, the sentence being the total sentence imposed on a particular occasion. I’m still not persuaded that you’re right, that there is, that for these purposes you’re looking at a sentence for each charge. I don’t see this as being about particular charges by the time we’ve got to the Parole Act. Can I just put to you the, because it isn’t very well drafted at all, but section 90(1) is the principal provision, and then the interpretation is 91(1). I’ve tended to see (2) and (3) directed as the same problem, which is double-dipping, but in the different circumstances of two or more concurrent sentences, or two or more cumulative sentences. And that there is an equivalence that is suggested between subsections (2) and (3), which on your interpretation doesn’t work.

Mmm. Certainly, if you were going to say that where in subsection (2) you interpret two or more concurrent sentences and the wording in (a) as being a calculation on each sentence as being each sentencing occasion –

– then I think that that creates – that’s quite an artificial and very difficult to read conclusion because that means that you don’t do that calculation when you are sentencing on concurrent sentences on a single time. You don’t make a calculation –

Well, I think you might because I think you might be sentenced on a single occasion and then you’re sentenced later and it’s concurrent. I think those probably are two or more concurrent sentences.

There’s certainly subsequent occasions when you impose another concurrent sentences, another concurrent sentence.

And the whole purpose of (2) and (3) it seems to me is to stop double dipping in terms of the pre-sentence deduction. So that would work. You then require a separate account to be taken because – but that is looking at each sentencing occasion.

No, no, because the double dipping can occur on a single sentencing occasion as well. For instance, if I have had no period of remand on a particular sentence, so say I’ve spent six months on remand for a serious assault.

So after six months I commit yet another serious assault whilst I’ve been in custody. I immediately plead guilty to both of those assaults and the sentence for each is that both of those assaults were worth 12 months and I’m going to sentence you to 12 months concurrent. If you say that I should get credit for all the time that’s spent on remand for both those assaults, I am immediately eligible for release on both those assaults. I have, in effect, not been punished at all for the second assault.

But isn’t that a complaint directed to the sentence rather than the way the Act operates?

Well, no, Your Honour, because in fact the initial remand was only on an offence that I have already committed and I’m serving time effectively on that offence. I then commit a second offence and I should not be given credit for something that I have spent remand on for an offence I’ve never even done and the sentencing Judge –

But if the sentencing is referable to both offences I can’t see what the problem

That’s just the argument. I mean, that’s just your interpretation, but in terms of policy if the sentencing relates to two offences and reflects the totality of the offending I can’t see what the problem is as a matter of policy with counting all the pre-sentence detention.

And as a matter of policy you should not be getting credit for time spent on remand because the – in terms of policy arguments –

But you do want a cumulative sentence where you’ve got totally unrelated offending, so what’s the policy argument for that?

So, but, sorry, but why wouldn’t the – why does it make a – I mean, I must have missed something. Why does it make a difference to the Judge whether it’s 12 months concurrent on two charges or six months cumulative on two charges? I mean...

The totality is only where imposing a single sentence, or imposing a sentence is going to effectively engage you in a manifestly excessive exercise. Normally that’s when two proper sentences are going to be imposed cumulatively, so two rapes would end up with 16 years.

No because the lead sentence on concurrent sentencing usually will be manifestly excessive if you solely by reference to the criminality inherent in the lead offence. It’s a totality that reflects all the offending. so –

For instance in the case of Booth, he got more for the first count of rape, and that count of rape standing alone would have warranted.

So the totality, so in that sense it was a manifestly excessive sentence, you’d

Yes, if, yes if you take that artificial constraint, of course that’s what totality

Only because we say that if you’re imposing a lead sentence it should reflect the totality of offending, that’s right, on a concurrent sentence. It could have been dealt with in other ways of course.

So I think, Your Honours, that there are policy reasons for calculating each sentence as having its own separate pre-sentence detention calculation.

I can understand those policy reasons, but what I don’t understand is why they don’t apply to cumulative sentences. I can understand you can have a policy reason of that nature, but then why would you have a provision that says that if you impose cumulative sentences, there’s a difference. When, by their very nature cumulative sentences are only applicable to very different types of offending. Because if it’s similar offending then it should be cumulative, similar offending at similar times et cetera, then it should be cumulative. So the policy reasons that you’re indicating seem to me to be very much stronger on cumulative sentences, and yet on the Crown’s interpretation cumulative sentences get an advantage. Which in policy terms I would have thought, even stronger policy terms, to say they shouldn’t be calculated that way.

I think the difficulty is, is that Marino and Booth both have engaged circumstances where there is a so-called anomaly in the sense that the Judges may have, and we don’t know for sure, expected that pre-sentence detention would have been credited.

I’m not really, I’m asking you, not this particular case. What I’m saying is, why are the policy reasons, which seem to be much stronger in respect of cumulative sentences, not applied to cumulative sentences?

Well, your policy reason is you shouldn’t get credit for anything that you didn’t spend time on pre-detention with. Now – because they are different occasions and different sentences. Now the reason I say it’s even stronger with cumulative is that not only shouldn’t you get credit because they should be dealt with separately but in fact you’re dealing with totally disparate offending that doesn’t merit having a cumulative sentence. So you’re in fact getting credit on a, I don’t know, an aggravated robbery as against theft.

Or on a totally separate occasion and a totally different time and totally different circumstances.

So the policy reasons seem much, much stronger in – your policy reason seemed to me much stronger in respect of cumulative.

So the differences, I suppose, is that when you impose a concurrent sentence on one that you’re already serving you start serving that sentence immediately. If I impose a cumulative sentence I have to wait right through until the end of my sentence before I start serving it, which is why you have to have the calculation of a single notional sentence and that’s just how it works for the calculation. If it all happens on a single sentencing occasion then there is no strong policy reason necessarily why in some circumstances you

shouldn’t get the same credit that you would have got for a cumulative sentence. I accept that and I think we accepted that in Booth. That’s important for Judges to know what the consequences of imposing sentences are, but there are serious ramifications if we treat concurrent sentences as being like a single notional sentence and we treat the proceedings as encompassing everything from the arrest on an initial charge right through to the final disposition of all charges, whether related or not.

You will be giving credit to people who are acquitted. You will be giving credit for entirely unrelated offending in circumstances where that might not have been intended.

But you do on cumulative, so that’s fine on cumulative. It’s just not fine on concurrent when there are much stronger policy reasons for not giving the credit on cumulative as I just put to you.

Yes. You will also have an inability it appears to calculate the pre-sentence detention and release dates on each individual concurrent sentence as it’s required to be done. So the Act requires each sentence to be separately calculated for the purposes of concurrent sentences.

But it’s not – it’s just a – it would be a mechanism for deciding when those sentences start. It wouldn’t be inconsistent with the Act. It’s just applying the Act to what the commencement date is.

But if you apply it to the commencement date you’re artificially actually starting the commencement date of that sentence.

