Forrest v Chief Executive of the Department of Corrections [2012] NZCA 217 (30 May 2012)

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Forrest v Chief Executive of the Department of Corrections [2012] NZCA 217 (30 May 2012)

Last Updated: 7 June 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA271/2012 [2012] NZCA 217

BETWEEN BRENDON DOUGLAS FORREST Applicant

AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing: 22 May 2012

Court: Ellen France, Venning and Asher JJ

Counsel: Applicant in person A R Longdill and W N Fotherby for Respondent

Judgment: 30 May 2012 at 3 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is dismissed.
2. The applicant must pay the respondent costs in the sum of $450.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] Mr Forrest seeks an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005. He wants to appeal a decision of Keane J dismissing a challenge to the lawfulness of his imprisonment.[1]

Background

[2] The description of the background which follows is largely taken from the judgment of Keane J.[2]
[3] Mr Forrest is a serving prisoner. His total sentence results from sentences imposed on him on five separate occasions. On 30 July 2004 he was sentenced to a term of four years and six months imprisonment. On 10 February 2006 he was sentenced to a further three years imprisonment cumulative on the earlier term. He was subsequently sentenced to three further cumulative terms: two years imprisonment (imposed on 12 December 2008); one year and six months imprisonment (imposed on 17 September 2009); and finally two months imprisonment (imposed on 22 September 2010).
[4] On the calculations of the Chief Executive of the Department of Corrections (the Chief Executive), Mr Forrest’s release date is 13 July 2015. Mr Forrest maintains his release date ought to be 13 September 2013. He brought an application under s 6 of the Habeas Corpus Act 2001 in the High Court challenging the lawfulness of his detention.
[5] Mr Forrest’s case was that the Chief Executive’s approach does not correctly give effect to the last three cumulative terms of imprisonment, that is, those imposed on 12 December 2008, 17 September 2009 and 22 September 2010. He says that each of these terms is a short-term sentence. As to each, on Mr Forrest’s approach, he is entitled to be released after serving half the sentence under s 86(1) of the Parole Act 2002. His total sentence should be calculated accordingly.
[6] When the habeas corpus application came before Keane J, Mr Forrest accepted that on his own calculations he was lawfully detained until 13 September 2013. Keane J said that on this basis alone, the application for habeas corpus must fail. However, at Mr Forrest’s invitation, the Judge went on to treat the application as one for judicial review. In particular, the Judge dealt with the matter as a challenge to the Chief Executive’s calculation in the exercise of the power of decision under s 88 of the Parole Act, which states that the Chief Executive must ensure that the statutory release dates of an offender are determined in accordance with the relevant legislative provisions.
[7] Keane J dismissed Mr Forrest’s application on the basis that the effect of ss 75, 77 and 82 of the Parole Act was that Mr Forrest was in the course of serving a notional single sentence of 11 years, two months imprisonment. On that basis his release date was as calculated by the Chief Executive, that is, 13 July 2015.
[8] Mr Forrest did not file an appeal against Keane J’s decision before the expiry of the time for appealing as of right. Accordingly, he now seeks an extension of time. That application is opposed by the respondent, the Chief Executive.

The application for an extension of time

[9] This Court in Misiuk v Chief Executive of the Department of Corrections said that the factors relevant to an application for an extension of time in a similar context were as follows:[3]

(a) the length of the delay and the reasons for it;

(b) the parties’ conduct;

(c) the extent of prejudice caused by the delay;

(d) the [prospective] merits of the appeal;

(e) whether the appeal raises any issue of public importance.

[10] The relevant factors here are primarily the length of the delay and the prospective merits of the appeal.
[11] The delay in this case is considerable. The notice of appeal was filed about a year after the judgment sought to be appealed was delivered. Indeed, Mr Forrest accepts he has had “ample” time to appeal the decision. However, Mr Forrest says that his focus over the last year has been on other matters particularly his rehabilitation, reintegration and treatment. As the respondent suggests, this explanation does not fit very well with the various other civil proceedings Mr Forrest has pursued over the period.[4] There is no adequate explanation for a delay of this length.
[12] As to the merits of the prospective appeal, we agree with the respondent that Mr Forrest’s argument is untenable. The reasoning for this view is as set out in the judgment of Keane J as follows:[5]

[11] The difficulty Mr Forrest faces is this. These three sentences were not imposed discretely. They were imposed cumulatively. The result under s 75 of the Parole Act is clear. It says plainly that where an offender is sentenced to imprisonment cumulatively on an earlier sentence, the two sentences form a notional single sentence for the purpose of determining whether the offender is subject to a long-term sentence or a short-term sentence, and on what dates the offender becomes eligible for parole or release.

