Superintendent of a Prison v S CA167/01 [2001] NZCA 393; [2001] 3 NZLR 768; (2001) 18 CRNZ 554 (30 July 2001)

Last Updated: 9 November 2018

ORDER PROHIBITING PUBLICATION OF THE NAME OF THE DEFENDANT AND THE NAME OF THE PRISON OR PARTICULARS IDENTIFYING THE SAME.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 167/01

	BETWEEN	THE SUPERINTENDENT OF A PRISON
		First Plaintiff

	AND	CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
		Second Plaintiff
	AND	S (CA 167/01)
		Defendant

Hearing:	19 July 2001
Coram:	Thomas J Keith J Blanchard J
Appearances:	S P France and A S Butler for First and Second Plaintiffs C P Brosnahan and D M Goodlet for Defendant
Judgment:	30 July 2001

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The question in issue

[1] The question in issue in this matter is whether the final release date of an offender who is subject to concurrent sentences of imprisonment, one of which is a specified offence for the purposes of s 105 of the Criminal Justice Act 1985, and the other of which is not a specified offence, is the date referred to in s 90 of that Act in respect of the specified offence only, or is to be determined in accordance with the calculation in s 92 of the same Act.

Background facts

[2] The defendant, “S”, is currently subject to a sentence of nine years imprisonment for kidnapping and a sentence of eight years imprisonment for an assault with intent to commit sexual violation. The sentences are concurrent.
[3] Warrants for Commitment for Imprisonment in respect of both charges were issued on 8 December 1995. Leaving aside for the moment the issue arising under s 105, S would have been due to be released on 19 September 2000.
[4] S was assessed by the Department for Corrections “as being at a high risk of reoffending”. On 14 September 2000 the Secretary of the Department of Corrections therefore applied to the Parole Board pursuant to s 105 for an order that S not be released before his “applicable release date”. The Parole Board concluded that S would, if released before the applicable release date, be likely to commit a specified offence between his date of release and the applicable release date. It made the order on 5 October 2000, and gave its reasons on 12 October.
[5] The Superintendent of the Prison where S is in custody and the Chief Executive of the Department of Corrections regarded S’s detention as being justified by the Warrants for Committal for Imprisonment dated 8 December 1995 and the order of the Parole Board of 5 October. But the Superintendent and Chief Executive became aware of the decision of Doogue J in the High Court at Wellington in Hunia v The Parole Board at Wellington and Ors (CP 154/01, 2 July 2001). If that decision is correct, S’s detention is unlawful and he is entitled to be released immediately.
[6] Believing that the decision is incorrect, however, the Superintendent and Chief Executive commenced this proceeding seeking a declaration that S is lawfully detained. By an order made by Panckhurst J on 6 July, the Superintendent and Chief Executive’s application was transferred to this Court.
[7] Before turning to the Hunia case it is convenient to set out the relevant statutory provisions in the Criminal Justice Act.

The statutory provisions

[8] Section 105 provides that an offender may be required by the Parole Board to serve the full term of his or her sentence if the Board is satisfied that the offender, if released earlier, would be likely to commit any one of the offences specified in the section. The relevant provisions of s 105 read as follows:

105. Offender may be required to serve full term—(1) This section applies to every offender who is subject to a sentence of imprisonment for a specified offence other than the offence of murder.

(2) The Secretary may apply to the Parole Board at any time before the offender’s final release date under section 90 of this Act for an order that the offender not be released before the applicable release date.

(3) The Board may make an order that the offender not be released before the applicable release date if it is satisfied that the offender would, if released before that date, be likely to commit a specified offence between the date of release and the applicable release date.

(4) A copy of any application made under subsection (2) of this section and a copy of any report to be submitted to the Board shall be given to the offender at least 14 days before the application is to be considered by the Parole Board, and the offender shall be given an opportunity of appearing before the Board and stating his or her case in person or by counsel.