But you always do when you allow for pre-sentence detention because you always have –

No, no, no, sorry, Sir. In the Marino case, for example, you’re actually backdating the commencement date of the offence to the date of original arrest which might not have even been at a time when you’ve even committed that offence.

I see, okay. All right, well, I understand that. So in Goldberg, for instance, which is another case where there’s an acquittal, that that’s really a sentence appeal but – so it seemed to have been argued on the presupposition that Goldberg wouldn’t get it, wouldn’t get an allowance for – he’s in custody on charges of rape. While in custody he tries to defeat the course of justice. He then is effectively acquitted or the charges of rape are abandoned and he wants to be credited with the time he spent in custody on the charges of rape in relation to the sentence later imposed for attempting to defeat the course of justice.

And now he – and, as I said, that was a sentence appeal. He – how would you see his claim to a, the pre-sentence detention work in relation to the arguments that have been advanced? On the face of it he’s acquitted so he’s got nothing to deduct it against.

Not so much on my analysis because I would say the proceedings in relation to the perversion of justice charges only could be regarded as being commencing when those charges were laid because those were the charges on which he was sentenced.

And isn’t that exactly where the problem lies, Sir, because if those charges only commenced at the time he was arrested and charged for those offences –

Because those were the charges on which he was sentenced. The proceedings in relation to the charges on which he was sentenced only commenced when those charges were laid.

So that would be a variation on the definition of proceedings, which is to say that proceedings don’t actually cover everything from your initial arrest through to all other related charges.

But actually they only count for the particular charge upon which you are sentenced.

No, I would say charges that are laid in substitution. So the murder, he’s sentenced – charged with murder and aggravated robbery, convicted of manslaughter and aggravated robbery. I would treat the pre-sentence detention starting with a remand on the murder charge –

Well, yes, but because I would treat the manslaughter as – I understand there’s an issue there but I would treat that as encompassed in the proceedings referable to the charges on which he was sentenced.

Well, yes, but of course then – but applying that to the cases of Marino and

No, well, I’d say it’s the – what constitutes proceedings is to be looked at in retrospect by reference to the charges on what your sentence – the charges on which you were sentenced, and that’s why I thought section 81 of the Criminal Justice Act was helpful because it suggested that – it gave you an idea of a warrant of commitment approach referable to what had gone before, a manual system, a sentence imposed on a day, pre-sentence detention in reference to the – that’s referable to the charges on which you were sentenced is deducted.

Mmm. The difficult with that is that the warrant of commitment didn’t necessarily always encompass every charge.

Well, I agree with that but that would suggest that if it could, I mean, it could hardly turn on whether the registrar in the District Court used one warrant or two warrants.

No, which again, Sir, just seems to show the arbitrariness of relying perhaps on a warrant.

Because it just is too confusing for the prison if you send more than one warrant so I should expect it would be sent back from the prison because they wouldn’t be able to work out the – I mean, obviously if it’s on different days you might.

Well, that might happen. These are – there are complications and your example of say the charges against Marino being dealt with on different days, family violence dealt with in say June, other charges dealt with in October, well, then that may be an anomaly.

So the anomaly that we are concerned with is one that I suggest can be readily fixed at sentencing which is by sentencing Judges being aware of pre-sentence detention periods that have been had or served on the various charges, and that if you –

Well, and then artificially changing from cumulative to – and then if you, if the Judge doesn’t because they’re somehow not aware of it then you’ll end up with the situation we’ve got, when actually the Crown, I think, in at least Booth case – not Mr Marino’s case I think was actually asking for cumulative sentences and they could easily have been imposed.

Mmm, and they could have been, and isn’t that where that’s probably the correct answer is that Judge’s should be structuring those sentences at the start?

But the whole of this legislation was, of course, brought in, this scheme was brought in because Judge’s, from recollection, didn’t do a very good job when they were required to count the days.

Well, that’s correct, Sir, and I think what we’re seeing here is that we’re trying

But they’re not quite just a couple. Your figures indicate it’s not an uncommon

– in a muster of some seven and a half thousand prisoners that might be affected by this.

Well, yes, and some of those days might be anywhere between one and seven days, of course –

– because other charges are laid that are more serious seven days down the track, sort of thing. So we’re trying to fix here, in my submission, something which is an anomaly, there’s no doubt about it. Some people might suggest that not getting a credit for an acquittal seems very strange when you get a bigger discount for actually being convicted. That’s also an anomaly, but the concern that we’re raising is that the interpretation that has been on foot for the last 12 years or so of pre-sentence detention and how it’s calculated and that it relates to calculating a sentence and the pre-sentence detention that is directly referable to a charge as it goes through its various iterations is one that is an interpretation that has been applied by the Court of Appeal as well.

Parliament has not seen fit to interfere in 13 years after very high profile cases involving this interpretation, and now if we change –

Well, Taylor was trying to get a triple dip on a cumulative sentence so that actually has nothing to do with this, does it?

Well, it does, Your Honour, because the interpretation of what the proceedings means is directly referable no matter whether it’s a triple dip attempt or a double dip or whatever.

But I can’t imagine Parliament thinking, “Oh, gosh, we’ve got to change the interpretation because Mr Taylor should have been able to triple dip,” so it’s not surprising that they didn’t change it, is there?

Goldberg. Well, in fact, every single case that has hit the Court of Appeal has the very same interpretation.

There’s certainly, I think, six Court of Appeal decisions and there are some quite reasonably well-cited High Court decisions as well, so we are talking about –

Where do we find reference to those six Court of Appeal decisions? Are they just scattered? Are they collected somewhere?

Actually, in both the Booth and Marino judgments they reference back to a number.

So you do have – even if we take the present ones, Booth, Marino, Te Aho.

Coward and Hall. No, they’re not, Your Honour. Coward and Hall was under the 1981 – the 1985 Act. Taylor’s old. Goldberg’s relatively old. Te Aho is more recent. So we do have an established body of law which has consistently this so-called anomaly, and it is an anomaly, sorry, I shouldn’t call it “so-called”, as being the correct interpretation, and the concern is, which is exactly where we got to last time, that a reinterpretation of these proceedings will lead to other anomalies, and Your Honour, Justice Young, accepts that as

well, that there will be anomalies and it will be difficult to work out how we apply this.

I still haven’t got these other anomalies. The acquittal one. Is there anything

Assume that in the case of Mr Marino he’d been sentenced in June for the family violence charges to 12 months imprisonment and then concurrently in October to 22 months on the other charges, then on the view that proceedings is referable only to the charges on which the offender is sentenced there wouldn’t be a credit for the 22-month sentence. That’s the anomaly, one of the anomalies.

Although he would have already had a credit on the other proceedings for the whole period.

But, sorry, yes, subject to that it would start on the 27th of October, so if he had no pre-sentence detention on the...