[12] Section 77 says that the start date of a notional single sentence is the start date of the first sentence in the series and s 82 says that the sentence expiry date is the expiry date of the last sentence in the series. Where the resulting total sentence is more than 24 months, as Mr Forrest’s sentence is, it is a long-term sentence. Mr Forrest’s release date is, therefore, the expiry date of the sentence last imposed.

[13] The result is that Mr Forrest is in the course of serving a notional single sentence of 11 years, two months and his release date will be, consistent with the Chief Executive’s calculation, 13 July 2015.

[13] The “notional single sentence” referred to by Keane J is defined in s 4(1) of the Parole Act as the notional single sentence of imprisonment created when “one determinate sentence is directed to be served cumulatively on another determinate sentence (see section 75)”.[6] Section 82(2) provides that “the sentence expiry date of a notional single sentence is the sentence expiry date of the last sentence in the series of sentences that forms the notional single sentence”.
[14] The other relevant definitions, that is, those of “long-term” and “short-term” sentences make it plain that s 86(1), which is relied on by Mr Forrest, is inapplicable.[7] That subsection deals only with the release dates applicable to a short-term sentence, which may include a short-term notional single sentence.
[15] Mr Forrest also seeks to challenge the decision of Keane J to proceed to deal with the matter in terms of a judicial review application at the hearing. In his written submissions, Mr Forrest argued that the Judge should have adjourned the matter to allow more time for the argument. That would also have enabled him to obtain discovery. In oral argument, it was submitted that the assessment undertaken by the Judge was inadequate. Mr Forrest’s ultimate goal in pursuing the proposed appeal is to ensure he will be able to issue fresh judicial review proceedings in the High Court.
[16] We are satisfied that the approach taken by the Judge was an appropriate one. Mr Forrest had asked him to deal with the matter on this basis. More importantly, there is nothing on the record to suggest that Mr Forrest has been prejudiced in an illegitimate way by the course taken.[8] No further matter is raised that might somehow have impacted on the arguments to be made. As Ms Longdill for the respondent submits, the point raised was a confined legal issue. The relevant documents were before the Court. We note also that although Keane J dealt with the application for judicial review, he accepted the Chief Executive’s submission that the decision to pursue habeas corpus in the first instance appeared to have been made for tactical reasons[9] and constituted an abuse.
[17] Finally, with respect to the other considerations relevant to an extension of time, we should also note that we do not consider the proposed appeal raises any issue of public importance. The provisions of the Parole Act in this respect are clear.

Conclusion

[18] When we consider the length of delay, the inadequacy of the explanation and the lack of merit in the proposed appeal, we conclude that the interests of justice do not support the grant of an extension of time. The application is accordingly declined. The respondent sought costs. We agree that costs should follow the event. Mr Forrest must pay the respondent costs in the sum of $450.

Solicitors:
Meredith Connell, Auckland for Respondent

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[1] Forrest v Chief Executive of Department of Corrections HC Auckland CIV-2011-404-2357, 2 May 2011.
[2] At [1]–[6].
[3] Misiuk v Chief Executive of the Department of Corrections [2011] NZCA 468 at [13].

[4] Forrest v Ministry of Health [2011] NZHRRT 23; Forrest v Chief Executive of the Department of Corrections HC Wellington CIV-2011-409-1233, 2 December 2011; and Forrest v Attorney-General [2012] NZCA 125.
[5] Footnotes omitted.
[6] Parole Act 2002, s 4(1), definition of “notional single sentence”.

[7] See Parole Act 2002, s 4(1): a “long-term sentence” is relevantly defined to mean “(a) a determinative sentence of more than 24 months ...; or (b) a notional single sentence of more than 24 months; ...”. A “short-term sentence” includes “(a) a determinate sentence of 24 months or less ...; or (b) a notional single sentence of 24 months or less; ...”: s 4(1).

[8] The respondent notes that Mr Forrest has previously pursued the same process, that is filing a habeas corpus application and then inviting the Court to convert it to a judicial review: Forrest v Chief Executive of Department of Corrections HC Auckland CIV-2009-404-2345, 29 April 2009. In that case the Court refused to take up this suggestion.
[9] The absence of a filing fee and urgency.