(5) If the Parole Board makes an order under subsection (3) of this section in respect of any offender, it shall state its reasons in writing for making the order, and shall give a copy of that statement to the offender or his or her counsel.

(6) Every order made under subsection (3) of this section shall be reviewed by the Parole Board at least once in every 6 months following the making of the order and subsection (4) of this section shall apply with the necessary modifications.

(7) On any such review, the Parole Board may revoke the order if it is no longer satisfied that the offender would, if released before his or her applicable release date, be likely to commit a specified offence between the date of release and the applicable release date and may at the same time determine pursuant to section 99 of this Act the nature and duration of the conditions to which the offender shall be subject on release.

(8) An order made under this section shall, if not earlier revoked under subsection (7) of this section, expire on the applicable release date.

(9) In this section,—

(a) “Applicable release date” means,—

(i) In the case of an offender who is subject to a sentence of imprisonment imposed in respect of a specified offence, 3 months before the sentence expiry date of that sentence:

(ii) In the case of an offender who is subject to more than one sentence of imprisonment imposed in respect of a specified offence, 3 months before the later or latest sentence expiry date of any of those sentences:

...

[9] Paragraph (b) of subs (9), which is the final subsection in s 105, then lists the “specified offences”. For the purposes of the present case it may be noted that the offence of assault with intent to cause sexual violation is a specified offence. Kidnapping is not.
[10] Section 105(2) provides that an application by the Parole Board may be made “at any time before the offender’s final release date”. The phrase “final release date” is defined in s 2(1) as follows:

“Final release date”, in relation to a full-time custodial sentence, means the date specified in section 90 of this Act beyond which (subject to any liability for recall under Part VI of this Act) an offender cannot be detained in a penal institution in respect of that sentence:

[11] Section 90, the section which is explicitly referred to in subs (2) of s 105, reads:

90. Final release—(1) Subject to sections 33 (3) and 34 (3) of the Penal Institutions Act 1954, to section 47 of the Misuse of Drugs Amendment Act 1978, and to subsections (2), (3), and (4) of this section, an offender shall be released—

(a) Where the offender is subject to a sentence of imprisonment for a term of 12 months or less, after the expiry of one-half of the sentence:

(b) Where the offender is subject to a sentence of imprisonment for a term of more than 12 months, not being a sentence for a serious violent offence, after the expiry of two-thirds of the sentence:

(c) Where the offender is subject to a sentence of corrective training, after the expiry of two-thirds of the sentence:

(d) Where the sentence is in respect of a serious violent offence,—

(i) If no minimum period of imprisonment has been imposed under section 80 (4) of this Act, after the expiry of two-thirds of the sentence:

(ii) If a minimum period of imprisonment has been imposed under section 80 (4) of this Act, after the expiry of the minimum period specified in the order.

(2) Subject to sections 33 (3) and 34 (3) of the Penal Institutions Act 1954, where an offender is subject to an order made under section 105 of this Act, the offender shall be released—

(a) If the order is revoked after the date when the offender would but for the order have been finally released under subsection (1) of this section, on the date of revocation; or

(b) On expiry of the order, being a date not later than 3 months before the sentence expiry date.

(3) An offender in respect of whom an application for an order under section 105 of this Act has been made to, but not determined by, the Parole Board shall not be released under this section until the application has been determined in accordance with section 105 of this Act.

(4) Subject to sections 33 (3) and 34 (3) of the Penal Institutions Act 1954, where an offender has been recalled or a direction for the return of an offender has been made under section 94 (6) of this Act, the offender shall be released not later than 3 months before the sentence expiry date.

(5) For the purposes of this section, a person on whom a term of imprisonment is imposed (whether by way of committal, sentence, or order) for non-payment of a sum of money or for disobedience of a court order or for contempt of court shall be treated as an offender who is subject to a sentence of imprisonment for that term.