Well, it would’ve been – might’ve been different, that’s right, just assuming

So did you say that Coward and Hall is authority for the argument that you’re

Well, Coward and Hall had separate calculations made on each sentence. There was just a miscalculation made on the sentence but they certainly didn’t imply that there would be a double credit.

Well, I think that’s exactly what we’re suggesting, that there will be a double

Well, the Crown might be suggesting it but that’s certainly not what the Court’s

So Coward and Hall, Your Honour, the difficulty was with the calculation on the heroin charge but the – they had got the credits for the remand that they spent on the subsequent offending but they didn’t get, on the subsequent offending, they didn’t get the initial 10 days’ credit for the remand on the heroin charges. They didn’t get that. But then when you came to calculate the heroin charges they only got the 10-day credit, from memory. They didn’t get the other period that they were actually serving. They were back in custody on remand for their heroin charges, and because it was already credited they didn’t get that. Now that was an error because in fact they were serving time on remand for all of their charges during that particular period. But on your analysis, if proceedings are everything from the date of initial arrest, those 10 days for the heroin charges should have been credited to those other offences as well.

Well, their concern – well, the Court seems to be concerned that the benefit of remand periods imposed over the stipulated time should not be lost –

But that’s because they were in fact in remand on both at the same time, and if you only applied it to the one that they were – that they first got sentenced on, that meant that you didn’t get a credit for the fact that actually you were serving time for all four charges or whatever it was. But they weren’t suggesting that you got credit for offending that had not yet occurred for your original remand.

This is why I have difficulty in seeing this because Parliament’s not going to look at that either and think, “Oh, there’s a major anomaly that should be fixed,” because in fact they did credit for the lot.

But in Coward and Hall the only reason – yes, you’re right. The only reason they get credit for it all was because the lead offence was the one that they were first charged with. If the lead offence had not been –

I know. I very much understand that. It’s just that this, that that didn’t throw up this anomaly that Parliament, that you say Parliament deliberately decided to keep.

But beyond that it hasn’t really been given a lot of analysis, has it? And by the time Taylor was decided the Sentencing Act and Parole Act had already been enacted. So there’s never been another look at it.

Yes, that’s right but to be fair I think the High Court Judges have applied this in exactly this way consistently –

Well, yes, and they’ve been calculating sentences and this relatedness inquiry has been applied consistently and been applied administratively throughout that entire period. So I think that the difficulty that we have here is that there is no doubt that a different interpretation, one that says that the proceedings are everything from initial arrest on whatever charge right through till final disposition, have real problems because you will then have to further define that as being that only occur on a particular sentencing occasion or that do not take into account charges for which you were finally acquitted of. They would appear to give a double counting for concurrent charges because there’s no exclusion from double counting for concurrent charges.

So if you look at the definition of pre-sentence detention you only get a credit for the time that you’ve spent in custody. There’s nothing that says you get a credit for the time you’ve spent in custody five times, because the definition of pre-sentence detention is the time you’ve spent in custody in relation to the charges on which you were eventually convicted. Anything else, or whatever it says. So I don’t get out of that that you have to double it up unless the Crown’s interpretation is right, but if the Crown’s interpretation of proceedings isn’t right and the proceedings is the job lot then the only type pre-sentence detention in relation to those is, I can’t remember in Mr Marino’s case, the six months or whatever it is.

Well, it can’t be six plus four plus everything because pre-sentence detention under the definition is the job lot.

Well, I don’t think you’re reading anything into it because that’s what the

There is an argument, of course, that when it is specifically defined in subsection (3) of section 90 that we’ve got two or more cumulative sentences you can only deduct once, that has not been used in the sense of concurrent sentences and so it may be deducted more than once.

Well, no, unless subsection – subsection (2) is the provision that achieves the same result in respect of concurrent sentences.

Well, only because it applies it to each concurrent sentence and each sentence on every offence, so you have an offence and you have a sentence and that’s how –

Well, you only get six months because that’s the absolute maximum pre-sentence detention there is, whereas if you didn’t have it for cumulative sentences then you would get it more than once.

No, no, you just – but you only get it in respect of each of these ones. You only get six months at the maximum because that’s the only pre-sentence detention there is.

Well, that’s – your argument that it is a sentence on each individual charge stands in the way of making sections, subsections (2) and (3) of section 90 equivalent.

Yes, because if you apply pre-sentence detention in the context of a concurrent sentence only to the pre-sentence detention that related to the particular charge, that’s how you calculate each of those charges start and ends dates and parole eligibility dates.

Yes, that’s your argument, but it is possible to see subsections (2) and (3) as achieving equivalent outcomes if pre-sentencing detention relates to the sentence imposed which may be a concurrent sentence because

subsection (2) of section 90 indicates that. Two or more concurrent sentences. It’s not concerned with – well, I suppose it’s...

Yes, so if you have two or more concurrent sentences imposed on a single day, as I understood it you would treat that as a single notional sentence and the pre-sentence detention is not calculated on each of those concurrent sentences, it’s composed – it’s calculated –

So you get six months on the perversion of the – each of the perversions of the course of justice, you get six months but you can’t use it on the assault charges, and the sum total is six months, because you can’t have more pre-sentence detention than you actually served.

So just by its very nature you can’t, whereas if you didn’t have single notional sentence and not counted more than once for cumulative you could because they are separate sentences.

But the point, if we move away from the adding of the pre-sentence detention, the point is that if you have two or more concurrent sentences imposed on a single occasion then there is no point, I take it, to the amount of pre-sentence detention applicable to each sentence must be determined. That becomes redundant.

Well, the expression “two or more” is an unusual expression here because all concurrent sentences imply at least two offences, don’t they?

Yes, but why not just say this – the offender is subject to concurrent sentences? Is two or more just a tautology?

I’d wondered actually if it, what it meant to say was two or more sentences that are concurrent, two or more sentences that are cumulative, and they were just trying shorthand and may –

So in the corresponding section of the 1985 Act it was two or more concurrent sentences but it was just cumulative sentences. So the two or more was only

– and which actually rather supports my warrant of commitment, single sentencing occasion theory, and the cumulative sentences it doesn’t – that was unnecessary because it’s clear whether the cumulative sentences are imposed on a single occasion or on other occasions they’re still a notional sentence.

And if you, again, just looking at section 75, well, that’s a bit odd because it talks about cumulative sentences but it talks about one being the earlier and one being the later, which suggests that whoever was drafting this thought they were dealing with different sentencing occasions.

I think it’s – it’s just an oddity, I think. I don’t think it takes you anywhere but on the whole cumulative sentences are not imposed in sequence but rather at the same time. “On each of these charges I sentence you to 12 months imprisonment to be served cumulatively.”

Yes, I know, I know, but – so what I’m saying is this suggests a reference to separate sentencing occasions, the earlier and the later, that that’s what the draftsman had in mind.

Yes, but it must be that it’s – cumulative sentences imposed simultaneously and not sequentially are also a notional sentence. So in my example –

No, but I sentence you, Mr Horsley, to 12 months imprisonment on both charges to be served cumulatively.

