Purvis v Chief Executive of the Department of Corrections [2016] NZHC 2689 (9 November 2016)

Last Updated: 7 December 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-43 [2016] NZHC 2689

BETWEEN	GRAEME MURRAY PURVIS Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	9 November 2016 (On the papers)
Appearances:	S Vidal for Appellant M J Grills for Respondent
Judgment:	9 November 2016

_{JUDGMENT OF MANDER J}

[1] On 17 June 2014 Graeme Purvis was sentenced on 19 charges under the Films, Videos, and Publications Classification Act 1993 (FVPC Act) and one charge of breaching release conditions under the Parole Act 2002 (the Parole Act). On the FVPC Act charges he was sentenced to two years 11 months’ imprisonment. On the Parole Act charge he was sentenced to eight months’ imprisonment. The sentences were to be served concurrently. The current appeal relates to the appellant’s correct release date and the manner in which pre-sentence detention was calculated.

[2] The prison manager of the Otago Correction Facility carried out a review of Mr Purvis’s release date and determined it to be 18 November 2015. Mr Purvis disagreed, believing the date ought to have been 13 August 2015. The variation was due to how time spent on pre-sentence detention was calculated and applied under

_{the Parole Act. Mr Purvis appealed against the review to the District Court.}¹

¹ _{Purvis v R [2015] NZDC 22616.}

PURVIS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2689 [9

November 2016]

[3] Judge Crosbie was required to address the correct method of calculating and applying time spent in pre-sentence detention under the Parole Act. Section 90 of the Parole Act provides that time spent in pre-sentence detention is deemed to be time served. Section 91 defines pre-sentence detention as follows:

91 Meaning of pre-sentence detention

(1) Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a) any charge on which the person was eventually convicted; or

(b) any other charge on which the person was originally arrested; or

(c) any charge that the person faced at any time between his or her arrest and before conviction.

...

[4] Over time the courts developed a notion of “related” offending, that remand credit is for time served between the time of the original charge and the time of sentence on that same charge or on a related charge.² The issue arose in the present case because the FVPC Act charges were brought some five months after Mr Purvis had already been remanded in custody on the Parole Act charge. Applying the “related offending” interpretation to s 91, Judge Crosbie had to determine whether

the FVPC Act charges were sufficiently related to the original breach of release conditions charge. Judge Crosbie held that although the charges may have arisen out of the same factual event, they could not be said to be related in the sense that the charge was a replacement, substitution, or amendment of the initial charge.³ Judge Crosbie therefore dismissed the appeal. Mr Purvis appealed that decision.

[5] Since Judge Crosbie’s decision the Supreme Court has determined the correct application of the remand credit.⁴ The majority held that the “notion developed in the cases of ‘related’ offending is an unwarranted gloss on statutory language” and

_{that pre-sentence detention is to be calculated in the aggregate, not on a charge by}

² _{See Taylor v Superintendant of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA) at [15] – [16].}

³ Purvis v R, above n 1, at [24] and [25], applying Jolly v Manager of Christchurch Men’s Prison

_{[2014] NZHC 1398; Gray v Manager, Waikeria Prison [2014] NZHC 1745.}

⁴ Booth v R [2016] NZSC 127.

charge basis.⁵ It follows that the period of remand prior to the FVPC Act charges

being brought should have been applied to the two years 11 months’ sentence.

[6] Consequently both Mr Purvis and the Department of Corrections are in agreement that the release date ought to have been 13 August 2015. The appeal is therefore allowed. Because Mr Purvis was released from prison on 18 November

2015 no further orders are required.

Solicitors:

Southern Law, Arrowtown

Crown Solicitor, Dunedin

⁵ At [17] and [18].