[12] It will be seen that s 90 is written in terms of a single sentence of imprisonment. The calculation of parole, final release, and sentence expiry dates where the offender is subject to cumulative or concurrent sentences of imprisonment is dealt with in s 92. The relevant subsections read:

92. Calculation of parole, final release, and sentence expiry dates—(1) Where an offender is subject to cumulative or concurrent sentences of imprisonment, or both, the parole, final release and sentence expiry dates of such sentences shall be calculated in accordance with this section.

(2) For the purposes of this Part of this Act, terms of imprisonment under cumulative sentences shall be treated as one term as provided in this section.

...

(4) The date on which an offender who is subject to cumulative sentences of imprisonment is to be finally released pursuant to section 90 of this Act shall be determined by—

(a) Calculating, for each sentence within each link in the cumulative chain, the period beginning with the commencement of the sentence and ending with the close of the final release date specified in section 90 of this Act; and

(b) Taking the longest period within each link; and

(c) Adding that period to the longest periods from the other links in the cumulative chain.

(5) The sentence expiry date for an offender who is subject to cumulative sentences of imprisonment shall be determined by—

(a) Determining the term imposed by the court for each sentence within each link in the cumulative chain; and

(b) Taking the longest term within each link; and

(c) Adding that term to the longest term from the other links in the cumulative chain.

(6) For the purposes of subsections (3), (4), and (5) of this section, each sentence or group of sentences that is cumulative on another sentence or group of sentences or on which another such sentence or group of sentences is cumulative constitutes a link in the cumulative chain.

(7) An offender who is subject to 2 or more concurrent sentences of imprisonment shall not be eligible to be released on parole under this Part of this Act until he or she is so eligible under section 89 of this Act in respect of each of those sentences.

(8) Where, in a case to which subsection (7) of this section relates, the offender is subject to 1 or more sentences of imprisonment that do not carry eligibility for parole under section 89 of this Act, the final release date of each such sentence shall be treated for the purposes of this section as if the offender were eligible to be released on parole under that sentence at that date.

(9) For the purposes of this Part of this Act, references to an offender’s final release date mean, in relation to an offender who is subject to 2 or more concurrent sentences, the later or latest date by which the offender shall be released in respect of each of those sentences.

...

The Hunia decision

[13] Mr Hunia was subject to a sentence of ten years imprisonment for rape, which is a specified offence, and a sentence of nine months imprisonment for a non-specified offence. The sentences were cumulative. If the final release date in terms of s 90 applied to the specified offence only the Secretary’s application under s 105 had not been made within the requisite time. The Parole Board would lack jurisdiction.
[14] The Board nevertheless considered the application and made an order under s 105. It acknowledged that s 105(2) explicitly refers to s 90 but took the view that the dates in that section could only be calculated by reference to s 92. The two sections, it held, must be read together for the purpose of calculating an offender’s final release date.
[15] Mr Hunia applied for a writ of habeas corpus and judicial review of the decisions of the Parole Board. The question of the jurisdiction of the Board to make the order was argued as a preliminary issue.
[16] Doogue J held that the Parole Board had exceeded its jurisdiction in that the application had not been made prior to Mr Hunia’s final release date under s 90. The learned Judge took the view that the apparent purpose of s 105(2) was to determine the date by which an application could be made by the Secretary for an order that the offender not be released, and that this purpose would only apply in respect of a specified offence. As s 105 related solely to specified offences and, as in that case the offence which led to the cumulative sentence was not such an offence, it appeared to him to be clear on the ordinary reading of s 105(2) that the final release date as calculated under s 90 could only be after the expiry of two-thirds of the ten year sentence imposed on Mr Hunia for the offence of rape. To take any other approach, the Judge thought, required the express reference to s 90 to be ignored or a reference to s 92 of the Act to be read into the subsection. He considered that neither alternative could be right; the words “under section 90” could not be disregarded and the section did not say “under ss 90 or 92 of this Act”.
[17] While acknowledging that the Crown’s argument that there should be only one final release date for the purposes of the Act was a logically compelling argument, Doogue J considered that it was not for the Court to “guess” the legislature’s intended purpose. The Court should not impose an interpretation on a section which is clear on its face when read literally, and when that interpretation would result in a person being detained for a longer period than one which could otherwise be justified by law. He was not prepared to rewrite the section “when the liberty of an inmate was at issue”. Mr Hunia’s application for a writ of habeas corpus therefore succeeded.
[18] It is common ground that, if the decision in Hunia is correct, the Superintendent and Chief Executive cannot succeed in the present application. On the basis of this decision, the Secretary would have had to make the application that S not be released before the applicable release date prior to 19 January 2000. As stated above, it was in fact made on 14 September 2000. We are of the firm view, however, that the decision in Hunia is in error.