Now neither is the earlier sentence or the later sentence; they are both imposed at exactly the same time.

Except that that’s not how they are treated because, of course, you have to have one sentence starting and then another one being added on. So they are a start –

– I impose – “I sentence you to 12 months imprisonment for burglary and for assault. The sentence is to be served cumulatively.” The warrant of commitment wouldn’t say, well, the burglary is to be served first and then the assault.

– depending on what you were remanded in custody – well, it depends on your remand in custody, of course, but if you were remanded in custody on your start date for the effect of that sentence will be from your first remand in custody and that might be on the burglary charge so you’ll start running your burglary charge sentence from there, and then when the other charge kicks off that’s when it –

What if they’re on the same date? Say the remand in custody’s on the same date, which is the earlier and which is the later sentence?

The longest sentence will start first and if they’re the same then it doesn’t

Okay, so you’re probably just leading. It just seemed to me that it’s just an

I think that’s simply because they are sequential and it just, as a result, runs

Well, we should take the morning adjournment. Now have you, subject to any further questions from the Court, are there other matters you want to address us on, Mr Horsley, or have you concluded?

Your Honour, I don’t have anything more specific to address you on. I think that the supplementary submissions as filed do draw out some of the anomalies that could arise in this. One of the strong points that we would make is that this is a matter that is, in my submission at least, one that sentencing Judges should be more aware of. It is complicated and we have seen that there are various scenarios that can take place that are as anomalous, in my submission, as the Booth and Marino situations, and my learned friend, as I mentioned before, has provided a table where he details all of the different ways that proceedings can be analysed, including that proceedings on the broader interpretation will cover acquittals. That in itself is a significant policy change that has, in my submission, serious ramifications for how we do sentence people and may arise in various circumstances. The long and short of that is that this is a problem which is, in my submission, best addressed by legislative fix if necessary but certainly by policy makers and Government carefully analysing this case and these submissions with a view to seeing whether these anomalies can be fixed because they will need quite extensive, in my submission, legislative fix including further refinement of the definition of proceedings which will largely come down to legislative drafting. In the current environment, in my submission, the interpretation that has been applied of the proceedings has been limited to the particular offence and calculations made on the particular offence and the related mis-inquiry there is correct, albeit that it does lead to this anomaly of a lead offence being imposed on a sentencing occasion where there was pre-sentence detention on a more minor offence and a difference between concurrent and cumulative approaches in that one situation.

Equally, I’ve said that this is a sentencing exercise. We do know that Judges consider the effect of cumulative sentences in particular when they’re looking at imposing such a sentence and the ramifications of that. I think it is unfair on District Court Judges and High Court Judges who have been imposing

these sentences to suggest that they did not understand that pre-sentence detention that was served on unrelated offending might not be covered and there seems to be a mix of that. There are situations where Judges have been very conscious of the fact that people have served their sentence and they have convicted and discharged. Equally, there are others who have been under a misapprehension that the concurrent sentences will take into account all concurrent sentences. That seems to be a knowledge and/or educative approach to sentencing to be taken by both prosecutors, defence counsel and Judges in imposing these sentences in the interim but, in my submission, the interpretation that they’re currently applying is correct albeit that sometimes it leads to anomalous situations, and I think that our submission that was made in Booth that in fact pre-sentence detention can be taken into account on charges other than the lead charge is correct, that is one way of dealing with it, and also that higher Courts can look at it as an appeal based on whether that sentence has, as a result of the imposition of concurrent versus cumulative, ended up being an appeal that now has, or a sentence that is now manifestly excessive.

No, only if it’s manifestly excessive, because you’re serving more within the – well, I couldn’t quite understand when that would apply, given the Crown’s very stringent submissions in Mr Booth’s case.

It might not apply to Mr Booth, that’s correct, and in fact – but again that’s a

Well that’s what you were arguing so if it doesn’t apply to somebody who’s going to be serving 12 years whatever, instead of 11, nine, then it’s difficult to see when it would apply.

Well certainly shorter term sentences, the effect of longer periods of remand will be more dramatic, and in those cases it’s more likely.

Yes, yes Sir. In those circumstances it is more readily appreciable that a manifestly excessive sentence may have been inadvertently applied. But I do understand that this is complex –

But manifestly excessive is necessarily a comparative assessment, at least in part, and if there is disparity between a result according to whether a sentence is imposed cumulatively or concurrently, it could well be argued that that is, in itself, manifestly excessive. Sorry, I’m just still a bit hung up on that rather startling idea that you raised.

The idea that we could look at is as a manifestly excessive sentence or – I did raise it in Booth Your Honour and it is something that we –

From memory you said that it rarely applied, but you’ve just said it could apply

But it comes back to one of the earlier points I made which is that there are sentencing occasions where Judges are very conscious of the fact that a person has spent time in custody, and quite deliberately will imposed concurrent sentences to reflect how they want a sentence constructed. So my example that I gave of someone who spent six months in remand for an assault charge, but then commits a further serious assault, the Judge, in imposing a 12 month sentence concurrently, may well be very conscious of the fact that that means the earlier charge, he has had time served, and that reflects properly the criminality of that first offence, and that the second

12 month period I’m imposing is for your new offending and you warrant another six months in custody, which is the net effect of the 12 month sentence. So Judges will be conscious of this, many times, and that is where the Crown says, this really bites. It’s at sentencing but there is no need to change the interpretation of how these rules apply so much as to educate and if that is still a problem, or even if it is a problem right now where sentences –

But the sentence imposed by Judge Spear was quite clear on its face. He thought that it wouldn’t matter a scrap whether it was imposed cumulatively or concurrently.

Well that’s an interesting example, Your Honour, because I think you’re right to say that he thought that the two attempting to pervert the course of justice charges would be served concurrently and their time spent on remand would be credited to each equally, so that it wouldn’t make a difference whether, how he constructed that sentence.

But he also thought he was about, he thought his release was imminent, which is more consistent with a February release date than a June release date.

– well, obviously, he probably thought that the remand period commenced from the date of the first attempting to pervert the course of justice charge. One thing that I don’t think he did consider was that if this definition of “proceedings” is correct, the earlier remand, which was the month that was spent from February until the first attempting to pervert the course of justice charge, would also be another credit, and that a further month would have been deducted. So, yes, I think he thought that the concurrent charges on the attempting to pervert were going to run exactly together, but I don’t think he considered that that meant that also the earlier remand on the quite separate family violence charges, would be credited against the attempting to pervert charges.

I read his sentencing remarks rather differently actually. Can I, just one related question. The Corrections’ position, as I understand it, is that the detention in his case started in relation to the perversion of justice charges at the time when those charges were laid, is that right?

It doesn’t matter, on the Corrections’ view, whether he was actually ever remanded in custody on those charges, which as I understand, just looking at the documents, he never was. Or may not have been.

Yes, but it doesn’t depend on him actually appearing in Court on those charges.

No it will commence, I think, from the date those charges are laid, which is –

So if summons, for instance, were issued, because the police don’t care because they know he’s in custody anyway, he would still be in custody on those charges from the date of commencement, date that they were laid.

I don’t know the answer to that Sir, because I’m not sure whether a summons, because if a summons were issued he would be, he would have to comply with that immediately.

I’m not sure that that could apply Sir but say it was, I would expect that you’re running, his remand in custody is effectively from the date that he was charged –

Even, but, sorry, I just want to get it without sort of too much in the way of qualification. The position is, that he is, the custody is referable to these charges, irrespective of whether he appears in Court on them. Irrespective of whether there’s a formal remand.

Yes, but I’m not sure practically how that exactly works, but, yes, that is certainly how it was applied. In calculating these remand periods it is taken from the date –

Okay, thank you. And I think actually it follows from Taylor but I’m not sure.

Well, no, I don’t think it’s got to be related. I mean I think it’s just that providing he’s in custody, and there’s a charge laid, I think the appropriate summary I think, and I think it was in Taylor, the Court thought that the custodial period was referable to that charge.

To both, yes. Yes Sir, that’s correct, yes. Just to run that through the complicated once more Sir. So Your Honours, again, I assume that my learned friend will take you through his chart, but that certainly does seem to indicate that he accepts the proposition that acquittals will be counted under this broader interpretation. I can’t quite work out where it will, where circumstances where they’re not a single set of proceedings apply, but again perhaps I can leave that to my learned friend to explain. But subject to that, unless Your Honours, have any further questions for me, those are my submissions.

If I can just deal with Justice Young’s point that’s just been made before I forget about it, what happened in this particular case, as you can see from the prior warrant of commitment, he was remanded on the domestic violence charges through to the 18th of March and the hearing date endorsed on the charging document for the first attempts to pervert is the 18th of March. We don’t actually have on this charging document the filing date which is also – because the filing, what is frequently, the police wouldn’t bother issuing a summons for someone in custody, they would simply file the document, and it’s their usual practice to put it through to the next remand date, it just saves the duplicity of hearings. But in all probability this document would have been filed in advance of the 18th of March. That is certainly what I’ve encountered in other cases where further charges have been laid. Usually the officer in charge gives you a ring and tells you that there’s more in the pipeline, so

So the first appearance on the first of the perversion of justice charges would have been the 18th of March?

It’s the 18th of March, which was the remand date on the domestic violence charges.

Well the second one came in by an amended Crown charge notice. There was never actually a charging document filed. So that would have

been deemed to be laid when the Crown filed the amended charge notice. But of course in respect of –

Yes, Your Honour, I think so, and that’s when effectively time was ran on the sentence.

I assume so Your Honour. Well it would have been a callover date because it would have been –

it’s simply the date that they file it for the purposes of the upcoming callover.

That’s the charge list, that’s the list of charges that would have gone to trial, that’s what a jury gets. The Crown charge notice is at tab 17.

And of course it’s a, the initial complicating factor, and I’m going to move onto section 91 in a minute, is of course he was arrested on neither of the attempts to pervert charges. So they fit uncomfortably with section 91 pre-sentence detention but I think Corrections’ position is as soon as a document hits the Court, and there’s a remand in custody, they will deem it to be from the filing date.

Now moving on to respond to my friend’s submissions. Mr Horsley has been at pains to use the word “proceedings” throughout and said that anomalies are thrown up on my interpretation if “proceedings” means anything that you face between being arrested and being sentenced and being in custody at some stage. I struggle to see where the anomalies came in but it’s never been my case that the remand credit accrues for proceedings in that widest possible sense because my case is they have to be proceedings leading to the conviction or pending sentence of the person. It has to fit. All charges upon

which a remand credit can be factored in must factor into, come within the unifying characteristic of the proceedings leading to the conviction or pending sentence.

I suspect it’s actually leading to convictions that’s critical. I think it’s, or

Yeah, well, you raised this point in my, the principal submissions and I added, I didn’t think that anything was added to by the conviction and now with the benefit of hindsight I think actually a great deal is added to by the addition of leading to the conviction because importantly it’s leading to the conviction. It’s not in respect of the conviction, and in – that is effectively the Crown’s argument that it has to be at the very most that which you are sentenced on. But it’s everything leading up, all the proceedings leading up that point. Now in relation to – so the Crown’s principal argument that proceedings individualise to charge. There was one remark made by Justice Arnold at the last hearing which resounded in my head and I realised it, in my submission, just takes out the Crown’s argument whatsoever. Paragraph 91(1)(a), of – that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, any charge on which the person was eventually convicted. The use of the word “any” in respect of charges leading to conviction presupposes more than one because for the Crown’s argument to be correct the word “any” in paragraph (a) would have to be replaced with “the”. The use of “any” in that context means that it is the sentencing exercise as a whole that the Court is looking at and all the charges for which the person will be for sentence are, by definition, within paragraph (a). In my submission, it is broader than that and has to be because we are looking at the proceedings leading to the conviction and that, in my submission, encompasses everything the person has faced in that set of proceedings. Now I accept that there has to be a method of ascertaining whether the charges form the same proceedings leading to the conviction or pending

sentence and in the table that I have provided I have endeavoured to do so, and if I can take –

Can I just ask you, two issues that I’m sort of quite interested in that probably fit into the table but if you can just bear them in mind as you go through? Assume in the case of Booth that he’d been acquitted on all charges in relation to B, so that’s one hypothesis, and then assume in relation to Marino that he’d been sentenced on the family violence charges in June and sentenced on the perversion of justice charges in October. So are those – how your arguments work around those.

I’m going to deal with the Marino case right at the beginning, Your Honour. For a start, that shouldn’t happen. He should not be sentenced separately. There is sometimes a perceived incentive on the part of prisoners to get sentenced on charges because it means they think they’ll go on a serving wing where the security classification is lower, they get greater privileges. The fact is that doesn’t happen. If you have charges pending that are unresolved, even very, very minor ones, I was aware of a case where an individual had been sentenced on drugs charges, he had an overhanging driving while suspended and that kept him on remand wing. The driving while suspended kept his security classification up there. There should be, and it is the current District Court, the prevailing District Court practice, not to split sentencings. If there are charges in the system, it is very much the preference of the District Court Bench to resolve all outstanding charges and then move to sentence because it does avoid the difficulties that we experience here. But if that had happened, that it in all probability would operate to Mr Marino’s disadvantage, but again, as Justice Glazebrook pointed out, if he was sentenced separately on the domestic violence matters and then on the attempts to pervert later in the year, he would not have got the 22 months on the attempts to pervert. Given Judge Spear’s starting point of 18 months for the two attempts to pervert, there wouldn’t, in all probability, have been any uplift for violent offending. It wouldn’t have been relevant.