The plain meaning

[19] The plain meaning of the statutory provisions is not difficult to discern when the sections are read in logical order.
[20] It is necessary to begin with s 105. Subsection (1) provides that the section is to apply to every offender who is subject to a sentence of imprisonment for a specified offence (other than murder). The wording must include offenders who, in addition to sentences relating to a specified offence, are also subject to cumulative or concurrent sentences which are not specified sentences.
[21] Subsection (2) then stipulates that the Secretary’s application to the Parole Board is to be made at any time before the offender’s final release date under s 90. Section 90 is specifically referred to. It is also expressly referred to in the definition of “final release date” in s 2 in relation to a “full-time custodial sentence”. Either way, the reader is directed to s 90.
[22] Section 90(1) specifies the final release date by relating that date to the length of the sentence of imprisonment to which the offender is subject. Thus, for example, where the offender is subject to a sentence of imprisonment in respect of a serious violent offence, and no minimum period of imprisonment has been imposed under s 80(4), the offender is to be released after the expiry of two-thirds of the sentence imposed by the Court. The final release date specified in accordance with subs (1) is subject to s 105 by virtue of subs (3) of s 90. Where such an application has been made, the offender is not to be released until the application has been determined. But s 90 does not explain how the final release date is to be calculated where the offender is subject to cumulative or concurrent sentences of imprisonment.
[23] The calculation where there are cumulative or concurrent sentences is expressly dealt with in s 92. The section addresses not only the final release date, but also the date on which the offender is eligible for parole and the question of the offender’s “sentence expiry date”. Restricting attention to the final release date, subs (1) provides that, where the offender is subject to cumulative or concurrent sentences, the final release date is to be calculated in accordance with that section. Subsection (2) then provides that cumulative sentences are to be treated as one term of imprisonment and subs (4) provides, in effect, for the aggregation of the terms the offender is required to serve under s 90 before being released in the case of each cumulative sentence. The terms of subs (4) could not be more explicit in determining the final release date for the purposes of s 90. So much of the subsection as is pertinent reads:

(4) The date on which an offender who is subject to cumulative sentences of imprisonment is to be finally released pursuant to section 90 of this Act shall be determined by ...

[24] Concurrent sentences are then addressed in subs (7) (8) and (9). Subsection (9) is the relevant subsection in relation to the calculation of an offender’s final release date where there are concurrent sentences. It provides that for the purposes of Part VI of the Act - and ss 90, 92 and 105 are all in Part VI - an offender’s final release date means the later or latest date on which the offender is to be released in respect of each of those sentences. In other words, for the purposes of s 90, the longest sentence is determinative of the final release date. The terms of subs (9) may be repeated with emphasis added:

(9) For the purposes of this Part of the Act, references to an offender’s final release date mean, in relation to an offender ... the later or latest date by which the offender shall be released in respect of each of those sentences.