There would have been maximum Hessell discount. He probably would have got about 13 and a half if he was sentenced separately.

Right, okay, because he would already have done some of the time as a serving prisoner that reflected.

Well, not necessarily, the totality, the totality principle. I mean, it’s a fuzzy one.

Well, and again there is the issue in this case of on a subsequent sentencing, given that he would be by that stage a serving prisoner, whether the Court in accumulating, because it probably would be an accumulation, ought to apply totality analysis to make sure that the sentence served – I mean, what would happen, the –

Well, the totality, the totality principle would be best served with a cumulative sentence.

Yes, it would be certainly be easier but again if one looks at the Taylor High Court judgment, which is at tab 13 of the appellant’s bundle, in terms of subsequent sentencing and totality, at paragraph 8, I think it’s Justice Brewer, no, sorry, Justice Priestly. Justice Priestly sets out the separate sentences that were imposed.

And this, in my submission, sets out how the totality principle applies at subsequent sentencings because you can see the first sentence on aggravated robbery was one of nine years. The second sentence two years later was two years cumulative. Now that’s not because, in my submission, the second agg rob deserved two years. It’s because on a totality basis the two of them deserved 11 and that is how totality is subsequently applied in a subsequent sentencing, and that, in my submission, just sets out the appropriate approach to take to it, and in all probability just the easiest approach also. But all that really requires is for the subsequent sentencing Judge to have available the sentencing notes of the original Judge and that, in the District Court, is an absolute commonplace. If there is a subsequent sentencing, the Judge will send for the sentencing notes of the previous Judge so that a totality assessment can be made. So that is not problematic.

Well, except that it could be problematic if the Judge opposes concurrent sentences without really working out the implications of start dates.

Yes, well, I mean, so long as the next Judge has the sentencing notes from the last occasion there can be an informed assessment. Opinions will differ

about what the outcome is going to be, certainly, but there can be that assessment.

Taking the Court through to where I say from my table there will be a single set of proceedings leading to conviction or pending sentence, if charges are laid together, that’s the most untroubling circumstances of all because if there’s a remand in custody there’s going to be a remand in custody on the lot and the remand credit is going to be the same.

Next of all I deal with the situations in which separate charges or charges separately laid may become consolidated and under the Criminal Procedure Act 2011 that’s in two situations. One, the prosecutor can file a notice under section 133(3) of the Criminal Procedure Act and then unless a Judge severs under 138(4) the charges will be heard together. So there disparate charges have come together and they form the same set of proceedings. Equally, if there has been a consolidation and severance, notwithstanding the severance, in my submission they still form the same set of proceedings because whilst the trials may go in different directions and have different outcomes, they are still – they have that unifying characteristic of being the proceedings leading to. Now can that cause complications in sentencing? Yes, it can, but that exists as a sentencing complication, not a Parole Act complication.

The Crown can deal with charges under sections 189 through to 192 by Crown charge, initially Crown prosecution notice, Crown charge notice. If the charges are all comprised in the same Crown charge notice at some stage then again, in my submission, there is the unifying characteristic that these will be the proceedings leading to the conviction and pending sentence, and I’ve done it by reference to the Criminal Procedure Act because in my submission it’s just the simplest way to make an ascertainment on the current state of the law about when charges have been dealt with together. This may not be an exhaustive list. I’ve done my best to have come up with as many scenarios but I would not say that this is the final word on – there may be other examples but here there is a clear delineation of situations when there will be

proceedings leading to the conviction. Now I say that includes situations where charges are withdrawn or where the person was acquitted or as the Court faced in Kahui where at the sentencing hearing the Judge convicted and discharged, unfortunately on the charge that had the longest remand credit, and because a conviction and discharge is not a sentence that fell out of the equation, in my submission, quite wrongly because it was a charge leading to the conviction and therefore in 91(1)(a) a charge on which he was eventually convicted. The remand credit should have stayed in because 91 does not require a sentence. 91 requires presentence detention to credit towards a sentence, but a conviction and discharge, in my submission, falls squarely within that definition and on concurrent sentences would form part of the section 90 credit.

There may be a slight anomaly about what happened – well, I suppose you can’t really impose something cumulatively on a conviction and discharge because there’s no sentence on which to impose it but I don’t think the situation would be difficult in respect of cumulatively-structured sentence so long as that conviction and discharge form part of the sentencing exercise.

Subject to one qualification, Your Honour, no because if one looks at the timeline in Goldberg the attempts to pervert was not laid until after the second trial. There had never been and if the Crown solicitor for Auckland had stuck the attempts to pervert in the same indictment as the rape for the third trial that never went ahead because the Crown stayed it. Then, in my submission, on my analysis that would have – the credit for the rapes would have gone into the subsequent sentencing but on my analysis there was no unity. The attempts to pervert were not part of the proceedings leading to the conviction or pending sentence.

Quite a lot turns on – I suspect there would be anomalies everywhere but that would just turn on the way of the charging preferences, perhaps, of the prosecutor.

Crown practice may have a significant bearing on outcome here, but Crown practice can change at the discretion of the Crown. If the Crown needs to tidy up its house, then the Crown should do so.

But I mean the issue whether they were laid in the same indictment would probably depend on the Crown assessment as to whether the perversion of the course of justice charge evidence could be relied on in relation to the rape charge, as sort of consciousness of guilt evidence.

No. I don’t know from Goldberg if there was ever one indictment. If there was one, it’s certainly not clear from the judgment and my reading of it, well rather Mr Edgeler’s reading of the judgment because he corrected me on it, is that there was never one trial with the rape and the attempts to pervert in the same indictment.

I read it quickly but I didn’t think they were disconnected proceedings in that

And if they are disconnected then on my analysis, no, Mr Goldberg wouldn’t get the credit, because there’d never been proceedings, the same proceedings leading to conviction or pending sentence.

It’s a single trial, the set of proceedings leading to – it’s not in respect of the conviction Your Honour, it’s leading to the conviction and that, in my submission, is Parliament’s intention to encompass everything that you had a liability for at trial. If you’re in on one indictment, subject to the determination and/or jury, you may go to prison on the lot, you may go to prison on some, but your jeopardy is in respect of all. And that, in my submission, does no violence to the language of section 91, given the use of the word “leading to” rather than “in respect of” because the Crown’s argument is very much as if section 91 read in respect of the conviction and pending sentence, and that’s not what the language of the statute says.

Again I’ve dealt with charge of sentenced together because that’s the most simple scenario of all, because the Court is going to be constrained to impose a totality based sentence, and if the Court doesn’t impose a totality based sentence there’s my friend 12 months and 12 months example. The remedy is a prosecution appeal against sentence on grounds of manifest inadequacy.

Now early in the piece in the first hearing Justice Glazebrook asked me if I was saying that Taylor was wrongly decided, and I kind of hedged my bets on that one, and that’s because there are circumstances in my submission where the Taylor relatedness enquiry is actually necessary, but it is in precious few circumstances, and again I have tried to relate it back in terms of simplicity and concreteness of application to the Criminal Procedure Act, because in a situation where for example someone was remanded in custody on a charge of male assaults female, it comes to the hearing, the complainant can’t be found, as happens more often than is probably desirable, and the police withdraw the charge. That is not a bar to further proceedings in respect of the male assaults female charge. The complainant may come to light relatively shortly thereafter and the police re-lay the charge, then on the Crown’s analysis that period of time spend in custody in respect of exactly the same offending alleged, would disappear out of the equation and that, in my submission, would be manifestly unjust, and that’s where a Taylor relatedness enquiry is appropriate but rather than, rather imprecise and misleading – and language from Taylor and subsequent decisions, I’ve tied it straight into the circumstances under which someone would be entitled to raise a special plea of previous conviction or previous acquittal, and those, the definition of those circumstances are the same offence arising from the same facts, or any other offence arising from those facts, that’s the definition adopted in the Criminal Procedure Act about when you can raise a special plea. If a subsequent charge fell into that category, and there was an effectively unallocated remand credit, probably because charges have been withdrawn and then re-laid, that should come back, in my submission, into the enquiry. It does require that –

It is Ma’am. It’s on the second page. Charges laid separately but in respect

So Coward and Hall it’s the other way round, isn’t it, because the charge that carried the longest, was the later, it was the later sentence that was in respect of the earliest charge, wasn’t it?

Yes, Coward and Hall there was the offending, an initial short remand period, then a grant of bail, further offending, remanded in custody, and sentence, and then subsequent sentence, the subsequent sentencing, the remand in custody in the middle on the unrelated charges got missed out, which the Court of Appeal decided, no, that has to go back in.

Yes, sorry, but it was, the later sentencing was in relation to the earlier offending?

Yes, yes it was, in was in relation to the manufacturing. I put Coward and Hall in a separate category but just before I move off the related previous plea issue, this is also the sort of scenario that is likely to require a review and appeal to the sentencing Judge under section 92 of the Parole Act because this is the kind of information that Corrections are most likely to miss. It’s not going to be on the warrant of commitment, the CRN numbers will be different, and there may well be, and that’s why there is a practical need for the section 92 avenue of challenge, because it would be simple in these circumstances for that kind of remand credit to be missed and it can be quite a substantial one. There can be a month spent in remand in custody leading to

a withdrawal of charges and then if charges are already laid then that would evaporate into the legal ether.

The next category as I’ve said, is charges laid separately and not heard or sentenced together but where the subsequent charges have a remand credit, that’s a rather poor expression of the Coward and Hall principle that if a charge is laid, and you’re on bail, then another charge laid and you’re remanded in custody, you do get the remand credit on the charge you’re on bail for, for the period you’re in custody, but that is the situation in Coward and Hall in any event. I have to say it’s slightly difficult to fit Coward and Hall into the paradigm of proceedings leading to the conviction or pending sentence, but I’m not inviting the Court to disagree with it.

I then come down to the situation where, in my submission, there is not a single set of proceedings and that is pretty much in all the instances that the Crown have put in the supplementary submissions where they say irregularities arise.

At paragraph 27 of my friend’s submission he posits the situation where you’re remanded in custody on drugs charges. Six months later there’s a rape charge. You plead to the drugs charge and the Crown’s position is, on my analysis, you get the six month drug remand credit towards the rape. In my submission, that’s simply not my case. Unless the Crown have been so unwise as to try and consolidate these into the same set of proceedings by a Crown charge notice, these charges are going to follow down totally different tracks. They are not going to coincide and they are not the same proceedings leading to the conviction or pending sentence. I can see no reason in principle why there should be the affording of the credit on the rape charge to –

Well, here that is a remand credit that accrues on a charge that’s laid subsequently. So charge A, say I’m remanded on bail on the first date of my appearance but the week after I’m arrested again and this time remanded in custody, Coward and Hall says that I get the remand credit on my first charge because whilst that is pending I’ve got the second charge and then a remand in custody on that. I am deemed to be remanded in custody on that whereas in the drug/rape scenario at paragraph 27 it’s the other way around. I cannot fit that scenario into my paradigm and I do not seek to do so.

And there would be an anomaly there if it happened to be a cumulative sentence but then again it’s probably more likely to be a cumulative sentence in those cases, in any event.

And that’s my point, Your Honour, because if there is a cumulative sentence imposed for the drugs and the rape – as there probably would be – bang, the credit goes back in anyway. It does become –

But in those circumstances it would be actually slightly odd, probably, if you didn't have a cumulative sentence because they’re quite different and disparate offences.

And that is in large measure my point, the supposed anomalies the Crown tries to throw up are generally taken care of by following the guidance in the

Sentencing Act of imposing cumulative sentences in these circumstances. I can’t think of a Crown solicitor in New Zealand who’d try and pack a rape and an unrelated drugs charge in the same Court charge notice. It would just be absurd and it would get burned at callover. If that happened there might be a different outcome but in my submission it’s so unlikely that the Crown would adopt that practice. So there is never going to be a unified set of proceedings but again if there is the subsequent cumulative sentence the Parole Act takes care of it in a way that harmonises all. It’s also why I say, and I mention in this situation, that Goldberg, as I understand it from the judgment, would not be covered by this scenario which is, in my submission, anomalous. It’s unfortunate that Mr Goldberg doesn’t get that additional period off his sentence because the entire reasoning behind this provision is not to disadvantage people by being remanded in custody but if there are outliers like that, there are outliers like that. If the Court felt so minded I’m quite sure the Court could find a way around it that did include it but again, I find it difficult to fit into the paradigm that I’m advancing that they need to have this unifying characteristic of being the same proceedings.

In terms of – my friend now candidly has to accept that there are very significant and serious anomalies thrown up by his interpretation, but equally my friend has to accept that there are other ways of interpreting the statute and even if they are not the most obvious ways of interpreting the statute then in my submission the proper approach by this Court is to strive for an interpretation that does not lead to the anomalies or at least cuts them down and in the direction of liberty, not in the direction of incarceration because that is very much the approach of the Court of Appeal in Manga v Attorney-General [2000] 2 NZLR 65 where, when it was invited to adopt the literal interpretation of a Parole Act provision that led to the inflation of a sentence past its face value, each member of the Court was extremely direct in what the Crown would do with the literal interpretation, that the Court had to strive to an interpretation that was consistent with liberty, that did not create the arbitrary scenarios that we’ve spent now two days discussing. It came up at one point in relation to the practicality of how my interpretation will work on a practical basis, because of course whilst it says that the Chief Executive

must perform these calculations on receipt of a prisoner, it is not the Chief Executive, it’s done by prisoner officers, albeit reasonably senior prison officers in each prison, and it was mentioned I think by Justice Young that they’d get the sentencing notes. There is a great deal to be said of not getting the sentencing notes to prison officers at all because as soon as you do that you invite them to divine their own interpretation of what the Judge meant. All a prisoner officer should ever really need, and again it unifies with the Criminal Justice Act 1985, is the warrant of commitment. If you have a warrant of commitment specifying what the charges were then, subject to the adding in of what I’ll call B and C charges in terms of section 91, everything you’ve got in the warrant of commitment is 91(1)(a). There may be an issue with B and C charges, but they are highly unlikely to be apparent from the sentencing notes anyway. They may, if there are B and C charges, hopefully those should be in IOMS and Corrections should be aware of them, but again if they’re not then the proper remedy is a section 92 appeal. But prison officers have evinced not the greatest ability to interpret what Judges have said in sentencing notes, and if they’re not needed then there’s a good reason to say don’t provide them.