[25] Consequently, a reference to the final release date under s 90 necessarily incorporates the calculation under s 92 where the offender has been sentenced to cumulative or concurrent sentences. Section 92 directs how the final release date is to be arrived at in such circumstances. In other words, a final release date under s 90 in respect of an offender who is subject to cumulative or concurrent sentences cannot be determined under s 90 without reference to s 92. Section 92 expressly makes the calculation, which it provides, part of s 90. Consequently, when the final release date is calculated by reference to s 92 it is necessarily still determined “under section 90”.
[26] There is merit in the test proposed by the Crown. If the question is posed: “What is the final release date under s 90 for a person subject to cumulative sentences?” the answer must necessarily refer to the date calculated in accordance with s 92(4). The words in that subsection, that is, “to be finally released pursuant to s 90 of this Act,” make this construction inevitable. Similarly, if the question is asked: “What is the final release date under s 90 for a person who is subject to concurrent sentences of different lengths?” the answer is that it is the later or latest date determined in accordance with subs (9) of s 92. Section 90 is not specifically mentioned in subs (9), as it is in subs (4), but the phrase, “For the purposes of this Part of this Act,” includes ss 90 and 105.
[27] This interpretation accords with the purpose of s 90. It is to establish a date in relation to a full-time custodial sentence when an offender can no longer be detained in a penal institution. (See the definition of final release date in s 2(1)). Of necessity, that date must be one date. It would frustrate this purpose, and defy common-sense, if there were to be one final date for one offence by which date the offender is to be released, and another final date for another cumulative or concurrent sentence by which date the offender is also to be released.
[28] There is, therefore, no need to give the words “under section 90” in s 105 a strained or restricted meaning. Nor do we consider that it is necessary to guess at the Legislature’s intention; nor rewrite s 105 in order to give effect to that intention. Adopting a straight-forward, conventional interpretative approach, the plain meaning of s 105(2) is that the offender’s final release date under s 90 is calculated in accordance with s 92 where the offender is subject to cumulative or concurrent sentences. A purposive approach having regard to the matters which follow in paras [42] to [47] would seem to put this construction beyond all doubt.