In my submission none of the scenarios where my friend says that my interpretation will give rise to banking of credit. In my submission just banking doesn’t simply arise. The closest it could be to that would be receiving the benefit for a remand credit attaching to an acquittal or a conviction and discharge, but again the Crown has already accepted that you get the benefit of charges that will be, a remand credit on charges that were withdrawn. It is far from as stretch to extend that, and in my submission doesn’t actually require an extension, to say this includes convictions and discharges as per Kahui, and acquittals if one faced a set of proceedings where one was in jeopardy of incarceration on a charge that led to an acquittal. Again there is no argument in principle that says that that time should not be accorded to a subsequent sentence. If anything the precise opposite has more force. If you have been detained on something that you were subsequently acquitted of, and it can properly, within the paradigm of the Parole Act, be credited towards

and eventual sentence, there is every reason to say, in my submission, that it should be.

In respect of section 90(2) and (3), there are two ways of approaching subsection (2) in particular. One, that it applies to one single sentencing, and there needs to be the separate allocation between each, but I infer that the interpretation that is finding more favour with the Court is that that does refer to separate sentencing on separate days as per the Taylor scenario, albeit that led to cumulative sentences, but here, when you have sentences running concurrent into same, and that, in my submission, just simply doesn’t cause any problems at all. It covers that very situation of the drugs and rape charges, that if there are separately opposed concurrent sentences, then there does need to be a separate allocation of the remand time in respect of each, and on concurrent sentences, no, you’re not going to get the benefit of both. But that, again, is because upstream at the sentencing Court, that sort of scenario is properly dealt with by the imposition of cumulative sentences, a point touched on by Your Honour the Chief Justice at the last hearing, that in all probability the fix to these issues, both Booth and Marino is there needs to be both a re-interpretation of the Parole Act provisions, and a tweaking of sentencing practice, but not, in my submission, in respect of the latter so much as to make section 84 and 85 absolutely hard and fast rules of concrete application. Sentencing by its nature needs to be a fluid exercise to take into account the very, very varied situations that can come before a Court in sentencing. They are guidelines and they’re operated as guidelines. They operate, in my submission, entirely in harmony with the Parole Act, if the Parole Act is interpreted in a manner that takes account of totality in sentencing.

My friend at paragraph 37 raised the issue about what the situation would be in respect of appeals, if in respect of charges A, B and C, there was a remand credit and then there was D, E and F subsequently laid, and the Court on appeal – sorry, I’m just going to go to the correct page. Paragraph 7, “Initial remanded in custody on A, B and C, then charges D, E and F are laid six months later. Z is convicted and sentenced in respect of all six offences.

If the Court of Appeal overturns the convictions on A, B and C, does the subsequent sentence adjustment incorporate the time spend in custody on those charges?”

Well again in my submission that’s not really a Parole Act problem. For a start in that situation there needed to be a concurrent appeal against sentence in all probability because if a totality concurrent sentence was imposed then the charges on D, E and F were inflated to take into account A, B and C anyway. But again this fits squarely, in my submission, within the paradigm of proceedings leading to the conviction and pending sentence. So, yes, the remand credit on more, one, is the remand credit on all.

The issue about escaping punishment raised by my friend’s submission just does not stand analysis. In that situation there would be an increase in the prison sentence imposed under section 85 anyway. There is no escaping of punishment. That’s the 12 months and 12 months argument that my friend made in his oral submissions, and it just doesn’t hold in my submission.

Loss of incentive to plead. At paragraphs 41 and 42 my friends suggest that my interpretation will lead to a loss of incentive for people to plead guilty early. I would say as a starting point it is difficult to see how loss of incentive to plead guilty can in any way affect the interpretation of a statute, but in any event it is not the loss of an incentive to plead guilty, as per the first point I dealt with Justice Young, it’s an incentive to plead guilty early but to defer sentencing until all charges outstanding have been resolved so that there will be as few sentencing hearings as possible, and once the big picture is known. Now I accept there may be situations in cases where there’s been severance of trials, where different Judges are going to have to sentence because there will have been different trials with different presiding Judges, and that is going to be, it’s not going to be anomalous, it’s going to be irritating and take a bit of scheduling, but again the approach I suggested earlier that the succeeding Judges, if they have a copy of the sentencing notes that were passed of the previous sentencing, the totality assessment can be made with a subsequent

sentencing, as was obviously the case in Taylor. Again the disparity issue raised by my friend just does not arise.

I’m not entirely sure why the Crown has provided the statistics about what it says will be the outcome of an adverse ruling, or whether that’s for the Court’s information, or whether it is the Chicken Little submission that the sky will fall. In my submission it is not a situation where there will be catastrophic results about, imminently following the decision of this Court, if the Court allowed the appeal. The simple reason for that is, in my submission, Corrections has clearly identified the people involved by reference to numbers about who are going to be affected by this. That being the case, there are fewer than

50 cases that need to be referred to the Parole Board to set conditions at sentence expiry date under section 18 of the Parole Act. Because if someone serves their full sentence, and without release on parole at any stage, it’s an automatic statutory incident that they are subject to six months standard conditions of release, and the Parole Board has the discretion to impose special conditions for up to six months, and that’s from sentence expiry date. So it’s whatever the sentence is, plus six months. The last occasion where I encountered a case like that, the Parole Board actually set the sentence expiry conditions four months prior to his release anyway, so that process may well be in train, but if it’s not in train, it certainly should have been since the last hearing when Corrections should have been on reasonable notice that there was a live issue for them to consider. But in my submission, given that the numbers appear to be comparatively small, there is nothing that should trouble this Court when it come to construing the statute by reference to the consequences.

If I can just have a moment with my friend. Unless I can assist the Court with any particular questions, those are my submissions.

Thank you. Was there anything arising out of that Mr Horsley that you wanted to be heard on?

Probably exhausted. Yes, well it’s tricky, and I should thank counsel for your help in the case because it is a very nasty point of statutory interpretation, and we will reserve our decision in the matter.

New Zealand Supreme Court Transcripts

Marino v Chief Executive of the Department of Corrections [2016] NZSCTrans 13; [2016] NZSC Trans 13 (6 July 2016)