Mr Brosnahan’s arguments

[29] Mr Brosnahan appeared, together with Ms Goodlet, for S. Counsel pressed well-constructed and well-presented arguments which deserve to be specifically addressed.
[30] The first and primary argument was that the final release date for the purposes of s 105 is the final release date for the specified offence, and not the actual final release date determined under s 90 in accordance with s 92. It is beyond question that the section is directed only at offenders who are subject to sentences of imprisonment for one of the specified offences (subs (1)). The order that may be made then provides that the offender is not to be released before the “applicable release date” (subs (2)). The applicable release date is defined in subs (9) as meaning, in respect of an offender who is subject to a sentence imposed in respect of a specified offence, three months before the sentence expiry date of that sentence. Thus, the section, it is argued, contemplates the final release date of the specified offence only.
[31] The first point to note is that such a construction would represent a judicial enlargement of the section in the case of cumulative or concurrent sentences. Section 90 purports to determine the final release date for all offenders subject to a sentence of imprisonment. Subsection (2) of s 105 cannot be sensibly construed to mean that the offender’s final release date under s 90 excludes the operation of s 92 when, because a cumulative or concurrent sentence is in issue, it would otherwise be applicable.
[32] More importantly, however, such an interpretation is contrary to the scheme of the Act which is to provide for one overall sentence with one release date. Thus, under s 92(2), for the purposes of Part VI, terms of imprisonment under cumulative sentences are to be treated as one term. Section 91 requires the Secretary, in respect of each offender who is detained in a penal institution, to from time to time determine “in accordance with sections 90 and 92 of this Act and any regulations made under this Act” the offender’s final release date. Once the final release date has been calculated, reg 8B of the Criminal Justice Regulations 1985 requires the offender to be informed of that date. Then, pursuant to reg 8C, the offender must be released on that date.
[33] In the second place, a restricted interpretation gives rise to the practical difficulties referred to below (see paras [44] to [47]). Parliament cannot, for example, have contemplated that the Secretary would be required to make an application under s 105 when the actual date on which the offender is to be released, and at which time the risk that he or she will reoffend is to be assessed, is still, say, two or more years away.
[34] In the third place, the converse of the concept of a single sentence with one release date requires an assumption to be made as to which sentence is to be served first. In the Hunia case, for example, the Judge seems to have assumed that the specified offence must necessarily be served first. On this assumption, the Secretary’s application was not made in time. If, however, the non-specified offence is deemed to be served first, the application would have been made in time. Sentencing Judges can adopt different sentencing structures selecting one or other sentence to be the lead sentence without regard to whether one or other of multiple sentences is a specified offence for the purposes of s 105. An arbitrary element such as this can have no place in the application of the section. The provisions in question simply do not proceed on the basis of the original sentencing structure or any assumption deeming one or other of cumulative sentences to be the sentence being served before the other. Rather, there is one sentence during which the offender is detained and one final release date when, subject to s 105, he or she is to be released.
[35] Mr Brosnahan’s second argument was to the effect that s 105(2) is intended to provide the offender with notice that he or she is at risk of being detained beyond his or her final release date based on the specified offence only. This notice provides the time and opportunity for them to take positive steps to reduce the risk which they might be thought to pose at the time of their release sometime later. The steps may include undertaking a rehabilitation or psychological programme in prison or finding, as in S’s case, supervised accommodation to occupy on release, or the like.
[36] The flaw in this argument is that this perceived advantage would only be available to those offenders serving cumulative or concurrent sentences. An application in relation to an offender subject to a term of imprisonment for a single specified offence need only be made before the expiry of the final release date, about which there could be no quarrel. Such offenders would not obtain the time to undertake the corrective measures contemplated by Mr Brosnahan. We do not accept that Parliament contemplated discrimination between offenders based on the arbitrary circumstance of whether one or multiple sentences were passed at the time the offender was sentenced in Court.
[37] Nor, indeed, do we accept that the purpose of the notice required in subs (2) is to give the offender the opportunity to undertake reformative or rehabilitative measures prior to the hearing of the application. Subsection (4) stipulates that a copy of the report which is to be submitted to the Parole Board must be made available to the offender “at least 14 days before the application is to be considered” by the Board. The purpose of this notice is obviously to give the offender the opportunity to oppose the application and to prepare his or her case in opposition. There is no suggestion in the express provision that the objective of subs (2) is to give the offender the opportunity to mend his or her ways.
[38] Thirdly, Mr Brosnahan stressed that an offender needs to know with certainty his or her final release date. We agree. The desirability of achieving this objective is recognised in s 91 and in the Regulations. But this argument presupposes that the interpretation for which Mr Brosnahan contends is correct. The offender’s expectation will be based on the interpretation which is adopted. If Mr Brosnahan’s interpretation is accepted the offender will know that he or she will not be subject to an application under s 105 if the application is not made before the final release date determined without regard to s 92. If the interpretation we hold to is taken, the offender will know that the application must be made before the final release date calculated in accordance with s 92. Either way, the certainty which Mr Brosnahan seeks is achieved.
[39] Finally, Mr Brosnahan elaborated, as effectively as any counsel could, what he called the draconian nature of s 105. An offender who is expecting to be released on a certain date may find that he or she is subject to an application under that section which may or will prolong their date of release. This consequence, argued Mr Brosnahan, is exacerbated if the date by which an application under s 105 may be made can be delayed until the final release date of his or her cumulative or concurrent sentences. Mr Brosnahan emphasised that the liberty of the subject is in issue. He cited passages from the judgment of Doogue J in Hunia to support his argument.
[40] We consider that the submission is greatly overstated. In the first place, an order under s 105 can only be made where the Parole Board is satisfied that the offender would be likely to commit one of the specified offences if released at the applicable release date. He or she can then be detained until the expiry of the sentence imposed by the Court (less three months). The Parole Board is required to review its decision every six months (subs (6)). Parliament has seen fit to enact this provision, with the safeguard contained in subs (6), for the protection of the public following the release of the offender. We are not prepared to approach the section on the basis that it is a “draconian” provision.
[41] In the second place, we do not consider that the question in issue engages the liberty of the subject in any significant manner. Subsection (2) of s 105 is directed at the timing of the application by the Secretary and not the eligibility of the offender in respect of such an application. If, for example, the Court’s decision in Hunia were to be accepted as correct, the Secretary could nevertheless make an application before the expiry of the date fixed in accordance with that decision. The offender would still be liable to have his or her detention continue, subject to review, for the period left to run on the sentence or sentences (less three months) which have been imposed. We are reluctant to accept that an argument, which is essentially an argument about the date by which the Secretary is to make an application, can be converted into an argument engaging the liberty of the subject.

The Crown’s supporting arguments

[42] While relying on the plain meaning of the statutory provisions, the Crown advanced a number of further arguments designed to show that the interpretation for which it contended was in accord with the scheme of the Act and recognised the practicalities of the sentencing regime. Because we agree that it is sufficient to rely on the plain meaning, these supporting arguments may be briefly summarised.
[43] First, reference to the scheme of the Act confirms that it is intended to produce one sentence to be served with one final release date. (See above, paras [22] to [28] and [30] to [32]).
[44] Secondly, s 90 is referred to in a number of other sections in the Act where it is patent that the final release date is to be calculated by reference to s 92, although there is no express reference to that section. See, for example, s 94(1)(b) where a reference to s 92 must be intended or offenders subject to multiple sentences would be ineligible for pre-Christmas release; s 96(8) where a deported offender who has returned to New Zealand is liable to resume serving his or her sentence unless the final release date has passed, that requirement clearly meaning a final release date calculated in accordance with s 92 where the offender is subject to multiple sentences; s 99(1) which, if it does not include the final release date calculated by reference to s 92, would deprive the Parole Board of jurisdiction to set the conditions for offenders subject to multiple sentences; s 101(1) where the jurisdiction of the District Prisons Board would be limited if the phrase “released pursuant to section 90” did not include reference to s 92; and s 102(1) relating to habilitation centres to which the same point would apply.
[45] Thirdly, the interpretation which we have accepted is supported by the practical implications. The draftsperson would presumably have been well aware of these matters.
[46] If the Hunia decision is correct, the Parole Board may be required to assess whether an offender is likely to reoffend some years prior to his or her actual release. The objective of the section is to enable the Parole Board to make this assessment in respect of the period immediately following the offender’s release. It must surely be contemplated that the Board is required to make its determination at the time it considers this critical question rather than some years in advance of the offender’s release. The contrary interpretation could, in many cases, make s 105 completely unworkable.
[47] Further, it follows from the fact, that it cannot serve the purpose of protecting the public from the prospect that an offender will reoffend if he or she is released before the expiry of the sentence imposed by the Court if the Parole Board must make the important assessment as to whether the risk the offender poses is significant some considerable time prior to his or her pending release. Circumstances may change for better or worse. If for the better, the offender does not obtain the advantage of the change; if for the worse, public safety may be compromised. These consequences are clearly outside the objective of s 105.
[48] The fact that a number of reviews would need to take place during that period does not obviate this point. Indeed, to the contrary, the very fact that a number of reviews would have to be undertaken in the intervening years is itself an indication that an application made a long time in advance of the release of the offender is unlikely to have been intended. In effect, the final review would effectively take the place of the initial hearing of the application for it would only be on the occasion of the last review that the Board would properly be in a position to assess whether the offender could safely be released without risk of reoffending.

Conclusion

[49] For the above reasons we hold that the final release date under s 90 for the purposes of s 105 means, where the offender is subject to cumulative or concurrent sentences, the final release date under s 90 calculated in accordance with s 92. Hunia v The Parole Board at Wellington & Ors is to be taken as having been wrongly decided.
[50] We make the following declaration:

A declaration that the defendant is lawfully detained by the Superintendent of the Prison by virtue of the Warrants for Commitment for Imprisonment dated 8 December 1995 and the order pursuant to s 105 made by the Parole Board on 5 October 2000 and recorded in its decision dated 12 October 2000.

Solicitors
Crown Law Office, Wellington for First and Second Plaintiffs
Debbie Goodlet, Wanganui for Defendant